Delhi District Court
(C.B.I. vs . Rohit Sehgal) on 15 May, 2013
Judgement in the matter of:-
(C.B.I. Vs. ROHIT SEHGAL)
Dated : 15.05.2013.
: IN THE COURT OF SH. KANWAL JEET ARORA :
SPECIAL JUDGE : C.B.I. (P.C.ACT)
DWARKA COURT COMPLEX, NEW DELHI.
C.C.No. : 51 / 2011.
FIR No. : RC/AC II/2003/A0004
dtd 09th September,2003
Under sec. : 13(2) r/w section 13 (1) (e) of
Prevention of Corruption Act, 1988.
In the matter of:
CENTRAL BUREAU OF
INVESTIGATIONS (C.B.I)
...Through
[Sh.Manoj Shukla, Learned
Public Prosecutor for CBI]
v e r s u s
ROHIT SEHGAL
S/o.: Sh.Kishan Inder Lal Sehgal,
R/o.: S444, Greater Kailash,
Part1, New Delhi. ... Accused.
...Through
[Sh.R.D.Mehra,Advocate,
Ld.Counsel for the accused]
Date of Institution : 29.06.2004
Date of reserving judgement : 01.05.2013.
Date of pronouncement : 15.05.2013
C.C.No: 51 / 2011 Page No.1 of 131
Judgement in the matter of:-
(C.B.I. Vs. ROHIT SEHGAL)
Dated : 15.05.2013.
: J U D G E M E N T :
1.Corruption scenario in our country is distressingly disturbing and has shattered the genuine hopes of both the plebian and intellectual scions about the possible rejuvenation of the value based society. The malignancy of criminalization has affected every sphere of social, economic and political life and there has been a consistent accelerated growth of corruption. Time has come to effectively tackle and control the endemic of offences, so as to prevent the society from drifting towards savage society.
2. The endeavour of every member of the society, ought to be the collective economic growth of all, so that the nation as a whole should prosper. But, that is not to be. As the bridge between haves and havenots of the society is everwidening, rich are becoming richer and poor are becoming poorer. It is really hard to see a situation where four of world's ten richest people are "Indians", yet lakhs of farmers / havenots kill themselves, as they see no hope in the future, for end of their 'destitution'. C.C.No: 51 / 2011 Page No.2 of 131
Judgement in the matter of:-
(C.B.I. Vs. ROHIT SEHGAL) Dated : 15.05.2013.
3. Government many a times through its policies and statutes, directly intervene, so that over all growth and prosperity should not remain an urban phenomenon, and the same should also percolate down to the poor and struggling masses. To implement these policies and statutes, responsibility has been cast on the "public servants", to ensure collection of the statutory taxes from the persons liable to pay the same, to give economic strength to the exchequer. Thus, it has become obligatory on the part of public servants to perform their duties honestly and diligently, so that the government by way of the economic strength, is in a position to lift the minimum living standards or what may also be termed as 'minimum standard to survive' for the havenots, of the society.
4. Experience and reality however has revealed that there are innumerable public servants, who instead of thinking big and in the national interest, use to misuse their official positions for their own economic upliftment, rather than letting the government do something for upliftment of those, who really are in the need of the same.
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Judgement in the matter of:-
(C.B.I. Vs. ROHIT SEHGAL) Dated : 15.05.2013.
5. One such case of misuse of official position by a public servant came to the knowledge of Central Bureau of Investigations (CBI) through a source information, on the basis of which, the present FIR bearing no.RCACII 2003/A0004 was registered in ACUII Branch of CBI, New Delhi on 08 September th 2003 against Rohit Sehgal, the then Senior Manager (Commercial) Indian Airlines Limited, New Delhi and ExArea Manager, Indian Airlines Limited at Kuwait, for having in his possession pecuniary resources or property, disproportionate to his known sources of income, for which he could not satisfactorily account for.
6. After registration of the case, it was investigated, during which opportunity was granted by the investigating agency to the accused, to account for the disproportionate pecuniary resources, which were found in his possession. However, as accused Rohit Sehgal failed to satisfactorily account for the disproportionate assets / pecuniary resources, a charge sheet was submitted in court for his trial for the offences punishable u/s 13(2) r/w section 13(1)
(e) of Prevention of Corruption Act, 1988.
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Judgement in the matter of:-
(C.B.I. Vs. ROHIT SEHGAL) Dated : 15.05.2013.
7. On conclusion of the trial, which was a voyage, of which discovery of "truth" is the ultimate quest, the present stage of pronouncement of judgement has been arrived at. Before adverting to adjudicate the case on the basis of evidence on record, it is pertinent to have a grasp of the factual matrix, which led to the origin of the present case, as emanating from the material on record. The same interse is as under: FACTUAL MATRIX :
8. Rohit Sehgal had joined Indian Airlines, a public limited company as a "Management Trainee" in the year 1983 and thus became a "public servant". After working in different capacities and after getting various promotions, Rohit Sehgal was posted as Area Manager, Indian Airlines in Kuwait in June 2000 and remained so nd posted till 22 June 2003.
9. Rohit Sehgal being an Indian National, had held passports bearing number A5878670 dated 31.07.1998 and passport no.Z1112478 dated 30.01.2001. Family of Rohit Sehgal consisted of C.C.No: 51 / 2011 Page No.5 of 131 Judgement in the matter of:-
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his wife Smt.Devina Sehgal, his son Angad Sehgal and daughter Anushka Sehgal, who were staying with father of Rohit Sehgal at S444, Greater Kailash, PartI, New Delhi, during his posting as Area Manager in Kuwait.
10. Rohit Sehgal to join his posting as Area Manager of Indian Airlines, arrived in Kuwait on 22.06.2003 and as per the entries in his passports, he was not holding any foreign currency with him at that time.
11. Central Bureau of Investigations had received a reliable information that Rohit Sehgal while working as Area Manager, Indian Airlines in Kuwait had acquired huge pecuniary assets, disproportionate to his known sources of income, which he could not satisfactorily account for, on the basis of which CBI had registered FIR bearing number RCACII 2003/A0004 .
12. For the purposes of investigations and to ascertain the assets (pecuniary or otherwise) acquired by Rohit Sehgal, C.C.No: 51 / 2011 Page No.6 of 131 Judgement in the matter of:-
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during the period of his posting at Kuwait, visavis his income (known sources), the duration of his posting as Area Manager was taken as the check period i.e from 26.06.2000 to 22.06.2003.
13. The assets at the beginning of check period were taken as "NIL", as the entries in the passport of the accused at the time of his arrival in Kuwait, i.e. at the beginning of the check period reflected that he did not have any foreign currency with him, at that time.
14. It is alleged that Rohit Sehgal had an NRE Account bearing number 42789 with State Bank of India, Lajpat Nagar, Ring Road, New Delhi wherein during the check period he had remitted different amounts at different points of time aggregating to USD 96023. These amounts were remitted by Rohit Sehgal through Kuwait India International Exchange Company (KIIEC), to whom accused had made the payment of 29146.09 Kuwaiti Dinar which were converted into dollars, for the purposes of making remissions.
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Judgement in the matter of:-
(C.B.I. Vs. ROHIT SEHGAL) Dated : 15.05.2013.
15. Rohit Sehgal was having an account number 5510246 with M/s Gulf Bank at Kuwait, wherein at the end of check period, he was having a balance of 50 Kuwati Dinars.
16. Rohit Sehgal was maintaining a Globe Deposit Account No.104617, with CITI Bank Singapore which was opened by him in May 2002 and in this account, Rohit Sehgal had transferred an amount of USD 1,25,273.90 from Kuwait.
17. Rohit Sehgal on 23 April 2003, remitted an rd amount of Rs.5 lakhs through a Bank Draft in the name of his father Sh.K.I.Lal Sehgal through Bahrain Exchange Company, to which he had paid an equivalent amount ie. 3178.350 Kuwaiti Dinars. This amount of Rs.5 lakh was credited in ICICI Bank Account of father of the accused, which was utilized for investment in Govt.of India bonds, in the joint names of Rohit Sehgal and his father Sh.K.I.L.Sehgal.
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Judgement in the matter of:-
(C.B.I. Vs. ROHIT SEHGAL) Dated : 15.05.2013.
18. The amount remitted by Rohit Sehgal to his NRE Account in State Bank of India Lajpat Nagar, was utilized for purchase of Indian Millennium Bonds, Govt.of India Bonds through ICICI Bank, purchase of Hyundai Accent Car, investment in FDRs and for purchase of Govt.of India Bonds, through ICICI Bank.
19. The investigating agency during the course of investigations had found from the office of Rohit Sehgal that the net salary received by him, during the check period including the arrears paid to him, besides the amount received by him towards encashment of "privilege leave" was KWD 30032.
20. It is alleged in the charge sheet that no figures regarding expenditure made by Rohit Sehgal during the course of his stay in Kuwait, were made available to them by the accused, despite opportunities therefore, 30% of the net salary received by him during the check period is taken as his expenditure towards his own subsistence and towards the expenses incurred by him for supporting his family. The expenditure of Rohit Sehgal for the check C.C.No: 51 / 2011 Page No.9 of 131 Judgement in the matter of:-
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period was taken as 9,000 KWD.
21. Investigations conducted by CBI revealed that total assets which were found to be in possession of Rohit Sehgal, at the end of check period were USD 1,25,273.90 + KWD 32, 374.44.
22. It is alleged that thus, an amount of Rs.75,75,518.14/ (Rupees Seventy Five Lakhs Seventy Five Thousands five hundred and eighteen point fourteen) in Indian Currency at the exchange rate of Rs.146.25 for one Kuwaiti Dinar and Rs.47.23 for one US Dollar, was found to be disproportionate to the known sources of income, for which Rohit Sehgal could not give any satisfactory reply.
23. It is alleged that Rohit Sehgal was afforded opportunity to explain these disproportionate assets in his possession, but the explanation adduced by him, were found to be misleading and false. Hence, the present charge sheet was filed for his trial for offences punishable u/s 13 (2) r/w section 13(1)(e) of C.C.No: 51 / 2011 Page No.10 of 131 Judgement in the matter of:-
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Prevention of Corruption Act, 1988.
24. It is alleged that as Rohit Sehgal was dismissed from the services by Indian Airlines Limited, therefore no sanction for his prosecution is required as per Section 19 of Prevention of Corruption Act.
25. It is stated that as Rohit Sehgal is an Indian National, however the disproportionate assets which he had accumulated to his known sources of income were done so, while his posting in Kuwait, a foreign land, therefore for his trial, necessary sanction u/s 188 Cr.P.C was granted by Central Government, which is filed on record.
COGNIZANCE OF OFFENCE:
26. Pursuant to filing of charge sheet and after perusal of the same in the light of supporting documents, Ld.Predecessor of this court took cognizance of offence and accused was accordingly summoned.
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27. In compliance to the provisions of Section 207 Cr.P.C, the accused was supplied with the copies of charge sheet and documents relied upon by the prosecution.
CHARGE:
28. Ld.Predecessor of this court, after hearing arguments on charge on behalf of CBI as well as the accused, opined that primafacie case for offence punishable under section 13 (2) read with section 13 (1) (e)of Prevention of Corruption Act, 1988 is made out against the accused.
29. Requisite charge for offence under section 13 (1)(e) read with section 13 (2) of Prevention of Corruption Act, 1988 was framed, which was read over to the accused, to which he pleaded not guilty and claimed trial.
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PROSECUTION EVIDENCE:
30. Prosecution was thereafter called upon to substantiate their case by examining the witnesses, listed in the list of witnesses, filed along with the charge sheet.
31. Availing the given opportunities, prosecution had examined 19 witnesses.
32. The witnesses examined by the prosecution to substantiate their case can be broadly categorized in four categories.
33. The first category of witnesses includes the witnesses examined by the prosecution from the banks wherein accused Rohit Sehgal had his bank accounts, to which he had remitted various amounts during the check period while being posted as Area Manager, Indian Airlines, through Kuwait India International Exchange Company and Bahrain Exchange Company. C.C.No: 51 / 2011 Page No.13 of 131
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34. This category consists of witnesses from State Bank of India, Lajpat Nagar Branch, New Delhi, where Rohit Sehgal was having a NRE Account No.: 42789. The witnesses examined from State Bank of India Lajpat Nagar were :
(i) PW2 Mukesh Kumar ;
(ii) PW4 Mahesh Chand ;
(iii) PW5 Sudhir Tandon ;
(iv) PW14 D.K.Laali.
35. This category further includes the witnesses examined by the prosecution to prove the remittances made by the accused in his Global Account with CITI Bank Singapore consisting of :
(v) PW3 T.A.Sampat Kumar ;
(vi) PW13 Jagdish Salwan ;
(vii) PW15 Mamta Sinha ;
(viii) PW6 Tarun Tayal from ICICI Bank, GK PartI and
(ix) PW9 R.K.Seth from Indian Overseas Bank, also fall under this category.
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(C.B.I. Vs. ROHIT SEHGAL) Dated : 15.05.2013.
36. Second Category of witnesses are miscellaneous witnesses, who were joined during the investigations by the investigating officer. This category includes ;
(i) PW1 Pramod Sharma, who was joined as independent witness during house search of the accused ;
(ii) PW10 Sunil Kumar, working with Bahrain Exchange Company, who proved a letter of his company which was sent to Indian Overseas Bank.
37. Third Category of the witnesses includes the witnesses examined by the prosecution from the office of accused ie. Indian Airlines Limited. This category includes :
(i) PW7 R.K.Dewat, Country Manager, Indian Airlines ;
(ii) PW8 Abraham David, General Manager of GSA of Indian Airlines ;
(iii) PW11 Udita K.Nayak, Deputy Manager (Finance) ;
(iv) PW12 S.S.Oberoi, Dy.GM Indian Airlines and
(v) PW17 K.K.Sharma, Chief Vigilance Officer, Indian Airlines. C.C.No: 51 / 2011 Page No.15 of 131
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38. Fourth Category of witnesses includes those who remained associated with the investigations of the present case in one form or the other, at request of the investigating officer, including the one who was examined to prove the sanction granted by the Central Government for trial of accused. This category consists of :
(i) PW16 Sh.N.K.Aggarwal, Handwriting Expert ;
(ii) PW18 Shubha Thakur, who was examined to prove sanction under section 188 Cr.P.C and
(iii) PW19, the investigating officer himself namely Inspector A.B.Chaudhary.
39. Before proceeding further, it is pertinent to make a brief mention of the role and deposition of the prosecution witnesses categorywise as referred hereinabove. The detailed deposition of the witnesses is not being adverted to, as the same shall be referred hereinafter while dealing with the necessary ingredients of the offence, with which accused has been charged, visavis the rival contentions advanced by Ld.Special PP for CBI as well as by C.C.No: 51 / 2011 Page No.16 of 131 Judgement in the matter of:-
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Ld.Defence Counsel for the accused.
