Delhi District Court
Central Bureau Of Investigation vs Abhay Kumar Srivastava Etc on 20 December, 2023
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IN THE COURT OF MS. NAMRITA AGGARWAL : SPECIAL JUDGE
(PC ACT) CBI-21 : ROUSE AVENUE COURT : NEW DELHI.
IN THE MATTER OF :
CBI Vs. Abhay Kumar Srivastava & Anr.
CBI No. 202/2019
RC No. RC-AC-1-2011-A-0001/AC-I/CBI/Delhi
CNR No. DLCT11-001196-2019
CBI
............................... Prosecution
VERSUS
1. Abhay Kumar Srivastava (A.K. Srivastava)
S/o Sh. S.P. Srivastava,
R/o A-10/904, Klassic Jaypee Wish Town,
Sector 134, Noida (UP).
Also at : A-137/A, Sector-27, Noida (U.P).
2. Bhushan Lal Bajaj,
S/o Late Sh. Chaman Lal Bajaj,
R/o H.No. A-356, Sector-46, Noida-201301.
Also at : C-79, Golf Link, Sector-14, Noida (U.P).
3. Chandni Srivastava,
W/o Sh. A.K. Srivastava,
R/o A10/904, Klassic Jaypee Wish Town,
Sector 134, Noida (U.P).
Also at : A-137/A, Sector-27, Noida (UP).
4. Anita Bajaj,
W/o Sh. B.L. Bajaj,
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal)
Spl. Judge (PC Act) CBI-21/20.12.2023
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R/o H.No. A-356, Sector-46, Noida-201301.
Also at : C-79, Golf Link, Sector-14, Noida (U.P).
5. Gurwinder Singh Bhatia,
S/o Sh. Kirpal Singh Bhatia,
R/o Plot No. 1, 2, 3, 4 Near Aditya Nagar,
Vishnupuri, Rajendra Nagar, Indore, M.P.- 452012
Also at : 144, Pipliya Rao, A.B. Road, Indore, M.P.
6. Jaswinder Singh Bhatia,
S/o Sh. Jagdish Singh Bhatia,
R/o 374 Vishnupuri Annexe, Near Aditya Nagar,
Indore Madhya Pradesh.
7. Ratan Pal Singh Bhatia, S/o Sh. Jagpal Singh Bhatia,
R/o H.No. 279, Sector 21/A, Chandigarh-160022
..................... Accused.
CBI No. : 202/2019
CNR No. : DLCT11-001196-2019
Date of institution : 21.04.2011
Date of transfer of case to this court: 22.04.2019
Date of conclusion of arguments : 02.12.2023
Date of judgment : 20.12.2023
AND
IN THE MATTER OF :
CBI Vs. Abhay Kumar Srivastava & Anr.
CBI No. 310/2019
RC No. RC-AC-1-2011-A-0001/AC-I/CBI/Delhi
CNR No. DLCT11-001192-2019
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal)
Spl. Judge (PC Act) CBI-21/20.12.2023
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CBI
............................... Prosecution
VERSUS
1. Abhay Kumar Srivastava (A.K. Srivastava)
S/o Sh. S.P. Srivastava,
R/o A-10/904, Klassic Jaypee Wish Town,
Sector 134, Noida (UP).
Also at : A-137/A, Sector-27, Noida (U.P).
2. Bhushan Lal Bajaj,
S/o Late Sh. Chaman Lal Bajaj,
R/o H.No. A-356, Sector-46, Noida-201301.
Also at : C-79, Golf Link, Sector-14, Noida (U.P) &
B-40, Sector-40, Golf Link, Noida (U.P).
3. Chandni Srivastava,
W/o Sh. A.K. Srivastava,
R/o A10/904, Klassic Jaypee Wish Town,
Sector 134, Noida (U.P).
Also at : A-137/A, Sector-27, Noida (UP).
4. Anita Bajaj,
W/o Sh. B.L. Bajaj,
R/o H.No. A-356, Sector-46, Noida-201301.
Also at : C-79, Golf Link, Sector-14, Noida (U.P) &
B-40, Sector-40, Golf Link, Noida (U.P).
..................... Accused.
CBI No. : 310/2019
CNR No. : DLCT11-001192-2019
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal)
Spl. Judge (PC Act) CBI-21/20.12.2023
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Date of institution : 21.04.2011
Date of transfer of case to this court: 22.04.2019
Date of conclusion of arguments : 02.12.2023
Date of judgment : 20.12.2023
JUDGMENT
1. 'All that glitters is not gold', though an aphorism which was crafted by William Shakespeare centuries ago, is a profound truth. People from diverse backgrounds are still dazzled by the glitter of illegal money and use all their might and power to amass illegal wealth, sometimes even by converting the proceeds of crime into precious metals and stones to maintain anonymity. The amplified appeal of precious gold due to global market conditions drive certain people to jeopardize their life as well as the life of their loved ones for petty greed, thus forgetting that 'not all that tempts our heedless hearts is a lawful prize'.
2. National Aluminum Company Ltd. (NALCO), a public sector company incorporated in 1981 is a Navratna Company renowned for its substantial contribution to country's economy. This is one such case where the 'top man' i.e Chairman-cum- Managing Director (CMD) NALCO enjoying enormous powers tried to brought bad name to the company by allying with his wife and other accused persons and exploiting his public duty for personal material gain.
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -5- BRIEF FACTS
3. The FIR bearing no. RCAC12011A0001 was registered in the present case on the basis of a source information. The gist of the information so received was that A.K. Srivastava (A-1), who was appointed as Chairman- cum-Managing Director, NALCO w.e.f 01.10.2009 for a period of five years or till the date of his superannuation was working in close association with one B.L. Bajaj (A-2). B.L. Bajaj, who was the Senior Vice President at M/s Nagarjun Construction Company had worked together with A.K. Srivastava at NTPC and was also acquainted with the functioning of NALCO as he was appointed as the sole arbitrator in one matter between M/s Himadri Chemical Industries Ltd & NALCO in May 2010. The aforesaid B.L. Bajaj was acting as a middleman of A.K. Srivastava, who is a public servant, for arranging bribe money for him by corrupt and illegal methods from the bidders / suppliers of NALCO and handing over the same to A.K. Srivastava.
4. On 28.07.2010, NALCO had floated a tender bearing no. SAN/GMM/W.COAL/1952 for purchase of 2 lakh MT of washed coal for its captive power plant at its unit at Angul, Orissa. Three parties namely (i) M/s Gupta Coal Field and Washeries Ltd. (2) M/s Maheshwari Bros. Coal Ltd. and (3) M/s Bhatia International Ltd. had submitted their bids out of which M/s Gupta Coal Field and Washeries Ltd. was rejected at the stage of technical bid itself. Since only two bidders were left, the tender was proposed CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -6- to be divided amongst them in the ratio of 60:40 after the price bid was opened on 13.12.2010. M/s Maheshwari Brothers Coal Ltd had quoted a rate of Rs. 4035.90/- per MT and M/s Bhatia International Ltd had quoted a rate of Rs. 4256/- per MT. M/s Bhatia International Ltd (L-2) agreed to match the bid price of L-1 i.e M/s Maheshwari Bros Coal Ltd. Therefore, the quantity of 2 lakh MT was divided and L-1 was to supply 1.20 lakhs MT whereas L-2 was to supply 80,000 MT of washed coal to NALCO. The said proposal was prepared by the purchase committee vide its note dated 28.12.2010 and 30.12.2010. The said note after being approved by the acting CMD Sh. B.L. Bagra on 31.12.2010 was accordingly placed before the committee of Directors headed by A.K. Srivastava, CMD. The same was approved by the aforesaid committee vide minutes of meeting dated 04.01.2011. It transpired later on that this supply order served as a motive for demand of illegal gratification by A.K. Srivastava (public servant) from M/s Maheshwari Bros Coal Ltd. and M/s Bhatia International Ltd through B.L. Bajaj.
5. Telephonic conversations of various game players who were directly or indirectly involved in this tender process, which were incriminating in nature were intercepted on the basis of legal technical surveillance of the mobile numbers of the accused persons and other interested parties and it was revealed that Rs. 150/- per MT was agreed to be paid as illegal gratification by both L-1 and L-2 to B.L. Bajaj for A.K. Srivastava. 75 incriminating conversations for a period between 09.12.2010 to 25.02.2011 and 88 CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -7- incriminating conversations between 06.12.2010 to 08.02.2011 were received from Special Unit, CBI on the basis of the said legal technical surveillance of the mobile phones of accused persons as well as Bijay Mandhani. These conversations revealed that an amount of Rs. 1.80 crores @ Rs. 150 per ton for 1,20,000 MT was demanded and decided to be paid as illegal gratification by M/s Maheshwari Bros. Pvt. Ltd to A.K. Srivastava and Rs. 1.20 crores was decided to be paid by G.S. Bhatia of M/s Bhatia International Coal Ltd. as a reward for award of tender of washed coal.
6. As per the intercepted conversations, it was revealed that B.L. Bajaj was in close contact with Gurwinder Singh Bhatia (A-5) (Chairman- cum-Managing Director of Bhatia Group of Companies) as well as Sh. Bijay Mandhani of M/s Maheshwari Brothers Coal Ltd and the rate of Rs. 150 per MT as illegal gratification was decided between B.L. Bajaj and Bijay Mandhani after negotiation. Further, B.L. Bajaj in lieu of ensuring smooth supply of washed coal and payment process obtained huge sum of money as illegal gratification on behalf of A.K. Srivastava & for himself from G.S. Bhatia and Bijay Mandhani which were later converted into gold bars at the instructions of A.K. Srivastava. G.S. Bhatia in turn instructed Jaswinder Singh Bhatia (A-6) to make arrangement of illegal gratification for the tender process and deliver the same to B.L. Bajaj with the help of Ratan Pal Singh Bhatia (A-7).
