Delhi District Court
Title : State (Cbi) vs . on 25 November, 2014
IN THE COURT OF MS. SWARANA KANTA SHARMA, SPECIAL JUDGE,
CBI05, PATIALA HOUSE COURTS, NEW DELHI
CC No: 13/12
RC No: DAI2003A0031/CBI/ACB/New Delhi
Unique Case ID No: 02403R0437952005
Title : State (CBI)
Vs.
Anurag Vardhan, S/o Sh. Harsh Vardhan, age about 45 years, R/o Flat
No. 712, Tower5, Silver City, Sector93 A, Greater Noida Express Way.
R. Perumal Samy, S/o Sh. R. Ramamoorthy, age about 48 years, R/o
208, Anna Nagar, Koviepatti Post, Taticorm District, Tamil Nadu,
PIN628501.
A. Krishnamurthy, S/o Sh. M. Angappa Nattar, age about 43 years, R/o
Rama Samy Street, T. Nagar, Chennai17.
U/s: Section 120B of IPC r/w 7, 8, 12 & Section 13(2) read with 13(1)(d)
of Prevention of Corruption Act, 1988.
Date of Institution : 12.8.2005
Date of Reserving Order : 21.11.2014
Date of Pronouncement : 25.11.2014
(Appearances)
Sh. Akshay Gautam, Ld. Senior PP for CBI.
Sh. P.K. Dubey, Advocate, Ld. Counsel for accused no. 1 Anurag Vardhan.
Sh. Anshuman Sinha, Advocate, Ld. Counsel for accused no. 2 R. Perumal
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Samy.
Sh. S. Arvindh, Advocate, Ld. Counsel for accused no. 3 A. Krishnamurthy.
J U D G M E N T
1. Brief facts of the case are that accused Anurag Vardhan an IRS
officer of 1994 Batch posted in Delhi at the relevant time had struck a
deal to pay bribe amount to get himself transferred from Delhi to
Mumbai. The allegations are that accused Anurag Vardhan had
contacted accused A. Krishnamurthy a Chartered Accountant in
Chennai who had told him to pay a bribe of Rs. 4 lakhs to one person
accused R. Perumal Samy and this proposal had been agreed to by
accused Anurag Vardhan. This case had been registered on the
complaint of Sh. N.K. Jain, Inspector, Enquiry Officer, CBI after
Preliminary Enquiry had been registered in this case on the basis of
source information.
It is further alleged that on the relevant date i.e. on
22.4.2003 when accused Anurag Vardhan had agreed to pay this bribe
amount to accused R. Perumal Samy through accused A.
Krishnamurthy, a trap team comprising of CBI officials and two
independent witnesses had reached near H.No. A1/79, Safdarjung
Enclave, New Delhi at around 8:00 am. At around 9:10 am two
persons were seen coming near the residence of accused Anurag
Vardhan on a motorcycle and they had entered the premises of
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accused Anurag Vardhan empty handed. After about 20 minutes both
the persons were seen coming out and one of them was carrying a
polybag of "Bigjos". Both the said persons were intercepted. On
confrontation they revealed their identities as R. Perumal Samy and
Padmanabhan. On further inquiry, accused R. Perumal Samy had
stated that this polybag contained an amount of Rs. 4 lakhs which he
had received from accused Anurag Vardhan as had told to him by
accused A. Krishnamurthy a Chartered Accountant in Chennai.
2. Accused persons had appeared in the Court and copies of
documents, as required under Section 207 Cr.P.C., were supplied to
them to their satisfaction.
CHARGE
3. The accused persons have been charged for committing an
offence under Section 120B IPC and Section 12, 7, 13(2) r/w Section
13(1)(d) and Section 8 of Prevention of Corruption Act, 1988 to which
they pleaded not guilty and claimed trial. Substantive Charge under
Section 12 of PC Act is also made out against accused Anurag
Vardhan. Substantive Charge under Section 7 and 13(2) r/w 13(1)(d) of
PC Act is made out against accused R. Perumal Samy. Substantive
Charge under Section 8 of PC Act is also made out against accused A.
Krishnamurthy.
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4. CBI in support of their case have examined 40 witnesses.
5. PW1 Sh. Naveen Kumar Jain is one of the members of the
raiding team. He stated that on 22.5.2003 he had conducted
preliminary inquiry in this case. He stated that it was alleged that
accused Anurag Vardhan was trying to manage his transfer through
one Sh. Krishna Swami who was working as Chartered Accountant
from Delhi to Mumbai against payment of bribe amount of Rs. 4 lakhs.
The tout knew somebody in the Ministry of Finance. Information was
received that in connection with the above said, a person was to reach
residence of accused Anurag Vardhan at Safdarjung Enclave to collect
the bribe amount on 22.5.2003. Therefore, he alongwith Inspector
Jayant Kashmiri, Inspector A.K. Jain, Inspector Alok Kumar and other
staff members and independent witnesses had reached the spot i.e.
A1/79, Safdarjung Enclave and had taken positions outside the said
house. At about 9:00 am two persons were seen came out on red
colour Yamaha motorcycle bearing Tamilnadu Registration number and
had parked the motorcycle outside the residence of accused Anurag
Vardhan. Thereafter, they had entered the house empty handed. After
about 10 minutes both of them had come outside with the polythene
bag printed with "Bigjos". One of them was later on identified as
accused Perumal Samy @ Babu who was carrying the bag. Both of
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them were stopped and inquiries were made regarding their identity.
The person who was carrying the bag had disclosed his name as
Perumal @ Babu who was working as first PA to Minister of State for
Finance and the other was one of his friend working in IIT, Delhi. Upon
inquiries he admitted that he had received Rs. 4 lakhs contained in the
bag from accused Anurag Vardhan. Therefore, he alongwith his team
and accused Perumal Samy and Padmanabhan and the independent
witnesses had pressed the call bell of the house of accused Anurag
Vardhan from the ground floor, but the house of the accused was at the
first floor, so they had gone to the first floor of the house. Accused
Anurag Vardhan was at his home. The witness stated that he cannot
identify accused Anurag Vardhan. He stated that he had questioned
him if he had given Rs. 4 lakhs to accused Perumal Samy and
Padmanabhan. Accused Anurag Vardhan denied having paid any
amount to them. However, accused Perumal Samy insisted that he had
been given money by accused Anurag Vardhan. Thereafter, he
directed one of the independent witnesses to take the bag from
accused Perumal Samy which was found to contain 12 bundles of
currency notes. A recovery memo regarding GC numbers and
denomination of the counted notes Ex. PW1/1 was prepared. A copy of
the seizure memo was given to accused Perumal Samy and accused
Anurag Vardhan. The memo was also signed by other members of the
team including independent witneeses. He had prepared a rough site
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plan in his own handwriting Ex. PW1/2. The video recording of the
counting of the currency notes was conducted. He had prepared a
complaint addressed to SP, CBI to the effect that the contents of the
preliminary inquiry had been verified and had sent it through SI Amit
Vikram Bhardwaj for registration of the case. The said complaint was
proved as Ex. PW1/3. The case was registered on the basis of this
complaint and the investigation was entrusted to Inspector Amreek Raj
who had reached the spot with copy of the FIR Ex. PW1/3. Thereafter,
he had brought the factum of recovery and Rs. 4 lakhs to the notice of
his superior officer after confronting accused Perumal Samy and
accused Anurag Vardhan.
Accused Anurag Vardhan had been posted as Deputy Director,
International Taxation, ITO and was officer of Indian Revenue Services
1994 Batch. He had informed him that only a day before he had been
transferred from Delhi to Mumbai. However, he had not been relieved
as yet. He identified the bundles of the currency notes Ex. P1 to Ex.
P12 and polythene bag as Ex. P13. He had obtained signatures of an
independent witness on the first and last currency note of each bundle
and had also obtained signatures on the slip of bank in which each
bundle of currency notes was bound and the same were proved as Ex.
P1 to Ex. P12 He stated that after Inspector Amreek Raj had arrived
at the spot they had conducted search of house of accused Anurag
Vardhan and Inspector Anil Yadav had taken Padmanabhan to his
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house for carrying out the house search. However, he had remained at
the house of accused Anurag Vardhan till the evening, till the search
was completed. During the search the two vehicles of accused Anurag
Vardhan and Motorcycle on which Perumal Samy and Padmanabhan
had come were also searched. All the three accused persons namely
Perumal Samy, Anurag Vardhan and Padmanabhan were arrested.
Accused Perumal Samy and Anurag Vardhan were arrested from the
house of accused Anurag Vardhan and Padmanabhan was arrested
when he was brought to CBI office after his house search. A sum of
Rs. 3 lakhs was also recovered from the house of accused Anurag
Vardhan during his house search. He identified the accused when his
testimony was recorded on 22.01.2009. Video recording was played in
the court and the voices of two independent witnesses Sh. Ram Kumar
and Sh. Vivekanand Jaiswal were identified by the witness who were
shown to be counting the currency notes and were noting down the
numbers of the currency notes on paper. He further stated that the
recording was done by SI Prem Nath of CBI. Accused Anurag Vardhan
and Perumal Samy were arrested at the time of video recording.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan he stated that he had remained at the spot till 12 in the mid
night. He admitted that as per the recovery cum seizure memo
proceedings were over at 10:10 am. He denied that all the documents
were prepared at the CBI office.
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On being cross examined by Ld. Counsel for accused Perumal
Samy he stated that there are three approaches to the house of
accused Anurag Vardhan, but one approach was locked. When they
had reached the house of accused Anurag Vardhan the money was
with accused Perumal Samy. He had checked the money. On being
asked, accused Perumal Samy had told him that there was money in
the bag and has shown it to him. On reaching the house of accused
Anurag Vardhan, they had confronted accused Perumal Samy and
accused Anurag Vardhan as to whether he had given money to him.
The money was got recovered through witness. Thereafter, the money
was counted and memo was prepared. The preparation of memo was
not videographed. He stated that he had stated in this statement
recorded under Section 161 Cr.P.C that the counting of the currency
notes was partly videographed and thereafter, it was stopped as it was
taking too much time. After stopping the videography, the currency
notes were not counted, but only the numbers of the currency notes in
each packet with denomination were recorded.
On seeing the videography, he stated that Sh. D.C. Jain, the
then SP can be seen in the CD, but he is not seen preparing any
document at the spot. However, at one place he is seen writing a word.
He stated that they had information regarding only one person Perumal
Samy coming to the spot. He denied that some documents including
documents seen in the CD were destroyed as they did not suit the
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prosecution case.
On being cross examined by Ld. Counsel for accused A.
Krishnamurthy he denied that accused Perumal Samy had given
explanation soon after being apprehended that the money belonged to
him.
6. PW2 Dr. Rajinder Singh, Principle Scientific Officer, H.O.D.
Physics and Forensic Voice Identification Revision stated that on
28.5.2003 and 02.6.2003 he had received seven sealed parcels from
SP, CBI, ACB, New Delhi and the seals on the parcel were tallied with
specimen seal forwarded to him and he found them in intact condition
at the time of opening the parcel and the same were marked by him as
parcel Q1, S1, S2, S3, S4, S5 and S6. He stated that the parcels
S1 to S6 contained normal audio cassettes which had specimen voice
recording of accused Anurag Vardhan, accused R. Perumal Samy,
accused A. Krishnamurthy, Sh. S.K. Singh, Sh. Rajesh Kumar and Sh.
P.V. Gopi Nath respectively. He stated that he had examined the
questioned voices of accused Anurag vardhan, accused R. Perumal
Samy, accused A. Krishnamurthy, Sh. S.K. Singh, Sh. Rajesh Kumar
and Sh. Gopi Nath with their corresponding specimen voice which was
marked by him as Ex. S1(A) to S6(A) by auditory and voice
spectographic techniques.
On being cross examined by Ld. Counsel for accused Anurag
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Vardhan he stated that it is not necessary to take sample of specimen
voice in natural condition. He admitted that human audible range of
frequency is between 2020,000 Htz. and he has not tested any voice
below or above that range. He stated that on account of sore throat
sample, voice may get effected.
On being cross examined by Ld. Counsel for accused R.
Perumal Samy he stated that Mimicry cannot be examined by audible
methods. He stated that sample voices were not taken in his presence
and from comparison of questioned voices with sample voices he came
to know that language, dialect, meaning etc. were same.
7. PW3 Sh. Ram Sukhwani, stated that he was working as
Manager in South Extension Departmental Store of Bigjos. He further
stated that customers make payment in their departmental store either
by way of cash or through credit cards. He has proved cash memo Ex.
PW3/1 issued by bigjos departmental store for a sum of Rs. 4,275/
against purchase of ear rings.
On being cross examined by Ld. Counsel for all accused
persons he stated that Ex. PW3/D1 is receipt issued by bigjos and
packet containing ear rings which were Ex. PW3/D2, Ex. PW3/D3,
besides packet Ex. PW3/D4 were the same which pertain to bigjos.
8. PW4 Sh. Shashi Bhushan Vatsayan, Assistant Vigilance
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Officer, MTNL stated that on 22.7.2003 he had handed over some
documents to CBI Officer and he can identify those documents if
shown to him. He has proved letter dated 22.7.2003 as Ex. PW4/A. He
stated that vide this letter he had handed over STD details of telephone
no. 26167077 w.e.f 01.5.2003 to 31.5.2003 to CBI and the same were
proved as Ex. PW4/B. He has also proved letter dated 04.6.2003 Ex.