40. Three of the prosecution witnesses ie. PW17, PW18 and PW19, were cross examined in detail by Sh.R.D.Mehra, Ld.Defence Counsel. The crossexamination of these witnesses is not being mentioned for the sake of brevity, but the same and material portion thereof, more particularly, the one referred to, during the course of arguments, shall be adverted to hereinafter, while appreciating the legal and factual issues advanced on behalf of the accused, alongside appreciation of evidence in entirety.
FIRST SET OF WITNESSES:
41. Mukesh Kumar, Assistant General Manager, State Bank of India (SBI) appeared in the witness box as PW2. He deposed that on 25.09.2003, he had handed over the documents pertaining to various cheques and TDRs, issued by and in favor of accused Rohit Sehgal pertaining to SBI Lajpat Nagar Ex.PW.2/2 to Ex.PW.2/19 which were taken into possession vide seizure memo C.C.No: 51 / 2011 Page No.17 of 131 Judgement in the matter of:-
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Ex.PW.2/1 from him. He was not at all cross examined on behalf of the accused.
42. PW4 Mahesh Chand Kayat, Manager with State Bank of India (SBI) Lajpat Nagar deposed that he had handed over various documents pertaining to NRE Account number 42789 with their bank in the name of accused Rohit Sehgal to the investigating officer. These documents ie. Ex.PW.4/2 to Ex.PW.4/18 which includes the credit voucher and TDRs in the name of accused Rohit Sehgal ie. Ex.PW.4/2 to Ex.PW.4/18 were handed over vide seizure memo Ex.PW.4/1. He deposed that statement of account Ex.PW.4/19 was also handed over by him to the investigating officer with respect to this very account. On being cross examined, this witness stated that some of the FDRs which were handed over by him to the investigating officer were prepared by Anil Jalal and other officers of the bank.
43. PW5 Sudhir Tandon, Assistant, working with State Bank of India, Lajpat Nagar, proved the 'account opening form' C.C.No: 51 / 2011 Page No.18 of 131 Judgement in the matter of:-
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of Rohit Sehgal as Ex.PW.2/17. He further deposed that "power of attorney" was submitted with them by the accused Rohit Sehgal, the account holder, in favor of his father Sh.K.I.L.Sehgal which Ex.PW. 2/18. He further proved various FDRs issued in favor of Rohit Sehgal by their bank as Ex.PW.2/4 to Ex.PW.2/12 and Ex.PW.4/4 to Ex.PW.4/18.
44. Statement of NRE Account of accused was proved as Ex.PW.5/1 and statement of TDR Account of accused was proved as Ex.PW.5/2. He further proved the statement of account of various TDRs of accused as Ex.PW.5/3 to Ex.PW.5/41 issued under signatures of Mahesh Kayat, the then Manager of SBI. This witness further proved an application submitted with their bank by accused for investing 12,000 U.S.Dollars in India Millenium Bond. He proved the said application as Ex.PW.2/16. PW5 further proved a message from their bank to SBI Frankfurt Ex.PW.5/42 for 25,000 Euros. He deposed that certain documents were taken into possession by the investigating officer from Sh.D.K.Laali of their bank vide seizure memo Ex.PW.5/43. He proved a draft of 10,000 U.S.Dollars in favor of accused as Ex.PW.5/44. He further proved a C.C.No: 51 / 2011 Page No.19 of 131 Judgement in the matter of:-
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deposit slip Ex.PW.4/3 vide which accused had deposited 1100 Dhirums of UAE in his account. PW5 deposed that vide deposit slip Ex.PW.4/2, accused had deposited 90.25 Kuwaiti Dinars (KWD).
45. This witness further proved the statement of account of the accused, prepared by him in his own hands, which he had handed over to the accused as Ex.PW.5/45 and Ex.PW.5/46. He further deposed that the Investigating Officer during the course of investigations had taken specimen signatures of the accused on a number of sheets ie. from Ex.PW.5/47 to Ex.PW.5/73 which were signed by him as a witness. This witness on being cross examined by Sh.R.D.Mehra, Advocate, admitted that 25,000 Euros and 10,000 USD which were remitted by accused in his account were "returned", back to the accused in Kuwait.
46. PW14 D.K.Laali, Deputy Manager, State Bank of India (SBI) appeared and deposed that he was working as Incharge of International Banking Division. He deposed that the investigating officer of the present case had taken into possession C.C.No: 51 / 2011 Page No.20 of 131 Judgement in the matter of:-
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certain documents relating to the transactions which accused had with their bank through Kuwait India International Exchange Company. He deposed that the letters of Kuwait India International Exchange Company along with the drafts mentioned therein ie. Ex.PW.14/2 to Ex.PW.14/15 were taken into possession vide seizure memo Ex.PW.14/1. This witness on being cross examined on behalf of accused Rohit Sehgal stated that pursuant to receipt of letter of Rohit Sehgal Ex.PW.14/DB, he had submitted the details of his account Ex.PW.14/DA. This witness also during the course of his cross examination admitted the fact that as per the records, 25,000 Euros and 10,000 U.S.Dollars which were remitted by the accused earlier, were returned back through Kuwait India International Exchange Company.
47. PW3 Sh.T.A.Sampat Kumar, Manager of CITI Bank appeared and deposed that he had furnished information to CBI vide his letter Ex.PW.13/1. He deposed that he had handed over "account opening form" of the Global Account, with them in the C.C.No: 51 / 2011 Page No.21 of 131 Judgement in the matter of:-
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names of Rohit Sehgal, and his mother as Ex.PW.3/2. He further deposed that vide his letter Ex.PW.3/3, he had handed over the documents Ex.PW.3/4 and Ex.PW.3/5 to CBI and vide his letter Ex.PW.3/6, the documents Ex.PW.3/7 to Ex.PW.3/14 were handed over to CBI. Ex.PW.3/7 and Ex.PW.3/8 were the statement of account and Ex.PW.3/12 to Ex.PW.3/14 were Telex Transfer Copies.
48. On being cross examined, this witness denied the suggestion that no withdrawls were made from this account. He further stated that as per the statement of account Ex.PW.3/8, there are entries as per which dollars were invested by the accused in TEC17 Bonds. This witness stated that he cannot say that prior to registration of this case, the entire amount from this account was transferred to M/s Great Himalayan Company or not.
49. PW13 Jagdish Salwan, Assistant Managaer from CITI Bank also corroborated the deposition made by PW3 T.A.Sampat Kumar. PW13 deposed that he had certified the statement of quarterly account of accused bearing number 104617 C.C.No: 51 / 2011 Page No.22 of 131 Judgement in the matter of:-
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ie. Ex.PW.3/7 and Ex.PW.3/8, as well as Telex Transfer Copies Ex.PW.3/12 to Ex.PW.3/14.
50. PW15 Mamta Sinha, another witness from CITI Bank appeared and deposed that she was posted as Assistant Manager with CITI Bank. She deposed that they had received requests from accused Rohit Sehgal, the account holder vide Ex.PW. 3/4, Ex.PW.3/5 and Ex.PW.15/1 which were endorsed by her. On being cross examined, this witness stated that she cannot say to whom or to which company remittances were made from this account of the accused.
51. PW9 Sh.R.K.Seth, Senior Manager from Indian rd Overseas Bank appeared and proved original draft dated 23 April 2003 for a sum of Rs.5 lakhs in favor of father of accused Sh.K.I.L.Sehgal as Ex.PW.9/A, which he handed over to the investigating officer vide seizure memo Ex.PW.9/B. This witness further deposed that they had received a confirmation letter from Bahrain Exchange Ex.PW.9/C, photocopy of which was handed over C.C.No: 51 / 2011 Page No.23 of 131 Judgement in the matter of:-
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by them to CBI. On being cross examined, this witness stated that he cannot say as to whether this amount was sent back to the account of sender or not.
52. PW6 Tarun Tayal from ICICI Bank, Greater Kailash, PartI, New Delhi, appeared and deposed that certain documents were handed over by him to CBI vide seizure memo Ex.PW.6/1. He deposed that the documents handed over by them to CBI includes the application for purchase of Government of India Bonds received by them, from the accused along with the cheques issued by him for purchase of bonds, the account opening form of the accused, statement of account of accused Rohit Sehgal, statement of account of father of accused, Pay in slip of deposit of Rs.5 lakhs in account of father of accused, cheques of various amounts which are Ex.PW.6/2 to Ex.PW.6/24. The same were handed over to the investigating officer vide seizure memo Ex.PW.6/1. On being cross examined, this witness stated that he is not aware as to whether the amount of Rs.5 lakhs remitted by the accused Rohit Sehgal to his father was sent back or not.
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SECOND SET OF WITNESSES:
53. PW1 Pramod Sharma appeared and deposed that he was working as Junior Engineer (JE) with New Delhi Municipal Corporation. He deposed that on directions of his senior officers, he had joined investigations with CBI on 09.09.2003 when they conducted house search of property bearing number S444, Greater Kailash, PartI, New Delhi. He deposed that the search memo Ex.PW.1/1 was prepared by the investigating officer and certain documents taken into possession vide this search memo are Ex.PW.1/2 to Ex.PW.1/10. He deposed that file Ex.PW.1/11 was also recovered during house search, of the accused.
54. PW10 Sunil Kumar, the other witness in this category appeared and deposed that he was working with Bahrain Exchange Company. He deposed that forwarding letter dated 24.04.2003 was sent by their company to Indian Overseas Bank Ex.PW.9/C, vide which a draft bearing number 1108038 was issued in favor of Sh.K.I.L.Sehgal. This witness was not cross examined on behalf of the accused.
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THIRD SET OF WITNESSES:
55. PW1 R.K.Dewat, Country Manager from Indian Airlines appeared and deposed that Sh.K.K.Sharma, Chief Vigilance Officer of Indian Airlines had visited Kuwait, during July 2003, for the purposes of making certain inquiries. He deposed that he was asked by Sh.K.K.Sharma to collect details of bank accounts of accused Rohit Sehgal which he was having with the banks in Kuwait. This witness further deposed that he accordingly instructed Sh.Abraham David, General Manager of GSA of Indian Airlines to do the needful. He deposed that Sh.Abraham David gave him the details vide his letter dated 16.10.2003 Ex.PW.7/B which he had forwarded to CBI vide his letter Ex.PW.7/A. He deposed that the statements of account of the accused pertaining to his bank accounts in Kuwait are Ex.PW.7/C and Ex.PW.7/D. On being crossexamined, this witness stated that Sh.Abraham David is still working with GSA of Indian Airlines. This witness further deposed that there is an agreement between Indian Airlines and its GSA. C.C.No: 51 / 2011 Page No.26 of 131
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56. PW8 Abraham David admitted and corroborated the version given on record by PW7. He deposed that R.K.Dewat asked him to procure bank details of accused Rohit Sehgal. He deposed that he obtained the statement of account Ex.PW.7/C from Gulf Bank account number 55102416 in the name of accused and statement of another bank account bearing number 3002100578 in the name of accused Ex.PW.7/D, which he forwarded to Sh.R.K.Dewat vide his letter Ex.PW.7/B.
57. On being cross examined, this witness stated that he had not made any written request to the banks in Kuwait for furnishing statement of account of accused Rohit Sehgal. He admitted that he had not received any request from CBI to collect these documents from the bank. This witness admitted that there is an agreement between Indian Airlines and its General Sales Agent (GSA) vide which fully furnished residential accommodation inclusive of electricity and water charges is provided to the accused.
He further admitted that a chauffeur driven car with free petrol also forms part of the perks. He also admitted that under permissible C.C.No: 51 / 2011 Page No.27 of 131 Judgement in the matter of:-
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limits 3,000 Kuwaiti Dinars (KWD) per annum can be spent by accused for sales promotion. This witness admitted that mobile and local calls were also provided to the accused free of charges. He admitted that allowances and other expenses like TA, DA, Medical Expenses, Travel Allowances are paid by them against payment vouchers, which they used to debit in the account of Indian Airlines. This witness further admitted that accused was also entitled to have free meals in Crown Plaza Hotel. He deposed that he cannot give the details of the amount paid by them as GSA of Indian Airlines to accused.
58. PW11 Smt.Udita V.Nayak, appeared and deposed that she was posted as Assistant Manager (Finance) Indian Airlines. She deposed that Pay roll taken by accused used to be maintained under her supervision. She proved the details of salary and arrears paid to the accused during his posting at Kuwait as Ex.PW.11/1. She deposed that during the check period, accused as per the official record, was paid a total sum of Rs.30032 Kuwaiti Dinars (KWD).
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59. On being cross examined, she deposed that she is not aware if besides salary, other perks were also available to employees of Indian Airlines. She deposed that she is not aware of any agreement between Indian Airlines and its GSA.
60. PW12 Sh.S.S.Oberoi, Deputy General Manager of Indian Airlines was a formal witness, who had identified signatures of accused Rohit Sehgal on his service files and certain other records, more particularly, on personal file of accused Ex.PW.
1/11, recovered during house search of the accused. This witness deposed that he had joined the services with accused and had worked with him in the years 1996 and 1997. On being cross examined, this witness stated that amounts mentioned in the documents, on which he had identified the signatures of accused, relates to the transactions which accused had with his bank. This witness stated that he cannot say as to whether the GSA pays the allowances to the employees of Indian Airlines in cash. He denied the suggestion that he had wrongly identified the signatures of accused at instance of CBI.
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61. PW17 Sh.K.K.Sharma, Chief Vigilance Officer of th Indian Airlines, deposed that on 15 July 2003, he was directed by ChairmancumManaging Director of Indian Airlines, to enquire about a complaint against Rohit Sehgal, of his having illicit relations with one Ritu Kohli. He deposed that Rohit Sehgal who was posted as Area Manager of Indian Airlines in Kuwait since June 2000, had nd rd suddenly left for Delhi on 22 or 23 June 2003. PW17 went on to depose that he, for the purposes of making inquiries visited Kuwait and had recorded statements of Ms.Parcila, P.A. to the Accused, Mr.Fernandes, driver of the accused and David Abraham, General Manager of GSA of Indian Airlines.
62. PW17 further deposed that he had also recorded statement of Hitesh Kohli, the person who had made complaint to CMD against Rohit Sehgal. PW17 deposed that on the basis of statement of several persons recorded by him, he found that accused did have illicit relations with Ritu Kohli. C.C.No: 51 / 2011 Page No.30 of 131
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63. PW17 deposed that in Kuwait, he received an information that Rohit Sehgal during his posting in Kuwait, had remitted about 1 crore of rupees in his bank accounts as he made this money by waiving excess baggage charges from the passengers against illegal consideration. PW17 deposed that for the purposes of making inquiries, he had examined one Illiyas and Narsimha, who used to negotiate with the passengers on behalf of the accused. PW17 deposed that he also obtained call detail records of accused and found a number of calls made by the accused to Narsimha. PW17 deposed that he collected details of remittances made by the accused from Kuwait to his SBI Account in India. He deposed that he, collected documents from Kuwait India International Exchange Company, through which accused had remitted money to his accounts in India.