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -8-
7. Investigation revealed that Sh. Bijay Mandhani was aware about the internal tender information of NALCO though the same was not supposed to be in his knowledge. Further, intercepted conversations brought forth that J.S. Bhatia and B.L. Bajaj were talking in cryptic language regarding the purchase order and the payments to be made for it. There are also categorical confirmations regarding the part payments which were made by M/s Bhatia International Ltd to B.L. Bajaj in these conversations. A.K. Srivastava also kept confirming about the status of the payment commitment of M/s Bhatia International from B.L. Bajaj and B.L. Bajaj discussed with A.K. Srivastava for meeting with G.S. Bhatia giving the impression that he was a resourceful person.
8. It was also revealed during investigation that B.L. Bajaj used to procure gold bars of 1 kg weight for A.K. Srivastava against the bribe amount which were being kept in the locker of Bank of Maharashtra, UPSC Branch in locker no. 127 which was opened on 21.06.2010. Allegedly, the said locker was in the benami name of Anita Bajaj (A-4), wife of B.L. Bajaj, but was being operated by Chandni Srivastava (A-3), wife of A.K. Srivastava.
9. Thus, on 02.02.2011 B.L. Bajaj contacted Sh. Vinod Kumar of M/s Tirupati Jewellers and subsequently asked him to purchase 3 gold bars of 1 kg each after discussing gold rate with him against the part illegal gratification collected from M/s Bhatia International by him for A.K. CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -9- Srivastava. Consequently, Smt. Anita Bajaj collected three gold bars from Triputi Jewellers on 24.02.2011 and brought it home. Thereafter, Anita Bajaj accompanied Chandni Srivastava to Bank of Maharashtra, UPSC Branch for depositing the said gold bars in the locker. On the aforesaid information the present FIR was registered on 25.02.2011. Bijay Kumar Mandhani filed an application to become an Approver and also for getting his statement recorded U/s 164 Cr.P.C which was allowed.
TRAP PROCEEDINGS
10. After registration of the case, a trap was laid by CBI at Bank of Maharashtra, UPSC, Shahjahanpur Road, New Delhi. The trap team comprising of CBI officials as well as independent witnesses spotted Chandni Srivastava and Anita Bajaj approaching the said bank together on 25.02.2011 during morning hours. Smt. Chandni Srivastava contacted the bank officers and after signing the locker operation register, went inside the strong room to operate the locker bearing no. 127. The trap team apprehended both of them while they were coming out of the bank after operating the locker. On being accosted with the fact that 3 kg gold bars were deposited in the locker, Chandni Srivastava and Anita Bajaj became perplexed and remained mum. They were taken inside Bank of Maharashtra again to the office of Branch Manager and asked to operate locker no. 127. This time Smt. Anita Bajaj signed the locker operation register in the presence of CBI. Search of locker was conducted by CBI from which Indian currency notes, 10 gold bars, 8 gold CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -10- bangles, 1 Tanishq mini gold biscuit of 25 g and 4 gold coins apart from gold jewellery worth Rs. 9.5 lakhs were recovered.
11. Investigation revealed that the said locker bearing no. 127 as well as the bank account no. 60045917165, Bank of Maharashtra, Shahjahan Road, UPSC was opened by Chandni Srivastava by impersonating herself as Anita Bajaj but by affixing her own photograph on the photocopy of the PAN card and voter ID card of Anita Bajaj. The signatures on various documents namely the account opening form, locker opening agreement as well as locker operating register were found to be in the name of Anita Bajaj but in the handwriting of Chandni Srivastava. Specimen writing and signatures of Chandni Srivastava and Anita Bajaj were obtained and sent to CFSL for comparison with their questioned signatures at various places on the documents furnished for opening of bank account and for operating locker. CFSL report no. CFSL-2011/D-143 dated 11.03.2011 was obtained which opined that Smt. Chandni Srivastava had forged the signatures of Anita Bajaj.
12. Smt. Rita Gupta, Deputy Manager, Bank of Maharashtra who had opened the bank account and locker identified A.K. Srivastava to be the person who was present with Chandni Srivastava at the time of opening of the bank account and locker. It was also revealed that Sh. C.K. Verma who was the Branch Manager of Bank of Maharashtra, UPSC was contacted by B.L. Bajaj being his close acquaintance for opening of the bank account and locker CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -11- in the name of Anita Bajaj. On the reference of C.K. Verma, Smt. Rita Gupta opened the bank locker and account only on the basis of the photocopies of the ID proofs without ascertaining the genuineness of the original documents.
13. Voice samples of the accused persons were obtained and sent to CFSL for expert opinion on the questioned voice recorded by intercepting the telephonic conversations. CFSL report no. CFSL-2011/P-168 dated 23.03.2011 was obtained which confirmed the voice of all the accused persons in those questioned intercepted calls. Sh. Bijay Kumar Mandhani and Sh. A.K. Singh also gave their specimen voices which were sent to CFSL for opinion. Vide report no. CFSL-2011/P-845 dated 22.11.2011 CFSL confirmed their voices in the questioned voices sent.
14. Sanction for prosecution of accused A.K. Srivastava was obtained from the competent authority vide order no. 8/4/2011-VIG. dated 20.04.2011.
15. On the basis of the aforesaid evidence, charge-sheet dated 20.04.2011 was filed against A.K. Srivastava (A-1), B.L. Bajaj (A-2), Chandni Srivastava (A-3), Anita Bajaj (A-4), G.S. Bhatia (A-5), Jaswinder Singh Bhatia (A-6) and Rattan Pal Singh Bhatia (A-7) U/s 120-B r/w Section 7 and 12 of P.C. Act, 1988.
16. A separate charge-sheet was submitted against A-1 to A-4 for CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -12- opening and operating a benami locker by Smt. Chandni Srivastava in the name of Anita Bajaj at Bank of Maharashtra, UPSC Branch which was submitted before the court of Ld. CMM against A-1 to A-4 U/s 419/466/471 and 474 IPC. Hon'ble Delhi High Court vide order dated 09.02.2016 directed joint trial of two charge-sheets before the court of Ld. Special Judge, CBI.
17. Pursuant to the filing of the charge-sheet, Ld. Predecessor of this court took cognizance of the offence after perusing the same in light of the supporting documents and summoned the accused persons accordingly. Compliance of the provisions of Section 207 Cr.P.C was done and the accused persons were supplied with the copy of the charge-sheet and the documents relied upon by the prosecution. Thereafter, charges were framed against various accused persons as follows :
1. A-1 A.K. Srivastava : U/s 7 and Section 13 (2) r/w Section 13 (1) (d) P.C. Act, 1988 ,120 B IPC read with Section 7 and 12 P.C. Act, 1988, 120B IPC r/w Section 419 / 466 / 471 / 474 IPC and Section 471 IPC r/w Section 34 IPC.
2. A-2 B.L. Bajaj : U/s 120 B IPC read with Section 7 and 12 P.C. Act, 1988, Section 12 P.C. Act and U/s 120B IPC r/w Section 419 / 466 / 471 / 474 IPC.
3. A-3 Chandni Srivastava : U/s 120 B IPC read with Section 7 and 12 P.C. Act, 1988, Section 12 P.C. Act, 120B IPC r/w Section 419 / 466 / 471 / 474 IPC, Section 419 IPC, Section 466 IPC, Section 471 IPC and Section 474 IPC.
4. A-4 Anita Bajaj : U/s 120 B IPC read with Section 7 and 12 P.C. Act, CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -13- 1988, Section 12 P.C. Act and U/s 120B IPC r/w Section 419 / 466 / 471 / 474 IPC.
5. A-5 Gurvinder Singh Bhatia : U/s 120 B IPC read with Section 7 and 12 P.C. Act, 1988, Section 12 P.C. Act.
6. A-6 Jaswinder Singh Bhatia : U/s 120 B IPC read with Section 7 and 12 P.C. Act, 1988, Section 12 P.C. Act.
7. A-7 Ratan Pal Singh Bhatia : U/s 120 B IPC read with Section 7 and 12 P.C. Act, 1988, Section 12 P.C. Act.
PROSECUTION EVIDENCE
18. Prosecution was thereafter called upon to prove their case by examining the witnesses listed in the list of witnesses filed along-with the charge-sheet. Availing the said opportunity, the prosecution examined 39 witnesses.
19. The witnesses examined by the prosecution to substantiate their case can be broadly categorized into six categories.
20. The first category of witnesses consists of Material Witnesses relating to the incident i.e the Approvers or those who had an important role to play in the entire investigation. They are :
a) PW-9 Sh. Vinod Kumar Gupta
b) PW-11 Sh. Gopal Krishna Pillai.
c) PW-12 Sh. Bijay Kumar Mandhani CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -14-
d) PW-13 Sh. Ashok Kumar Singh
e) PW-21 Sh. A.K. Patney.
21. The second category of witnesses are those witnesses who were the Bank Officials of Bank of Maharashtra, UPSC Branch at the relevant time and had significant role to play in the opening or operation of the bank account or the locker by the accused persons. They comprise of :
a) PW-1 Ms. Rita Gupta
b) PW-2 Sh. Manmohan Katnaur.
c) PW-10 Sh. Subhash Singh
d) PW-20 Sh. C.K. Verma
22. The third category of witnesses are witnesses to the Trap Proceedings comprising of independent witnesses and CBI officers who were part of the trap laid down by CBI on 25.02.2011. They comprise of :
a) PW-3 Sh. Jungvir Singh
b) PW-4 Sh. K. Ramesh
c) PW-34 Ms. Sunita Chamoli
d) PW-37 Sh. Rajesh Singh Solanki
e) PW-38 Sh. Satender Singh
f) PW-39 Sh. Ram Singh
23. The fourth category of witnesses are the Expert Witnesses which comprise of :
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -15-
a) PW-28 Sh. P.K. Gottam
b) PW-30 Sh. D.R. Handa
c) PW-31 Sh. Ashutosh Deo Tiwari
d) PW-32 Dr. Subrat Kumar Chaudhary
e) PW-35 Sh. Deepak Kumar Tanwar
24. The fifth category of witnesses are the Witnesses from NALCO who were part of the tendering process in this project. They comprise of :
a) PW-6 Sh. S.D. Sahu.
b) PW-12 Sh. S.K. Sathpathy
c) PW-15 Sh. Sanjeev Singh
d) PW-22 Sh. P.K. De
e) PW-23 Sh. Siva Pd. Kar
f) PW-29 Sh. C. Sreedharaks
25. The six category of witnesses are the Miscellaneous Witnesses which comprise of :
a) PW-5 Sh. Satya Narayan Prajapati
b) PW-7 Sh. Abhimanyu Kashiwar Gupta
c) PW-8 Sh. M.C. Kashyap
d) PW-11 Sh. Lalit Mohan Bhatt
e) PW-14 Sh. Khimanand Joshi
f) PW-16 Sh. Israr Babu CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -16-
g) PW-17 Sh. Virender Pal Singh
h) PW-18 Sh. Rajeev Vasisht I) PW-19 Sh. Vijay Khanna
j) PW-24 Sh. Anil Khanna
k) PW-25 Sh. Pran Kumar Biswas
l) PW-26 Sh. Rattan Singh
m) PW-27 Sh. S.K. Munjal
n) PW-33 Sh. Deepak Purohit
o) PW-36 Sh. Vijay Bahadur
26. Before proceeding further, it is pertinent to make a brief mention of the role and deposition of these prosecution witnesses category wise as referred herein above. The detail deposition of the witnesses is not being adverted to, as the same shall be referred to while dealing with the necessary ingredients of the offences with which the accused persons have been charged viz-a-viz the rival contentions advanced by Ld. Special PP for CBI as well as Ld. Defence Counsels for the accused persons. Even the detailed cross examination of these witnesses is not being mentioned for the sake of brevity, but the same shall be referred to during the course of appreciating the legal as well as factual issues advanced by the parties.