PW4/C. He has also proved Ex. PW4/D and Ex. PW4/E.
On being cross examined by accused Anurag Vardhan he stated
that the contents of letter Ex. PW4/A and STD Details Ex. PW4/B were
given by his PA to him to whom they were submitted by the concerned
officials. He stated that he had not personally checked the same and
presumed the same to be correct. He stated that he does not know as
to with whom the details remain in normal course. He voluntarily stated
that they remain with the switch room. The stated that it is not possible
that without making a telephonic call from a particular telephone, the
call would appear in the computer record and it is also not possible to
do so even by manipulation in the switch room. He stated that if a local
call is made from a particular telephone, the call may not be recorded
in the record unless the phone is put under observation. He stated that
he did not put his signatures on any of the call details, referred to above
as they are computer generated. He admitted that the call details were
not generated from the computer in his presence.
On being cross examined by Ld. Counsel for accused no. 2 R.
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Perumal Samy he stated that he cannot say if Ex. PW4/E is the same
document which was delivered from his office. He stated that the time
mentioned in these details is computer generated and are always
correct.
Ld. Counsel for accused no. 3 A. Krishnamurthy did not examine
the witness despite opportunity given to him.
9. PW5 Sh. Joginder Singh, UDC, Education Department,
Government of NCT of Delhi has stated that he had gone to CBI office
on 26.5.2003 as per the instruction of his office. He stated that Sh.
Devinder Dabas, LDC working in the same office was also with him. He
stated that in their presence a blank cassette was requisitioned and a
person was also sitting there whose voice was recorded therein. He
stated that in his presence, the voice of two persons were recorded and
the same were sealed in their presence on which Sh. Devender Dabas
and himself had signed. He stated that no proceedings were recorded
regarding the aforesaid work. He has proved memos Ex. PW5/A and
Ex. PW5/B.
On being cross examined by Ld. Counsel for accused R.
Perumal Samy he stated that he had received an order in writing for
going to CBI office. He stated that when he went inside the room, one
Inspector was sitting there and one more person was sitting there,
whose name was perhaps Pradhan and he was the person whose
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voice was to be recorded. He stated that there were four persons in
the room at the time of recording of voice, which included two of them,
an Inspector of CBI and the person whose voice was to be recorded.
He stated that the recording was done in their presence and after
recording, the cassettes were sealed and their signatures were
obtained and then they left.
On being cross examined by Ld. Counsel for accused A.
Krishnamurthy he stated that the cassette was played in their presence
after recording the voice. He stated that his signatures were not
obtained on any such paper wherein the matter spoken by the said
person whose voice was to be recorded, was recorded. He has proved
memos Ex. PW5/A and Ex. PW5/A. He stated that he does not
remember as to in which language the voice was recorded.
Accused no. 1 Anurag Vardhan has not examined the witness
despite opportunity given to him.
10. PW6 Sh. Shankaran, Clerk, Canara Bank, Chennai Circle
Office, has proved search memo dated 22.5.2003 and the same was
Ex. PW6/A. He stated that through this documents, CBI had conducted
search at the address mentioned therein. He has also proved Ex.
PW6/B and Ex. PW6/C.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan and accused R. Perumal Samy @ Babu he stated that he had
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counted the notes, recovered at the spot. He had counted the notes at
the place to be searched.
11. PW7 Sh. Dayanand, Assistant Accounts Officer, DDA, INA has
stated that he had accompanied CBI team to Sarojini Nagar, where a
search was conducted. He has proved Ex. PW7/A.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan and accused R. Perumal Samy @ Babu he stated that he had
received the information regarding going with the search party at about
12 noon. He stated that on getting the information he went to CGO
Complex, CBI office at about the same time. He stated that the
members of the earlier team had met them at the corner, but he did not
know from where the earlier team had come. He stated that he did not
know the name of the person whose house was searched. He did not
ask the lady present in the house as to where her husband was,
however, the other members of the team had asked and told her to call
a male relative of her.
Ld. Counsel for accused A. Krishnamurthy did not examine the
witness despite opportunity given to him.
12. PW8 Ms. R. Vatsala, Accounts officer (Corporate Accounts),
BSNL, Chennai Telephones, Office of DGM Corporate Accounts,
Chennai has proved call details running into two sheets pertaining to
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telephone no. 24340074 Ex. PW8/A. She has further proved call
details Ex. PW8/B and Ex. PW8/C. She has further stated that call
details given in Ex. PW8/A, Ex. PW8/B and Ex. PW8/C were generated
from BSNL Exchange itself.
On being cross examined by Ld. Counsel for accused A.
Krishnamurthy she stated that the computer print outs Ex. PW8/A, Ex.
PW8/B and Ex. PW8/C were not generated by her personally. She
admitted that the call details mentioned in Ex. PW8/A, Ex. PW8/B and
Ex. PW8/C were stored in a master computer. She denied that Ex.
PW8/A, Ex. PW8/B and Ex. PW8/C are not in conformity with law. She
denied that she is not a technical person competent to certify the data
in question.
Ld. Counsel for accused Anurag Vardhan and accused R.
Perumal Samy did not examine the witness despite opportunity given to
them.
13. PW9 Sh. Vivekanand Jaiswal, Assistant Engineer, National
Highway Authority has stated that he had received a direction from his
superior that he had to report to CBI office on 22.5.2003 in the morning
at 6:00 am and he accordingly, reported at the reception of CBI office
from where he was directed to go to the room of Inspector N.K. Jain.
He stated that one more independent witness Sh. Ram Kumar from
Government of NCT of Delhi was also present.
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14. PW10 Sh. Vijay Gupta, Shop No. 40, Central Market,
Safdarjung Enclave, New Delhi29 has stated that he was running a
PCO under the name and style of M/s Sumit Telecom Center at the
aforesaid shop and he used to look after the work of the aforesaid
PCO. He stated that fax facility was also available at the PCO with
number 26190478. He was proved register Ex. PW10/A. He has
proved photocopy of fax details Ex. PW10/B.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan and accused R. Perumal Samy he stated that he used to sit at
his PCO, however, sometime his father also used to sit there. He
stated that record Ex. PW/B comes out automatically after thirty fax
message. He stated that he did not use to maintain records of the
details which comes out after thirty fax messages. He stated that every
detail was not mentioned in the register Ex. PW10/A. He admitted that
out of entries in Ex. PW10/B, only five entires have been entered in Ex.
PW10/A. He denied that the register Ex. PW10/A has been prepared
subsequently at the instance of CBI to help the prosecution version.
He stated that they do not have any idea as to which customer had
made the fax messages as hundreds of the customers come at the
PCO. He stated that CBI did not ask him as to whether he was present
at the PCO on 08.5.2003 when the aforesaid fax message was made.
He admitted that he had told CBI that he may not be able to identify the
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customer.
Ld. Counsel for accused A. Krishnamurthy did not examine the
witness despite opportunity given to him.
15. PW11 Sh. Harish Kumar Verma, Assistant Accounts Officer,
Horticulture, Vikas Minar, New Delhi has stated that on 31.5.2003 he
was instructed to go to CBI office and he had accordingly gone over
there. He stated that they were taken to first floor, where three persons
were sitting, but he did not remember their names. He has proved Ex.
PW11/A, Ex. PW11/B and Ex. PW11/C. He has also proved Ex.
PW11/A1 to Ex. PW11/A9.
Ld. Counsels for accused Anurag Vardhan, accused R. Perumal
Samy @ Babu and accused A. Krishnamurthy did not examine the
witness despite opportunity given to them.
16. PW12 Sh. Kanchhid Singh Pal, Accountant, Vikas Sadan,
DDA, has stated that on 29.5.2003 he had gone to CBI office at CGO
Complex. He stated that in CBI office three fax machines were shown
to them and one hard disc of computer was also shown to them. He
has proved the seal Ex. PW12/1. He stated that he was shown copies
of the prints taken out from the computer, and the same were Ex.
PW12/B1 and Ex. PW12/B2. He stated that the data was also retrieved
from the fax machine and a memo was prepared in this regard also.
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He has also proved Ex. PW12/C. He has also proved Ex. PW12/D1
and Ex. PW12/D2. He stated that the data was also retrieved from
remaining other fax machines and the same was Ex. PW12/E. He has
also proved Ex. PW12/F.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan, accused R. Perumal Samy and accused A. Krishnamurthy he
stated that he does not remember if the three fax machines were in
sealed condition or in open condition when they had reached CBI
office. He stated that he had signed the documents Ex. PW12/C to Ex.
PW12/F after going through the same. He had also stated to CBI that
the fax machines were sealed. He stated that he did not tell CBI that
the seal was handed over to him for its safe custody as this fact was
already in their knowledge. He denied that the signatures appearing on
the exhibits were taken from him by CBI without any proceedings taking
place in his presence.
17. PW13 Sh. Trilochan Singh, UDC, Public Relations Cell, Vikas
Sadan, DDA has proved envelope opening cum transcription
comparison memo dated 25.5.2003 Ex. PW13/A.
Ld. Senior PP for CBI has declared the witness hostile since he
was not supporting the prosecution case.
He was confronted with his statement recorded under Section
161 Cr.P.C. He admitted that the CD was played and the transcription
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Mark A was compared with the conversation in the CD and was found
to be correct.
On being cross examined by Ld. Counsel for accused A.
Krishnamurthy he stated that he does not remember if the envelope
which was opened in CBI office was sealed or not. He stated that he
can neither speak nor read Tamil and only voice was compared in his
presence, though he was unable to comprehend the meaning of it.
Ld. Counsel for accused Anurag Vardhan and accused R.
Perumal Samy has adopted the same cross examination as conducted
by Ld. Counsel for accused A. Krishnamurthy.
18. PW14 Sh. Senthil Kumar, Commissioner, Income Tax,
Hyderabad has stated that he knows accused A. Krishnamurthy,
Chartered Accountant in Chennai. He also knows accused R. Perumal
Samy through his father's friend. He stated that in the year 200002
accused R. Perumal Samy was Private Secretary to Minister of State
for Finance, Government of India. He stated that he knew the
telephone number of accused R. Perumal Samy but in the year 2003
he did not give the telephone number of accused to anyone. He stated
that in the year 200001 he had given the number of accused R.
Perumal Samy to accused A. Krishnamurthy on his request. He did not
identify accused Anurag Vardhan.
The witness was declared hostile by Ld. Senior PP for CBI and
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on being cross examined by Ld. Senior PP for CBI he admitted that his
statement was recorded by CBI and the same was Ex. PW14/X, but he
was not questioned about the year and timing of giving of telephone
number of accused R. Perumal Samy accused A. Krishnamurthy. He
admitted that he is unable to recall the telephone numbers.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan he stated that he does not remember if he had ever spoken to
accused A. Krishnamurthy after he was posted to Hyderabad. He
admitted that no telephone number is mentioned in his statement Ex.
PW14/X.
On being cross examined by Ld. Counsel for accused R.
Perumal Samy he stated that did not read his statement Ex. PW14/X
when it was recorded as it was not shown to him. He stated that he
has seen this statement for the first time when it was shown to him in
the Court for cross examination. He stated that he had met accused R.
Perumal Samy only once in November, 2000 and after that he had not
met him. He stated that accused A. Krishnamurthy did not contact him
after taking the contact number of R. Perumal Samy.
On being cross examined by Ld. Counsel for accused A.
Krishnamurthy he admitted that he does not have any relationship with
accused A. Krishnamurthy except official relationship. He stated that
he did not come to him for any work other than official work. He did not
remember the telephone numbers of accused R. Perumal Samy which
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 20 of 94
he had given to accused A. Krishnamurthy.
19. PW15 Retired Captain Rakesh Bakshi, stated that in the year
2003, he was working as Nodal Officer in Airtel. He has proved the call
details record of mobile no. 9810098834 and the same Ex. PW15/A.
He has also proved call details in respect of the same telephone no. for
the period 14.02.2003 to 22.5.2003 and the same was Ex. PW15/B. He
has also proved call details in respect of mobile no. 9810534948 for the
period 09.5.2003 to 22.5.2003, 05.01.2003 to 31.01.2003 and
01.01.2003 to 22.5.2003 as Ex. PW15/C to Ex. PW15/E. He has also
proved call details pertaining to mobile no. 9810961878 for the period
20.4.2003 to 24.5.2003 as Ex. PW15/F. He has also proved call details
pertaining to mobile no. 9810214219 for the period 01.01.2003 to
31.01.2003 and 01.02.2003 to 23.5.2003 as Ex. PW15/G and Ex.
PW15/H.
On being cross examined by Ld. Counsel for accused A.
Krishnamurthy he stated that he does not remember if he had made a
statement before CBI. He admitted that he had not mentioned in his
statement dated 01.8.2003 that he had personally retrieved the call
details as supplied by him to CBI during investigation from the system.