64. PW17 deposed that he also collected details of the salary and other arrears paid to the accused by the Indian Airlines during his tenure in Kuwait. PW17 deposed that he subsequently got the details of remittances made by the accused C.C.No: 51 / 2011 Page No.31 of 131 Judgement in the matter of:-
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through Bahrain Exchange Company. PW17 deposed that he had recorded statement of accused as well, which is Ex.PW.17/A. PW17 deposed that he had collected the data of excess baggage revenue, collected by Indian Airlines from April 2003 to July 2003, and also collected the leave record of the accused and found that the revenue collected during the period when accused was on leave and was not in town, was more than what was collected during the period when the accused was on duty in Kuwait. He proved the details of same as Ex.PW.17/C. PW17 further deposed that he submitted his report Ex.PW.17/B to CMD. He proved the complete file containing his report and other documents as Ex.PW.17/D. PW17 proved a letter dated 31.10.2003 sent to SP, CBI along with original documents as Ex.PW.17/E and the letter dated 24.10.2003 as Ex.PW.17/F. FOURTH SET OF WITNESSES:
65. PW16 Sh.N.K.Aggarwal, Senior Scientific Officer, CFSL, appeared and deposed that vide letter dated 12.11.2003 from CBI, certain documents including the questioned signatures as well as specimen and admitted signatures were C.C.No: 51 / 2011 Page No.32 of 131 Judgement in the matter of:-
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submitted for examination. He proved the said letter as Ex.PW. 16/A. PW16 deposed that he was entrusted with the examination of the questioned documents which he did, with aid and assistance of scientific instruments and science of handwriting comparison and gave his detailed report Ex.PW.16/B. He deposed that the said report was forwarded to CBI by Dr.S.R.Singh vide his forwarding letter Ex.PW.16/C.
66. PW18 Shubha Thakur, Deputy Secretary, Ministry of Civil Aviation, appeared and deposed that they had received a report from CBI along with the request for grant of sanction u/s 188 Cr.P.C against the accused. She deposed that the statement of witnesses recorded and documents submitted along with the report were perused. She deposed that a sanction order dated 21.12.2004 was issued in the name of President of India. She deposed that she had signed the said sanction order at point A and proved the same as Ex.PW.18/A. C.C.No: 51 / 2011 Page No.33 of 131 Judgement in the matter of:-
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67. Investigating officer of this case Inspector A.B.Chaudhary appeared in the witness box as PW19. He deposed about the investigations carried out by him. He deposed that on 08.09.2003, the present FIR was registered against accused Rohit Sehgal, under signatures of the then SP, CBI Arun Sharma, and proved the same as Ex.PW.19/A. He deposed that a separate order was passed by the then SP Arun Sharma, whereby investigations were entrusted to him and he proved the said order Ex.PW.19/B.
68. PW19 deposed that on 09.09.2003, he had conducted house search of accused in presence of two independent witnesses and prepared a search list Ex.PW.1/1 vide which documents mentioned therein, were taken into possession which included passbook of post office of accused, pass book of the other accounts of the accused and that of his wife, FDRs in the name of wife of accused ie. Ex.PW.1/2 to Ex.PW.1/10. C.C.No: 51 / 2011 Page No.34 of 131
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69. PW19 further deposed that he had taken into possession documents from State Bank of India, Lajpat Nagar vide seizure memo Ex.PW.2/1 regarding the NRE Account Number :
01192042789 of accused. He deposed that he had taken into possession a cheque Ex.PW.2/2 issued by the accused in favor of M/s Samara Hyundai, another cheque of Rs.25 lakhs issued by the accused in his own name Ex.PW.2/3. PW19 further deposed that he had further taken into possession various TDRs issued from this bank as Ex.PW.2/4 to Ex.PW.2/12, a letter written to SBI Lajpat Nagar by father of accused Ex.PW.2/14, letter of Rohit Sehgal addressed to SBI as Ex.PW.2/14 and and ExPW.2/15. Application of the accused for investing 10,000 U.S.Dollars in India Millenium Bond Ex.PW.2/16 and Account opening form of the accused Ex.PW. 2/17.
70. PW19 deposed that he had collected documents from ICICI Bank GKI, New Delhi with respect to Account number:
29671 of accused and also some documents with respect to the account of his father with ICICI Bank. He deposed that the C.C.No: 51 / 2011 Page No.35 of 131 Judgement in the matter of:-
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documents with respect to ICICI Bank Ex.PW.6/9 to Ex.PW.6/11 were received by him vide letter dated 03.10.2003 Ex.PW.6/8 of Tarun Tayal an officer of ICICI Bank. He deposed that he had also seized pay in slips, bond purchase applications Ex.PW.6/2 to Ex.PW. 6/7, Ex.PW.6/12 to Ex.PW.6/18 vide seizure memo Ex.PW.6/1. PW19 further deposed that he had collected further documents from ICICI Bank ie. Statement of account Ex.PW.6/19 and Ex.PW.5/1 to Ex.PW. 5/41. PW19 further deposed that he had also taken into possession the original draft of Rs.5 lakhs Ex.PW.9/A in the name of father of accused, vide seizure memo Ex.PW.9/B
71. PW19 further deposed that he had taken into possession pay in slips Ex.PW.4/2 and Ex.PW.4/3 from SBI Lajpat Nagar, besides which he had taken into possession the TDRs Ex.PW.
4/4 to Ex.PW.4/18 vide seizure memo Ex.PW.4/1 dated 10.10.2003. PW19 further deposed that he had also seized relevant entries of register maintained by SBI Ex.PW.4/19.
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72. PW19 further deposed that he had seized a draft of USD 10,000 Ex.PW.5/44 in favor of accused from SBI Lajpat Nagar, vide seizure memo Ex.PW.5/43. PW19 deposed that he had also seized "special power of attorney" Ex.PW.2/18 and letter from SBI Lajpat Nagar Ex.PW.2/19 certifying that Rohit Sehgal was enjoying NRI Status.
73. PW19 deposed that he had also received documents from CITI Bank Chennai, vide their letter Ex.PW.3/A with respect to the Global account of the accused bearing number 104617 including the account opening form and the remittance instructions issued by Rohit Sehgal ie. Ex.PW.3/2, Ex.PW.3/3, Ex.PW.3/4, Ex.PW.3/5 and Ex.PW.15/1. PW19 further deposed that vide letter dated 30.10.2003, he received the statement of account pertaining to Global Account of the accused and other instructions as Ex.PW.3/6 to Ex.PW.3/11 as well as the messages from CITI Bank Chennai from Ex.PW.3/12 to Ex.PW.3/14. C.C.No: 51 / 2011 Page No.37 of 131
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74. PW19 deposed that he had received a letter from Manager, Indian Airlines, Kuwait, Ex.PW.7/A vide which he had sent statement of account of Gulf Bank Kuwait in the name of accused and that of Commercial Bank of Kuwait Ex.PW.7/C and Ex.PW.7/D respectively.
75. PW19 further deposed that he received details of salary of accused Ex.PW.11/A from CVO, vide letter Ex.PW.17/E and admitted writing of Rohit Sehgal Ex.PW.16/D.
76. PW19 further deposed that he had taken into possession the draft and advice of Kuwait India International Exchange Company Ex.PW.14/2 to Ex.PW.14/15 vide seizure memo Ex.PW.14/A. He deposed that he had taken on record a letter Ex.PW.19/C from HDFC Bank, GKI, New Delhi. He deposed that he had taken into possession a bond ledger account number from accused vide seizure memo Ex.PW.19/D. He deposed that he had issued a notice to the accused Ex.PW.19/F, calling upon him to furnish details of his income and expenditure during check period C.C.No: 51 / 2011 Page No.38 of 131 Judgement in the matter of:-
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for which he received reply Ex.PW.19/E from the accused.
77. PW19 further deposed that he had received another letter from the accused Ex.PW.19/G along with which he had furnished a letter Ex.PW.19/H from Kuwait India International Exchange Company and a certificate Ex.PW.19/J.
78. PW19 deposed that he had issued another notice Ex.PW.19/K to the accused in reply to which he had received letters Ex.PW.19/L and Ex.PW.19/M from the accused.
79. PW19 deposed that he had received letter dated
25.06.2004 from K.K.Sharma, CVO, Indian Airlines Ex.PW.19/N vide which the file Ex.PW.19/N1 to Ex.PW.19/N4 was taken into possession. PW19 further deposed that he had issued a notice Ex.PW.19/P to Bahrain Exchange Company in response of which, he received reply from Bahrain Exchange Company furnishing details of remittances made by the accused as Ex.PW.19/Q1 to Ex.PW. 19/Q3. PW19 further deposed that he had received the personal file C.C.No: 51 / 2011 Page No.39 of 131 Judgement in the matter of:-
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of the accused Ex.PW.12/B vide letter Ex.PW.17/F from CVO Indian Airlines.
80. PW19 deposed that he had taken specimen signatures of accused Ex.PW.5/47 to Ex.PW.5/73 in presence of PW5 Sudhir Tandon and had sent the questioned documents alongwith specimen handwriting and admitted handwriting and signatures of accused to CFSL vide letter Ex.PW.16/A, signed by the then SP Arun Sharma. He deposed that he had received report Ex.PW.16/B from CFSL alongwith forwarding letter Ex.PW.16/C.
81. PW19 deposed that he had submitted a report with Central Government after conclusion of the investigations, seeking sanction u/s 188 Cr.P.C as the offence had taken place in Kuwait and had received the sanction order Ex.PW.18/A. PW19 deposed that on conclusion of investigations, he found that Rohit Sehgal had procured disproportionate assets amounting to Rs.
75,75,518.14/ for which he could not satisfactorily account for, therefore present charge sheet Ex.PW.19/T was submitted in court C.C.No: 51 / 2011 Page No.40 of 131 Judgement in the matter of:-
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for his trial along with list of documents Ex.PW.19/T1 and list of witnesses Ex.PW.19/T2.
STATEMENT OF ACCUSED:
82. Statement of accused was thereafter recorded under section 313 Cr.P.C. During the course of his statement, accused had candidly admitted all the remittances made by him, while posted as Area Manager in Kuwait, to his bank account with State Bank of India (SBI) Lajpat Nagar Branch, with his Global Account in Singapore and also a sum of Rs.5 lakhs remitted by him to his father Sh.K.I.L.Sehgal sent through Bahrain Exchange Company. He however contended that the investigating officer had wrongly inflated his assets / pecuniary resources by counting 10,000 U.S.Dollars and 25,000 Euros, which though were remitted by him but were called back in Kuwait. He further contended that the Investigating Officer as well as the investigating agency failed to take into account the innumerable perks, to which he was entitled to, while being posted as Area Manager in Kuwait. C.C.No: 51 / 2011 Page No.41 of 131
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83. He contended that these perks, which he was entitled to get from GSA of Indian Airlines ie. House of Travels vide "Agreement and Memorandum of Understanding" Ex.PW.17/DA and Ex.PW.17/DB respectively, were not taken into consideration by the investigating agency. He contended that all these perks were being paid to him in cash, but the same were not accounted for, in his income by the investigating agency, so as to foist a false case against him. He contended that he was also entitled to have 12,000 Kuwaiti Dinars (KWD) from GSA of Indian Airlines, for business promotion, which infact he got and the same should also have been accounted for, in his income, but the investigating officer failed to do so. He further contended that in view of these perks and allowances to which he was entitled, he did not have any expenditure, as his family was residing with his father in Delhi, therefore an amount of 9,000 Kuwaiti Dinar (KWD) which was taken as his expenditure during the check period by the investigating agency, is an unreasonable and false figure which should not have been deducted from his income, while calculating his pecuniary resources. C.C.No: 51 / 2011 Page No.42 of 131
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84. He further contended that during the course of investigations itself, he had apprised the investigating agency that 1,25,000 U.S.Dollars were given to him in different phases by one Naresh Jain of M/s Kumar Trading Company, which were to be used subsequently for a joint business between him and said Naresh Jain, but the said explanation were not considered by the investigating agency and have falsely implicated him in the present case. He contended that he in innocent and a wrong inquiry report conducted against him by K.K.Sharma, Chief Vigilance Officer of Indian Airlines, being inimical towards him, was made the basis of the present case. He contended that during his tenure with Indian Airlines, he got 4 promotions and there was no complaint of any sort against him.
85. Accused wished to examine witnesses in his defence. He was permitted to do so.
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DEFENCE EVIDENCE:
86. Availing the given opportunities, accused Rohit Sehgal examined one Naresh Jain, as DW1. Accused Rohit Sehgil after seeking permission to examine himself under section 315 Cr.P.C appeared in the witness box as DW2. He examined one D.C.Singh as DW3. Sh.S.Chattopadhyay, appeared as defence witness as DW4. Ashok Babu was examined as DW5 and Smt.S.Belgaonkar was examined by the accused as DW6.
87. DW1 Sh.N.K.Jain appeared and deposed that he was doing the business under the name and style of M/s Jain Trading Company in Dubai being NRI. He deposed that in the year 2000, he had met Rohit Sehgal and they have decided to open a placementcumtravel agency, to be operated from Delhi. He deposed that Rohit Sehgal told him that there will be a total investment of 1,50,000 U.S.Dollars. DW1 deposed that he told accused that he shall pay this amount in installments and in all, he had paid 1,28,000 U.S.Dollars at different points of time, which as told to him by accused were kept by the accused in Global Account in C.C.No: 51 / 2011 Page No.44 of 131 Judgement in the matter of:-
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Singapore. DW1 deposed that in the year 2003, due to some unrest in the area, he told Rohit Sehgal that he is not in a position to go ahead with the project and asked the accused to return his money. He deposed that on his asking, accused had transferred all the amount paid by him to accused in the account of M/s Great Himalayan Singapore. He deposed that he had executed an affidavit Ex.DW.1/A. He further deposed that he had written certain letters to Rohit Sehgal ie. Ex.DW.1/B, Ex.DW.1/C, Ex.PW.1/D and Ex.DW. 1/E. He further stated that on letter dated 22.02.2004 Ex.DW.1/F, his signatures were attested by Commercial Bank of Dubai, where he was holding a bank account.
88. On being cross examined by Ld.Prosecutor for CBI, this witness stated that he does not remember his identity number issued by Govt.of Dubai. He also stated that he had not submitted any documentary evidence to establish his NRI Status. He stated that he was doing his business in Dubai with a local partner whose name he does not remember. He further stated during his cross examination, that he had met Rohit Sehgal only once prior to meeting him in the year 2001. He deposed that he had made the C.C.No: 51 / 2011 Page No.45 of 131 Judgement in the matter of:-
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first payment to Rohit Sehgal in the year 2001 and the entire money was paid by him in cash. He stated that no written agreement or contract took place between him and Rohit Sehgal with respect to their carrying the business together.