27. Material Witnesses 27.1 PW-9 Sh. Vinod Kumar Gupta of M/s Tirupati Jewellers having CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -17- his shop at J-11, Sector-18, Noida stated that A-4 Anita Bajaj was his regular customer. This witness also handed over two kachcha bills of Rs. 19,500/- and Rs. 64,800/- along-with the CCTV recording of his shop to CBI vide seizure memo Ex.PW-9/A. This witness turned hostile during his examination and denied to have supplied any gold bars to A-2 B.L. Bajaj or A-4 Anita Bajaj against cash. PW-9 was cross examined at lengthy by Ld. PP for CBI but this witness kept insisting that A-2 was inquiring about gold rates from him on phone and that he had supplied certain jewellery items to A-4 as there was marriage in his family. This witness identified the voice of A-2 B.L. Bajaj and stated that the transcript Ex.PW-9/X1 to Ex.PW-9/X-37 are correct version of the conversation held by Mr. Bajaj on phone. He also identified Anita Bajaj in the CCTV footage of his shop but stated that she must have visited the said shop for purchase of jewellery items.
27.2 PW-11 Sh. Gopal Krishna Pillai, the then Secretary to the Government of India, Ministry of Home Affairs deposed that he had passed order dated 01.12.2010 Ex.PW-8/E and orders dated 28.01.2011 Ex.PW-8/F to Ex.PW-8/K granting permission for interception of calls of the accused persons on receiving a written request from the prosecuting agency.
27.3 PW-12 Sh. Bijay Kumar Mandhani, who became the Approver after the permission of the court deposed in detail that he was the Director in the company namely Maheshwari Brothers Coal Ltd. In the middle of 2010 there was a tender of NALCO for supply of 2 lakh matric tonnes of washed CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -18- coal and three parties namely Maheshwari Brothers Coal Ltd., Bhatia International and M/s Gupta Coal Fields participated in the tender process. However, M/s Gupta Coal Fields could not qualify the tender on technical grounds. This witness got exhibited the bid documents submitted by Maheshwari Brothers Coal Ltd as Ex.PW-12/A as well as the techno commercial bid document as Ex.PW-12/B. He further stated that through letter dated 19.08.2010 Ex.PW-12/C M/s Maheshwari Brothers Coal Ltd had authorized Sh. Krishan Sharma, Executive Director to attend the techno commercial bid, price bidding opening and any other meeting at NALCO. Through letter dated 18.08.2010 Ex.PW-12/D intimation was sent to NALCO about the name of the Director of M/s Maheshwari Brothers Coal Ltd. As per this witness, NALCO had divided the tender in the ratio of 60:40 between L-1 (M/s Maheshwari Brothers Coal Ltd.) and L-2 (M/s Bhatia International Ltd.). This witness clandestinely stated that in November 2010 he received a call from an unknown number to meet A.K. Srivastava, Chairman of NALCO at Maurya Shereton Hotel. There A.K. Srivastava met him and discussed about the allotment of tender and asked PW-12 to meet Sh. B.L. Bajaj for remuneration. As per PW-12, when he met Mr. Bajaj, he asked for the remuneration for Sh. A.K. Srivastava and for himself for the smooth transaction and timely payment. Demand of Rs. 150 per matric ton was made as remuneration by B.L. Bajaj for A.K. Srivastava after negotiation. He further deposed that he was asked by B.L. Bajaj to inform G.S. Bhatia as well to talk to him regarding remuneration and later he came to know that Mr. CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -19- Bhatia had given two installments of Rs. 80 lakhs and Rs. 20 lakhs through his representative to B.L. Bajaj. PW-12 further stated that he had given Rs. 1 crore to A.K. Singh in 2-3 installments to be paid to B.L. Bajaj against the remuneration amount. PW-12 identified his signatures and admitted the contents of his statement recorded U/s 164 Cr.P.C Ex.PW-12/F (colly). He also identified his specimen voice which was recorded vide memorandum Ex.PW-12/J. During evidence this witness was made to hear the recorded conversation as recorded in CD Ex.PW-8/P and he identified the voices of G.S. Bhatia, J.S. Bhatia, R.P. Singh as well as B.L. Bajaj and himself in the said conversation and also admitted the contents of the conversation to be correct as recorded in transcription Ex.PW-12/N to Ex.PW-12/P. He was also made to hear recorded conversation as recorded in CD Ex.PW-8/R and he identified the voice of B.L. Bajaj, A.K. Singh and himself and also admitted the contents of the recorded conversation and the transcript Ex.PW-12/U to Ex.PW-12/Z-48.
27.4. PW-13 Sh. Ashok Kumar Singh identified his signatures and admitted the contents of his statement recorded U/s 164 Cr.P.C. PW-13 deposed that Sh. Bijay Kumar Mandhani was his friend and in January 2011 B.L. Bajaj handed over a packet containing two packets of Rs. 50 lakhs each to him to be given to Mr. Bajaj. The said packet was handed over by him to Sh. B.L. Bajaj near Hotel Oberoi in January 2011. He identified his specimen voice which was recorded vide memo Ex.PW-13/A and when CD Ex.PW-8/R CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -20- was played in the court to this witness he identified his own voice as well as the voices of Sh. B.K. Mandhani in the said CD. He further admitted the contents of the transcription to be correct and got them exhibited as Ex.PW- 13/H to Ex.PW-13/O. 27.5. PW-21 Sh. A.K. Patney, who was posted as Deputy Secretary (Vigilance) in the Ministry of Mines in April 2013 granted sanction for prosecution of accused A.K. Srivastava through sanction order Ex.PW-21/B (colly) after due application of mind and after going through the material on record.
28. Bank Officials 28.1 PW-1 Smt. Rita Gupta, who was posted as Deputy Manager in UPSC Branch of Bank of Maharashtra from September 2009 to June 2014 stated that in 2010, the then Branch Manager Sh. C.K. Verma introduced her to A-1 A.K. Srivastava and A-3 Chandni Srivastava and instructed her to open a saving bank account and a locker in the name of the said lady. Pursuant thereto, A-3 Chandni Srivastava produced original as well as the photocopies of the voter ID card and PAN card bearing her photograph but in the name of A-4 Anita Bajaj on the basis of which she filled in the account opening form as well as KYC form by affixing signatures in the name of Anita Bajaj. These documents were got exhibited through this witness as Ex.PW-1/A (colly). PW-1 further deposed that all the signatures on the account opening form, CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -21- KYC form as well as the photocopies of the PAN card were made by A-3 Chandni Srivastava but in the name of Anita Bajaj. Further, a locker bearing no. 127 was also opened by A-3 in the name of A-4 Anita Bajaj by signing on the Cumulative Deposit Receipt (CDR) as well as the locker agreement Ex.PW-1/B (colly) in the name of Anita Bajaj. This witness also identified the signatures made by A-3 Chandni Srivastava in the name of Anita Bajaj on the locker call register Ex.PW-1/C. 28.2. PW-2 Sh. Manmohan Katnaur, who was posted as Deputy Branch Manager in UPSC Branch of Bank of Maharashtra from August 2009 to October 2013 deposed that on 25.02.2011 he was looking after the duty of locker operation as the concerned officer was on leave that day. At about 10:30 / 10:45 a.m A-3 Chandni Srivastava and A-4 Anita Bajaj approached him and A-3 asked him that she wanted to operate locker no. 127 for which A- 3 made entry in the locker call register in the name of A-4. Later, both A-3 and A-4 were apprehended by the CBI team and after being apprehended A-4 Anita Bajaj made entry in the locker call register for again operating locker no. 127 in the presence of CBI team, though the keys of the said locker were produced by A-3 from her purse. This witness also identified the items which were recovered from locker no. 127 by the CBI team and got exhibited the Locker Operation-cum-Seizure memo dated 25.02.2011 as Ex.PW-2/A. This witness also identified the gold bars of 1 kg each, 8 gold bangles, 4 gold coins and 1 mini gold biscuit along-with the cash recovered from locker no. 127 in CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -22- the presence of A-3 and A-4 as Ex.P1 to Ex.P4 (colly). He also identified the newspaper dated 25.02.2011 in which the currency notes were found wrapped in the locker as Ex.P5 and Ex.P6.
28.3. PW-10 Sh. Subhash Singh, Branch Manager at Bank of Maharashtra, UPSC Branch, Shahjahan Road in 2011 deposed in sync with PW-3 and PW-4 (independent witnesses) regarding the trap proceedings conducted on 25.02.2011. He had also handed over the CD Ex.PW-10/D of the CCTV footage of Bank of Maharashtra on 25.02.2011 to CBI along-with letter Ex.PW-10/B. A certificate U/s 65 B of Indian Evidence Act, Ex.PW- 10/E accompanied the said CD duly signed by this witness.