He voluntarily stated that this fact was not asked by the IO during the
investigation from him. He stated that all the call details are
automatically stored in the computer as soon as any call is made from
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 21 of 94
the mobile no. in question or any call is received by the same. He
denied that certification given by him is not as per law.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan and accused R. Perumal Samy he stated that all the calls
made are automatically recorded in the server of the company and they
get reflected in the call details. He stated that if a call is not made in
the Delhi Circle, the same shall not be reflected in the call details.
20. PW16 Sh. T.N. Ravishankaran, Inspector, Income Tax, Office
of the Chief Commissioner of the Income Tax has stated that in May,
2002, he was posted on deputation to the office of Minister of State for
Revenue, Government of India, New Delhi though he was an official of
Income Tax Department. He stated that accused R. Perumal Samy
was first PA to the Minister and he was second PA and there was a fax
machine installed in the room where he used to sit alongwith his other
colleagues. He has proved fax print out dated 22.5.2003 as Ex.
PW16/A.
The witness was declared hostile by Ld. Senior PP for CBI and
on being cross examined by him he stated that Inspector S.S. Bhullar
had recorded his statement on 22.5.2003. He admitted that the fax
mentioned at points X1 and X2 of Ex. PW16/A were sent to the
residence of the Minister of his constituency. He stated that he cannot
tell if the fax at point X3 was made by accused R. Perumal Samy.
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 22 of 94
On being cross examined by Ld. Counsel for accused Anurag
Vardhan, accused R. Perumal Samy and accused A. Krishnamurthy he
admitted that in Ex. PW16/A, the names of the sender and receiver of
the fax are not mentioned. He stated that in their office, all of them
including group D Staff were free to use the fax machine.
21. PW17 Sh. Pooran Chandra Bhatt, Director, Department of
Food and Public Distribution, Krishi Bhawan, Government of India,
stated that in the year 2003 he was posted as Under Secretary in AD
VI, CBDT, Department of Revenue. He stated that during that period
transfer of Group A and B officers of IRS were governed by transfer
guidelines issued vide letter no. a35015/68/95AD.VI dated 09.11.1999
Ex. PW17/A. He has proved production memo dated 22.5.2003 signed
by Sh. S.P. Singh, the then Section Officer Ex. PW17/B. He has also
proved office order no. 72/2003 dated 21.5.2003 Ex. PW17/C. He
stated that he had worked as Under Secretary, ADVI since July, 2002
to May - June, 2003, he had never received any inquiry regarding the
files of transfer or promotion from the office of the MoSF (R).
He stated that during that period one fax machine of the
telephone No. 23092887 was installed in his room No. 243B, North
Block. He stated that the telephone number on which fax was installed
in his room did not have STD facility. He stated that the fax message
so received used to be delivered to the concerned officers/addressees
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 23 of 94
and no register was maintained in his office regarding the documents
which they used to fax and regarding the fax received in his machine.
He did not know regarding the fax of accused Anurag Vardhan received
on his office's fax machine on 09.5.2003 during day time.
He has also proved the transfer list Ex. PW17/D in which the
name of accused Anurag Vardhan appears at serial no. 15 of the
statement, tick marked in token of approval with certain additions in
blue ink on the last page which were done by Sh. K.R. Singh, the then
Director. He has proved production memo Ex. PW17/E. He has
proved consolidated statement for the year 2002 Ex. PW17/F. He
stated that the name of accused Anurag Vardhan appears in this
statement at serial no. 2. He stated that he had made a request of his
transfer on the basis of autistic syndrome of his son as details in
remarks column. He stated that he had submitted this statement to his
Director who had recommended accepting the request of the officer for
transfer and subsequently, the then Chairman, Mr. P.K. Sharma had
approved the transfers of above mentioned officers. He has proved
request letter dated 25.6.2002 of accused Anurag Vardhan in
connection with this transfer Ex. PW17/G. He identified the transfer
orders which were issued vide order 115 of 2002 Ex. PW17/H. He has
also proved production cum seizure memo dated 06.6.2003 Ex.
PW17/J. He has also proved production cum seizure memo dated
28.5.2003 Ex. PW17/K.
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 24 of 94
On being cross examined by Ld. Counsel for accused Anurag
Vardhan he admitted that he had told CBI that from the carbon roll in
the fax machine, fax message can be retrieved. He stated that he did
not receive any reference from MoS (R) or anyone from his office for
transfer of accused Anurag Vardhan from Delhi to Mumbai in the year
2003.
Ld. Counsel for accused R. Perumal Samy and accused A.
Krishnamurthy did not examine the witness despite opportunity given to
them.
22. PW18 Sh. Roshan Lal Thakur, Assistant, Ministry of Finance,
Department of Revene, North Block, New Delhi has stated that in May
2003 he was working as UDC in the office of MoS (R). He stated that
the room in which he used to sit, there was a fax machine installed. He
did not know as to who was standing near the fax machine as he
remained busy with his own work. He stated that the fax machine was
installed in the opposite corridor and he did not know as to who had
sent the fax as mentioned at point X3 in Ex. PW16/A as faxes were
usually sent by Group D employees.
The witness was declared hostile and on being cross examined
by Ld. Senior PP for CBI he admitted that at that time, accused
Perumal Samy was first PA of the Minister of State of Finance. He did
not know if on 21.5.2003 at about 6:00 to 6:15 pm only accused
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 25 of 94
Perumal Samy was standing near the fax machine and none else had
sent a fax or used that phone on that day.
Ld. Counsels for accused Anurag Vardhan, accused R. Perumal
Samy and accused A. Krishnamurthy did not examine the witness
despite opportunity given to them.
23. PW19 Sh. V.K. Sharma, Deputy Secretary, Ministry of Finance,
Department of Economic Affairs, Government of India, New Delhi
proved sanction order qua accused Anurag Vardhan Ex. PW19/A. He
stated that it was signed by him on behalf of the President of India.
The relevant file had come to him after approval from the then Finance
Minister who was competent authority to grant sanction.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan he stated that he had authenticated the decision of the
Sanctioning Authority and he was not the Sanctioning Authority as
such. He stated that he does not know whether any draft sanction
order was placed before the Sanctioning Authority or not. He stated
that he cannot say as to what proposal was put up before the
Sanctioning Authority on the basis of which the Sanction Order was
passed.
24. PW20 Sh. Jayant Kashmiri stated that on 22.5.2003 he had
been called to CBI office for some secret duty. Upon reaching CBI
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 26 of 94
office he had found Sh. Vivekanand Jaiswal and Sh. Ram Kumar who
were independent witnesses present with Inspector N.K. Jain who was
verifying officer. Both the witnesses were introduced to him and team
was constituted including himself, two independent witnesses, Sh. N.K.
Jain, SI Prem Nath, Lady Constable and other witnesses. The
contents of the PE were explained in the presence of all in the CBI
office. They were briefed that somebody will come to the house of
accused Anurag Vardhan between 89 am in the morning and would be
delivering sum of Rs. 4 lakhs to him. The team had started from CBI
office at about 6:45 am. At about 7:45 am when they had reached that
place, members of the team had taken position around the house of
accused Anurag Vardhan. At about 9:00 am he saw that two persons
had arrived on a red colour motorcycle outside and had gone inside the
house of accused Anurag Vardhan. After about 1015 minutes they
saw that the two persons had come out and one was carrying
something in a white polythene bag which appeared to be quite heavy.
They were intercepted and they disclosed there identify as Perumal
Samy who was carrying the polythene bag. He had introduced himself
as first PA to Minister of State for Finance and the other introduced
himself as a Research Associate in IIT Delhi and friend of accused
Perumal Samy.
He stated that he cannot identify any of the two persons whether
they are present in the Court or not. On enquiry accused Perumal
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 27 of 94
Samy had disclosed that the polythene bag containing Rs. 4 lakhs in
cash was given to him by accused Anurag Vardhan as bribe. Upon
such disclosure, CBI team led by Inspector N.K. Jain had rung the call
bell of house of accused Anurag Vardhan and the servant had opened
the door and led them to the first floor of the house as it was a private
house. On meeting accused Anurag Vardhan , they introduced
themselves to him and inquired about the money given by him to
accused Perumal Samy. Accused Anurag Vardhan had denied having
given any money to anyone, but the same was confirmed again by
accused Perumal Samy. The witness Sh. Vivekanand Jaiswal was
requested to check the contents of the polythene bag carried by
accused Perumal Samy. The contents of the polythene bag were taken
out by him and found to contain 12 wads of Indian Currency Notes in
the denomination of Rs. 500/ and Rs. 100/ each and Rs. 4 lakhs in
total. The details of the currency notes were noted down in seizure cum
recovery memo Ex. PW1/1. Thereafter, videography of the entire
proceedings was conducted at the spot in his presence. After
conclusion of the proceedings at the spot in the evening, the accused
persons were taken to CBI office. He identified the polythene bag with
label of 'Bigjos' to be the same which was recovered from accused
Perumal Samy Ex. P13. He also identified the currency notes Ex. P4.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan he stated that he cannot admit or deny about presence of two
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 28 of 94
independent witnesses at the house of accused being reflected in the
videography.
On being cross examined by Ld. Counsel for accused Perumal
Samy he stated that the house of accused Anurag Vardhan was
located at first floor. During the proceedings the concerned SP Sh.
D.C. Jain had come and he might be covered in the videography. He
had remained at the spot for half an hour or so. The videography
proceedings were played in the Court and the witness identified himself
besides SP D.C. Jain and SP Anurag Garg, but could not identify
others due to lapse of time. He denied that accused Perumal Samy
was apprehended when he was coming out of house of accused
Anurag Vardhan.
25. PW21 Sh. Titus Samuel stated that on 22.5.2003 he was
instructed by his Deputy Commissioner to assist CBI in some office
operation. He had accompanied CBI officer to the office cum
residence of accused A. Krishnamurthy, Chartered Accountant located
at T. Nagar, Chennai. In his presence searches were conducted by CBI
officials and besides some cash, some documents were also seized by
CBI. A memo Ex. PW6/A was prepared in this regard.
26. PW22 Sh. K. Ravi Shanker stated that in May, 2003 he was
working as Stenographer in Ministry of Finance and was attached to
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 29 of 94
the office of Minister of State of Finance (Revenue). He used to sit in
room no. 140B of his office located at North Block, New Delhi. The
Minister of State had its personal office running from room no. 138 and
OSD was operating from room no. 140A which was adjoining room no.
140B. He stated that he himself used to sit in room no. 140B.
Accused Perumal Samy was first PW to Minister of State and used to
sit in room no. 142, adjacent to room no. 140B. On 22.5.2003 CBI
personnels had searched the room of accused Perumal Samy during
the office hours. They had prepared the search cum seizure memo
mentioning the details of the documents which were seized and he had
signed the same and same was exhibited as Ex. PW22/A.
27. PW23 Sh. Som Pal Singh stated that in the year 2003 he had
handed over some documents to Sh. A.K. Pandey, Inspector and
seizure memo in this regard was prepared in his presence which was
Ex. Pw17/B. He had again handed over some documents to Inspector
S.A. Bhalla and the seizure memo was prepared by him Ex. PW17/K.
28. PW24 Sh. Kanwar Rajinder Singh stated that in the year 2003
he was posted as Collector, CBDT, Department of Revenue. He used
to deal with transfer and posting of ground 'A' officer of Income Tax
Department. He stated that there are some guidelines for transfer and
postings of Group A officers, but certain changes were introduced in
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 30 of 94
the year 2001. He proved the factum regarding these guidelines as Ex.
PW17/A. He stated that generally transfer orders are passed in the
month of April May so that minimum inconvenience is caused to the
officers and their school going and college going children. However, in
case of emergency and any deviation of the transfer policy qua any
officer and particularly an officer of rank of Assistant Commissioner, the
discretion for transfer was with the Chairman and for the person holding
rank of Commissioner to Chief Commissioner, the discretion was with
the concerned Minister.
Accused Anurag Vardhan was transferred from Bombay to Delhi
in August, 2002 on medical grounds of one of his children. Accused
Anurag Vardhan had given request for transfer from Delhi to Bombay
again on medical grounds of one of his children in April, 2003. He
stated that he does not remember as to whether any medical certificate
had been sent alongwith the request. However, it must have been sent
as it was mandatory.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan he stated that his statement was recorded by CBI. He did not
remember as to whether he had shown or handed over transfer
guidelines to CBI officers. He stated that he does not remember
whether he had got letter regarding transfer of officer upon request
being made on special compassionate grounds and on medial grounds
as mentioned in his statement recorded under Section 161 Cr.P.C Ex.
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 31 of 94
PW24/DA. He stated that his statement was on the basis of his
memory after having perused the relevant record. The concerned
Chief Commissioners were asked to furnish details of the officer due for
transfer in the month of December and any special ground requested
for by any officer under their control by January. The witness was
shown Ex. PW17/D and was asked as to whether the transfer of the
officers mentioned in the said list were obtained by him during
discharge of his official duty or not. The witness stated that these
documents are merely statement of facts which is put up before the
transferring authority for passing an appropriate orders. The document
Ex. PW17/D had been prepared in his office. He stated that he must
have made some notings on Ex. PW17/D also. Upon being shown Ex.