89. On being cross examined, he stated that in the year 2003, when the Government in Dubai had permitted NRI's to purchase property in Dubai and he found the business of property to be lucrative, therefore he asked the accused to return his money as he wanted to invest the same in property. He admitted that he had not placed on record any documentary evidence to show his dealings with M/s Great Himalayan. He denied the suggestion that he did not have any contract or any agreement with the accused, who being the government servant was not in a position to carry on the business. He admitted that he had neither given any money to Rohit Sehgal directly from his bank account, nor he had deposited the same after receiving the same back. He denied the suggestion that he is deposing falsely to save the accused. C.C.No: 51 / 2011 Page No.46 of 131
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90. Accused Rohit Sehgal himself appeared in the witness box as DW2 after seeking permission from the court to examine himself under section 315 Cr.P.C. DW2 during the course of his deposition had stated that he had joined Indian Airlines in 1983 as "management trainee" and after getting various promotions, he was posted as "Area Manager" in Dubai on 26th June 2000 where he remained posted till 22nd June 2003. He deposed that he was handling the entire operations of Indian Airlines in Kuwait, whereas "Cargo" used to be handled by M/s KASCO, the handling agent. He deposed that out of total posting of 36 months,he remained there for 31 months and for rest of the 5 months, he was either 'on duty' to some other international station or was in India. He deposed that his family was residing with his father in Delhi and they never visited him in Kuwait. He deposed that "House of Travels" were General Sales Agent (GSA) of Indian Airlines, with whom they had an agreement and memorandum of understanding Ex.DW.17/DA and Ex.DW.17/DB respectively. He deposed that as per the agreement Ex.PW.17/DA, he was entitled for air conditioned chauffeur driven car, unlimited phone calls, free C.C.No: 51 / 2011 Page No.47 of 131 Judgement in the matter of:-
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tickets for travel, free health club and 800 Free meals in Crown Plaza Hotel. He deposed that he also got 12,000 kuwaiti dinars from 'House of Travels' for business promotion, which were to be spent at his discretion. He deposed that he used to carry his ration from his parental house and thus, was not having much expenses.
91. DW2 further deposed that during the check period, besides salary, he got cash allowances and transfer benefits and had earned a total sum of 78,235 Kuwaiti Dinars from his salary, perks, money earned through currency fluctuation and currency trading.
DW2 further deposed that he during the check period had sent 25,000 Euros and 10,000 US Dollars through Kuwait India International Exchange Company, to State Bank of India, Delhi which he had called back. He further deposed that during 2000 2003, he had borrowed 1,28,000 U.S.Dollars from M/s Kumar Trading Company for opening of travelcumplacement agency after his return to India in June 2003. He deposed that the amount so received by him from N.K.Jain was deposited by him with CITI Bank Global Account in Singapore. He deposed that in June 2003, C.C.No: 51 / 2011 Page No.48 of 131 Judgement in the matter of:-
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N.K.Jain abandoned the project and wanted his money back which, on his instructions he had transferred to M/s Great Himalayan Private Limited. He deposed that he had written three letters to N.K.Jain ie. Ex.DW.2/A, Ex.DW.2/B and Ex.DW.2/C. He deposed that on advice of CBI, he got an affidavit from N.K.Jain Ex.DW.1/A, which he had sent to CBI. He deposed that CBI had forced him to name one Atul Goenka during the course of investigations, with whom he had no dealings. He deposed that a false case was registered against him by CBI, who have failed to take into account that he was entitled to so many perks and did not have any personal expenses which were wrongly calculated at the rate of 1/3rd of his income.
92. On being cross examined, this witness stated that during the check period, he had got the payment through vouchers Ex.DW.2/X, Ex.DW.2/X1 and Ex.DW.2/X2. He admitted that free meals were being given to him for his own consumption and for entertaining his clients. He admitted that no memorandum of understanding was executed between him and M/s Kumar Trading Company. He stated that M/s Kumar Trading Company had paid C.C.No: 51 / 2011 Page No.49 of 131 Judgement in the matter of:-
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first installment of 25,000 U.S.Dollars on 07.11.2001, thereafter 69,000 U.S.Dollars on 12.01.2002 and 34,000 U.S.Dollars on 14.01.2002. He denied the suggestion that the correspondence Ex.DW.2/A and Ex.DW.2/C are forged and fabricated ones. He admitted that contents of his letter Ex.PW.19/M written to the investigating officer are correct. He denied the suggestion that he had not received any money from N.K.Jain. He stated that he had not issued any separate receipt of the amount received from N.K.Jain. He denied the suggestion that he had not given any evidence about the correspondence between him and N.K.Jain to the investigating officer. He denied the suggestion that he is deposing falsely.
93. DW3 D.C.Singh appeared and deposed that an application addressed to Chief Public Information Officer (CPIO) Ex.DW.3/A was received from accused Rohit Sehgal asking for some information. He deposed that on said application, an order Ex.DW.
3/B was passed by the information commissioner. He deposed that as the concerned department had not furnished the complete information sought by Rohit Sehgal, he had issued a notice dated C.C.No: 51 / 2011 Page No.50 of 131 Judgement in the matter of:-
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07.11.2011 to the concerned department Ex.DW.3/C.
94. DW4 Sh.S.Chattopadhyay appeared and stated that he had received an application from accused Rohit Sehgal Ex.DW.
4/A, seeking certain information which was replied by him vide his reply Ex.DW.4/B after getting the requisite information from "Overseas Indian Section".
95. DW5 Sh.Ashok Babu from Indian Consulate Dubai appeared and deposed that they had received a letter Ex.DW.5/A from the accused seeking certain information which was replied by him vide his reply Ex.DW.5/B. He deposed that he had brought a register which is being maintained in Indian Consulate in Dubai. He deposed that vide entry Ex.DW.5/C, an affidavit executed by N.K.Jain was attested at Indian Consulate. On being cross examined by Ld.PP for CBI, this witness stated that they are not aware about the contents of the affidavit, so attested at Indian Consulate.
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96. DW6 Mrs.S.Belgaonkar, Senior Manager, Office Administration, Air India appeared and deposed that their office had received certain queries from Rohit Sehgal, which were replied by Captain A.K.Sharma, vide his letter Ex.DW.6/A and on 23.12.2011 certain documents were again sent to accused Rohit Sehgal under signatures of Captain A.K.Sharma, vide letter Ex.DW. 6/B. She stated that she cannot testify with respect to the documents which were sent along with these letters, as the same were not sent in her presence and she had not brought any office record regarding payment of salary, reimbursement of vouchers and other perks to the accused.
ARGUMENTS ON BEHALF OF CBI:
97. Ld.Special Public Prosecutor relying upon the deposition of the witnesses examined during the course of trial, contended that accused during the course of his posting as Area Manager in Kuwait, had amassed disproportionate assets by indulging into corrupt practices. He contended that prosecution through deposition of its witnesses, more particularly the witnesses C.C.No: 51 / 2011 Page No.52 of 131 Judgement in the matter of:-
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from SBI Lajpat Nagar, wherein accused was having an NRE Account and witnesses from CITI Bank, where accused had a Global Account have been able to establish that accused during the check period had remitted 32,374 Kuwaiti Dinars (KWD) and 1,25,275.90 U.S.Dollars through Kuwait India International Exchange Company and Bahrain Exchange Company.
98. It is vociferously contended by Ld.PP that during the check period from all known sources of income, accused had the total income of 30032 Kuwaiti Dinar (KWD). It is contended by Ld.PP that despite opportunities, accused had failed to furnish the details of expenditure incurred by him on his subsistence as well as towards maintenance of his family during check period, therefore they had taken reasonable amount of 30% of his income from the known sources ie. 9,000 Kuwaiti Dinars (KWD) towards his expenditure for 36 months of the check period.
99. He contended that on the basis of this calculation, accused was found to be in possession of assets disproportionate to C.C.No: 51 / 2011 Page No.53 of 131 Judgement in the matter of:-
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his known sources of income amounting to Rs.75,75,518.14/. It is submitted by Ld.PP for CBI that the investigating officer during the course of investigations had given opportunities to the accused to account for, this disproportionate amount but accused despite opportunities failed to furnish the details from where he had amassed this wealth.
100. It is contended by Ld.PP on behalf of CBI that as accused has failed to satisfactorily account for, this amount therefore, accused be convicted for offence under section 13(1) (e) of Prevention of Corruption Act and be punished accordingly, in terms of section 13(2) of the Act.
DEFENCE ARGUMENTS :
101. Countering the contentions of Ld.Public Prosecutor, Sh.R.D.Mehra, Ld.Defence Counsel appearing on behalf of accused had led a multifaceted attack on the case of prosecution. Ld.Defence Counsel before opening his arguments, had fairly and candidly conceded the pecuniary resources brought on record by C.C.No: 51 / 2011 Page No.54 of 131 Judgement in the matter of:-
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the prosecution through its witnesses, to be calculated as "assets of the accused" during the check period vide various remittances made by him in his NRE Account with SBI Lajpat Nagar Branch and with CITI Bank Global Account Singapore. He however contended that the investigating agency had not conducted the investigations, in a fair manner and despite the fact that each and every penny was accounted for, by the accused during the course of investigations itself but, the same was brushed aside by the investigating agency and accused was wrongly charge sheeted.
102. Ld.Defence Counsel had submitted that the investigating officer in order to inflate the pecuniary resources of the accused during check period, had wrongfully added an amount of 25,000 Euros and 10,000 U.S.Dollars, despite the fact that during the course of investigations itself, IO came to know that these amounts were called back by the accused. He contended that this fact was admitted by the prosecution witnesses themselves ie. PW5 Sudhir Tandon and PW14 D.K.Laali from SBI Lajpat Nagar, Ring Road, New Delhi, during the course of their crossexamination. C.C.No: 51 / 2011 Page No.55 of 131
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103. It is contended by Ld.Defence Counsel that the prosecution case was initiated on the basis of wrong inquiry report conducted by Sh.K.K.Sharma, who was examined as PW17. He contended that PW17 in his inquiry report Ex.PW.17/B had stated that accused had amassed disproportionate assets by indulging in wrong and corrupt practices while being posted as Area Manager with Indian Airlines in Kuwait. However, prosecution during the course of its evidence had failed to examine any of the witnesses examined by PW17 during the course of his inquiry, to substantiate the allegations of corrupt and illegal practices, against the accused.
104. Another contention advanced by Ld.Defence Counsel was that PW17 during the course of his inquiry had alleged that accused indulged in corrupt practices by waiving off the excess baggage charges. He contended as per PW17, accused instead of collecting the excess baggage charges from the passengers for Indian Airlines, pocketed the same. Ld.Defence Counsel contended that accused was neither charged for any of the offences punishable under section 13(1) (a) (b) (c) or (d) of Prevention of Corruption Act, C.C.No: 51 / 2011 Page No.56 of 131 Judgement in the matter of:-
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nor there is any evidence brought on record by the prosecution to prove any corrupt practice on the part of accused, therefore he cannot be held liable for the offences under section 13 (1) (e) of Prevention of Corruption Act.
105. Another limb of the arguments advanced by Ld.Defence Counsel was that the investigating agency during the course of investigations had withheld the important and necessary documents ie. the Agreement and Memorandum of Understanding which Indian Airlines had with its GSA ie. House of Travels. He contended that vide this Memorandum of Understanding (MoU) and Agreement Ex.PW.17/DA and Ex.PW.17/DB, accused was entitled to innumerable perks and allowances, apart from the salary which he was getting from Indian Airlines.
106. It is contended by Sh.R.D.Mehra, Ld.Advocate that these perks and allowances were deliberately withheld by the prosecution from the court, so as to wrongfully deduct 30% of the income of the accused towards "expenditure", to have been incurred C.C.No: 51 / 2011 Page No.57 of 131 Judgement in the matter of:-
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by accused, during the check period without any basis.
107. Ld.Defence Counsel contended that PW8 Abraham David, the witness from GSA of Indian Airlines, the investigating officer himself as well as Sh.K.K.Sharma during the course of their cross examination had admitted the innumerable perks, to which accused was entitled. He contended that these perks were not taken into consideration for the purposes of calculation of income / receipt at the hands of accused during the check period, therefore prosecution case crumbles on this ground itself.
108. Another contention advanced by Ld.Defence Counsel was that apart from the perks and allowances, accused was entitled to a sum of 12,000 Kuwaiti Dinars (KWD) from his GSA which were available to him during the check period to be spent at his discretion. He contended that although this amount was given to him for "business promotion" but if, this amount is used by the accused for his personal benefit and for making the remittances to his bank accounts in India, then it is for the department to initiate C.C.No: 51 / 2011 Page No.58 of 131 Judgement in the matter of:-
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departmental action against him, but the accused cannot be convicted for the offence, for which he has been charged, as he thus is in a position to satisfactorily account for the remittances made by him, during the check period.
109. It is contended by Ld.Defence Counsel that the investigating agency had wrongly charge sheeted the accused by misleading the court and withholding the known sources of income of the accused and the actual income accrued to him during the check period, from the court which besides his salary included the perks and allowances available to him, transfer benefits, amount available to him towards 'business promotion', money generated by him through currency fluctuation and currency trading etc.
110. He further contended that accused during the course of investigations itself had submitted his replies to the investigating officer wherein, he had categorically stated that the money remitted by him in his Global Account with CITI Bank Singapore, belongs to one Naresh Jain of M/s Kumar Trading C.C.No: 51 / 2011 Page No.59 of 131 Judgement in the matter of:-
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Company. He contended that the said amount was to be used by the accused for a joint business which he wanted to start with said Naresh Jain after leaving the job, but the said amount was subsequently transferred at behest of said Naresh Jain to his business associate M/s Great Himalayan Private Limited by the accused, in the month of August 2003 itself.
111. It is contended by Ld.Defence Counsel that if the said amount which belonged to Naresh Jain is taken out from the remittances made by the accused, no case of disproportionate assets is made out against the accused.
112. Lastly, it is contended by Ld.Defence Counsel that the sanction under section 188 Cr.P.C has not been proved on record by the prosecution. He contended that PW18 Shubha Thakur, who was examined by the prosecution, was not the competent authority to grant sanction under section 188 Cr.P.C. He contended that the competent authority to remove the accused from his post, was the 'Board of Directors of Indian Airlines' or the then C.C.No: 51 / 2011 Page No.60 of 131 Judgement in the matter of:-
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'Hon'ble Prime Minister of India', but the file was never put up before them. He contended that as the competent authority never came across the documents against the accused, therefore the sanction for trial of accused, should not have been granted, as has been stated so by PW18.
APPRECIATION OF EVIDENCE VISAVIS RIVAL CONTENTIONS:
113. I have given my thoughtful consideration to the rival contentions advanced in the lights of oral as well as documentary evidence on record. I have also gone through the precedents relied upon by Ld. PP for CBI as well as by Ld.Defence Counsel, to substantiate their respective contentions.
114. Before, I delve upon the multifarious contentions advanced by Ld.Defence Counsel on one hand and that of Ld.Public Prosecutor on the other hand, in the background of the factual canvas painted by the prosecution witnesses. It would be appropriate to make a mention of the relevant section with which C.C.No: 51 / 2011 Page No.61 of 131 Judgement in the matter of:-
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accused has been charged and the necessary ingredients of the said section, the onus of proving which lies on the prosecution.
115. Section 13 : Criminal misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct
(a) . . .