28.4. PW-20 Sh. C.K. Verma, General Manager, Bank of Maharashtra, UPSC Branch identified accused B.L. Bajaj and stated that he knew him. He further deposed that he had directed two ladies from the house of B.L. Bajaj to Officer Incharge for opening of the saving bank account in Bank of Maharashtra, UPSC Branch.
29. Witnesses to Trap Proceedings.
29.1 PW-3 Sh. Jungvir Singh, who was posted as Section Officer in Pawanhans Helicopters, Safdarjung Airport, New Delhi at relevant period stated that on 25.02.2011 he joined the trap team at the directions of his Chief Vigilance Officer and reached Bank of Maharashtra, UPSC Branch at around CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -23- 10 / 10:15 a.m from CBI office. There he saw A-3 and A-4 entering the branch and while they were returning back from the branch they were apprehended by CBI. Both the accused were taken to the chamber of Branch Manager wherein A-3 Chandni Srivastava admitted that she had operated the locker no. 127. This fact was re-confirmed by PW-2 after which the locker was again operated in the presence of the CBI team after A-4 Anita Bajaj made an entry in the locker call register. At that time, the keys of the locker were produced by A-3 from her purse. This witness also identified the items recovered from locker no. 127, details of which have been mentioned in Locker Operation-cum-Seizure memo Ex.PW-2/A. He further deposed that an official Valuer was called to value the items recovered from locker no. 127 who prepared his report Ex.PW-3/A. This witness also identified his signatures on Search-cum-Seizure memo Ex.PW-3/B and Ex.PW-3/D, Arrest- cum-Personal Search memo Ex.PW-3/E, Ex.PW-3/F and Ex.PW-3/G. As per this witness, photocopy of the voter ID card Ex.PW-3/C was recovered from the purse of A-3 Chandni Srivastava which was in the name of Anita Bajaj but had photograph of A-3 Chandni Srivastava on it.
29.2. PW-4 Sh. K. Ramesh, who was also posted as Section Officer at Pawanhans Helicopters at the relevant period deposed in sync with PW-3 regarding the trap proceedings conducted on 25.02.2011 as both were independent witnesses who were made to join the trap proceedings by the CBI team. PW-4 also identified his signature on the Locker Operation-cum-
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -24- Seizure memo Ex.PW-2/A, Search-cum-Seizure memo Ex.PW-3/B and Ex.PW-3/D, photocopy of voter ID card Ex.PW-3/C, valuation report Ex.PW- 3/A, Arrest-cum-Personal search memo Ex.PW-3/E, Ex.PW-3/F and Ex.PW- 3/G. He got exhibited page no. 175 of locker call register as Ex.PW-4/A containing entry made by A-4 Anita Bajaj. PW-4 further identified all the items recovered from locker no. 127 by CBI team on 25.02.2011 and further deposed that a CD of CCTV footage of the cameras installed at Bank of Maharashtra on 25.02.2011 was got prepared. When the said CD was played in the court this witness identified A-3 and A-4 to have appeared in the frame at 10:44:30 hours of the said CD, as accompanied by CBI officers while entering the main gate of the bank.
29.3. PW-34 Ms. Sunita Chamoli was part of the trap team which was constituted on 25.02.2011 to apprehend Anita Bajaj and Chandni Srivastava outside Bank of Maharashtra, UPSC Branch. This witness stated that after apprehension when both the accused persons were taken inside the bank they came to know that Chandni Srivastava had operated the bank locker under the signatures of A. Bajaj as per the bank locker register.
29.4. PW-37 Sh. Rajesh Singh Solanki, Deputy SP CBI ACB and PW-38 Sh. Satender Singh, DSP ACB CBI were part of the trap team which was constituted on 25.02.2011 by IO Ram Singh. Both of them deposed in sync with each other that on 25.02.2011 they went to Bank of Maharashtra, CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -25- UPSC Branch along-with other members of the trap team as well as independent witnesses and there they apprehended two ladies namely accused Chandni Srivastava and Anita Bajaj. After apprehension when both the accused persons were taken inside the bank, the locker call register was seen and request was made for re-operation of the locker. Both these witnesses stated that accused Chandni Srivastava admitted that she had operated the locker by signing in the name of Anita Bajaj. On re-operation of the locker, it was found containing several gold bars, some cash and ornaments etc. Both these witnesses were signatories to the memos prepared at the bank during that time.
29.5. PW-39 SP Sh. Ram Singh, who was the main IO in this case deposed that he was entrusted with the investigation of this case on 25.02.2011 after which he got the trap team prepared for apprehension of the accused persons. This witness also identified the FIR Ex.PW-39/A and stated that after conducting all the formalities and after completing investigation charge-sheet was filed against the accused persons.
30. Expert Witnesses 30.1 PW-28 Sh. P.K. Gottam, Principal Scientific Officer at CFSL, DFSS New Delhi was posted in Photo Division of CFSL CBI on 28.02.2011. He had recorded the voice samples of B.L. Bajaj, Anita Bajaj, Rattan Pal, Chandni Srivastava and A.K. Srivastava through voice recording memos CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -26- Ex.PW-28/A to Ex.PW-28/E. 30.2. PW-30 Sh. D.R. Handa, Handwriting expert got exhibited his report dated 11.03.2011 Ex.PW-30/A (colly) which was prepared at the instructions of Director CBI for forensic examination of the handwriting and signatures of Anita Bajaj and Chandni Srivastava.
30.3. PW-31 Sh. Ashutosh Deo Tiwari, Principal Scientific Officer at Photo Division of CFSL recorded the voice sample of Gurwinder Singh Bhatia on 06.05.2011, Bijay Kumar Mandhani on 05.09.2011 and A.K. Singh on 12.09.2011 through memo Ex.PW-31/A, Ex.PW-12/J and Ex.PW-13/A respectively.
30.4. PW-32 Dr. Subrat Kumar Chaudhary, Senior Scientific Officer, CFSL Physics Division compared the specimen voice recording of Chandni Srivastava, Anita Bajaj, B.L. Bajaj, Rattan Pal, A.K. Srivastava, Gurwinder Singh Bhatia and Jaswinder Singh Bhatia with the recorded conversation and after auditory and spectographic examination prepared the report Ex.PW- 32/A (colly) and Ex.PW-32/B (colly). As per his report, the specimen voices contained in S-1 to S-5 as well as S-6 and S-7 tallied with the questioned voices in Ex.Q. 30.5. PW-35 Sh. Deepak Kumar Tanwar, Principal Scientific Officer (Physics) CFSL Delhi had compared voices of Bijay Kumar Mandhani and CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -27- A.K. Singh as recorded in the telephonic conversation Ex.-Q with their sample voices Ex.S8, Ex.S8A and Ex.S9, Ex.S9A and filed the report Ex.PW- 35/A (colly) dated 22.11.2011.
31. Witnesses from NALCO 31.1. PW-6 Sh. S.D. Sahu, DGM, Finance NALCO stated that in 2010 he was a part of the tender sub committee along-with Sh. S.P. Kar and Sh. S.K. Sathpathi which was formed for the purpose of preliminary preview of the tender and for preparation of matrix of Techno Commercial Offers. As per this witness, a noting Ex.PW-6/A was prepared for approval of the proposal of the sub committee after which a Techno Commercial Matrix Ex.PW-6/B of the offers of M/s Bhatia International, M/s Gupta Coal Fields and Washeries Ltd and M/s Maheshwari Brothers were prepared for the purpose of award of tender for purchase of 2 lakhs matric tonnes of washed coal. He stated that as per the matrix M/s Gupta Coal Fields and Washeries Ltd did not fulfull all the tender conditions. The matrix was put up before the senior officers by way of noting Ex.PW-6/F. 31.2. PW-12 Sh. S.K. Satpathi, who was posted as Chief Manager in Materials Department of NALCO at Angul, Orissa stated that he had prepared the note Ex.PW-12/A for floating the tender for purchase of 2 lakh MT washed coal through press advertisement and placed the said note before GM Materials Sh. S.K. Sinha. The said note Ex.PW-12/A was approved by the CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -28- Executive Director Sh. A.S. Sridhar. PW-12 further stated that the bids for the said tender were received from M/s Bhatia International, M/s Gupta Coal Field Ltd and M/s Maheshwari Bros. The bid was finally awarded to M/s Bhatia International and M/s Maheshwari Bros as per the note Ex.PW-12/B prepared by A-1 A.K. Srivastava. He went on to state that as per the said note purchase order for supply of 1,20,000 MT (plus / minus 10% at buyers option) washed coal was placed on M/s Maheshwari Bros. Coal Ltd and purchase order for supply of 80,000 MT (plus / minus 10% at buyers option) washed coal was placed on M/s Bhatia International Ltd., Indore.
31.3. PW-15 Sh. Sanjeev Singh, Manager Materials NALCO prepared the note dated 08.12.2010 Ex.PW-15/A in order to intimate M/s Gupta Coal Field and Washeries Ltd regarding requirement of submission of additional documents for qualification of their bid. The said note was placed before Sh. P.K. De, the then Executive Director, Materials.
31.4. Sh. P.K. De, who was posted as Executive Director (Materials) in NALCO in 2010 deposed as PW-22 and stated that accused A.K. Srivastava had made a noting dated 18.11.2010 Ex.PW-22/B in which he has approved the recommendation of the MD at point B to B. He also identified the signatures of A.K. Srivastava on noting Ex.PW-22/E wherein he had recommended for forward e-auction of imported coal. This witness stated that accused A.K. Srivastava had approved the opening of price bid of M/s CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -29- Bhatia International and M/s Maheshwari Brothers vide noting dated 10.12.2010 Ex.PW-12/B. 31.5. Sh. Siva Prasad Kar, who was working as DGM, Coal Management System at Angul NALCO in 2010 deposed as PW-23 and stated that he was the member of the sub-committee comprising of Sh. S.D. Sahu, DGM Finance, Sh. S.K. Sathpathi, CM (Materials) and himself. The said sub-committee after technical evaluation of bids described deficiencies in the bid of M/s Gupta Coal Fields Ltd vide a separate note. He also got exhibited the purchase order Ex.PW-23/B (colly) in favour of M/s Maheshwari Brothers Coal Ltd for supply of 1,20,000 matric tonnes of washed coal.