PW17/C the witness stated that as per the said document, accused
Anurag Vardhan listed at serial no. 45 was transferred from Delhi to
Mumbai on 21.5.2003. He stated that on the document signatures of
the Under Secretary of Government of India who was the
Communicating Authority on behalf of the Competent Authority appear.
He admitted that the officers were to be relieved from their respective
region with immediate effect. This order had also been sent to seven
authorities mentioned at point X of Ex. PW17/C. He also admitted that
as per Ex. PW17/C accused Anurag Vardhan was also communicated
about his transfer order. He stated that Ex. PW17/A to Ex. PW17/D do
not disclose the date of passing of order of transfer by the Competent
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 32 of 94
Authority. He admitted that list Ex. PW17/D was prepared and put up
before him in his office. The purpose of the list was to compile the list
of the officers who had sought transfer on some special compassionate
grounds. The name of accused Anurag Vardhan appeared at serial no.
15 of the said list. He admitted that in Ex. PW17/D, name of officers
have been mentioned between serial no. 1 to serial no. 105. Name of
four officers have been typed, but reasons for the request of transfer
have been mentioned by hand. Names of three officers have been
written by hand. He admitted that on the basis of note prepared by the
office alongwith compilation of the list of the officers Ex. PW17/D, the
Chairman, CBDT had passed order being Competent Authority to pass
such orders. The witness was confronted with relevant points and
upon being shown the file he stated that he did not remember whether
the note sheet of Ministry of State for Revenue with respect to transfer
was made in the year 2002 of ACIT/DCIT against the name of Sh. D.S.
Desh Pandey, K.S. Rajinder Kumar, H.S. Surender Rao were shown to
him or not by the CBI officials.
He further stated that on 01.6.2003, he was acting as Director
(ADVI). He denied that ADVI had received any request for transfer
from an IRS officer. He stated that he had not received any transfer
request from IRS officer containing any written recommendation of
Ministry of State for Finance of Finance Minister on the request itself.
He also denied that AD6 Branch sometimes used to receive written
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 33 of 94
transfer request of IRS officers with written recommendation of
Chairman, CBDT. He also denied that AD6 used to process such
recommended, VIP transfer request of Indian Revenue Services
Officers. The witness was confronted with portion C1 to C1 of Ex.
PW24/DA where these facts were mentioned. The witness was also
confronted with Ex. PW17/C. He stated that it is not a fax copy, but one
of the original copies. He stated that there was a fax machine lying in
his office. He stated that it had been installed in the room of the Under
Secretary. The entire staff used to use the fax facility through that
machine. At the relevant point of time, his office had approximately
staff of about 20 persons. He stated that he does not remember as to
whether accused Anurag Vardhan had been transferred from Delhi to
Mumbai earlier to 2003. He admitted that accused Anurag Vardhan
was transferred from Mumbai to Delhi in September, 2002. As Director
of AD6, he knew the job assignment of the said branch and the same
were to look after the work of establishment and personal matters,
intimations, leave records, maintenance of ACR of IRS Officers of the
level of Assistant Commissioner of Income Tax to Additional
Commissioner of Income Tax. He admitted that the transfer policy was
transparent and was known to everyone. He stated that he had not
stated to any official of CBI that transfer policy was not transparent.
The witness was confronted with his statement recorded under Section
161 Cr.P.C from portion D1 to D of Ex. PW24/DA where it was so
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 34 of 94
mentioned. He, however, denied having stated so to CBI officials. Sh.
P.L. Singh was the Chairman of CBDT from AprilMay, 2003. Sh. P.C.
Bhatt was the Under Secretary of AD6. The witness stated that he did
not remember as to whether he had made any statement to CBI
detailing therein that there is a handwritten entry of the name of K.P.
Samuel from Chennai to Cochin in the list of Assistant Commissioners
Income Tax, in the file of transfer on 2002. He stated that he did not
remember as to whether he had made statement stating therein that
Sh. P.K. Sarma was the then Chairman, CBDT. He stated that no
document had been shown to him on the day of deposition of Sh. P.C.
Bhatt. The witness was confronted with his statement from portion E1
to E1 where it was so recorded. He denied that he had made false
statement under the pressure.
The witness was not examined by any of the Ld. Counsels for
accused persons despite opportunity given to them.
29. PW25 Sh. S.M.J. Abidi, Additional Commissioner, Income Tax
stated that in the year 2003 accused Anurag Vardhan was working
under his control as Deputy Director. The accused had discussed the
medical problem of both his children with him on many occasions. He
wanted to get his children treated at Mumbai. He had requested him to
put in a request on his behalf for his transfer to Mumbai to the then
Chairman Sh. P.L. Singh. He had met Sh. P.L. Singh in this regard with
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 35 of 94
prior appointment had forwarded transfer proforma of accused Anurag
Vardhan. Accused had accompanied him when he had gone to meet
Sh. P.L. Singh. Accused Anurag Vardhan had told him that he had
requested the Chairman for his transfer to Mumbai through someone
else also. He had never disclosed as to why he had come to Delhi.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan he stated that when accused Anurag Vardhan and himself had
gone to meet the Chairman, the the then Chairman was positive about
request of the accused regarding his transfer to Mumbai after being
told about medical problem of children of the accused. The Chairman
is empowered to transfer an officer on compassionate grounds.
Accused Anurag Vardhan had told him that he had approached the
Chairman through some other officer of the Department also. He had
never met accused R. Perumal Samy and, therefore, he could not say
anything about him. He had also not met accused A. Krishnamurthy
and, therefore, did not know anything about him. He stated that the
only ground for transfer of accused Anurag Vardhan was
compassionate grounds for better treatment of his children.
30. PW26 Inspector S.S. Bhullar stated that he was member of
the team led by Inspector A.K. Pandey who had conducted searches at
the office accused R. Perumal Samy, 1st Personal Assistant to the then
Minister of State for Revenue Sh. G.N. Ramachandran. He stated that
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 36 of 94
the searches were conducted vide memo Ex. PW22/A. He stated that
during the search, all the formalities were observed. On 06.6.2003, he
had gone to the office of Under Secretary, AC6 and seized three files
vide seizure memo Ex. PW17/J from Sh. P.C. Bhatt, Under Secretary.
31. PW27 Inspector Lalit Kaushik stated that he was part of the
team under Inspector R.S. Bedi which had conducted search at the
house of accused R. Perumal Samy @ Babu situated at M281, Sarojini
Nagar, New Delhi. During the proceedings certain documents
pertaining to investments, bank accounts, ID returns, Expenditure,
visiting cards, etc.and some other documents bearing names of income
tax officers including accused Anurag Vardhan and a computer were
seized vide search cum seizure memo Ex. PW7/A. He stated that Smt.
Chitra, wife of accused Babu had remained present during the
proceedings alongwith one Smt. Subbulaxmi, her relative. On
29.5.2003 at the office of CBI he had remained associated with the IO
for the investigation of the present case. Three observation memos
dated 29.5.2003 were also prepared which were proved by the witness
Ex. PW12/C, Ex. PW12/E and Ex. PW12/F pertaining to three different
telephone numbers. During the proceedings of operation of seized
FAX machine and retrieval of activity charts memo regarding three Fax
machines seized from accused A. Krishnamurthy in Chennai, accused
R. perumal Samy and office of AD6 Section, Ministry of Finance was
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 37 of 94
prepared. The proceedings were conducted in the presence of
Independent witnesses and one Sh. Jimmy Verghese, a Technician
from M/s Microtech Infosys Pvt. Ltd.
On being cross examined by Ld. Counsel for accused R.
Perumal Samy he stated that he had not received any letter to join the
team led by Inspector R.S. Bedi. He had received oral instructions. He
stated that he was not part of the team that had visited accused Anurag
Vardhan's residence. However, he was aware that another team was
visiting accused Anurag Vardhan's residence. The team led by
Inspector R.S. Bedi had 5 to 6 members including independent
witnesses who had accompanied the team from CBI office. Accused
R. Perumal Samy was not present at his house when he had visited the
house of accused Anurag Vardhan on 22.5.2003. No departure entry
was made when CBI team had started on 22.5.2003. However, he
stated that it is the duty of the team leader to conduct the formalities.
He also stated that he did not remember as to whether the leader of the
raiding party had made departure entry. He had not prepared the
seizure memo.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan he stated that for receiving and sending fax message, the fax
machine has to be connected with the telephone line. He stated that
he does not know whether the fax machine referred by him in his
statement contained an auto detect telephone line subscription number.
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 38 of 94
He stated that he does not know whether after connecting fax machine,
the telephone line, the telephone number of the said line is fed to the
memory of the said machine. He stated that he had seen Sh.
Verghese retrieving data from the fax machine in the present case.
The fax machines were not sealed when the data was being retrieved.
He stated that he was not witness to the seizure memo of the fax
machines.
32. PW28 Sh. C.H.N. Narendra Dev, Inspector, CBI proved the
search memo Ex. PW6/A. He stated that all the formalities were
followed during the search.
33. PW29 G. Rangarajan stated that during March, 2003, he was
working as Inspector and was Incharge of the technical wing. His duty
included monitoring telephone calls of suspects phones after receiving
authorization from the Competent Authority. He stated that he had
received letter Ex. PW29/A which contained all the orders vide which
he had been asked to keep under surveillance mobile phone number
9841073000 and vide another order to keep under surveillance three
land line numbers 24340074, 24347260 and 24335599. The above
mentioned mobile were kept under surveillance upto 22.5.2003 and
land line numbers were kept under surveillance for some more time
which he did not remember.
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 39 of 94
In the technical room, they had 10 lines for monitoring
telephones. Out of that 8 were of landlines and 2 were of special
circuits. He stated that for the purpose of monitoring they had
computer system with voice logging software. In this particular case
they had used 3 computer systems which were identified as system no.
1, 2, and 3. The land line number and the mobile number were
connected to these three systems. He stated that he had been
informed by his SP that all the phone numbers belonged to accused A.
Krishnamurthy practicing as Chartered Accountant at Chennai who was
indulging in illegal activities. He stated that mobile number mentioned
above was connected to their system on 19.3.2003. The other three
landline numbers were connected to their system after 23 days. The
system as mentioned above recorded the incoming and out going calls
with the date, time, and duration of the call automatically and saved it in
the hard disk of the system. He stated that they were also observing
these phone lines through head phones. They had heard accused A.
Krishnamurthy talking to some income tax officers and to one Babu,
staff of Ministry of Finance regarding the transfers and postings of the
income tax officials. He had fallen sick during that time and was on
medical leave. During that time Ct. K. Sathyan attached with CBI
office, Special Unit, Chennai was monitoring the calls and thereafter
informing the SP concerned. The relevant intercepted conversations
were transferred into CDs and were handed over to SP, Chennai for
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 40 of 94
onward transmission to SP, ACB, Delhi. Later on they had taken the
back up of the entire conversation available in the four systems on the
CDs and handed over the same to SP, Chennai for the safe custody.
He stated that he had seen letter dated 24.6.2003 written by SP,
Chennai to SP, ACB, CBI, Delhi vide which he had forwarded the
Certificate under Section 65B of Indian Evidence Act. The said letter
was proved as Ex. PW29/E and the certificate under Section 65B of
Indian Evidence Act was proved as Ex. PW29/F.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan he stated that he does not know as to whether his SP had
provided the details of his medical leave to SP, CBI, Delhi. He stated
that voice logger data would reflect the exact time and date of incoming
and out going calls with entire conversation transpired during each
specific call period. The time and date is preserved by the computer in
its hard disk, each out going and incoming call and image with the
respective data of the respective service provider. However,
sometimes there can be difference of few seconds or minutes.
However, there could not be any variation regarding incoming or out
going calls between the voice logger and the services provider.
On being cross examined by Ld. Counsel for accused R.
Perumal Samy he admitted that the properties relating to recorded calls
as available in the original hard disk or in the mirror image of the
original hard disk or in the clone hard disk cannot be found in the files
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 41 of 94
contained in the compact disk. He admitted that any tampering,
editing, manipulation carried out in the recorded calls cannot be
determined by examining and inspecting the compact disk, however,
the same could be found out by examining and inspecting the original
hard disk or the mirror image of the original hard disk. He stated that
he did not know as to whether hard disk in which the call records were
recorded or the CDs were at any point of time sent to any forensic
laboratory to ascertain as to whether they had been tampered with or
not.
On being cross examined by Ld. Counsel for accused A.
Krishnamurthy he denied that the alleged interception of calls were
copied in a CD and were doctored, edited and manipulated to falsely
implicate the accused persons in the present case. The attention of the
witness was drawn to Ex. PW29/E and Ex. PW29/F and after going
through the same he admitted that there is nothing reflected in Ex.
PW29/F as to how many times the recorded telephone conversation or
CDs thereof were given to the IO. He denied that the provision of
Section 65B of Indian Evidence Act had not been complied with in this
case.
34. PW 30 Inspector A.K. Pandey, stated that on 22.5.2003 an
authorization under Section 165 Cr.P.C was issued to him by Inspector
Amreek Raj, IO of the present case to conduct the office search of
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 42 of 94
Ministry of State (Revenue), North Block. After conducting the search,
certain incriminating documents were seized vide search cum seizure
memo dated 225.5.2003 Ex. PW22/A. He stated that he had also
seized certain other documents from the said office on 23.5.2003 vide
memo Ex. PW17/E. He also seized one fax machine vide production
memo Ex. PW30/A of 23.5.2003. He stated that the searches were
conducted and documents were prepared in the presence of
independent witnesses after observing all legal formalities.