(b) . . . (c) . . . (d) . . . (e) if he or any person on his behalf, is in possession
or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation For the purposes of this Section, "known sources of income" means income received from any C.C.No: 51 / 2011 Page No.62 of 131 Judgement in the matter of:-
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lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term, which shall not be less than one year, but which may extend to seven years and shall also be liable to fine.
116. To substantiate the charge under section 13 (1) (e) of Prevention of Corruption Act, the prosecution must prove the "necessary ingredients" of the offence which are as follows: i. It must establish that the accused is a public servant ; ii. The nature and extent of the pecuniary resources of property which are found in his possession ;
iii. It must prove as to what where the known sources of income that is known to the prosecution ;
iv. It must prove quite objectively that such resources or C.C.No: 51 / 2011 Page No.63 of 131 Judgement in the matter of:-
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property found in the possession of the accused were disproportionate to the known source of his income ;
117. The onus to prove these necessary ingredients of the offence lies on the prosecution. The plain reading of the Section makes it clear that once the initial onus of proving the necessary ingredients of offence is discharged by the prosecution, then the onus shifts on the accused to prove other sources of his income as the same are in his exclusive knowledge. Thus, the onus to satisfactorily account for, the assets in his possession lies on the accused.
118. Facts admitted are not required to be proved by the prosecution. It is admitted on record by the accused that during the check period he, being posted as Area Manager, Indian Airlines in Kuwait was a "public servant". Thus, the first ingredient of the offence with which accused is charged, stands proved. C.C.No: 51 / 2011 Page No.64 of 131
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119. Prosecution through the deposition of PW2, Sh.Mukesh Kumar, AGM, SBI, Lajpat Nagar, PW4 Sh.Mahesh Chand, Manager, SBI, PW5 Sh.Sudhir Tandon, Assistant working with SBI Lajpat Nagar and PW14 Sh.D.K.Laali, Deputy Manager, SBI Lajpat Nagar, proved on record that accused Rohit Sehgal was having an NRE Account number 42789 of which Ex.PW.5/1 is the statement of account.
120. Through the deposition of these witnesses, coupled with the documents taken into possession by IO vide seizure memo Ex.PW.2/1, Ex.PW.4/1 and Ex.PW.14/1, pertaining to the NRE Account of the accused, prosecution has been able to establish on record that during the check period, accused had remitted a total of 95,858 US.Dollars in this account, through Kuwait India International Exchange Company (KIIEC).
121. Prosecution through the deposition of PW3 T.A.Sampat Kumar, Manager, CITI Bank coupled with deposition of PW13 Jagdish Salwan, Assistant Manager CITI Bank and PW15 C.C.No: 51 / 2011 Page No.65 of 131 Judgement in the matter of:-
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Mamta Sinha, Manager, CITI Bank, established on record that during the check period, accused Rohit Sehgal had opened a global deposit account with CITI Bank, Singapore vide account opening form Ex.PW.3/2 bearing account number 104617.
122. Through the deposition of these witnesses coupled with the documents handed over to the IO, vide letters Ex.PW.3/3 and Ex.PW.3/6, prosecution has been able to establish that as per the statement of account Ex.PW.3/8, accused during the check period had remitted a total of 1,25,273.90 U.S.Dollars in this account.
123. Prosecution through the deposition of PW6 Tarun Tayal and the documents taken into possession from him vide seizure memo Ex.PW.6/1, has been able to establish that accused was having an account with ICICI Bank, Greater Kailash PartI, wherein his father Sh.K.I.L.Sehgal, was also having an account and their respective statements of accounts being Ex.PW.6/10 and Ex.PW.6/11.
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124. Through the deposition of PW6 Tarun Tayal from ICICI Bank, PW9 R.K.Seth, Senior Manager, Indian Overseas Bank and PW10 Sunil Kumar, prosecution has been able to establish that accused during the check period had remitted a sum of Rs.5 lacs to his father through Bahrain Exchange Company vide letter Ex.PW.9/C and draft Ex.PW.9/A and correspondingly paid an equivalent amount of 3178.35 Kuwaiti Dinars to Bahrain Exchange Company.
125. Although, Ld.Defence Counsel during cross examination of PW6 Sh.Tarun Tayal and PW9 Sh.R.K.Seth, did give a suggestion that this amount remitted by the accused to his father was sent back, but this suggestion was denied by both these witnesses. Further, accused during the course of his evidence has failed to place on record any document to show that this amount of Rs.5 lakh was called back by him from his father. Rather prosecution through deposition of PW19 Inspector A.B.Chaudhary, the IO and the documentary evidence on record ie. notice of IO to Bahrain Exchange Company Ex.PW.19/P and reply to his notice by C.C.No: 51 / 2011 Page No.67 of 131 Judgement in the matter of:-
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the said company vide Ex.PW.19/Q1 to Ex.PW.19/Q3 has been able to establish that this amount was remitted by the accused to his father vide letter Ex.PW.9/C and draft Ex.PW.9/A. Further, this amount was deposited in the account of father of accused with ICICI Bank vide the statement of account Ex.PW.6/11 and pay in slip Ex.PW.6/12. Against this amount, Government of India Bond was purchased through ICICI Bank in joint names of accused and his father as per the deposition of PW6.
126. Thus, it is established that this amount of Rs.5 lakh was also remitted by the accused to his father during check period through Bahrain Exchange Company.
127. Prosecution through the deposition of PW7 R.K.Dewat, Country Manager working with Indian Airlines and PW8 Abraham David working with House of Travels coupled with the statement of account Ex.PW.7/C pertaining to Gulf Bank A/c Number 55102416 of accused has been able to establish that accused was having a balance of 50 Kuwaiti Dinars, in this account of his, at C.C.No: 51 / 2011 Page No.68 of 131 Judgement in the matter of:-
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the end of check period.
128. Ld.Defence Counsel during crossexamination of PW8 Abraham David as well as during crossexamination of the investigating officer, PW19 Inspector A.B.Chaudhary, did raise a suggestion regarding authority of PW8 to get statement of account Ex.PW.7/C from Gulf Bank pertaining to the bank account of the accused. However, accused had neither given any suggestion to these witnesses nor raised any defence that he was not holding any such account with Gulf Bank, wherein, there was no balance of 50 Kuwaiti Dinars at the end of check period. Thus, from the deposition of PW7, PW8 and PW19 coupled with statement of account Ex.PW.7/C, it is proved that accused did have an account with Gulf Bank, Kuwait wherein he had a balance of 50 Kuwaiti Dinars at the end of check period.
129. It is pertinent to mention here that Sh.R.D.Mehra, Advocate, Ld.Defence Counsel appearing on behalf of accused during the course of arguments, as well as accused during the course of his C.C.No: 51 / 2011 Page No.69 of 131 Judgement in the matter of:-
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statement under section 313 Cr.P.C, had fairly conceded and admitted the remittances made by him during the check period from Kuwait through Kuwait India International Exchange Company (KIIEC) to his NRE Saving Bank Account with State Bank of India, Lajpat Nagar Branch, Ring Road, New Delhi. Ld.Defence Counsel during the course of arguments and accused during the course of his statement u/s 313 Cr.P.C as well as, during the course of his deposition as DW2 under section 315 Cr.P.C, admitted the remittances made by him during the check period, in his Global Bank Account with CITI Bank Singapore amounting to 1,25,273.90 U.S.Dollars.
130. Thus the prosecution evidence which has been led on record to prove the remittances made by the accused through Kuwait India International Exchange Company, in his NRE Account with State Bank of India and those made by him in Global Deposit Account with CITI Bank Singapore, stands admitted and established to that extent.
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131. The only objection which has been raised by Ld.Defence Counsel is that the investigating officer during the course of investigations, in order to unduly inflate the assets of the accused, had wrongly incorporated 25,000 Euros sent by the accused on 12.11.2002 to SBI and 10,000 U.S.Dollars sent by the accused to SBI on 23.05.2002. He contended that these two amounts were wrongly added in his assets, despite the fact that these amounts were called back by the accused, during the check period itself.
132. In view of this objection raised by Ld.Defence Counsel, I am of the considered opinion that before adverting to delve upon the multifaceted arguments advanced by Ld.Defence Counsel against the prosecution case, it would be pertinent to consider this objection of Ld.Defence Counsel first, so as to arrive at the actual figure of the assets, alleged to have been disproportionate to the known sources of income of the accused during the check period.
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133. To consider this objection, cross examination of prosecution witnesses is required to be looked into. PW5 Sudhir Tandon, Assistant from SBI Lajpat Nagar and PW14 D.K.Laali Deputy Manager, SBI, the prosecution witnesses, were cross examined on behalf of the accused by Sh.R.D.Mehra, Advocate, Ld.Defence Counsel. During the course of their cross examination, both these witnesses admitted that as per the statement of account Ex.PW.5/45 and Ex.PW.5/46 as well as remittances messages Ex.PW. 5/42 and the draft of 10,000 U.S.Dollar Ex.PW.5/44, these amounts were called back by the accused.
134. On perusal of deposition of both these witnesses as well as on perusal of crossexamination of the Investigating Officer Inspector A.B.Chaudhary, who appeared in the witness box as PW19, it is apparent that these two amounts though remitted initially by the accused during the check period from Kuwait through Kuwait India International Exchange Company, were infact sent back to the accused. It is also apparent from the cross examination of the IO conducted by Ld.Defence Counsel that he C.C.No: 51 / 2011 Page No.72 of 131 Judgement in the matter of:-
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during the course of investigations itself came to know of this particular fact, more particularly from the reply received by him from the accused vide his letter Ex.PW.19/G along with which accused had submitted the documents Ex.PW.19/H and Ex.PW.19/J, certifying that these two amounts were infact sent back to him.
135. It is contended by Ld.Defence Counsel that despite having the knowledge of this fact, the IO had deliberately inflated the assets to suit their own nefarious designs and added these two amounts while making calculations of the pecuniary assets of the accused. He further contended that the investigating officer during the course of his crossexamination had also admitted that their could have been some error in the chargesheet, which in itself establishes, the perfunctory manner in which the investigations were conducted.
136. Admittedly, the investigating officer during the course of his crossexamination did state that their could have been some inadvertent error while making calculations. However, C.C.No: 51 / 2011 Page No.73 of 131 Judgement in the matter of:-
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considering the fact that the present case is a case of disproportionate assets covering a period of 3 years and includes a number of documents and figures of the various investments and remittances made by the accused, thus there are probabilities of some error to creep in, while making the calculations. The only aspect which is required to be seen is whether this is a deliberate attempt on the part of the investigating agency or is an inadvertent error, as stated so by PW19 during his crossexamination.
137. From perusal of the charge sheet Ex.PW.19/T so submitted in court for trial of accused, it is apparent that the figure of 25,000 Euros was never counted by the investigating officer while making the calculations of the total assets acquired by the accused during the check period, thus the arguments advanced by Ld.Defence Counsel that it was a deliberate attempt on the part of the IO to inflate the figure by adding the amount of 25,000 Euros, does not hold ground.
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138. The amount of 10,000 U.S.Dollars however, did find mention in charge sheet and is added in the figure of total assets taken into consideration during the check period, which should not have been added while arriving at the actual figure of the assets at the end of check period as this amount vide draft Ex.PW. 5/44 was sent back to the accused and vide certificate Ex.PW.19/J, this fact was brought the knowledge of the investigating officer.
139. But to my mind, having regards to the voluminous documents and number of figures in various documents collected by the investigating officer from various banks, this seems to be an inadvertent error and not a deliberate attempt to inflate the figure of pecuniary assets of the accused at the end of check period. This inadvertent error cannot be blown out of proportion to such an extent, so as to deflate the case of the prosecution merely on this aspect. More particularly, when it is clear from the record that it is not only because of this figure of 10,000 U.S.Dollars which has resulted in making his total assets disproportionate to his known sources of income.
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140. Having said so, I do find merits in the contention of Ld.Defence Counsel to the extent that this figure of 10,000 U.S.Dollars, which has been wrongly added, is thus required to be taken out from the total assets acquired by the accused during check period.
141. As per the deposition of PW14, more particularly, during the course of his crossexamination conducted by Ld.Defence Counsel, as well as from the statement of account Ex.PW.5/1 and Ex.PW.14/DA, a total of 95,858 U.S Dollars were remitted by the accused in this account through Kuwait India International Exchange Company (KIIEC). This fact also stands established through the other documents pertaining to the bank accounts and letter of Kuwait India International Exchange Company (KIIEC) Ex.PW.14/2 to Ex.PW.14/13.
142. The actual figure of the assets which as per the prosecution witnesses and as admitted by accused himself, he had acquired and had with him at the end of the check period, are as under : C.C.No: 51 / 2011 Page No.76 of 131 Judgement in the matter of:-
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(a) Remittances made by the accused to his NRE Account with SBI Lajpat Nagar through Kuwait India International Exchange Company: Sl.No Date of Amount Remitted in Amout paid to KIIEC remittance USD in KWD
1. 25.07.2000 2760 850.64
2. 30.07.2000 2300 707.5
3. 24.08.2000 2500 770.00
4. 24.09.2000 5000 1538.6
5. 29.11.2000 2500 770.55
6. 26.12.2000 3060 936.36
7. 31.01.2001 3000 920.1
8. 03.04.2001 2700 834.19
9. 01.05.2001 2500 770.55
10. 23.05.2001 3238 999.89
11. 21.06.2001 3200 987.2
12. 26.07.2001 2500 767.7
13. 19.09.2001 3000 915.9
14. 17.10.2001 2600 794.56
15. 29.11.2001 2500 769.4
16. 27.12.2001 2500 769.4
17. 10.04.2002 10,000 3069.2
18. 19.01.2003 10,000 2983.8
19. 04.03.2003 30,000 8991 TOTAL 95, 858 29, 146.09 C.C.No: 51 / 2011 Page No.77 of 131 Judgement in the matter of:-
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Note : In view of my observation made hereinabove, vide para no. 140 (supra), the amount of 10,000 U.S.Dollars, which was sent back to the accused on 29.04.2002 vide draft Ex.PW.5/44 is required to be deducted from the total amount remitted by the accused. Considering the fact that the equivalent amount of 10,000 U.S.Dollars was 3069.8 Kuwaiti Dinars, the total amount remitted by accused comes to 29,146.09 - 3069.2 = 26,076.89 Kuwaiti Dinars. (equivalent to 95858 - 10,000 U.S.Dollars = 85858 US.Dollars.)
(b) Details of the remittances made by the accused in Global Account bearing number 104617 with CITI Bank, Singapore in view of deposition of PW3 T.A.Sampat Kumar and PW13 Jagdish Salwan from CITI Bank coupled with statement of account Ex.PW.3/8, are as under : Sl.No Value Date Currency Amount credited
1. 29.04.2002 USD 30100
2. 28.05.2002 USD 10000 3. 03.09.2002 USD 425
4. 17.09.2002 USD 30485
5. 29.11.2002 USD 478.9 6. 03.01.2003 USD 50
7. 17.03.2003 USD 1700 8. 17.03.2003 USD 35
9. 20.03.2003 USD 52,000 TOTAL 1,25,273.9 C.C.No: 51 / 2011 Page No.78 of 131 Judgement in the matter of:-
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(c)Remittance of Rs.5 lacs made by accused in the name of his father Sh.K.I.L.Sehgal on 23.04.2003 through Bahrain Exchange Company.