31.6. PW-29 Sh. C. Sreedharaks, who was posted as Executive Director (Smelter & Power Complex) NALCO stated that since the coal requirement of NALCO was not completely met by the linkage supply from Coal India, therefore it had to be procured through imported sources, washed coal sources and e-auction sources. As per this witness, in 2010-2011 it was decided to procure 2 lakh matric tonnes of washed coal through tendering process. As per this witness, while procuring raw material it is a mandated practice to source the material from more than one party to ensure uninterrupted supply. This witness identified his signatures on the noting relating to this tender Ex.PW-29/A and also described in detail the entire process of tendering. He got exhibited noting sheet dated 28.12.2010 by which purchase order was distributed between M/s Maheshwari Brothers for CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -30- 60% of the tender quantity and M/s Bhatia International for 40% of the tender quantity as Ex.PW-29/B (colly). He identified his signatures on the draft committee recommendations Mark PW-29/1 and got exhibited the minutes of meeting of the 38th meeting as Ex.PW-29/C.
32. Miscellaneous Witnesses 32.1. PW-5 Sh. Satya Narayan Prajapati, who was posted as Assistant in STC of India Ltd in February 2011 stated that he was called to CBI office on 28.02.2011 wherein specimen handwriting of A-3 Chandni Srivastava was taken in his presence from S-1 to S-18 at memo Ex.PW-4/1 (colly) and specimen handwriting of A-4 Anita Bajaj was taken in his presence from S-19 to S-36 at memo Ex.PW-4/2 (colly).
32.2. PW-7 Sh. Abhimanyu Kashiwar Gupta, GM (Sales & Marketing), M/s Gupta Coal Fields and Washeries Ltd identified the tender file related to his company as Ex.PW-7/A and deposed that his company was informed telephonically by NALCO regarding shortfall in their tender documents but since M/s Gupta Coal Fields and Washeries Ltd had lost interest in the said tender by then, they did not take any action.
32.3. Sh. M.C. Kashyap, who was posted as System Administrator of Voice Logger System at CBI deposed as PW-8 and stated that he had intercepted calls of accused persons in this case along-with that of Bijay Lal CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -31- Mandhani and A.K. Singh after receiving orders from Union Home Secretary, Government of India Ex.PW-8/E, Ex.PW-8/F, Ex.PW-8/G, Ex.PW-8/H and Ex.PW-8/K. This witness explained the entire process of interception of calls through voice logger system and stated that after receipt of orders from Union Home Secretary, Government of India, they were sent to the Nodal Officers of respective telephone service providers who intercepted the calls and forwarded them in Real Time to CBI which were then recorded in the voice logger system of CBI. As per this witness, Special Unit, CBI had received letter dated 28.02.2011 Ex.PW-8/I, letter dated 04.03.2011 Ex.PW-8/M and letter dated 19.05.2011 Ex.PW-8/N from SP CBI to segregate relevant calls and provide the record to them after which a CD containing 75 relevant calls Ex.PW-8/P and 88 relevant calls Ex.PW-8/R was prepared. A recorded Call Information Record dated 28.02.2011 Ex.PW-8/D of 75 relevant calls and a recorded Call Information Record dated 25.05.2011 Ex.PW-8/J of 88 relevant calls were prepared and were sent to CBI vide seizure memo Ex.PW-8/A and Ex.PW-8/B. Along-with the Call Information Records, the CDs and the certificate U/s 65B of Indian Evidence Act accompanied with Annexure Ex.PW-8/C and Ex.PW-8/L was also sent to CBI.
32.4. PW-11 Sh. Lalit Mohan Bhatt prepared the transcripts Ex.PW- 11/A (colly) of the recorded conversation between the various accused persons.
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -32- 32.5. PW-14 Sh. Khimanand Joshi, Salesman at M/s Tirupati Jewellers identified his signatures at point B on the seizure memo already proved as Ex.PW-9/A. 32.6. PW-16 Sh. Israr Babu, Alternate Nodal Officer in Vodafone handed over CDR for mobile no. 9999686888 in the name of B.L. Bajaj Ex.PW-16/B along-with certificate U/s 65B of Indian Evidence Act Ex.PW- 16/C, by way of seizure memo Ex.PW-16/A to CBI. He also handed over Customer Application Form for mobile no. 9888831023 in the name of Rattan Pal Singh Ex.PW-16/E along-with certificate U/s 65B of Indian Evidence Act Ex.PW-16/F to CBI.
32.7. PW-17 Sh. Virender Pal Singh, SDE (Vigilance) in the office of Senior GMTD Noida could not recollect whether he had handed over any Customer Application Form along-with CDR to CBI.
32.8. PW-18 Sh. Rajiv Vasisht, Nodal Officer, Bharti Airtel Ltd. handed over Customer Application Form Ex.PW-18/B along-with CDR Ex.PW-18/C of no. 0120-4280351 through letter Ex.PW-18/A to CBI. Through this letter, he also handed over Customer Application Form of mobile no. 9849010101 in the name of Bijay Mandhani Ex.PW-18/D along- with the CDR from 12.01.2010 to 28.02.2011 Ex.PW-18/E, Customer Application Form for mobile no. 9893123123 in the name of M/s Bhatia Coal CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -33- Sales Ltd. Ex.PW-18/F (colly) along-with CDR of the said number from 01.11.2010 to 24.01.2011 Ex.PW-18/G, CDR of mobile no. 9893023025 from 01.12.2010 to 07.03.2011 Ex.PW-18/H (colly), Customer Application Form in the name of R.P. Gupta for 0120-4314950 Ex.PW-18/I (colly) with the CDR of said number from 01.11.2010 to 28.02.2011 Ex.PW-18/J (colly), Customer Application Form in the name of M/s Bhatia International Ltd for mobile no. 9893023025 Ex.PW-18/K (colly) along-with CDR of the said number from 31.10.2010 to 30.11.2010 Ex.PW-18/L (colly) and Customer Application Form of 47608050 in the name of NALCO Ex.PW-18/M (colly) to CBI.
32.9. PW-19 Sh. Vijay Khanna of M/s Khanna Jewellers Pvt. Ltd denied to know or identify B.L. Bajaj.
32.10. PW-24 Sh. Anil Khanna went to CBI office on 03.03.2011 and explained them how to copy a DVR in pen drive.
32.11. PW-25 Sh. Pran Kumar Biswas witnessed the voice recording of Sh. A.K. Singh in CD Ex.PW-13/D. 32.12. PW-26 Sh. Rattan Singh witnessed voice recording of Bijay Mandhani in CD Ex.PW-12/I (colly).
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -34- 32.13. PW-27 Sh. S.K. Munjal witnessed the voice recording of Jaswinder Singh Bhatia in CD Ex.PW-27/E (colly). He also identified his signatures on the specimen voice recording memo Ex.PW-27/A. 32.14. PW-33 Sh. Deepak Purohit transferred the data of CCTV Hard Drive which was seized from the shop of M/s Tirupati Jewellers by CBI into a pen drive Ex.PW-33/A-2 (colly). He also assisted IO Sh. Ram Singh during investigation at the directions of SP CBI.
32.15. PW-36 Sh. Vijay Bahadur, who was posted on deputation at CBI during the relevant time identified signatures of Sh. Ramnish and Sh. Vijay Kumar on letter Mark PW-36/1, Ex.PW-36/A (colly), Ex.PW-36/B, Ex.PW-36/D (colly) and Ex.PW-36/E.
33. STATEMENT OF ACCUSED 33.1 Statement of accused persons U/s 313 Cr.P.C was recorded wherein A-1 A.K. Srivastava denied all the incriminating evidence against him stating that he has been falsely implicated in this case. He also denied the CFSL reports on the ground that they have been procured falsely by CBI on the basis of fabricated documents or without checking the authenticity of the CDs.
33.2 A-2 B.L. Bajaj also denied the evidence against him on the ground that he has been falsely implicated by CBI in collusion with B.K. CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -35- Mandhani. He denied to have taken or receive any illegal gratification on behalf of A.K. Srivastava or anybody else or to have purchased gold bars for anybody. He also denied to have any knowledge about the opening of saving bank account no. 60045917165 and locker bearing no. 127 in Bank of Maharashtra, UPSC Branch.
33.3 A-3 Chandni Srivastava stated that she has no knowledge how the saving bank account no. 60045917165 and locker bearing no. 127 were opened in Bank of Maharashtra, UPSC Branch. She further denied all the incriminating evidence against her and averred that her photograph has been misused with the help of bank officials and CBI. She also denied recovery of black purse from her possession.
33.4 A-4 Anita Bajaj stated that the documents for opening saving bank account no. 60045917165 and locker bearing no. 127 in Bank of Maharashtra, UPSC Branch were forged by Chandni Srivastava by impersonating as Anita Bajaj without her knowledge or consent. She further denied to have any knowledge about the forged ID card or PAN card. As per her, the articles which were recovered from locker no. 127 of Bank of Maharashtra also belonged to Chandni Srivastava only and that she came to know about the said locker on 25.02.2011 itself.
33.5 A-5 to A-7 G.S. Bhatia, J.S. Bhatia and Ratan Pal Singh CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -36- Bhatia denied all the incriminating evidence against them and stated that they never paid any illegal gratification to B.L. Bajaj for A.K. Srivastava. As per their version, M/s Bhatia International Ltd was duly awarded the contract on the merit of its qualification after being approved by NALCO officers. They further averred that the intercepted calls are forged and that Mr. Mandhani deposed against them as an Approver only at the behest of CBI.
DEFENCE EVIDENCE
34. Ld. Defence Counsel appearing on behalf of A-2 and A-4 B.L. Bajaj and Anita Bajaj sought permission to examine one witness in their defence namely :
1) Sh. R.S. Chauhan, Company Secretary & JGM (Legal) Pawan Hans Ltd.