On being cross examined Ld. Counsel for accused Anurag
Vardhan he stated that on 23.5.2003 he had gone to office of Ministry
of State for Finance and Revenue and had requested the concerned
officer about the fax machine which had been allegedly used for faxing
the incriminating information. He stated that there was only one fax
machine in the room no. 140 i.e. Of the PS to Minister which had been
seized.
35. PW31 Sh. S.K. Bhalla, Inspector proved seizure memo of one
fax machine as Ex. PW17/A alongwith certain documents and articles
which were seized from Sh. S.P. Singh, Section officer, CBDT, New
Delhi.
36. PW32 Sh. R.S. Bedi, Inspector, CBI stated that he had
conducted house search of accused R. Perumal Samy on 22.5.2003 at
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 43 of 94
N281, Sarojini Nagar, New Delhi. The search was conducted in the
presence of wife and other relatives of the accused. Accused R.
Perumal Samy was not present in the house at that time.
On being cross examined by Ld. Counsel for accused R.
Perumal Samy he denied that there were other team members of the
search team also who were not made to sign the search cum seizure
memo which was prepared at the spot.
37. PW33 Sh. K. Satia stated that between 19.3.2003 to 22.5.2003
he was posted in the technical room of the Special Unit, Chennai.
Inspector Rangarajan was the Incharge of the Technical room and he
was assisting him. As directed by the SP Concerned certain telephone
lines were being monitored under guidance of Inspector Rangarajan.
He stated that at the time when Inspector Rangarajan was on leave,
the SP had briefed him about this case. He stated that mobile no.
984173000 belonged to accused A. Krishnamurthy. He stated that
three landline numbers were also under surveillance. He stated that he
had prepared the transcript of the intercepted calls. The conversation
of the intercepted calls contained in Ex. PW34/B were in Tamil, Hindi
and English. He stated that he had translated the Tamil version into
Hindi.
On being cross examined by Ld. Counsel for accused R.
Perumal Samy he stated that he has very little knowledge about
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computers information. However, his immediate boss Inspector
Rangarajan knew technical aspects of the computer functioning. He
stated that he knows how to operate the software, how to copy the calls
and how to prepare the transcription. He however, stated that he could
not prepare the calls which were in Hindi. He stated that he could not
transcript calls which were in Hindi. He could not transcribe calls from
Tamil to Hindi and viceversa. He also could not transcribe from
English to Hindi and viceversa. He could only transcribe Tamil to
English and English to Tamil. He stated that he did not have any
professional qualification for transcribing neither he was a qualified
translator. His SP had asked him to transcribe the intercepted calls in
the present case. Inspector Rangarajan had not asked him to
transcribe the same. He, however, denied that the entire transcription
was transcribed by him in Hindi. He stated that this transcription was
not prepared by him in one day. After preparing the transcription, he
used to give the same to the SP. He could not say as to whether his
SP had made any change in the transcription. He stated that he did
not remember as to how many other telephone lines of the other
accused persons were being monitored by him during the relevant
period. He stated that he used to hear the conversation. He admitted
that their computers have software known as 'Cool Edit Pro'. He stated
that he did not know as to whether it is used for voice editing. He had
never used this software for voice editing. He stated that whenever he
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 45 of 94
used to go home, he used to lock the technical room while leaving the
office. He stated that he did not know whether his immediate boss Sh.
Rangarajan was having duplicate key of the technical room or not. He
denied that the transcript prepared by him is false and has been made
subsequently to suit the case of CBI. He denied that no recordings
were done in this case. He denied that there are discrepancies in the
transcript visavis the call records of the service providers.
On being cross examined by Ld. Counsel for accused Anurag
Vardhan he stated that his mother tongue is Tamil and he can
understand very little Hindi. He stated that he does not understand any
other North Indian Language. He admitted that documents prepared
by this software on the computer can be edited as per the command of
the user of this programme.
On being cross examined by Ld. Counsel for accused A.
Krishnamurthy he stated that he does not know accused A.
Krishnamurthy and he had not seen him talking to anyone. He stated
that he had been informed that the voice of accused A. Krishnamurthy
was recorded subsequently. He denied that he had presumed that the
accused persons were the same persons who were talking to each
other when their calls were intercepted.
38. PW34 Sh. P. M. Muralidharen, PS to Home Secretary,
Government of India proved the order dated 17.03.2003 vide which the
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 46 of 94
then Home Secretary N. Gopalaswami had given permission for
interception of mobile no. 9841078000 as Ex.PW34/A.
On being crossexamined by Ld. Counsel for A3, he denied that
the guidelines laid down by the Supreme Court were not followed while
passing order for interception. He denied that no material was provided
by CBI to the Home Secretary for the purpose of analyzing the
compliance of the conditions mentioned in para 2 and 3 of Ex. PW34/A.
He admitted that recording of intercepted conversation was not placed
before the competent authority after 90 days.
On being crossexamined by Ld. Counsel for A2 he stated that
no other order regarding interception of phone no. 9841073000 was
passed.
The witness was reexamined by Ld. Spl. PP. On his being re
examined, he stated that vide order dated 17.03.2003 Ex. PW34/B an
interception order qua three land line numbers was passed by Shri N.
Gopalaswami.
39. PW 35 Sh. Suresh Kumar stated that he had handed
over the documents Ex. PW12/C to PW12/F4 to CBI.
On being crossexamined by Ld. Counsel for A2, he stated that
he did not know Shri Verghese. He stated that he had visited CBI
office twice.
On being crossexamined by Ld. Counsel for A3, his attention
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 47 of 94
was drawn to Ex. PW12/E1 and Ex. PW12/E2. After going through
these documents, he stated that his signatures were obtained on three
blank papers but he did not remember whether any explanation was
given by CBI for obtaining his signatures on the blank papers.
40. PW36 Sh. Gautam Roy, HOD, CFSL stated that on
01.07.2003 he had received three fax machines where the nature of
examination was to retrieve the messages from the fax machines
imprinted on the ribbon. He stated that he had taken photographs of the
said three fax machines and had taken out the ribbon of the two
machines. The third fax machine did not have the robbon. The ribbons
were photographed through transmitted light and then the print was
made from the negatives. However, the other machine did not have the
ribbon, so no messages could be printed. He had given the report in
this regard Ex. PW36/A.
On being crossexamined by Ld. Counsel for accused no. 1, he
stated that the fax machine is an instrument whereby fast speed xerox
copy of letter/document can be operated in one fax machine when the
original letter is put in another fax machine. In this manner, letter or the
document placed for transmission in one fax machine can be received
through another fax machine. He admitted that for this process two fax
machines have to be used simultaneously. The machine through which
the document is placed for transmission can be called transmitting fax
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 48 of 94
machine and the other which produces xerox copy of the letter after
receiving the signal or data can be called receiving fax machine.
The ribbon contained in a fax machine produces the xerox copy
of the documents received by it. The ribbon contained in fax machine
can only produce the fax activities report which is self generated report
of the memory from respective fax machines. He stated that in the
absence of ribbon no such report can be generated.
He further stated that in any fax machine, the telephone line
number, time, date or the name of the person/ institution associated
with the fax machine as user or otherwise has to be fed. He stated that
this data is indicated with the xerox copy of the letter in the recipients
fax machine and is indicated as header or footer of the said xerox copy
of the document. He further stated that the recipient fax machine or its
operator would have no control over the data transmitted to it either in
the form of letter/document or the identification marks of the sender.
He admitted that when a letter is sent through fax machine the
transmitting fax machine would not have any data on its ribbon
reflecting the transmission of the said letter. He admitted that if a
person starts a fax machine and puts a separate date than the actual
date of starting the machine or feed any other detail which may be
correct or may not be correct and will send the fax, both the activity
report of the said transmitting machine as well as the fax copy of the
receiving fax would contain the respective incorrect data or the data fed
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 49 of 94
to it.
He stated that as per his report Ex. PW36/A, the third fax
machine which did not have a ribbon, no activity report could be
generated, therefore, the activity of this fax machine could not be
obtained. He denied that his report is incorrect.
On being crossexamined by Ld. Counsel for accused no. 2, he
stated that he had received three fax machines from CBI for
examination. He denied that in his report he has also referred to the
fourth fax machine. Attention of the witness was drawn to his report Ex.
PW36/A and after going through the same he admitted that there is
reference of fourth fax machine, however, he stated that it is a typing
mistake and he had only received three fax machines in the present
case. He stated that he had received the fax machine in sealed
condition. He admitted that one of the fax machines make Panasonic,
model no. KXF 130 was received in sealed condition but without any
ribbon. He admitted that in his report he has not mentioned that the fax
machines were received in sealed condition.
He stated that there is no document in his file to show that he
had correspondence with CBI about the absence of ribbon in the
aforesaid fax machine prior to starting the examination of the fax
machines and prior to the report.
41. PW37 Inspector Amreek Raj is the IO of the case. He
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stated that on 22.05.2003 at about 11.00 AM he was called by SP Shri
S.P. Jain and on his direction he proceeded to A1/79, Safdarjung
Enclave, New Delhi at the residence of accused Anurag Vardhan. At
about 11:45 am, he had reached at the given address where CBI team
consisting of Inspector N. K. Jain and other staff were already present.
Accused persons Anurag Vardhan, Perumal Samy and Padmanabham
were also present at the spot. Inspector N.K. Jain handed over him the
recovery memo, rough site plan, Rs.4 lacs in cash recovered from
accused Perumal Samy. He had conducted search of the premises and
had prepared search cum seizure memo Ex. PW37/1. He had seized
some documents, hard disk of the computer of accused Anurag
Vardhan, a CPU and Rs.3 lacs in cash. He had also conducted
searches of two cars present outside the house of accused Anurag
Vardhan and prepared memo Ex. PW37/2. He had conducted the
search of Motorcycle bearing no. TN69Y4079 vide memo Ex.PW9/G.
He arrested accused Anurag Vardhan vide arrest cum personal search
memo Ex.PW9/H.
Vide memo Ex. PW13/A, the transcript of the conversation was
compared with the compact disc containing voice and transcription
relating to the conversation between the accused Anurag Vardhan,
Accused A. Krishnamurthy and accused Babu between 06.5.2003 to
22.5.2003 in a sealed cover which had been received from the SP, CBI,
SU, Chennai. He had taken the specimen voice samples of the
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accused persons vide Ex. PW13/B of accused Anurag Vardhan, vide
Ex. PW5/A of accused A. Krishnamurthy and vide Ex.PW5/B of
accused R. Perumal Samy in the presence of independent witnesses.
Specimen voices of Shri S.K. Singh and Shri Rajesh Kumar
were also taken.
On 26.05.2003 one register of phone numbers and addresses
and payment receipts and activity chart of the fax machines installed on
phone no. 26184727 from the period 07.05.2003 to 15.05.2003
containing telephone no. 23092887 was siezed from Shri Vijay Gupta.
The copy of activity chart PW10/B was now proved as Ex. PW37/5.
By virtue of seized fax machine and activity chart memo dated
29.05.2003 Ex. PW12/F he had seized the activity chart. By virtue of
breaking of seal of hard disk, its data retrieval memo dated 29.5.2003
was observed and printout of the relevant portion of the same was
taken. The fax machine, specimen voices, questioned voices and the
hard disc were sent to CFSL for examination and opinion.
During the course of investigation he had collected the relevant
documents regarding the ownership and subscriber name of the mobile
number, land line number from the concerned authorities.
During the course of investigation he had recorded the statement
of witnesses and thereafter the case was transferred to Inspector Ojha.
On being crossexamined by Ld. Counsel for accused no.3 he
stated that during the proceeding of Envelope opening cum
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transcription comparison on 25.05.2003 he had not sent any notice to
any witness. The envelope contained a CD and transcript. He stated
that he did not remember the number of CDs or transcripts contained in
the envelope. He had received the envelope through dak. He stated
that he did not remember that how many sound files were there in the
CD in question. The transcript was in English language and also
mentioned duration of the alleged calls. He stated that he knows Hindi,
English and Punjabi languages. The CD contained languages other
than English, Hindi and Punjabi. He stated that this fact is not
mentioned in the report Ex. PW13/A. He stated that he did not know
whether signatories to the Ex. PW13/A were conversant with any either
Indian language neither it is reflected in Ex. PW13/A which is the
transcript in English language. He admitted that he could not compare
the transcripts with the alleged conversation. However, he had been
told that alleged transcript was prepared by the CBI officers in Chennai.
He denied that fax machine Panasonic KXF 130 was in a position to
give print of the activity report. He further stated that during the course
of investigation he had interacted with Mr. K. Satyan who spoke to him
in Hindi and told him that he could translate Hindi into English.
He denied that he being unfamiliar with Hindi language he could
not translate Hindi into English. He denied that transcript Ex. PW13/B is
a manipulated one. He denied that particulars of the records mentioned
in the transcript Ex. PW33/B did not match with the call detail record
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 53 of 94
received by him during investigation.