(d) 50 Kuwaiti Dinars lying deposited in Gulf Bank account bearing umber 55102416 of accused in terms of deposition of PW8 Abraham David coupled with PW7 R.K.Dewat and statement of account of Gulf Bank account.
143. Thus, after considering the objection raised by Ld.Defence Counsel, the total assets acquired by the accused and admitted by him which he had, at the end of check period were 26076.89 Kuwaiti Dinars equivalent to 85858 U.S.Dollars(remitted to SBI,Lajpat Nagar) + 1,25,273.90 U.S.Dollars (remitted to his account with CITI Bank) + 3178.350 Kuwaiti Dinars (equivalent to Rs.5 lakhs remitted to his father in his ICICI Bank Account) + 50 Kuwaiti Dinars (lying in Gulf Bank Account of accused).
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144. In view of above, prosecution has been able to establish the next ingredient of the offence that is the nature and extent of pecuniary resources of property, which were found in possession of the accused, at the end of check period.
145. In order to establish the next ingredient of the offence, prosecution was required to establish on record as to what were the known sources of income of the accused. To do the needful, prosecution was only aware of this fact that accused being a "public servant" is known to earn his living through "salary" as any other government servant. The prosecution would have no other option but to naturally infer that the known sources of income of Rohit Sehgal would only be the emoluments earned by him during his active service.
146. Consequently, prosecution has examined PW11 Smt.Udita V.Naik, Deputy Manager (Finance), Indian Airlines, to prove the details of salary and arrears, besides other components of salary paid by Indian Airlines to the accused during C.C.No: 51 / 2011 Page No.80 of 131 Judgement in the matter of:-
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the check period. This witness categorically deposed that as per the official records of salary Ex.PW.11/1 maintained by their office, accused was paid a total amount of 30032 Kuwaiti Dinars during the check period. On being crossexamined by Ld.Defence Counsel, this witness deposed that she is not aware if besides salary, employees of Indian Airlines are also entitled to get other perks.
147. Thus, prosecution through deposition of PW11 established on record that the accused through known sources of his income had earned a total of 30032 Kuwaiti Dinars during the check period, thereby discharging its burden of proving the third ingredient of the offence.
148. Further, Ld.Public Prosecutor during the course of arguments had contended that bare perusal of the pecuniary resources which accused had in his possession at the end of check period, the same are much more than his known sources of income. He contended that thus prosecution has also established the fourth ingredient of the offence, with which the accused is charged. C.C.No: 51 / 2011 Page No.81 of 131
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149. This has brought me down to the next contention urged by Ld.Defence Counsel. It is submitted by Sh.R.D.Mehra, Ld.Defence Counsel that mere acquisition of this property does not constitute an offence under the provisions of the Act, but failure on the part of accused to satisfactorily account for, such possession which makes the possession objectionable.
150. I do find force in this contention of Ld.Defence Counsel in view of the words used by Legislature in this provision.
151. In Section 13(1) (e), the legislature has used the expression "satisfactorily account". The emphasis has to be on the word "satisfactorily" and the legislature has, thus, deliberately cast a burden on the account not only to offer a plausible explanation as to how he came to acquire this wealth, but he is also required to satisfy the court that his explanation so putforth is "worthy of acceptance".
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152. Thus, an opportunity is required to be granted to the accused to satisfactorily account for the assets / pecuniary resources which he had at the end of check period. For the same, contentions of Ld.Defence Counsel visavis, the evidence led on record by the accused in his defence is required to be considered.
153. This has now led me down to deal with the legal contentions raised by Ld.Defence Counsel to demolish the case of prosecution whereby, it is submitted that all the assets acquired by the accused during check period were through his known sources of income which were either known to the prosecution or were brought to the notice of the investigating agency by the accused, but the same were never considered by the prosecution. He contended that despite the fact that accused had satisfactorily accounted for, all the assets purported to be disproportionate but, investigating agency for reasons best known to them, have wrongly charge sheeted the accused.
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154. It is contended by Ld.Defence Counsel that prosecution has failed to lead any evidence on record during the course of trial to prove any corrupt or illegal practices adopted by the accused, to abuse his official position as a public servant for obtaining any pecuniary advantage, so as to amass disproportionate assets. He contended that accused cannot be convicted under section 13(1) (e) of the Act without establishing on record the necessary ingredients of the offence under section 13(1) (a), (b) (c) and (d). He contended that accused was neither charged for any offence under sections 13(1) (a), (b) (c) and (d) nor there is any evidence adduced on record to that effect.
155. I do not find any merits in this contention advanced by Ld.Defence Counsel, as a plain reading of Section 13 of Prevention of Corruption Act reveals that the provisions contained in Section 13(1) (e) is a self contained Code and is required to be understood as an offshoot of different facets of misconduct of a public servant, enumerated in clauses (a) to (d) of the subsection, which a public servant might commit. C.C.No: 51 / 2011 Page No.84 of 131
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156. It is apparent on perusal of section 13(1) (a) to (e) of the Act, that Legislature has deliberately used the word "or" in between clauses (a), (b), (c) , (d) and (e), instead of using the word "and". Both these words are conjunctions. The word "and" wherever used is conjunctive and joins the clauses which is prefix to it with the one, which is suffix to it. Whereas, the word "or" is disjunctive, which is used as a tool to link two or more, alternatives prefixed and suffixed to it.
157. In view thereof, it is apparent that the Legislature intended to make every clause of section 13(1) (a) to (e), independent of each other and as such, constitutes a separate offence. Had the intention of legislature been otherwise, then they would have used the words "and" instead of "or" in between these clauses of Section 13(1) of the Act.
158. Thus, the provision of section 13(1) (e) of the Act, as it stands in the Statute Book in itself, constitutes an offence of C.C.No: 51 / 2011 Page No.85 of 131 Judgement in the matter of:-
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criminal misconduct by a public servant, if he is found to be in possession of pecuniary resources or property disproportionate to his known sources of income. For that, prosecution is not required to establish the corrupt or illegal means adopted by such a public servant to amass such pecuniary resources.
159. The observation made by me herein before, answers the second limb of the contention raised by Ld.Defence Counsel. It was urged by Sh.R.D.Mehra, Advocate, Ld.Defence Counsel that the present case was based on an inquiry conducted by Sh.K.K.Sharma, Chief Vigilance officer of Indian Airlines, who was examined as PW17 by the prosecution. He contended that the said Chief Vigilance Officer, in his inquiry report had stated to have examined one Narsimha and Illiyas, and alleged that accused Rohit Sehgal by abusing his official position, used to pocket illegal money by waiving off the extra baggage charges which were otherwise to be deposited with Indian Airlines, by its passengers travelling with it, carrying baggage beyond permissible limits. He contended that none of those witnesses were examined by the prosecution to prove C.C.No: 51 / 2011 Page No.86 of 131 Judgement in the matter of:-
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any such allegations, therefore, prosecution case should be rejected.
160. This contention of Ld.Defence Counsel does not hold much waters as the accused was put to trial only for offence under section 13(1) (e) of Prevention of Corruption Act. Further, as per deposition of PW19 the investigating officer, coupled with the FIR Ex.PW.19/A, registered in this case, it is apparent that it is not the inquiry made by PW17 K.K.Sharma which is the basis of the present case, but a source information received by CBI that accused had amassed assets, beyond the known sources of his income. In view thereof, those witnesses which are being referred to, by Ld.Defence Counsel in his contention, were neither required nor relevant for the purposes of adjudication of the offence, with which the accused has been charged and is facing trial.
161. Ld.Defence Counsel in his quest to satisfactorily account for the assets which accused had with him, at the end of the check period, raised his next contention and contended that the investigating agency as well as prosecution for reasons best known C.C.No: 51 / 2011 Page No.87 of 131 Judgement in the matter of:-
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to them had deliberately withheld an agreement and memorandum of understanding Ex.PW.17/DA and Ex.PW.17/DB respectively, which Indian Airlines had with its GSA ie. House of Travels in Kuwait.
162. It is contended by Ld.Defence Counsel that PW8 as well as PW17 during the course of their crossexamination did admit that there was an agreement and memorandum of understanding entered into between Indian Airlines as well as House of Travels, GSA of Indian Airlines which are Ex.DW.17/DA and Ex.DW.17/DB. He contended that as per this agreement, accused being Area Manager, Indian Airlines, was entitled to various perks, which included free airconditioned accommodation along with electricity and water charges, free air travel, free local and international calls, free meals in Crown Plaza Hotel, Chauffeur driven car with unlimited petrol. He further contended that besides that, accused in all was entitled to 12,000 Kuwaiti Dinar during check period, which he got in cash for "business promotion". He contended that accused had got transfer benefits through various vouchers which he got from the concerned department after filing the RTI applications and to substantiate the same, Ld.Defence C.C.No: 51 / 2011 Page No.88 of 131 Judgement in the matter of:-
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Counsel had relied upon the defence witnesses ie. DW4 S.Chattopadhyay and his reply Ex.DW.4/B and Ex.DW.6/B to substantiate his arguments. He further contended that during the check period, accused had indulged in currency trading and earned some amount from currency fluctuation which were not taken into consideration by the IO for reasons best known to him. It is contended by Ld.Defence Counsel that accused had got cash allowances and transfer benefits amounting to 20,000 Kuwaiti Dinars besides getting 12,000 Kuwaiti Dinars towards "business promotion" and earning 10,000 Kuwaiti Dinars through currency trading and 6203 Kuwaiti Dinars through currency fluctuation
163. Ld.Defence Counsel added another facet to this contention of his stating that during his posting as Area Manager, Kuwait, accused was entitled to airconditioned accommodation with free electricity and water, chauffeur driven car with unlimited petrol, 800 meals in Crown Plaza Hotel, free local and international travel and free local and international calls. He contended that family of accused never visited him in Kuwait during his posting and his family was being maintained by his father and thus, accused C.C.No: 51 / 2011 Page No.89 of 131 Judgement in the matter of:-
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was not having any expenditure either on himself or on his family. He contended that an amount of 9,000 Kuwaiti Dinars being 30% of the salary of the accused during check period was wrongly deducted from his income.
164. It is contended by Ld.Defence Counsel that if the allowances and perks reimbursed to the accused are added in his income and the expenditure which is wrongly taken by the investigating agency is deleted, then the amount remitted by him in his NRE Account stands accounted for.
165. Ld.Public Prosecutor in order to counter the contentions of Ld.Defence Counsel had categorically stated that accused being government servant though was entitled to certain perks and benefits besides his salary but those perks and allowances were being paid to him as reimbursement against the actual expenses incurred by him and the same cannot be made part of his income. He further contended that being public servant, accused was not entitled to indulge in any currency trading and there is C.C.No: 51 / 2011 Page No.90 of 131 Judgement in the matter of:-
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no evidence on record produced by the accused to have gained 10,000 Kuwaiti Dinars from currency trading and 6203 Kuwaiti Dinars from currency fluctuations.
166. I have given my thoughtful consideration to the rival contentions in view of the evidence on record.
167. On the face of it, the twofold contention advanced by Ld.Defence Counsel cannot be accepted. By raising this contention Ld.Defence Counsel wants to have a double edged advantage, as on one hand, he wants that in view of the innumerable perks and allowances to which accused was entitled, his income be "fattened" and on the other hand, he wants his expenditure to be "lessened".
168. Entitlement to these perks and allowances cannot augment the "income" component, however the same can certainly bring down the "expenditure" component of a public servant, which I shall consider hereinafter. Firstly, I shall deal with this contention C.C.No: 51 / 2011 Page No.91 of 131 Judgement in the matter of:-
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of Ld.Defence Counsel that the amount of 20,000 Kuwaiti Dinar as claimed to have been received by the accused towards transfer benefits and other allowances, is required to be added in his "income" or not.
169. No doubt, from the crossexamination of PW8 Sh.Abraham David, General Manager of House of Travels, Kuwait, GSA of Indian Airlines, crossexamination of PW17 K.K.Sharma, Chief Vigilance Officer of Indian Airlines, as well as from cross examination of PW19 Sh.A.B.Chaudhary, coupled with the agreement and memorandum of understanding Ex.PW.17/DA and Ex.PW.17/DB respectively, which Indian Airlines had with its GSA, it has come on record that accused was entitled for the perks and allowances mentioned by Ld.Defence Counsel.
170. However, the exact amount of allowances which accused had received during the check period, has not been brought on record by the accused. PW8 during his crossexamination categorically stated that he cannot tell how much amount was paid C.C.No: 51 / 2011 Page No.92 of 131 Judgement in the matter of:-
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by them to the accused towards "transfer benefits" and other allowances.
171. Accused during the course of his own examination as DW2 as well as through deposition of DW4 and DW6 placed on record Ex.DW.4/B and Ex.DW.6/A and Ex.DW.6/B, but these documents though exhibited, were neither proved on record by the accused, nor the exact amount of allowances received by the accused during the check period has been brought on record.
172. Be that, as it may. These allowances even if were paid to the accused by virtue of the vouchers Ex.DW.2/X1 and Ex.DW2/X2, cannot be added in his "income" as the same were paid to him as reimbursements to the expenses actually incurred by him. The reasons are not far to seek.
173. The phrase "Known sources of income" as mentioned in section 13(1) (e) of the Act, has clear emphasis on the word "income". The word "income" has been interpreted by Hon'ble C.C.No: 51 / 2011 Page No.93 of 131 Judgement in the matter of:-
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Supreme Court in case titled State of Madhya Pradesh vs. Awadh Kishore Gupta, reported as (2004) 1 SCC 691, wherein Court gave its view that the term "income" by itself is elastic and has a wide connotation. Though income is the receipt in hand of its recipient, however every receipt would not partake the character of income. The public servant, whatever return he gets from his service, will be primary item of his income. Other incomes conceivably are income qua the public servant, will be in the regular receipt from (a) his property, or (b) his investment.
174. It is a matter of common knowledge that the public servants, due to exigencies of their office which they hold, besides getting their regular salary are also entitled to certain perks and perquisites, attached to their office. These perks and perquisites however, does not partake the character of "income" as the same are paid to him towards reimbursements for the actual expenses incurred by him.
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175. Whether these perks which includes travelling allowances and other such allowances are part of income or not, came up before Hon'ble Supreme Court in a case titled "C.S.D.Swami Vs. State", reported as AIR 1960 SC 7, wherein Hon'ble Apex Court has held :-
"... that prosecution would not be justified in concluding that travelling allowance was also a source of income (for the purpose of ascertaining the income from known sources during the check period) as such allowance is ordinarily meant to compensate the officer concerned for his outof pocket expenses incidental to the journeys performed by him for his official tour/s. As travelling allowance is not a source of income to the government servant but only a compensation to meet his expenses, the prosecution while calculating the sources of income during the check period, need not take it into account as income. However, it is open to the government servant to let in evidence to show that he had in fact save something out of the travelling allowance. It is for the court then to accept or not whether there was such actual saving. But the question of automatically considering the entire travelling allowance as a source of income not arise".