On being granted permission, this witness was called in the witness box and he brought with him RTI record dated 18.07.2014 pertaining to the duty record of K. Ramesh (independent witness) of Pawan Hans Ltd. on 25.02.2011 which was exhibited as Ex.DW-1/A. As against the other independent witness, DW-1 brought with him the letter of Sh. N.K. Arora Ex.DW-1/B stating that the old records till the year 2018 have been destroyed.
35. The other accused persons did not examine any witness in their defence and at the request of Ld. Defence Counsels appearing on behalf of A- 1, A-3, A-5, A-6 and A-7, the defence evidence was closed.
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -37-
36. I have heard the arguments advanced by Sh. Amjad Ali, Ld. Special PP for CBI as well as Sh. Rajesh Khanna, Ld. Counsel for A-1 and A- 3, Sh. S.P. Yadav, Ms. Usha Sharma, Sh. Salman Hashmi & Sh. S.A. Hashmi, Ld. Counsels appearing on behalf of A-2 and A-4 and Sh. Pramod Kumar Dubey, Senior Advocate, Sh. Indresh Upadhyay, Sh. Waheb Hussain, Sh. Atul Gupta, Sh. Aniruddha Das, Ms. Sharvil Kala, Sh. Jayant Saini, Sh. Saurabh Kumar and Ms. Aditi, Ld. Counsels appearing on behalf of A-5 to A-7.
ARGUMENTS OF Ld. PP FOR CBI.
37. Ld. PP for CBI presented the case of prosecution in seriatim demystifying complete chain of events pointing out towards the guilt of accused persons beyond reasonable doubt through evidence of prosecution witnesses as well as the relied upon documents and the material placed on record.
ARGUMENTS ON BEHALF OF A-5, A-6 & A-7.
38. It is argued by Ld. Counsel for A-5, A-6 and A-7 that the tender in the present case was floated as per procedure by NALCO and that there was no malice on part of any official of NALCO to disqualify M/s Gupta Coal Fields Ltd. from the tender process. Further, the said tender was divided in the ratio of 60:40 between L1 and L2 in order to balance the interest of NALCO as well as the bidder. In fact, L2 i.e Bhatia International agreed to match the price of L1 i.e M/s Maheshwari Brothers, so there was no question of any monetary benefit being extended to M/s Bhatia International. Even CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -38- otherwise, the decision to disqualify M/s Gupta Coal Fields and further to issue purchase notice to L1 and L2 was a joint decision of the committee and not of a single individual. It was also argued by Sh. P.K. Dubey, Ld. Senior Advocate that no attempt was made by the IO to trace the location of the accused persons or to get them identified or to procure the CCTV footage of their alleged place of meeting in order to corroborate the testimony of the witnesses. He vehemently argued that no legal procedure was followed for allowing interception of calls and in fact the said order was not even sent to the review committee which lead to the vitiation of the entire proceedings relating to interception of calls of the accused persons. He also pointed out towards discrepancy in the call duration as recorded in RCIR (Recorded Call Information Record) and CDR. The authenticity of the CDR was also challenged on the ground that a number of calls are not reflected in CDR though the same have been mentioned in RCIR. Ld. Senior Advocate has also challenged the authenticity of Customer Application Form (CAF) on the ground that neither it is supported by certificate U/s 65B of Indian Evidence Act nor the same is accompanied by a valid ID proof. He further argued that the transcription relating to intercepted calls are not authentic as number of calls are missing from the said transcription and even otherwise the transcription is neither attested by any witness nor is accompanied with a certificate U/s 65B of Indian Evidence Act. He also highlighted the discrepancies in the statement of various witnesses. Further, he went on to challenge the FIR stating that the same was not recorded as per law as well as CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -39- the authenticity of the CFSL report.
39. Ld. Counsels has further relied upon following judgments in support of their contentions :
S.NO. Judgments 1 People's Union for Civil Liberties Vs. Union of India & Anr., (1997) 1 SCC 301 2. Anuradha Bhasin Vs. UOI & Ors.
3. Jatinder Pal Singh Vs. CBI., 2022 SCC OnLine Del 135
4. Vinit Kumar Vs. CBI & Ors., 2019 SCC OnLine Bom 3155
5. K.L.D Nagasree Vs. Govt. of India & Ors., 2006 SCC OnLine AP 1085
6. K.S. Puttaswamy Vs. Union of India, (2017) 10 SCC 1
7. Neeraj Dutta Vs. State (NCT of Delhi), (2023) 4 SCC 731
8. A. Subair Vs. State of Kerala, (2009) 6 SCC 587
9. N. Vijayakumar Vs. State of Tamil Nadu, (2021) 3 SCC 687
10. C. Sukumaran Vs. State of Kerala, (2015) 11 SCC 314
11. B. Jayaraj Vs. State of Andhra Pradesh, (2014) 13 SCC 55
12. C.M. Girish Babu Vs. CBI, Cochin, (2009) 3 SCC 779
13. Ganesh Sharma Vs. State of UP and Anr., 2019 SCC OnLine All 4284
14. N.R. Sekharan Vs. State of Kerala, 2015 SCC OnLine Ker 16304
15. Sanjeev Saxena Vs. State (NCT of Delhi), 2015 SCC OnLine Del 9564
16. CBI Vs. V.C. Shukla & Ors., (1998) 3 SCC 410 CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -40-
17. Kishore Khanchand Wadhwani and Another Vs. State of Maharashtra, 2019 SCC OnLine Bom 13130
18. N.A. Abdul Rahiman vs. State of Kerala, 2015 SCC OnLine Ker 14979
19. Kirti Pal Vs. State of West Bengal, (2015) 11 SCC 178
20. Banarsi Dass Vs. State of Haryana, (2010) 4 SCC 450
21. Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116
22. Sarwan Singh Vs. State of Punjab, 1957 SCC OnLine SC 1
23. Ram Narain Vs. State of Rajasthan, (1973) 3 SCC 805
24. Maghavendra Pratap Singh Vs. State of Chhattisgarh, 2023 SCC OnLine SC 486
25. Parveen Vs. State of Haryana, 2021 SCC OnLine SC 1184 ARGUMENTS ON BEHALF OF LD. COUNSEL FOR A-1 & A-3.
40. Sh. Rajesh Khanna, Ld. Counsel for A-1 and A-3 has challenged the authenticity of the voice samples collected by CBI of various accused persons as well as the CFSL report prepared on the basis of the said sample voice recordings on the ground that no question regarding the tampering of CD was asked by the Investigating Officer from CFSL and thus the CFSL report does not contain any observation or finding as to whether the CD containing the voice samples of various accused persons was tampered with or doctored. He further argued that the original device used for recording the voice samples was also not furnished before CFSL for examination. Repeated attacks were made by Ld Defence Counsel on the veracity of the statement of CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -41- Approver Sh. B.L. Mandhani by stating that no investigation has been conducted by the IO to corroborate the statement of Sh. Mandhani. Moreover, Sh. Mandhani himself has not furnished any proof of his visit to Delhi, his stay in various hotels or his meeting with A.K. Srivastava. He has also highlighted various discrepancies in the statement of the Approver Sh. B.L. Mandhani and Sh. A.K. Singh. Ld. Defence Counsel has also challenged the validity of sanction accorded for prosecution of accused A.K. Srivastava stating that the same has not been accorded by a competent authority and there has been no application of mind before passing the said order. He has also casted aspersion on the recovery made from locker no. 127 of Bank of Maharashtra, UPSC Branch on 25.02.2011. As per the defence version, neither Chandni Srivastava nor Anita Bajaj operated the locker at 10:55 a.m on 25.02.2011 and they were malaciously brought by CBI to the bank and made to sign the locker call register. Doubts were also cast on the identity of person who operated the locker on 25.02.2011 and was in possession of the keys of the said locker. The opinion of handwriting expert has been challenged by the Ld. Defence Counsel along-with casting aspersions on the identity of the persons who had visited Bank of Maharashtra for opening the concerned saving bank account and locker. It is submitted by Ld. Defence Counsel that there was no cheating or forgery on part of A-1 and A-3 nor any impersonation was committed by any of the accused. Ld. Counsel has relied upon following judgments in support of his contentions :
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -42- S.NO. Judgment 1 Ashish Kumar Dubey Vs. State Through CBI, 2014 (142) DRJ 396
2. People's Union for Civil Liberties Vs. Union of India & Anr., AIR 1997 SC 568
3. Jatinder Pal Singh Vs. CBI, 2022 SCC OnLine Del 135
4. Mansukhlal Vithal Das Chauhan Vs. State of Gujarat, (1997) 7 SC 622
5. CBI Vs. Ashok Kumar Aggarwal, AIR 2014 SC 827
6. Mukesh Kumar Vs. State NCT of Delhi
7. Raja Ram Vs. State of Rajasthan, (2005) 5 SCC 272
8. Javad Masood Vs. State of Rajasthan, (2010) 3 SCC 538
9. Mukhtiar Ahmed Ansari Vs. State (NCT of Delhi, (2005) 5 SCC 258
10. Dr. Vimla Vs. Delhi Administration, AIR 1963 SC 1572
11. State Vs. MR Hiremath, AIR 2019 SC 2377
12. State of Karnataka through CBI Vs. Nagarajaswamy, (2005) 8 SCC 370
13. Nanjappa Vs. State of Karnataka (2015) 14 SCC 186
14. R M Malkani Vs. State of Mahrashtra, (1973) 1 SCC 471
15. Anuradha Bhasin Vs. UOI & Ors., (2020) 3 SCC 637
16. Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdas Mehta,
17. Ram Singh Vs. Col. Ram Singh, AIR 1986 SC 3
18. Yusufalli Esmail Nagree Vs. The State of Maharashtra, (1967) 3 SCR 720 ARGUMENTS ON BEHALF OF A-2 & A-4.
41. It is argued by Ld. Defence Counsels appearing on behalf of A-2 CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -43- and A-4 that there was no meeting of mind or prior agreement between the accused persons for committing of any of the illegal acts as alleged by the prosecution and therefore the offence of criminal conspiracy is not proved against A-2 and A-4. He also averred the absence of link evidence for the purpose of admissibility of intercepted data and has stated that a false case has been made out by CBI in connivance with Approver Sh. Mandhani to falsely implicate the accused persons. He also brought forward various portions of the evidence of witnesses which point out towards the innocence of the accused persons.