On being crossexamined by Ld. Counsel for accused no.2, he
stated that he does not remember as to whether videography had been
concluded before his arrival at the spot or subsequent to his arrival. He
stated that he had not seen video during investigation. He did not
remember whether the video recording was done in his presence or
not.
The witness was reexamined after permission of the court. He
proved cassette Ex. PW37/S1 containing alleged intercepted
conversation.
On being crossexamined by Ld. Counsel for accused no.1 he
stated that he had not examined the recording instrument or server in
which the recording of conversation was carried out. Neither the same
was preserved. He stated that he had not compared the contents of CD
received by him with the conversation so intercepted and recorded.
42. PW38 Sh. P.K. Malhotra proved the termination letter
dated 23.05.2003 PW38/A vide which the concerned Minister had sent
a note stating that R. Perumal Samy working as first PA in his staff had
been terminated on 22.05.2003. He stated that CBI had not recorded
his statement.
43. PW39 Sh. Jimmy Vargheese stated that on 29.05.2003 he had
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 54 of 94
attended CBI office on the asking of his colleague. Three fax machines
were produced before him in the presence of some other persons. He
had obtained activity report from the said fax machines.
On being crossexamined by Ld. Counsel for accused no.1 he
stated that it is not essential that every fax machine would have a
ribbon. However, he admitted that three fax machines which he had
dealt in this case had ribbon. Again said that as far as he remembers
only one fax machine had ribbon. He stated that he had operated all
the three fax machines. He did not remember whether they were
sealed by CBI officers or not. He denied that Panasonic KXF 130 was
not in a position to give printout of any activity report.
44. PW40 Inspector C.B. Ojha stated that investigation of this case
was given to him during September 2005. He had obtained sanction
order of accused Anurag Vardhan. He had collected documents, had
prepared the charge sheet and had filed the chargesheet in the court.
45. Vide separate statement of Sh. Akshay Gautam, Ld. Senior PP
for CBI PWs Sh. Ram Kumar, Sh. R.N. Srivastav, Sh. Devender
Dabas, Inspector Rakesh Kumar, Inspector Anil Kumar, Sh. N.V.M.
Krishnan, Sh. A.K. Singh, Sh. Alok Kumar, Sh. D.K. Barik, Sh. S.
Balasubramaniyam were dropped from the list of prosecution witness.
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 55 of 94
46. PE was closed. Statements of accused Anurag Vardhan,
accused R. Perumal Samy @ Babu and accused A. Krishnamurthy
under Section 313 Cr.P.C were recorded in which they had expressed
their willingness to lead defence evidence. Therefore, the case was
listed for defence evidence.
47. Accused persons have examined 5 witnesses in their defence.
48. DW1 Sh. A.S. Palani stated that he knows accused R. Perumal
Samy. He stated that he runs a travel agency in Paharganj. He stated
that in May, 2003 accused R. Perumal Samy known to him had
requested him to arrange tour and travel of 80 persons who were
coming from Chennai to visit various places including Amritsar, Gaya,
Varanasi etc. He stated that accused R. Perumal Samy was to make a
payment of Rs. 4 lakhs to him. However, on the day fixed for the
payment he had not made any payment and when he could not be
contacted, he had gone to the house of the Minister with whom
accused R. Perumal Samy was working. He stated that there he had
received part payment of Rs. 2 lakhs from the assistant of the
concerned Minister and had accordingly made travel arrangements of
the group of 80 persons. After 78 months, he had come to know that
a CBI case was registered against accused R. Perumal Samy.
On being cross examined by Sh. Akshay Gautam, Ld. Senior PP
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 56 of 94
for CBI he stated that he cannot provide any proof or income tax
returns regarding his business.
49. DW2 Sh. Yogesh Singh had proved 8 photographs of house
no. A1/79 located at Safdarjung Enclave, New Delhi. He stated that
he had taken photographs of the entry points of the said house. He
stated that there are two entry points of the said house. He proved the
photographs of the same as Ex. DW2/A1 to Ex. DW2/A5.
On being cross examined by Sh. Akshay Gautam, Ld. Senior PP
for CBI he denied that he is deposing falsely and he had not taken
photographs as deposed by him.
50. DW3 Sh. Sanjay Yadav stated that he was working as driver of
accused Anurag Vardhan from January, 2003 to April, 2003. He stated
that on 22.5.2003 he had joined his duty at the residence of accused
Anurag Vardhan at around 8:00 am. He had gone to take key of car at
his residence. He stated that as he was cleaning the car, after about
1520 minutes a Maruti Van stopped near his car and 67 persons
came out of the same. They had verified the number of the car and
went back to their own Maruti Van. He stated that thereafter, another
Maruti Gypsy had arrived and another set of 67 persons had alighted
and came near another gate of the same house which was the entry
gate of the landlord of the house. They went to the house of accused
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 57 of 94
from the rear gate which was a different gate from the gate through
which the portion in possession of the landlord of the house could be
approached.
51. DW4 Sh. H.K.L. Swani is the Landlord of accused no. 1 Anurag
Vardhan. He stated that accused Anurag Vardhan was his tenant
during the period 200203 at his residence A1/79, 1st Floor, Safdarjung
Enclave, New Delhi. He stated that there were two entries to the said
building. One entry is from the front side of the house and the second
entry is from the side of the house. He stated that the tenant uses side
entry of the building for reaching his premises at the first floor of the
building. He stated that front entry is not allowed for any visitor of the
tenant.
On being cross examined by Sh. Akshay Gautam, Ld. Senior PP
for CBI he stated that on 22.5.2003 when CBI had conducted the raid
at the house of accused Anurag Vardhan he was not present and,
therefore, cannot say as to from which gate CBI team had entered the
house of accused Anurag Vardhan. He admitted that in case someone
wants to go to first floor of the house there is access from the front door
of his house. However, he voluntarily stated that the front door is never
open to anyone seeking to go to the first floor and for that purpose only
the side door is permitted and used.
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 58 of 94
52. DW5 Sh. D.C. Jain, IG, Jaipur stated that he had visited the
spot when the raid was conducted. He stated that no site plan was
prepared in his presence. He had supervised the proceedings of the
present case being the SP concerned. He stated that Sh. Anurag Garg
was his colleague and was working as SP, CBI in the same branch. He
stated that he had remained at the spot for 1015 minutes. He stated
that he did not remember as to whether video recording was conducted
when he had reached the spot. He stated that he had not visited the
house of accused R. Perumal Samy. He stated that he had not signed
any document prepared at the spot. The witness was shown the video
proceedings Ex. PY. The witness stated that he could not identify as to
whether the person being pointed out on the screen in green check
shirt is in fact Sh. Anurag Garg or not. He stated that he was not sure
whether he was present at the spot till the conclusion of the
proceedings. He denied that there was no necessity for any person
from the team to call him as he was already present at the spot
alongwith the other team which had brought accused R. Perumal Samy
at the spot.
On being cross examined by Sh. Akshay Gautam, Ld. Senior PP
for CBI he stated that he had not received any complaint regarding
manipulation of documents or force being used by anyone or any
illegality committed during the proceedings.
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 59 of 94
53. Defence evidence was closed and the case was listed for final
arguments.
54. Final arguments were heard at length on behalf of Ld. PP for CBI
as well as Ld. Counsel for accused Anurag Vardhan, accused R.
Perumal Samy and accused A. Krishnamurthy.
55. Ld. Defence Counsels for accused persons have stated that
there are major contradictions in the statements of material witnesses.
It is stated that the independent witnesses have given contradictory
statements regarding preparation of the documents and the trap
proceedings. It is also stated that it was not humanly possible for one
person to prepare the memos as stated by him. It is also stated that
many persons who were present at the spot and have participated in
the proceedings were not made witnesses by the Investigating Officer.
It is also stated that the electronic evidence has not been proved in
accordance with Law and the legal pronouncement. It is stated that the
primary evidence i.e. Hard Disk in which the conversation was
recorded has not been produced. It is stated that the possibility of
tampering in the intercepted conversation cannot be ruled out since the
sound editing software 'Cool Edit Pro' was available in the system as
per the statements of the relevant witnesses. It is also stated that there
is mismatch in the alleged intercepted conversation as per the CDR . It
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is also stated that the transcript of the intercepted conversation has not
been proved beyond doubt. It is also stated that the voice files and the
transcriptions were never compared. It is stated that the certificate
under Section 65B of Indian Evidence Act is defective as it is not as
per Law. It is stated that the fax machines which were allegedly seized
in this matter were never sealed and no incriminating data has been
retrieved from the same. It is therefore, stated that the accused
persons be acquitted.
56. Sh. Akshay Gautam, Ld. Senior PP for CBI on the other
hand states that the contradictions pointed out by Ld. Counsels for
accused persons are minor in nature. It is also denied that the
electronic evidence has not been produced as per Law or the material
witnesses have not been examined. It is therefore, stated that the
accused persons be convicted in the present case.
57. The prosecution has to prove with the help of testimony of
witnesses examined by them that the alleged bribe amount recovered
during the trap proceedings was infact the bribe amount and that the
three accused persons had entered into a criminal conspiracy where
accused Anurag Vardhan had struck a deal to pay bribe amount to
accused R. Perumal Samy through accused A. Krishnamurthy to get
himself transferred to Mumbai. The prosecution has tried to prove the
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 61 of 94
case with the help of testimony of the witnesses examined by them as
mentioned above as well as with the help of documentary evidence and
electronic evidence in the form of intercepted conversation, the data
retrieved from the fax machines, the intercepted conversation and video
proceedings.
Let me examine the testimony of the witnesses and the evidence
so produced in light of the relevant Propositions of Law.
Proposition of Law:
Section 120 B, which prescribes in sub
section (1) the punishment for criminal
conspiracy provides:
"Whoever is a party to a criminal
conspiracy to commit an offence punishable
with death, (imprisonment for life) or rigorous
imprisonment for a term of two years or
upwards, shall, where no express provision
is made in the Code for the punishment of
such a conspiracy, be punished in the same
manner as if he had abetted such offence."
120B in SubSection 2 the punishment
for criminal conspiracy provides:
"Whoever is a party to a criminal
conspiracy other than a criminal conspiracy
to commit an offence punishable as
aforesaid shall be punished with
imprisonment of either description for a term
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 62 of 94
not exceeding six months, or with fine of with
both."
Section 13 of the P.C. Act provided as
under:
(1) A public servant is said
to commit the offence of criminal
misconduct ..................................................
......................................................................
..(d) if he
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantages; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest....."
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine."
Section 12 of P.C. Act provides as under:
Punishment for abetment of offences defined in Section 7 or 11:
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 63 of 94 "Whoever abets any offence punishable under Section 7 of Section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."
Section 7 of P.C. Act provides as under:
Public Servant taking gratification other than legal remuneration in respect of an official act "Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 64 of 94 company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
58. After perusing the relevant law and testimony of witnesses, I am of the opinion that there are major contradictions in the statement of witnesses. Preliminary Enquiry in this case had been registered on 22.5.2003 at about 6:00 am whereas as per PW9 he had been asked to report at CBI office on 21.5.2003 at about 4:005:00 pm. The alleged transcript on the other hand reflects that it was only about 6:00 pm on 21.5.2003 when CBI had come to know about the case. Therefore, it is not clear as to how the independent witnesses had been summoned even prior to registration of Preliminary Enquiry.
59. PW20 Sh. Jayant Kashmiri and PW9 Sh. Vivekanand Jaiswal have stated that the team members had reached the spot from CBI office in two vans whereas PW1 Sh. N.K. Jain states that they had gone to the spot in one van.
The videography of the place of occurrence shows that more than 11 team members were present at the spot who were CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 65 of 94 conducting various tasks during the raid. However, as per CBI only eight were members of team.
A perusal of the video cassette pertaining to the videography of the proceedings of recovery of the alleged amount of Rs. 4 lakhs reveals that the recovery memo Ex. PW1/1 mentioned the names of 8 team members who were present at the spot from the time of starting of the proceedings till their conclusion i.e. From about 9:30 am to 10:10 am.
PW20 Sh. Jayant Kashmiri has stated that accused R. Perumal Samy and Padmanabhan had entered the house of accused Anurag Vardhan from the gate shown at point 'D' of the site plan. The accused has led evidence that there were two entries to the house and the gate at point 'D' was exclusively used by the landlord. Testimony of DW2, DW3 and DW4 proved that the front entry was not allowed to be used either by the tenant of any of the tenant's visitors. The landlord in his cross examination has also stated that the front door is never opened to anyone seeking to go to the first floor which is tenant's accommodation and only the side door is permitted to be used. In the light of this testimony, the fact of the two visitors i.e. Accused R. Perumal Samy and Padmanabhan entering the house of accused Anurag Vardhan through the entry gate of the landlord which is exclusively used only by him becomes doubtful. It also makes the story regarding the witnesses waiting outside the house, noticing the two CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 66 of 94 visitors going to the house of accused Anurag Vardhan from the entrance gate shown at point 'D' and coming out of it becomes doubtful. The other doubtful aspect of the matter is that Sh. Padmanabhan and accused R. Perumal Samy were apprehended at about 9:30 am by the CBI team and thereafter, CBI team alongwith two of them had gone to the house of accused Anurag Vardhan where the recovery of the bundles of currency notes were made from the polythene bag. As per the story of the prosecution, the currency notes were counted and inventory of the same was made by noting down the number of first and last currency note. The entire process of the raid was videographed and the video cassette was sealed which was signed by the independent witnesses. It was only after these proceedings that the rukka was sent by Inspector N.K. Jain to the CBI office through SI Amit Vikram Bhardwaj. As per the witnesses, the above proceedings were concluded by 10:10 am. The FIR on the other hand was registered at 11:00 am and IO Inspector Amreek Raj had arrived at the spot only at 11:45 am. It is very strange that the entire proceedings of apprehending the accused conducting the proceedings including preparation of all the documents and sealing of the cassettes etc. had been done even before a formal FIR had been lodged.