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176. Similar question had arisen before Hon'ble Apex Court in another case titled "R.Jankiraman Vs. State", reported as AIR 2006 SC 1106. In the said case, it has been held that, as the appellant did not lead any specific evidence to show that he had made any savings out of the travelling allowances given to him, his claim for inclusion of T.A. in "income", was untenable.
177. The principles laid down by Hon'ble Apex Court in the above mentioned cases, squarely applies to the facts of the present case as in the present case as well, accused has failed to adduce any evidence of his having made savings from the travelling allowances and other perks and perquisites, which were made available to him.
178. Accused during the course of his deposition as DW2 under section 315 Cr.P.C has failed to state even orally that, he had made savings from the transfer benefits and other allowances. Even otherwise, actual receipt the amount of 20,000 Kuwaiti Dinar, claimed to have been received by the accused C.C.No: 51 / 2011 Page No.96 of 131 Judgement in the matter of:-
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towards allowances from his office, has not been proved on record. The payments received by him vide vouchers Ex.DW.2/X1 and Ex.DW.2/X2, being only the reimbursements towards the actual expenses incurred by him, thus, cannot be included in "income".
179. This has brought me down to the next contention of Ld.Defence Counsel that the amount of 12,000 Kuwaiti Dinars which was to be spent at the discretion of the accused, received from GSA should also be counted in his income.
180. Admittedly, the accused was entitled to the amount of 12,000 Kuwaiti Dinars as per Ex.PW.17/DA, however, the said amount was for the "business promotion". This amount also cannot be added in his income, Firstly because of the fact that receipt of this amount from GSA has not been proved on record by the accused during the course of his defence evidence. Secondly, the said amount, if any, paid to the accused, the same was for business promotions and not for his "own use". C.C.No: 51 / 2011 Page No.97 of 131
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181. Another facet to this argument advanced by Ld.Defence Counsel was that if after receipt of this amount, the accused had used the same for his own benefit, for that at best, he could have been made liable for departmental action or for misappropriation of the same, but he cannot be made liable under this offence for which he is facing trial.
182. This contention of Ld.Defence Counsel could have been tenable under the earlier Act of 1947. However as per section 13 (1) (e) of the Act of 1988, the Legislature in its wisdom has made radical change by incorporating the "explanation" to this section, which is reproduced as under, even at the cost of repetition: Explanation For the purposes of this Section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
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183. As per the explanation, the "known source of income" of the public servant, for the purpose of satisfying the Court, should be "any lawful source". Besides being the lawful source, explanation further enjoins that receipt of such income should have been intimated by the public servant in accordance with the provisions of any law, rules or orders, applicable to such public servant.
184. The law referred to, in the Explanation would conceivably be the Income Tax Act. The rules or orders which have been referred in the Explanation, are the CCS (Conduct) Rules, applicable to the accused being "Public Servant".
185. Accused being public servant, is required to submit the statements of his 'assets and liabilities' as per Rule 18 of CCS (Conduct) Rules, wherein he is required to inform his employer about the acquisition of any movable property or asset apart from his income.
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186. In view of the above explanation which has been appended to Section 13(1) (e) of P.C.Act, the argument advanced by Ld.Defence Counsel that the amount of 12,000 Kuwaiti Dinars which though accused was to get for business promotion, but he could have converted the same for his own personal use and the same, should be added in "Income", to my mind, is not only untenable , but is completely devoid of any merits, as the same cannot be held to be from "lawful source". This argument of Ld.Defence Counsel even otherwise falls flat, as nowhere in his deposition, accused appearing in the witness box as DW2 stated to have converted this amount to his own use, instead of spending it for the "business promotion" of Indian Airlines.
187. Further, no evidence has been adduced on record by the accused to show that he, at any point of time, had informed his employer, about the receipt of this amount, at his disposal as per the CCS (Conduct) Rules.
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188. Even otherwise, the evidence on record falls short of the proof of receipt of this amount by the accused from GSA of Indian Airlines. As being entitled to something and having actually receiving the said amount to which one is entitled, are two totally different things.
189. Another contention of Ld.Defence Counsel raised by him on the basis of deposition of accused who appeared in the witness box as DW2 u/s 315 Cr.P.C, is that accused had earned an amount of 6203 Kuwaiti Dinars, through currency fluctuation and 10,000 Kuwaiti Dinars through currency trading, during the check period which should also be added in his income. This contention of Ld.Defence Counsel to my mind is also not tenable in view of the explanation appended to Section 13 (1) (e) of the Act.
190. Section 13 deals with various situations when a public servant can be said to have committed criminal misconduct.
In the present case, accused has been charged under clause (e) of Subsection (1) of Section 13 of the Act. Clause (e) of subsection (1) of section 13 corresponds to clause (e) of subsection (1) of section 5 C.C.No: 51 / 2011 Page No.101 of 131 Judgement in the matter of:-
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of the Prevention of Corruption Act, 1947 (referred to as "the old Act"). But there have been drastic amendments. Under the new clause, the earlier concept of "known sources of income" has undergone a radical change. As per the Explanation appended, the prosecution is relieved of the burden of investigating into "sources of income" of an accused to a large extent, as it is stated in the Explanation that "known sources of income" means income received from any lawful source, the receipt of which has been intimated in accordance with the provisions of any law, rules, orders for the time being applicable to a public servant.
191. The expression "known sources of income" has reference to sources known to the prosecution after thorough investigation of the case. It is not, and cannot be contended that "known sources of income" means sources known to the accused.
The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Section 106 of the Indian Evidence Act, 1872. C.C.No: 51 / 2011 Page No.102 of 131
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192. The Legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily" and the legislature has, thus, deliberately cast a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the court that his explanation was worthy of acceptance.
193. Rule 15 of CCS (Conduct) Rules and Regulations prescribes that : "no government servant shall, except with the previous sanction of the government, engage directly or indirectly in any trading or business or negotiate for, or undertake, any other employment".
194. Accused has failed to place and prove on record any documentary evidence to show that at any point of time, the amount which he states to have earned through currency trading and currency fluctuation, as contended on his behalf by Ld.Defence C.C.No: 51 / 2011 Page No.103 of 131 Judgement in the matter of:-
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Counsel, was brought to the notice of his employer by him as per the requirement of Conduct Rules.
195. Apart from above, accused has failed to bring on record any documentary evidence to show that he had actually earned 6203 Kuwaiti Dinars through currency fluctuation and 10,000 Kuwaiti Dinars through currency trading.
196. Thus, the entire contention of Ld.Defence Counsel that the "cash allowances" , "transfer benefits", the amount to which accused was entitled towards "business promotion", the amount allegedly earned by him through "currency trading" and "currency fluctuation", should have been part of the "income" of the accused, stands rejected.
197. Having said so, that the perks and allowances to which accused was entitled as per Ex.PW.17/DA cannot be added in his "income", however to my mind, the entitlement of accused to these perks during the check period, would have definitely brought C.C.No: 51 / 2011 Page No.104 of 131 Judgement in the matter of:-
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down his "expenditure" component.
198. It is apparent from the record, more particularly, from the crossexamination of PW19, the IO that during the entire check period, accused remained alone in Kuwait, whereas, his family was living with father of the accused in Delhi and they never visited him in Kuwait. Further, during the crossexamination of accused who appeared in the witness box as DW2 u/s 315 Cr.P.C, Ld.Public Prosecutor himself gave him this suggestion that during the entire check period, he had not sent any amount towards expenditure for his family, as those expenses were borne by the parents of the accused, which was accepted by the accused.
199. In view of this suggestion given by the prosecution itself, it is apparent that prosecution is also convinced that the accused during the check period, did not incur any expenses towards maintenance of his family, who were being maintained by parents of the accused.
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200. Thus, the expenditure component is required to be considered, qua accused only.
201. Considering the fact that accused himself was entitled to a number of perks and allowances including free accommodation, chauffeur driven car, free meals, free travel and telephone expenses, I am of the considered opinion that the expenditure taken by the investigating agency of the accused to be 30% of his net income, is on the higher side, in the facts and circumstances of the case.
202. The expenditure being in the exclusive knowledge of the accused, it was he, who was required to disclose the same to the investigating agency. Accused during the course of investigations, in reply to the notice of the investigating officer Ex.PW.19/F, had submitted the details of the expenditure incurred by him during the check period vide his reply Ex.PW.19/E. C.C.No: 51 / 2011 Page No.106 of 131 Judgement in the matter of:-
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203. In his reply, accused himself stated that during the check period, he was having a total expenditure of Rs.6,000/ per month. This amount though is on a very lower side, however, having regards to the perks he was entitled to, I accept the same towards his expenditure. At said rate, the total expenditure incurred by him during check period on himself comes to 6000 x 36 months = Rs.2,16,000.
204. At the exchange rate of 1 kuwaiti dinar being equivalent to Rs.146.25, the expenses incurred by the accused during check period comes to 2,16,000 : 146.25 = 1476.923 KWD rounded off to 1500 Kuwaiti Dinars. I accordingly take the expenditure of the accused during check period to be 1500 Kuwaiti Dinars instead of 9,000 Kuwaiti Dinars, as taken by the investigating agency.
205. To that extent, the contention of Ld.Defence Counsel on this aspect is accepted.
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206. This has brought me down to the next contention of Ld.Defence Counsel vide which he had tried to put forth the explanation with respect to the amount of 1,25,273.90 U.S.Dollars remitted by the accused in his CITI Bank Global Account in Singapore.
207. Sh.R.D.Mehra, Advocate, Ld.Defence Counsel appearing on behalf of the accused relying upon the deposition of DW1 Sh.N.K.Jain and accused himself, who was examined as DW2, contended that this amount remitted by the accused in his account was not his money. He contended that this amount belonged to Naresh Jain DW1 which was paid back, by the accused at instance of N.K.Jain to his business associate M/s Great Himalayan Private Limited, much prior to the registration of the present case. He contended that in view of the deposition of DW1 and DW2 coupled with the affidavit to that effect given by DW1 which was duly attested by Indian Consulate Dubai and proved so by DW5, this amount cannot be added as pecuniary assets of the accused. C.C.No: 51 / 2011 Page No.108 of 131
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208. I have considered the submissions advanved by Ld.Defence Counsel in the light of deposition of defence witnesses ie.
DW1 Naresh Jain & DW2, accused himself. I have also perused the documents placed on record ie. letter Ex.DW.1/B to Ex.DW.1/E purportedly written by DW1 to the accused and Ex.DW.1/A, the affidavit stated to have been executed by Naresh Jain. I have also gone through the letters Ex.DW.2/A, Ex.DW.2/B and Ex.DW.2/C purportedly written by the accused to Naresh Jain. I have also considered the statement of account Ex.PW.3/8 of CITI Bank Singapore, where accused had deposited a total of 1,25,273.90 U.S.Dollars. I have also perused the notices issued by the IO to the accused during course of investigations more particularly, notice Ex.PW.19/K and replies to the said notice furnished by the accused ie. Ex.PW.19/L an Ex.PW.19/M.
209. The expression "known sources of income" as used in Section 13(1) (e) of the Act, refers to the sources of the accused known to the prosecution. The prosecution cannot be expected to know the personal affairs of an accused persons. As the C.C.No: 51 / 2011 Page No.109 of 131 Judgement in the matter of:-
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same must be in the special and specific knowledge of the accused. Further, the legislature has advisedly used the expression "satisfactorily account". The emphasis has to be on the word "satisfactorily" and the legislature has, thus deliberately cast a burden on the accused, not only to offer a plausible explanation as to how he came by his large wealth, but also satisfy the court that his explanation was "worthy of acceptance".
210. The "Explanation" appended to the Section, further enjoins that the source if any, disclosed by the accused, the same has to be a "lawful source" and such receipt must have been intimated in accordance with the provisions of any law, rules or orders applicable to such public servant.
211. In the backdrop of this statutory provision, the contention raised by Ld.Defence Counsel is required to be considered.
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212. It is contended that accused had agreed to start a joint business with Naresh Jain to made operational from India and for said project, Naresh Jain agreed to contribute the entire capital of 1,50,000 U.S.Dollars. It is contended that out of the said amount, he had paid 1,28,000 U.S.Dollars to the accused in three installments in 2001 - 2002. Ld.Defence Counsel urged that accused had opened a Global Deposit Account with CITI Bank Singapore, wherein he had deposited this amount. He contended that in the year 2003, Naresh Jain abandoned the project and asked accused to transfer his entire amount to his business associate M/s Great Himalayan Private Limited, which was accordingly done by the accused, prior to registration of the present case.
213. In support of his contentions, he had relied upon the depositions of DW1, DW2 and the letters Ex.DW.1/B to Ex.DW.1/F and Ex.DW.2/A to Ex.DW.2/C.
214. Bare perusal of deposition of DW1 and DW2, more particularly their cross examination reveals that the C.C.No: 51 / 2011 Page No.111 of 131 Judgement in the matter of:-
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explanation, that both of them agreed to start a joint business, is an implausible and inexplicable explanation, sought to be put forth as an 'afterthought' and in an attempt by the accused to escape from his legal liability.
215. It appears highly illogical for a businessman to have agreed to start a joint venture with someone without any written agreement or contract. More particularly, when he himself has agreed to contribute the entire capital. Further, it does not appeal to reason as to why he would agree to pay the capital for the business to the accused in installments for a venture which is yet to start. It seems highly improbable for a prudent person to pay such a huge amount to someone, without any written document, with whom he had no relations and had met only once prior to their agreeing to work together on a project, of which neither any date, nor place of operation is finalized.
216. Had the amount been given to the accused to be kept in the bank, then the said person could have very well kept that C.C.No: 51 / 2011 Page No.112 of 131 Judgement in the matter of:-
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amount in his own account, to be utilized as and when the proposed project is given a kickstart. Further, the deposition of DW1 and DW2 is contrary to the alleged letters, purportedly exchanged between them. The letters Ex.DW.1/C and Ex.DW.1/D mentions that Naresh Jain did have the receipts of payments made by him to the accused, whereas accused during his cross examination has categorically stated that he has not issued any receipt acknowledging the amount received from Naresh Jain.
217. The deposition made by DW1 Naresh Kumar Jain, on the face of it, appears as unreliable and untrustworthy. DW1 during the course of his deposition has failed to place on record any documentary evidence in support of his claim that he was enjoying the status of NRI during the relevant period of time. He has failed to place on record any documentary evidence to show the money transactions allegedly made by him to the accused. Further, the alleged correspondence which DW1 stated to have made with accused appears on the face of it, to be an attempt on the part of accused to create an evidence in his favor. Nowhere, DW1 during C.C.No: 51 / 2011 Page No.113 of 131 Judgement in the matter of:-
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the course of his deposition has stated to have received any letter from accused Rohit Sehgal, nor he had produced the originals of those letters. Further, DW1 in the alleged letters Ex.DW.1/B to Ex.DW.1/E, had stated that he have the receipts of acknowledgement of the money paid by him to Rohit Sehgal, whereas Rohit Sehgal during the course of his crossexamination as DW2 denied having issued any such receipts in favor of N.K.Jain.