42. I have heard the contentions of all the parties and have carefully perused the record.
MOTIVE OF THE ALLEGED OFFENCE
43. Ld. Defence Counsels have vociferously challenged the motive for the offence by arguing that the tender process for purchase of two lakh MT of washed coal by NALCO was floated and processed completely as per procedure and that the tender was awarded to L1 and L2 after due compliance with the established policies and set procedure of NALCO and also after extensive deliberations by several committees constituted by NALCO for the said purpose. Ld. Counsels have relied upon the testimonies of PW-6, PW-7, PW-15 and PW-29 to prove that the tender process was never got influenced by the accused persons or that the tender of M/s Gupta Coal Fields was cancelled due to shortfall in its tender documents. It is also CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -44- averred that distribution of tender in the ratio of 60:40 was as per the established practice and procedure of NALCO so as to ensure uninterrupted supply to sustain continuous production. On the basis of these averments, it is argued that there was no occasion for any of the accused to influence the tender process or to obtain the supply order through any illegal means as the tender was awarded only on the merit of qualification.
44. It has come in evidence that tender for the purchase of 2 lakh MT washed coal for its captive power plant at Angul, Orissa was floated by NALCO on 28.07.2010 wherein three bids in sealed tenders were received from M/s Gupta Coal Fields and Washeries Ltd, M/s Bhatia International Ltd and M/s Maheshwari Brothers Coal Ltd. A three member sub tender committee was constituted by NALCO which prepared the techno commercial matrix of these tenders and shortfall in the pre qualification bid of M/s Gupta Coal Field and Washeries was observed. This shortfall was communicated to M/s Gupta Coal Field Ltd but they failed to make any rectification even after being given an opportunity. Therefore, on 13.12.2010 the price bids of the two successful parties i.e M/s Maheshwari Brothers and M/s Bhatia International were opened. After confirmation from L2 M/s Bhatia International that they were ready to match the prices of L1 M/s Maheshwari Brothers, a recommendation was made for awarding tender to these two parties which was approved by the Committee of Directors.
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -45-
45. It is not disputed that PW-6, PW-7, PW-15 and PW-29 have vouched for the transparency in the tender process. However, it is imperative to bring on record various stages of a tender process. A tender process normally includes :
a) Advertisement of requirement.
b) Selection stage / pre qualification stage.
c) Evaluation of selection stage.
d) Invitation to tender.
e) Evaluation of tender submissions.
f) Award of contract through a valid supply order.
g) Starting the projection till its final conclusion.
h) Payments made to the suppliers by the tender advertising authority.
46. In this case, stage (a) to stage (e) was duly complied with as per the said practice and procedure of NALCO. However, the problem arrived when the supply order was not received on time by the bidders i.e L1 and L2. The entire question of alleged remuneration to CMD NALCO through A-3 arrived only at this juncture when L1 and L2 got impatient to receive supply order on time and were concerned about the question whether they would be receiving the payments for execution of their work on time. PW-12 Sh. Mandhani clearly stated in his evidence that the alleged illegal remuneration or the so called motive for the entire offence was for the smooth transaction of coal and timely payment to L1 and L2 by NALCO which could be ensured CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -46- only by the Head of NALCO i.e its CMD at that time. Thus, the motive for the alleged offence has been proved by the prosecution to be procurement of supply order which was in fact a valuable security for them and to ensure timely payment for their job. Additionally, after meticulous reading of the entire case it is revealed that though NALCO adopted a transparent tender process but the setting as to who would apply for a particular future tender of NALCO and at what rate was decided even before advertisement of the said tender so as to ensure award of tender only to the chosen bidders who were ready to pay remuneration / illegal gratification / bribe to the accused. Therefore, in the wake of above appreciation, I conclude that the arguments of Ld. Counsel for the accused persons regarding absence of motive to commit the alleged offence, are not tanable.
SANCTION FOR PROSECUTION OF A-1 ABHAY KUMAR SRIVASTAVA
47. Ld. Defence Counsel has challenged the validity of sanction accorded for prosecution of accused A.K. Srivastava vide order dated 20.04.2011 Ex.PW-21/A on the ground that the said sanction has been granted without application of mind by the sanctioning authority. He submitted that the sanctioning authority i.e PW-21 Sh. A.K. Patney has himself stated in his cross examination that the file for grant of sanction was initiated on the same day when the sanction was granted i.e on 20.04.2011. He further argued that the sanction order was passed without going through the recorded conversation, report of CFSL as well as statement of witnesses, CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -47- only on the basis of report of CBI. He has also challenged the validity of sanction on the ground that the same was accorded by Deputy Secretary (Vigilance) at Ministry of Mines which is lower in rank to CMD NALCO i.e A-1 and thus not a proper sanctioning authority.
48. In order to appreciate above arguments, it would be worthwhile to refer here to the relevant law.
Section 19 of Prevention of Corruption Act reads as under :
"19. Previous sanction necessary for prosecution.--
(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,--
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-
section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -48- have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.--For the purposes of this section,--
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
49. The importance of this provision and the obligation of the CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -49- sanctioning authority was stated by the Hon'ble Apex Court in 'R.S. Nayak Vs A.R Antulay AIR 1984 SC 684' wherein it has been held that :
"In catina of decisions it has been held that the authority entitled to grant sanction must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality, but a solemn and sacrosanct act which removes the umbrella of protection of government servants against frivolous prosecution and the aforesaid requirement must, therefore, be strictly complied with before any prosecution could be launched against a public servant."
(emphasis supplied)
50. Thus, the provision has been imparted a mandatory character and the grant of sanction is held to be a pre-requisite or a sine-qua-non for taking cognizance in catina of judgments of the Hon'ble Apex Court.
51. Act of according sanction is not a judicial act but completely an executive act. In genuine cases where a public servant breaches the trust of common people by indulging in corrupt practices, sanction should not be denied. However, it should also not be awarded in cases of vexatious or malicious allegations in the interest of justice so as to enable a public servant to do his public duty fearlessly and for the benefit of common people. Earlier the Indian Penal Code of 1860 contained law to deal with offences of corruption amongst public servants. However, the same was found to be inadequate because of which special legislation namely Prevention of CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -50- Corruption Act 1988 was enacted.
52. The question of competence of the appointing / sanctioning authority came up for consideration before the Hon'ble Supreme Court in case titled as 'Mohd. Iqbal Ahmed Vs State of Andhra Pradesh AIR 1979 SC 677' wherein it has been held that :
".... the legislature advisedly conferred power on the authorities competent to remove the public servant from the office to grant sanction for the obvious reason that the same authority alone would be competent when facts and evidence are placed before him to judge where a serious offence is committed or the prosecution is either frivolous or speculative. That authority alone would be competent to judge whether on the facts alleged, there has been abuse or misuse of office held by the public servant. That authority would be in a position to know what are the powers conferred on the office which the public servant holds, how that power could be abused for corrupt motives or whether prime facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought, which would indicate a hierarchy and which would therefore permit inference of the knowledge about the functions and duties of CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -51- office and its misuse or abuse by the public servant. That is why the legislature clearly provided that the authority which would be competent to grant sanction is the authority which is entitled to remove from service the public servant against whom sanction is sought."
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -52-
53. In the present case, non application of mind while according sanction for prosecution of A.K. Srivastava has been alleged on the ground that the sanction was accorded on the same day when the file was initiated. However, perusal of the record shows that while sending the sanction order to CBI vide letter dated 20.04.2011 Ex.PW-21/A, Sh. A.K. Patney, Deputy Secretary to Government of India had made clear reference to letter no. 289/RC AC1 2011 A0001 dated 08.04.2011 which was supposedly received by him from CBI on the subject of grant of sanction. Thus, it cannot be disputed that the file for grant of sanction was sent to PW-21 on 08.04.2011 itself and the possibility of PW-1 deposing in his cross examination dated 01.02.2023 that the file was initiated on 20.04.2011 itself could have been a result of fading memory due to lapse of more than ten years can't be ruled out. Further, the averment that the order dated 20.04.2011 was passed without considering the relevant documents also does not hold ground as though PW- 1 stated in his cross examination that he did not listen to any recorded conversation, he does not remember how many witness statements were provided to him, but that does not mean that the transcript of conversation was not provided to him or that he did not go through it. Also, the said statement does not in any way go on to prove that the statement of witnesses were not perused by PW-21 merely because he does not remember after the lapse of more than a decade that how many such statements were sent to him. The mere fact that he stated in his cross examination that he had prepared the sanction order on the basis of the report of CBI does not mean that he had not CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -53- considered relevant documents before according sanction. Moreover, PW-21 specifically stated in his examination in chief that he had accorded sanction after due application of mind and that he has discussed all the material facts in his sanction order Ex.PW-21/B (colly). Perusal of the sanction order also reveals that all the relevant facts have been clearly mentioned in the sanction order including the role of various accused persons in the entire chain of events. Thus, it cannot be said that the sanction order was passed without due application of mind by the sanctioning authority.
54. As far as the competency of PW-21 to accord sanction for prosecution of CMD NALCO A.K. Srivastava is concerned, Ex.PW-21/B (colly) clearly reveals that PW-21 Sh. A.K. Patney (Deputy Secretary to Government of India) had signed the said order 'by the order of & in the name of President of India'. Moreover, it has been specifically mentioned in the said order that the Central Government being the authority to remove Sh. A.K. Srivastava, the then CMD NALCO 'after fully and carefully examining the relevant documents and statement of witnesses and considering the facts and circumstances of the case considers that Sh. A.K. Srivastava should be prosecuted in the court of law for the said offences'. It is further stated in the order that 'the Central Government do hereby accord sanction U/s 19 of P.C. Act, 1988 for prosecution of A.K. Srivastava'.
55. Thus, it cannot be said that the sanction order was passed by Deputy Secretary to Government of India who had no competency to remove CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -54- accused A.K. Srivastava from his service. In fact, from the above discussion it is clear that the sanction was accorded by the Central Government after due application of mind. Moreover, PW-21 himself stated in his cross examination that he had submitted the sanction to Additional Secretary and the sanction order was approved by the Minister. Thus, merely because the sanction order was signed by Deputy Secretary on behalf of President of India does not mean that the sanction was accorded by an authority not competent to do so.