60. PW1 Sh. N.K. Jain has stated that two independent witnesses, one driver, 34 Inspectors, Constable, Head Constable had CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 67 of 94 traveled in one car to the spot. He has also stated that all the team members had traveled only in one car. Therefore, the prosecution has not been able to explain as to how more than 11 officials were present at the spot during the proceedings. Surprisingly, neither their statement nor their signatures have been obtained in any of the document, but their presence is reflected in the videography. Interestingly, SI Amit Vikram Bhardwaj has performed crucial duty of carrying the rukka from the spot after witnessing part of the proceedings. However, he has neither being made a witness nor examined nor his signatures have been obtained on any document.
61. In the light of the above, the defence of accused R. Perumal Samy that about 78 persons who comprised the second CBI team had forcibly brought him and his associates from his residence has to be appreciated.
62. In this regard, statement of material witnesses is imporatant. PW27 Inspector Lalit Kaushik who had conducted the search of residence of accused R. Perumal Samy has stated in his cross examination that he does not remember whether the raiding party had visited house of accused R. Perumal Samy twice. It has to be noted that no departure entry had been made that the CBI team had started for the spot from CBI Headquarter on 22.5.2003, to ascertain CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 68 of 94 how many teams and team members had left for raid and to which destinations.
63. PW32 Sh. R.S. Bedi who was Incharge of the team had conducted search at the house of accused R. Perumal Samy. But he did not give any specific reply and stated that he did not even remember whether the search was conducted in the morning or in the evening. He, however, confirmed in the cross that no departure entry had been made when they had started from CBI office.
64. Another strange aspect is that if he was heading the team, conducting search at house of Perumal Samy, why he did not know where accused R. Perumal Samy at the relevant period of time was upon being questioned about Perumal Samy is present at the spot, he sought permission to refresh his memory by going through the file. Interestingly, after refreshing his memory with permission of the Court he stated in his cross examination that he had asked wife of accused R. Perumal Samy about the whereabouts of accused R. Perumal Samy. But she did not know anything. Thereafter, in further cross examination he volunteered that he had told her that her husband Perumal Samy was in CBI's custody. He immediately again changed his statement that he had told the wife of accused R. Perumal Samy that the accused was in custody of CBI. Therefore, to clarify this, when a Court question CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 69 of 94 was put to the witness to explain as to which was his correct answer, he stated that he was confused as he had retired from CBI and had incorrectly stated that accused R. Perumal Samy was in their custody.
65. Though the witness tried to explain as to why he had changed his statement, but I am not convinced with his answer since he had been allowed to refresh his memory from the record immediately before being asked for a clarification, by the Court. The witness also did not give specific answer in this cross examination and remained evasive when he was asked as to whether accused Perumal Samy had been taken from his residence by CBI in the morning. Therefore, suspicion arises as to whether accused Perumal Samy had infact being apprehended from his house in the early hours of 22.5.2003 and was not apprehended from outside the house of accused Anurag Vardhan. When I read his statement with the statement of PW1 Sh. N.K. Jain, PW9 Vivekanand Jaiswal and PW20 Jayant Kashmiri that accused R. Perumal Samy and Padmanabhan were apprehended from outside the home of accused Anurag Vardhan, their statement becomes doubtful.
66. Alongwith the same the unexplained presence of more than 11 CBI officials and independent witnesses gives credence to the defence of accused Perumal Samy that he had been picked up from his CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 70 of 94 own home and not from outside the house of accused Anurag Vardhan making the case of prosecution doubtful.
67. The arrest cum personal search memo of accused R. Perumal Samy shows that nothing was recovered from his personal search. As per the statement of the witnesses, accused Perumal Samy and Padamanabhan had come on a motorcycle. The question is why the keys of the motorcycle or any other document, driving licence etc. was not recovered from his personal search. Even the personal search of Padmanabhan did not result into recovery of the keys of the bike on which they had allegedly come. Therefore, the presence of accused Perumal Samy and Padmanabhan and their apprehension by CBI outside house of accused Anurag Vardhan becomes highly doubtful. VIDEO RECORDING :
68. The cassette regarding videography of the proceedings has been sought to be proved. However, none of the witness has stated that SI Prem Nath had carried a video camera to the spot or was part of the official team that had conducted search at the spot.
69. PW9 Sh. Vivekanand Jaiswal has admitted in his cross examination that he was not shown any video camera before they had started from CBI office for the spot. Neither he was aware as to CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 71 of 94 whether any video recorded was available with the raiding party when they had started for the spot.
70. In the same breath, PW9 Vivekanand Jaiswal admits that before starting from the spot all the members of the team including himself were searched to reveal the contents of the articles they were carrying and inventory thereof had been prepared. It is therefore, very strange that PW9 Sh. Vivekanand Jaiswal who is witness to the inventory and video recording, did not notice any person carrying video camera to the spot especially when all the team members had come in one car. Apart from that the Recovery Memo also does not suggest that any official team member had carried the video camera. SI Prem Nath who has allegedly conducted the video recording of the proceedings has not been made to sign Ex.PW1/1 and his name also does not find mention on the documents. The presence of SI Prem Nath at the spot, though not being a member of the official team, creates suspicion that he went with another team of CBI officials to the residence of accused no. 1 Anurag Vardhan which can file and witnsses of CBI are silent on.
71. The absence of the documents which can be seen being prepard in the video recording on record and the denial thereof by PW9 Sh. Vivekanand Jaiswal, independent witness, makes the entire CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 72 of 94 proceedings suspicious. When the witness was confronted with the video recording PW9 Sh. Vivekanand Jaiswal stated that he might have prepared rough counting sheets of GC Notes which were counted by him and PW Sh. Ram Kumar. A perusal of the video on the other hand, clearly reveals a carbon sheet being used between two white sheets of paper on which number of GC notes were being noted down.
72. PW1 Sh. N.K. Jain admitted that PW20 Sh. Jayant Kashmiri can be seen preparing some documents in the video recording and in the video Ex.PY, he is shown to be dictating something to PW Sh. Ram Kumar who is preparing some documents. PW20 Inspector Jayant Kashmiri admitted having prepared a document regarding GC notes on the spot. A perusal of the file shows that no such document is part of judicial file. A perusal of the judicial file further shows that the prosecution has filed Site Plan Ex.PW1/2, Recovery Memo Ex.PW1/1 and the request for registration of the regular case prepared by PW1 Naveen Kumar Jain. No document containing the numbers of GC notes or preparation of such documents has been placed on record. PW1 Sh. Naveen Kumar Jain stated in his cross examination that the numbers were recorded before the arrival of the SP and might be on the record. The IO, on the other hand, stated that he cannot tell which documents are being prepared at the spot reflected in the video. The defense of the accused persons that these CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 73 of 94 documents which contain the description of the GC notes if brought on record would have proved that the GC notes which were actually seized had bank slips of Coimbatore and other places of Tamil Nadu and thus prove that this money belonged to accused no. 2 Perumal Samy, not accused no. 1 Anurag Vardhan thus has substance, since as per mandate of law, in case any document is available to the prosecution but is not produced on record calls for drawing adverse inference against the said party, in the present case CBI.
73. Coming to the video cassette, the duration of the videography as per actual available footage brought on record is 24 minutes. PW9 has stated the videography was done for about 1 ½ hours. It is not clear whether the proceedings were edited or manipulated. There is no certificate regarding the video cassette on record by CBI as per mandate of law since it is covered under electronic evidence. Therefore, the contents of the same also remained unproved.
74. There are major contradictions in the statement of PW1 Sh. Naveen Kumar Jain. Though the other witnesses and he himself stated that in his examinationinchief that ASI Amit Vikram Bhardwaj was sent to CBI office along with Ruqqa for registration of the FIR, however in his cross examination he stated that the ruqqa was sent CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 74 of 94 through CBI team member whose name he did not remember. In his examinationinchief he stated that the video recording was done by the SI Prem Nath but in his cross examination he stated that videography was done by HC Rakesh Kumar. In his examinationinchief he stated that he had prepared the documents after sealing the video cassette. When he was confronted with his statement u/s. 161 Cr.P.C. where he has stated the he had prepared the Site Plan and Recovery Memo after the sealing of the video cassette. Admittedly, Sh. Padmanabhan had been apprehended at the spot along with the accused. He has neither been made witness nor an accused. His police custody had been obtained, however, his bail application was not opposed by CBI and he was later on discharged. When the Charge sheet was filed, he was not chargesheeted along with other accused persons and it was mentioned in the last para of the Charge Sheet that not enough incriminating evidence had been found against him for the purpose of filing of Charge Sheet. It is not clear as to why he has not been made a prosecution witness if he had no role to play in the entire incidence and was merely present as a friend with accused no. 2 Perumal Samy. Even in case he was merely present at the spot and nothing incriminating had been found against him, he would have been the best eyewitness to the entire incidence. He could either be a coconspirator or a witness. However, the CBI, in their wisdom, did not make him either. No statement of Mr. Padmanabham has been placed on record. CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 75 of 94 Therefore, an adverse inference has to be drawn against the prosecution for nonproduction of the material witness and it has to be presumed that if he would have been produced and examined, he would not have supported the case of prosecution.
75. The entire case of CBI is that accused no. 1 Anurag Vardhan had promised to pay a bribe for his transfer to Mumbai. However, the concerned witnesses as well as the concerned officials from his office have deposed to the contrary. They have not supported the case or version of the prosecution on this aspect in any manner. PW24 Sh. Kanwar Rajender Singh, which is the concerned authority for transfer/posting of the officials of the level of IRS officers, has categorically deposed that the transfer of accused no. 1 Anurag Vardhan was purely on compassionate grounds and he had received no reference or request from any one.
76. PW24 Sh. Kanwar Rajender Singh who was the then Director, ADVI and was dealing with such transfers and postings, confirmed in his testimony that transfer of accused no. 1 was done only on medical grounds of his children. It is not disputed that the children of the accused were suffering from autism. This fact has been confirmed from PW37 Inspector Amreek Raj, who is IO of the case. Therefore, the case of the prosecution that accused no. 1 Anurag CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 76 of 94 Vardhan had contacted accused no. 3 A. Krishnamurthy to get himself transferred does not seem to have any basis or truth. This belief is strengthened by the fact that it has emerged in the testimony of PW25 Sh. S.M.J. Abidi that accused no. 1 had met the Chairman, CBDT, who was the ultimate authority in matters of transfer and postings of IRS officers and he had informed him that the Chairman was positive about his request. This belief is further strengthened from the fact that the fax no. 23092887 i.e. a transfer proforma of Anurag Vardhan had been addressed to ADVI Section of CBDT which deals with transfer and Postings of IRS officers and not to accused no. 2 Perumal Samy, as alleged by CBI since the above mentioned fax number belongs to AD VI Section of CBDT. This fact is corroborated by the statement of PW17 Sh. Pooran Chandra Bhatt, the then secretary ADVI who has stated that the transfer requests of IRS officers including those on compassionate grounds were received, compiled and tabulated by AD VI Section of CBDT and were submitted to Director ADVI who had kept it in his custody till the orders of transfer were issued. PW17 Sh. Pooran Chandra Bhatt has proved the detailed list of persons from whom the fax had been received on the number 23092887. In the said list, the name of accused no. 1 Anurag Vardhan is also mentioned. It is thus proved that the fax sent to the above mentioned fax number by accused no. 1 Anurag Vardhan, had in fact, being addressed to Director, ADVI and not to MOS (R) or P.S. To MOS(R) or any other CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 77 of 94 person related to the Minister's Office.
77. The second allegation that accused no. 2 Perumal Samy on 21.5.2013 at about 6:15 pm had faxed the transfer order of accused no. 1 Anurag Vardhan to accused no. 3 A. Krishnamurthy on the fixed P.No. 24340074 for allegedly arranging the payment of agreed amount to accused no. 2 Perumal Samy that in turn accused no. 3 had allegedly sending fax to accused no. 1 on fax no. 26167077 to confirm that orders have been passed and accused no. 1 Anurag Vardhan should pay the bribe amount is concerned, the evidence led by CBI regarding the fax machine, the data activity charge and the data retrieved as well as the CFSL report is to be scrutinized.