218. Had there been any such receipts, then DW1 should have produced the same during the course of his deposition, but was that not to be.
219. The affidavit Ex.DW.1/A allegedly executed by DW1 also appears to be a document prepared as an afterthought at instance of the accused. The paper of said documents was purchased from Delhi whereas the said affidavit subsequently was stated to have been executed by DW1 in Dubai and was got attested from Indian Consulate. If DW1 was in Delhi at the time of purchase of this affidavit, then he could have very well executed C.C.No: 51 / 2011 Page No.114 of 131 Judgement in the matter of:-
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this document in Delhi itself.
220. Deposition of DW1 and DW2 suffers from material contradictions with the documentary evidence on record. DW2 deposed that Naresh Jain had paid him 3 installments of 28,000 U.S.Dollars, 69,000 U.S.Dollars and 34,000 U.S.Dollars on 07.11.2001, 12.01.2002 and 14.01.2003. However, the credit entries in the statement of account Ex.PW.3/8 as depicted in para 142 (b) (supra), reveals that there is no entry showing deposit of these amount immediately after the dates on which the same as per DW2 were given to him by DW1. Further, the three amounts allegedly received by the accused from DW1 comes to 1,28,000 U.S.Dollars whereas, the amount deposited in the Global Deposit Account totals to 1,25,273.90 U.S.Dollars. This discrepancy and also the amounts deposited in the account against the dates of their deposit are incapable of being reconciled with the deposition of DW2.
221. Further, as per deposition of PW3 and PW13, prosecution witness from CITI Bank Singapore, accused has used C.C.No: 51 / 2011 Page No.115 of 131 Judgement in the matter of:-
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the amount so deposited by him in this account for purchase of "TEC17" Bonds. Had this amount been given to him by DW1 Naresh Jain as claimed, then the same would not have been used by accused for purchasing the bonds.
222. Further, in the letter Ex.DW.1/E, it is mentioned that the business can be started once Rohit Sehgal returns to India in 2003. Meaning thereby that, DW1 was aware that accused is not going to return to India before June 2003. Thus, there was no occasion with him to depose that whenever he asked accused about business, accused used to tell him that he will shortly leave the job and will go back to India to start the business. This deposition made by DW1 in his cross examination, contradicts his alleged letter Ex.DW.1/E.
223. Had it been DW1 N.K.Jain who had given this amount to the accused and had this amount been given back by the accused as claimed, then DW1 could have shown some documentary evidence to that effect, but no such evidence was C.C.No: 51 / 2011 Page No.116 of 131 Judgement in the matter of:-
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forthcoming during the course of his deposition. DW1 had neither produced any documentary evidence or bank record to show that in fact, it was he who was the source of this money.
224. This contention of Ld.Defence Counse is also not plausible in view of the fact that DW1 during the course of his cross examination has failed to place on record any documentary evidence of his having any business relations or transactions with M/s Great Himalayan Company, to whom as per his wishes, accused had transferred the funds. This deposition of DW1 is also not trustworthy and reliable in view of his own crossexamination wherein he categorically stated that in the year 2003, he abandoned the project as he wanted to invest the money in property in Dubai, therefore, he had asked Rohit Sehgal to refund his money to be invested in property. However, he has contradicted himself by stating that he himself directed accused Rohit Sehgal to transfer the amount to M/s Great Himalayan Company, with which he failed to place on record any documentary evidence of having business relations.
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225. Had there been any semblance in the version of accused that this money belonged to N.K.Jain, then he could have explained this fact to the investigating agency during the course of investigations when accused was called upon to do so, by the investigating officers, vide his notice Ex.PW.19/F and Ex.PW.19/K. But that was not to be.
226. Nowhere, accused in his replies Ex.PW.19/E or Ex.PW.19/H or Ex.PW.19/M had stated this defence, with which he has come up now, during the course of trial. In none of his replies Ex.PW.19/L and Ex.PW.19/M, there is any whisper of the fact that this money belonged to Naresh Jain. Had that been so, what prevented the accused from mentioning the same in his replied Ex.PW.19/L and Ex.PW.19/M. In view thereof, it appears that the accused in order to escape, has created this story, as an afterthought. Consequently, in view of the documentary evidence and other material on record, I am of the considered opinion that deposition of DW1 and that of accused, to this effect is not C.C.No: 51 / 2011 Page No.118 of 131 Judgement in the matter of:-
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trustworthy and is unreliable. The letters which is sought to be putforth ie. Ex.DW.1/B to Ex.DW.1/E and Ex.DW.2/A to Ex.DW.2/C, appears to have been created just to give semblance and support to the foundation of this story, otherwise, there was no apparent reasons for both of them to communicate with each other through letters. Had these letters been in existence, the same must have found mentioned in the replies Ex.PW.19/M and Ex.PW.19/L of the accused, to the investigating officer, which he had filed after taking sufficient time.
227. DW2 during his cross examination categorically stated that contents of Ex.PW.19/M are correct. On the contrary, he himself stated that he had inserted the name of "Atul Goenka", whom he does not know, at the instance of the IO. Had that been so, accused could have lodged complaint against the IO, but that was not to be. The reasons are obvious.
228. Even otherwise, the source of this money which accused is claiming to put forth now in an attempt to satisfactorily C.C.No: 51 / 2011 Page No.119 of 131 Judgement in the matter of:-
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account for the money which he had in his Global Account, Singapore is not worthy of credence and is unacceptable. In view of the "Explanation" appended to Section 13(1) (e) of the Act.
229. This Explanation which was not there in the Act of 1947, has been appended by the Legislature in the Section 13(1) (e) of P.C.Act 1988, and the same brought about a radical change. Now, it is not open to the accused to put across the name of any person stating and claiming him to be the source. As per the Explanation, the source has to be a "lawful source" which the public servant has intimated in accordance with provisions of Law and Rules, applicable to him.
230. The Law referred to, in the Explanation would conceivably be the Income Tax Act and rules must be CCS (Conduct) Rules, which were applicable to him being "public servant".
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231. As per Rule 15 of CCS (Conduct) Rules, no public servant except with the previous sanction of the Government can engage directly or indirectly in any trade or business. Rule 18 enjoins upon him to intimate his department about receipt of any money by him from "any source".
232. No evidence has been placed on record by the accused to show that he, as per these rules, had either sought permission to engage himself in "joint business" with said Naresh Jain or had intimated his department, of his having received 1,28,000 U.S.Dollars, from DW1 as claimed by him.
233. This argument that accused was to start this joint business only after completion of his tenure as Area Manager in Kuwait ie after 2003, does not hold waters. Had that been so, then what prompted DW1 to contribute towards capital of this business two years in advance and that too, without any written contract, agreement or receipt.
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234. Further, as accused has failed to place on record any documentary evidence to show that he in compliance of the rules, had intimated receipt of this huge amount from Naresh Jain, to his department, therefore the explanation given by him, is not worthy of acceptance in terms of the "Explanation" appended to Section 13 (1) (e) of the Act.
235. The same is accordingly rejected.
236. In his untiring effort to demolish the case of the prosecution, Ld.Defence Counsel had raised his last contention challenging the sanction under section 188 Cr.P.C granted in this case by Central Government for trial of the accused.
237. It is contended by Ld.Defence Counsel that the sanction for trial Ex.PW.18/A was signed by PW18 Smt.Shubha Thakur, Under Secretary, posted in Department of Personnel and Training, Government of India. He contended that sanction for trial of accused could have been granted either by the concerned Minister C.C.No: 51 / 2011 Page No.122 of 131 Judgement in the matter of:-
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or by the then Hon'ble Prime Minister himself, and PW18 was not the competent authority for according sanction.
238. Ld.Defence Counsel in support of his contention had relied upon the crossexamination conducted by him of PW18 Smt.Shubha Thakur and PW19, the investigating officer. He contended that PW19 the investigating officer, during the course of his crossexamination had stated that no draft sanction order was sent to the department, whereas, PW18 during the course of her crossexamination had admitted that a draft sanction order was sent by CBI along with their request for grant of sanction, for trial of accused.
239. Before adverting to consider the contentions of Ld.Defence Counsel on this aspect, it is pertinent to mention here that although the accused Rohit Sehgal at the time of check period was posted as Area Manager with Indian Airlines and thus, was a public servant. However, at the time of filing of charge sheet, he was no longer in service, therefore, the sanction as required under C.C.No: 51 / 2011 Page No.123 of 131 Judgement in the matter of:-
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section 19 of Prevention of Corruption Act, which is a pre requisite or sinequanon for taking cognizance of offence, was neither required, nor was filed.
240. The present sanction order under section 188 Cr.P.C was filed by the prosecution for trial of the accused, only because of the fact that accused, who though was an Indian National, but the alleged offence with which he was charge sheeted was committed while he was in Kuwait, a foreign land.
241. It has to be borne in mind that the sanction for prosecution as required u/s 19 of Prevention of Corruption Act, qua public servant, by no stretch of imagination, is to be equated with the sanction for trial as is required u/s 188 Cr.P.C. This sanction is required for trial of any ordinary Indian Citizen, if the offence alleged to have been committed by him, took place in a foreign land.
242. The primary and foremost task of a court in interpreting a Statute is to ascertain the intention of the C.C.No: 51 / 2011 Page No.124 of 131 Judgement in the matter of:-
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Legislature, actual or imputed. Where the words of Statute are in themselves precise and unambiguous, in that case, nothing more is required, than to expound those words in their natural and ordinary sense, as they very nearly express the thoughts and intention of the Legislature. On the other hand, when different interpretations are likely, then that alternative is to be chosen which is consistent with the smooth working of the system and promotes the object of the Statute under interpretation. The alternative which introduces an element of bewildering uncertainity, friction or confusion into the working of an institution, is to be eschewed.
243. The object of incorporation of Section 19 of Prevention of Corruption Act, was to protect the decision making level officers from the threat and ignominy of malicious and vexatious investigations and to give protection to those officers and to relieve them of the anxiety of the likelihood of harassment for taking honest decisions. As in absence of such protection, the efficiency and efficacy of those institutions in particular and society / government in general, is seriously affected. Whereas, this C.C.No: 51 / 2011 Page No.125 of 131 Judgement in the matter of:-
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is not the object for which section 188 Cr.P.C was brought on the Statute Book. No where, in Section 188 Cr.P.C which is applicable to any ordinary Citizen, it is so incorporated that the said sanction has to come from a competent authority, capable of removing the public servant from his office. As the status of the accused, whether he is a public servant or an ordinary citizen, is not the guiding factor, for the requirement of this sanction under section 188 Cr.P.C.
244. Having said so, it is the duty of the court to provide only that much protection which has been incorporated in Statute by the Legislature and to go no further.
245. In the present case, there is no bar for the court to take cognizance of the offence, even without the sanction u/s 188 Cr.P.C which is required to be granted by the Central Government, for the purposes of trial. PW18 during the course of her deposition and more particularly, during the course of her crossexamination had adverted to, the file which was prepared in Department of C.C.No: 51 / 2011 Page No.126 of 131 Judgement in the matter of:-
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Personnel and Training, regarding grant of sanction and proved the same as Ex.PW.18/DX.
246. This witness categorically stated that there is a letter signed by Mrs.Renuka Kumar, of P.M.Office, stating that grant of sanction in the present case has been approved by the then Prime Minister. This witness during the course of her deposition, had deposed that Govt.of India ("Allocation of Business) Rules ,1961 applies to their department and she had signed the sanction order in the name of President of India. Merely because, a draft sanction order was sent along with the request letter of CBI to the department, does not in any way take away the sanctity of the sanction, which was finally accorded.
247. In view of these facts and circumstances, the contention raised by Ld.Defence Counsel that sanction has not been proved, is turned down.
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FINAL VERDICT:
248. In the conspectus of what is stated and discussed herein above, if the story unfolded by CBI through deposition of its witnesses is taken to its logical conclusion, the following would emerge :
Sl. Heads Amount in USD / KWD Equivalent amount in Indian Rupees.
No
(A) Assets which
NIL NIL
accused had at the
"beginning" of
check period
(I)85,858 U.S.Dollars (remitted to (i) Rs.40,55,073.34/
(B) Assets which SBI,Lajpat Nagar) +
accused had at the (ii)1,25,273.90 U.S.Dollars (remitted (ii) Rs.59,16,686.29/ "end" of the check to his a/c with CITI Bank) + period
(iii)3178.350 Kuwaiti Dinars (equivalent to Rs.5 lakhs remitted to (iii) Rs.5, 00, 000/ ICICI Bank) +
(iv) 50 Kuwaiti Dinars (lying in Gulf Bank Account of accused). (iv) Rs.7,311.50/ TOTAL = 1,04,790,71.13/ C.C.No: 51 / 2011 Page No.128 of 131 Judgement in the matter of:-
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(C) "Income" which 30032 Kuwaiti Dinars Rs.43,92,180/ accused had during the check period (D) "Expenditure" 1500 Kuwaiti Dinars Rs.2,19,300/ which accused had during the check period Note : The conversion value which was prevalent at the time of the check period being 1 Kuwaiti Dinar equivalent to Rs.146.25 and 1 U.S.Dollar equivalent to Rs.47.23, is taken for the purposes of making the calculations in the above mentioned table.
249. In view of above, the disproportionate pecuniary assets which accused had with him, comes to : (B) + (D) - (A) + (C) ie. Rs. 1,04,790,71.13 (B) + Rs.2,19,300 (D) Nil (A) + Rs. 43,92,180 (C) = Rs.63,06,191.13/ (Rupees Sixty Three Lakhs six thousands one hundred and ninety one and paisa thirteen only) which is more than the double of his known sources C.C.No: 51 / 2011 Page No.129 of 131 Judgement in the matter of:-
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of income, for which he could not give any satisfactory account.
250. Having regards to the facts and circumstances of the case, prosecution has been able to establish that accused Rohit Sehgal, ExArea Manager, Indian Airlines, Kuwait, being a "public servant" had committed "criminal misconduct" by having in his possession pecuniary resources amounting to .Rs.63,06,191.13/ (Rupees Sixty Three Lakhs six thousands one hundred and ninety one and paisa thirteen only), at the end of check period ie. 22.06.2003 during the period of his office, which were disproportionate to his known sources of income, for which he could not satisfactorily account for.
251. Thus, all the necessary ingredients of the offence under section 13(1) (e) of the Act, have been duly proved and established on record by the prosecution against the accused, as the evidence on record is consistent with guilt of accused and not his innocence.
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252. Accused Rohit Sehgal is accordingly convicted for offence under section 13(1) (e) of P.C.Act which is punishable under section 13 (2) of Prevention of Corruption Act,1988.
253. Let he be heard on point of sentence.
Announced in the Open Court On the 15 Day of May, 2013.
th (KANWALJEET ARORA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.
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