78. In this regard, the perusal of testimony of PW16 Sh. T.N. Ravishankaran and PW18 Sh. Roshan Lal Thakur shows that they have not supported the prosecution case that they had seen accused no. 2 Perumal Samy, using the fax machine at the given time. On the contrary, PW16 Sh. T.N. Ravishankaran has stated that anyone in the office was free to use the fax machine and therefore, cannot say as to who had sent the fax to him. PW18 Sh. Roshan Lal Thakur has also stated so and states further that fax used to be sent by Group D employees and not by persons of the rank of officers. CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 78 of 94
79. The fax activity reports of MOS Office machine and accused no. 3 A. Krishnamurthy's machine in which it is shown that a three page fax had been sent from MOS Office fax number to accused no. 3 A. Krishnamurthy's fax number, has been placed on record. The two fax machines were, however, not sealed. The independent witness PW12 Sh. Kanchhid Singh Pal did not depose anything regarding retrieval of fax activity reports. He did not remember whether the fax machine were sealed or not. PW25 Sh. S.M.J. Abidi who is also an independent witness stated that he did not remember about any activity done in CBI Office. He further deposed that his signatures were taken on blank papers without giving any reason for obtaining his signatures on blank papers. This too makes the case of CBI highly doubtful about its truthfulness.
He has deposed that his signatures were taken on blank papers without giving any reason for obtaining signatures on blank papers. CBI has not been able to give any reason as to why the signatures of independent witnesses had been obtained on blank papers.
80. PW12 states that the fax machines were sealed. PW27 Inspector Lalit Kaushik stated that he did not remember whether the fax machines were sealed or not. PW30 had seized the fax machines from accused R. Perumal Samy's office. He has confirmed in his cross CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 79 of 94 examination that the machine had not been sealed. PW36 Sh. Gautam Roy, CFSL Expert has stated in his cross examination that the fax machine received from CBI were not sealed. PW39 Jimmy Vergheese did not remember whether fax machines were sealed or not. Interestingly, none of the documents relied upon by CBI i.e. memos of the seizure of the fax machines, retrieval of the data, the fax opening mention as to whether the fax machines, were sealed or not. The fax machines were crucial piece of evidence of prosecution since they contained incriminating evidence against the accused persons and, therefore, a duty was cast on CBI who had seized and preserved the fax machines, that they should have done so as per the mandate of Law and should have preserved the fax machine as per law. They should have been more careful if they contained any incriminating evidence. In the absence of having followed the mandate of Law it casts a veil of doubt on the case of the prosecution as to why they did not seal the fax machines which were the case property.
81. PW36 Sh. Gautam Roy, CFSL Expert stated that in case wrong information about fax users name date and time is fed and thereafter, the fax is sent, the fax activity report will produce the same doctored version.
PW39 Sh. Jimmy Verghees has supported this fact. In the light of the fact that the fax machines were unsealed, the possibility of CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 80 of 94 feeding wrong data and obtaining the wrong fax activity report cannot be ruled out. The ribbon of the fax machine of accused A. Krishnamurthy which would have revealed receipt of any transfer order could not be found by CFSL since it did not contain the ribbon. It is not clear as to whether the fax machine belonging to accused A. Krishnamurthy did not have a ribbon at all or was removed later on. In case it contained any ribbon it could have printed the alleged fax sent by accused Perumal Samy.
PW24 who is the Director, ADVI in his deposition has confirmed that accused Anurag Vardhan had already been communicated about his transfer on 21.5.2003 and, therefore, there was no need to fax the transfer order to anyone as alleged by CBI.
82. CBI also seeks to prove its case on the basis of the video footage contained in the CD Ex. PY to prove the recovery. The same is also covered under electronic evidence and the relevant provisions of I.T. Act, 2000 and Indian Evidence Act have to be adhered to. Section 45 A and Section 65 B of the Indian Evidence Act may throw light regarding this evidence.
Section 45 A Indian Evidence Act : Opinion of Examiner of Electronic Evidence -
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 81 of 94 When in a proceeding, the court has to form an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, the opinion of the Examiner of Electronic Evidence referred to in Section 79 A of the Information Technology Act, 2000 (21 of 2000) is a relevant fact.
Explanation For the purpose of this section, an Examiner of Electronic Evidence shall be an expert] Section 65 B Indian Evidence Act : Admissibility of electronic records -
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 82 of 94 computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in .................................................... ........................................................... ........................................................... ..........
(3) Where over any period ................................................ ........................................................... ........................................................... .....................
CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 83 of 94 (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of the electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 84 of 94 operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
83. A perusal of these sections makes it clear that as per Section 45 A, the opinion of the examiner of electronic evidence referred to in section 79 A of the Information Technology Act, 2000 is relevant fact. However, to make such evidence admissible in law, the compliance with provisions of Section 65 B of the Indian Evidence Act is essential.
84. A perusal of Ex. PW13/A The Envelope Opening Cum Comparison Memo, further shows that only one CD containing the alleged intercepted conversation had been opened in the presence of PWs Rakesh Kumar, Sh. Trilochan Singh, Sh. Kali Ram by the Investigating Officer Inspector Amreek Raj. It has been stated in the oral testimony of the witnesses as well as in Memo Ex.PW13/A that the CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 85 of 94 intercepted conversation and the transcripts had been compared after the CD was played vide this memo. It is very strange as to how this comparison was done, since many conversations were in Tamil and they could not have been compared by the witnesses and the IO who did not know Tamil which is clear from their statements.
85. PW33 who has allegedly prepared the transcript of the intercepted conversation. He has admitted in his cross examination that he did not know Hindi or any other North Indian language. It is, therefore, not clear as to how he could have prepared the transcripts of conversations which were in Hindi. Therefore, much reliance cannot be placed on the contents of the intercepted conversation. More so as no official interpretor had prepared the same and the person who had prepared the translation was not conversant with Hindi.
86. Coming to the alleged incriminating evidence contained in the telephonic conversation which is covered under Electronic Evidence between accused Anurag Vardhan, accused Perumal Samy and accused A. Krishnamurthy, I am of the opinion that to prove it and the transcripts of the intercepted conversation in accordance with mandate of Law. Let me examine it in the light of the testimony of the witnesses and documentary evidence and the relevant law as to whether the Prosecution has been able to do so. CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 86 of 94
87. A perusal of the file shows that none of the witnesses examined by CBI have deposed that the alleged intercepted conversation had been sent to CBI Headquarter in Delhi in audio compact disks from time to time. However, a perusal of the certificate Ex.PW29/F which has been issued u/s. 65 B mentions that various CDs of the alleged intercepted conversation had been sent to Investigating Officer at CBI Headquarter from time to time.
88. The IO PW37 Insp. Amreek Raj has nowhere in his examinationinchief, cross examination or reexamination stated that he had received the alleged intercepted conversations from time to time in various audio compact disks. In his examination in chief, cross examination as well as further reexamination he has clearly mentioned that he had received only one audio compact disk containing the alleged recorded conversation.
89. Ex.PW13/A which is the 'Envelope opening cum Transcription Comparison Memo' also mentions that only one 'Compact Disk' make Samsung had been taken out by the IO from the envelope which had been received from CBI, SU, Chennai. Ex. PW13/A which is the Envelope opening cum Transcription Comparison Memo clearly mentions that the only one CD containing intercepted conversation had CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 87 of 94 been received in an unsealed closed envelope. Therefore, there is major contradiction in the oral testimony of the witnesses and the certificate issued u/s. 65 B by the concerned SP, SU, Chennai.
90. Further, when PW37 Amrik Raj who is IO of the case was reexamined in the court he had again admitted that only one CD containing alleged intercepted conversation had been received, played and compared with the transcriptions which had also been received from SU, Chennai. CBI has also produced on record at the time of trial only one CD containing the alleged intercepted conversation. Therefore, in my opinion, in case various audio compact disks were sent by SP, Special Unit, CBI to the IO Inspector Amreek Raj from time to time not only those CDs should have been produced in the Court as primary evidence, but, would have also required a separate certificate under Section 65B of Indian Evidence Act.
91. A perusal of statement of PW33 Sh. K. Satia also shows that he had prepared only one Compact Disk of the intercepted conversation. It is very strange that this witness has prepared one CD as deposed in his examinationinchief whereas in his cross examination he stated that he does not know the technical aspect of computer functioning. He has nowhere stated that he had prepared more than one compact disk of intercepted conversation as mentioned CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 88 of 94 in the certificate u/s 65B of Indian Evidence Act. These contradictions in oral and documentary evidence casts a doubt on the veracity of statement of witnesses and the case.
92. A perusal of the entire case record also shows that no document regarding preparation of the CD which had been sent to the IO in Delhi had been prepared as to the manner in which it had been prepared, how the data had been transferred from the hard disk to the Compact Disk. A perusal of the testimony of PW29 and PW33 also does not reflect as to whether any precaution had been taken while transferring the data from the hard disk to the CD. There is no independent or official witness nor any document in this regard to prove that it was neither edited, interpolated or tampered with. The concerned witnesses stated that the hard disk had been reused. Therefore, CBI was bound to take legal precautions that the electronic evidence was collected and preserved as per mandate of Law especially when the original hard disk was being reused.
93. The certificate prepared u/s 65B of Indian Evidence Act is not as per mandate of Law. Such certificate u/s 65B of Indian Evidence Act was prepared after 1 ½ years of the CD being prepared and having been sent to the IO. As per mandate of Law Certificate u/s 65B should have been sent alongwith the electronic evidence. CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 89 of 94 Moreover, it is not in the format in which such a certificate should have been given. The certificate is silent on the aspect of description of the CD, identification mark and the manner in which data had been transferred to the CD, duration of the intercepted conversation, therefore, it does not give positive evidence and has been issued in casual manner.
None of the witnesses examined in the Court have identified the voices of any of the accused persons including the witnesses who have stated that they had intercepted the calls and heard them in Chennai.
94. A perusal of cross examination of PW33 K. Satia and PW29 G. Rangarajan shows that they have admitted in their cross examination that the computers in which the calls were being intercepted with the help of which the calls were intercepted had a software 'Cool Edit Pro'.
92. A perusal of the forwarding note of the CD sent by SU, CBI, Chennai shows that it mentioned that the "Wav files can be played in either 'Cool Edit Pro' or in windows media player". PW29 has stated that voice logger system saves audio files in the hard disk and those files can be identified by extension ".wav". He, however, admitted that after going through the Judicial Record he has not seen any document CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 90 of 94 where in the files have been shown to be saved by voice registration logger system having extension ".wav". If this is read in conjunction with the fact that the computer system in which the calls were being intercepted had facility of editing the content, it raises doubt regarding the authenticity of the electronic evidence. More so, when none of the witnesses examined have identified the voices of the accused persons.
93. Even the testimony of PW2 Dr. Rajinder Singh, Principal Scientific Officer who has examined the CD containing the alleged intercepted conversation, has no where either in his report or his testimony, stated that the CD was not tampered with. He has also stated that in case of comparison of the questioned voices and sample voices one cannot use the word "beyond reasonable doubt". In a nutshell there is nothing on record in the entire judicial file either in the form of oral evidence or documentary evidence to prove that the CD in question was not edited, manipulated or interfered with.
94. As far as admissibility of Electronic Evidence is concerned, it has been recently laid down in the judgment of "2014 (10) SCALE 660 2014 (4) RCR (Civil) 504, titled: Anvar P.V. Vs. P.K. Basheer and others" by the Hon'ble Supreme Court of India.
"Most importantly, such a certificate must accompany the electronic record CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 91 of 94 like computer printout, compact disk, video compact disk, pen drive etc. pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. Only if the electronic record is duly produced in terms of Section 65B of Indian Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to Section 45B opinion of examiner of electronic evidence. CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 92 of 94 The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of Indian Evidence Act are not complied with, as the law now stands in India."
95. In view of this mandate of law, I am of the opinion that the electronic evidence in this case has not been proved as per mandate of law and therefore is inadmissible in evidence. The inadmissibility of such evidence as well as the other major contradictions and discrepancies in the oral testimony of the witnesses and the documentary evidence, I am of the opinion that the very foundation of case of prosecution is shaken and that prosecution has not been able to prove charges made out against accused persons under Section 120B of IPC r/w Section 7, 8, 12 & Section 13(2) r/w Section 13(1)(d) and substantive offences thereof.
96. I, accordingly, acquit all the accused persons of the charges framed against them under Section 120B of IPC r/w Section 7, 8, 12 & Section 13(2) r/w Section 13(1)(d) and substantive offences thereof.
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97. Bail bond of the accused persons are cancelled and their sureties are discharged. Documents of the sureties be returned to them, after cancellation of endorsement, if any, thereon. However, fresh bail bonds be furnished u/s. 437 A Cr.P.C. Fresh bail bonds have been furnished and accepted till 25.02.2015.
98. Case property if forfeited to the State to be destroyed or disposed of after the time of appeal is over. Since the prosecution has not been able to prove as to whom the bribe amount of Rs. 4 lakhs belongs and none of the accused persons have produced any evidence that the bribe amount belongs to them. Therefore, the said bribe amount of Rs. 4 lakhs be forfeited to the State after the period of appeal is over.
99. File be consigned to record room.
Announced in the open court on 25th Day of November 2014.
(SWARANA KANTA SHARMA) SPECIAL JUDGE (CBI05), NEW DELHI/ 25.11.2014 CC No. 13/12 State (CBI) Vs. Anurag Vardhan etc. Page No. 94 of 94