56. Thus, the validity of the sanction order Ex.PW-21/B (colly) stands duly proved.
ADMISSIBILITY OF INTERCEPTED CALL RECORDS
57. The pillar behind the prosecution case is the intercepted calls between the various accused persons and the prosecution has heavily relied upon these calls in order to prove the alleged demand of remuneration by A-1 against the NALCO tender for supply of 2 lakh MT of washed coal as well as to prove the acceptance and payment of the alleged remuneration by A-5 to A-7 to A-3 on behalf of A-1.
58. Ld. Defence Counsels have disputed the admissibility of the intercepted calls on the following grounds :
1) MHA orders for interception of phone calls were illegal.
2) Transcripts were not prepared as per prescribed procedure.
3) CDR and CAF are inadmissible in evidence.
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -55-
4) Specimen Voice Samples were not recorded properly.
5) Expert opinion is manipulated.
59. It is submitted by Ld. Defence Counsel that the alleged phone calls of the accused persons were not properly intercepted by Special Unit CBI and even the MHA orders Ex.PW-8/E, Ex.PW-8/F, Ex.PW-8/G, Ex.PW- 8/H and Ex.PW-8/K are illegal since they are passed mechanically without application of mind. Perusal of the record shows that a request was sent by the prosecuting agency to Ministry of Home Affairs for interception of certain mobile numbers on the basis of a source information. PW-11 Sh. Gopal Krishan Pillai stated in his examination-in-chief that being the Union Home Secretary he had received a request from the authorized agencies to intercept phone calls etc which was duly considered by him. Reliance is placed upon the following interception orders :
a) order dated 01.12.2010 Ex.PW-8/E for mobile no. 9849010101.
b) order dated 28.01.2011 Ex.PW-8/F for mobile no. 9999686888.
c) order dated 28.01.2011 Ex.PW-8/G for landline no. 120-2502758.
d) order dated 28.01.2011 Ex.PW-8/H for landline no. 120-4280351.
e) order dated 28.01.2011 Ex.PW-8/K for mobile no. 9849010101.
60. All the above stated orders have been duly proved by PW-11 Sh. Gopal K Pillai. Further, it has clearly been mentioned in all these orders that 'I, Union Home Secretary, being satisfied that, for reason of public interest, it is necessary and expedient so to do in the interest of public order and for CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -56- preventing incitement to the commission of an offence direct that any telephone message relating to clandestine contact / movement / activity etc to and from shall be intercepted and disclosed to Director, CBI'.
61. The contention of Ld. Defence Counsels that the language used in all the above stated orders is the same and therefore the said order has been passed without application of mind is without any basis as it cannot be disputed that the request for interception of the above stated mobile numbers was made for one particular case by the prosecuting agency and therefore the reason for allowing the interception of calls of all the above stated mobile numbers would be the same. Even otherwise, the said orders specifically bear different mobile numbers for which that particular order is being issued. It cannot be lost sight of the fact that these orders of Ministry of Home Affairs are top secret orders as has also been observed on the right side top corner of the page of these orders and thus cannot contain the complete details about the case with respect to which these orders have been issued. In Santosh Kumar Vs Union of India W.P. (Crl.) 1147/2020 Delhi High Court it has been held :
"The disclosure of elaborate reasons for interception orders would be against the modified disclosure requirements of procedural fairness which have been universally deemed acceptable for the protection of other facets of public including the source of information leading to the detection of crime or other wrong doing, sensitive intelligence information and other information supplied in confidence for the CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -57- purpose of government or discharge of certain public functions. Furthermore, the Rule 419A of the Telegraph Rules provide for extreme secrecy, utmost care and precaution in the manner of interception as it affects privacy.
(emphasis supplied)"
62. Ld. Defence Counsels have also disputed the authenticity of these orders by highlighting the cross examination of PW-11 wherein he admits over writing on the month of the order Ex.PW-8/E and also the fact that the dates have been mentioned on those orders manually without any initials. However, PW-11 himself has explained the reason for this phenomenon by stating that some times since the orders are typed during late hours therefore they are signed on the next day due to which there is a practice of mentioning the dates manually. The reason for over writing of month in Ex.PW-8/E has also been explained that due to the change in month on the next day there must be overwriting on the month in Ex.PW-8/E. Admittedly, the date mentioned on order Ex.PW-8/E is 01.12.2010 and thus there was a change in the month in the said order as it was signed on the first day of December 2010.
63. There are directions in the above stated orders for interception of the phone calls of the number mentioned in those orders and for disclosing the said fact to Director CBI. The reason for not addressing the said order to any particular agency has been specified that these orders are top secret orders which does not contain any covering letter. Further, the fact that PW-
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -58- 11 Sh. Gopal K Pillai did not produce the request letters or any other communication with respect to these orders is understandable due to the fact that he had already retired from this service and thus did not have any access to the concerned files. The mere fact that IO Sh. Ram Singh (PW-39) did not investigate regarding exchange of communication between the prosecuting agency and MHA does not invalidate these orders specially when they have been proved by a responsible officer from the Ministry of Home Affairs, Government of India.
64. As far as the argument concerning sending these orders to Review Committee is concerned, Section 114 (e) of Indian Evidence Act, 1872 empowers the court to presume certain facts. Keeping in mind the purpose of this provision of Indian Evidence Act and applying it to the facts of the present case, it can be presumed that if no order was sent by the Review Committee to scrap the surveillance orders issued by MHA, they were approved by the committee. In fact, PW-11 Sh. Gopal K Pillai has himself stated in his examination-in-chief that the said orders were reviewed by the Review Committee chaired by the Cabinet Secretary and the Law Secretary of the Government of India. The mere fact that the diary number and the date by which these orders were sent to the Review Committee are not annexed therewith does not mean that the said act would not have been done specially when there is a specific requirement of the said act to be done as per the provisions of Telegraph Act. Moreover, in the judicial pronouncements in the case of 'Yashwant Sinha Vs CBI (2019) 6 SCC 1' CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -59- there is an observation on admissibility of evidence irrespective of the way it has been obtained. The same reads as :
"9. An issue has been raised by the learned Attorney with regard to the manner in which the three documents in question had been procured and placed before the Court. In this regard, as already noticed, the documents have been published in The Hindu newspaper on different dates. That apart, even assuming that the documents have not been procured in a proper manner should the same be shut out of consideration by the Court? In Pooran Mal Vs Director of Inspection (1974) 1 SCC 345, this Court has taken the view that the 'test of admissibility of evidence lies in its relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out"
65. In the instant matter, the material placed on record as well as precedents reflect that the interception carried out by CBI were in accordance with law and fair, reasonable and just procedure was followed for said interception. Thus, the relevancy of the data collected on the basis of the said interception cannot be questioned at this stage.
66. Ld. Defence Counsel has also challenged the authenticity of the interception done by Special Unit, CBI stating that it was not done as per the procedure established by law and the authenticity of the same is under cloud.
67. The prosecution has examined PW-8 Sh. M.C. Kashyap, System Administrator of Voice Logger System / DSP, Special Unit CBI, to establish CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -60- the authenticity of the recorded intercepted calls. This witness clearly stated in his examination in chief that between December 2010 to February 2011 certain numbers were put on interception after taking due permission from the Union Home Secretary of Government of India. Further, this witness established that he had intercepted the phone numbers mentioned in the order of MHA with the help of Voice Logger System.
68. Ld. Defence Counsel also disputed the time when the process of interception was started by PW-8 as well as the basis on which calls were segregated by him. In this regard, PW-8 Sh. M.C. Kashyap stated that he had started the process of interception of calls immediately after receiving orders from MHA i.e 01.12.2010 and 28.01.2011 but the segregated data was handed over to the prosecuting agency only after receipt of letter dated 28.02.2011 and 04.03.2011 along-with 19.05.2011 Ex.PW-8/I, Ex.PW-8/M and Ex.PW-8/N respectively written by SP CBI to DIG Special Unit asking to furnish any specific information about the named persons. PW-8 further clarified that the data of 75 and 88 calls was segregated only on the basis of the information sought in the above letter regarding specifically named persons and on briefing of the case done by IO.
69. This witness also explained the entire process of interception, segregation and handing over of the intercepted data by stating that after segregation of relevant calls, the chosen data was burnt on CDs Ex.PW-8/P (for 75 calls) and Ex.PW-8/R (for 88 calls). Recorded Call Information CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -61- Record (RCIR) Ex.PW-8/D and Ex.PW-8/J respectively was also prepared by PW-8 containing the date, time, voice file name and phone number of the intercepted calls. PW-8 proved seizure memo dated 28.02.2011 Ex.PW-8/A (colly) and seizure memo dated 25.02.2011 Ex.PW-8/B (colly). Both seizure memos prove that one original CD along-with RCIR and MHA orders were handed over to the prosecuting agency in a sealed cover, sealed with the seal of SP CBI. The specimen seal is also proved by this witness. He went on to say that apart from the sealed articles, two open copies of CD with RCIR were also provided to the IO for investigation purposes. He also proved two certificates U/s 65 B of Indian Evidence Act to establish admissibility of the CDs prepared by him Ex.PW-8/P and Ex.PW-8/R respectively. In these certificates it has been mentioned that :
"I was having lawful control over the use of this computer system which was used regularly to record intercepted telephonic communications, during the period of interception. That during the said period, intercepted telephonic communications were recorded regularly in this computer system in the ordinary course of the said activities. That during the period in question the above said computer system was operating properly and there have been no operational problem so as to affect the intercepted electronic records and the accuracy of their contents at our end. That the computer hardware and software used in the above said computer system has in build security mechanisms for the integrity of the recorded data....... These calls were reproduced on a compact disc and two sets of the same were prepared........ That during the entire process of reproduction, there has been no change in these recorded call files."
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -62-
70. Thus, the above said certificates Ex.PW-8/C (dated 28.02.2011 for 75 calls) and Ex.PW-8/L (dates 25.05.2011 for 88 calls) not only describes the instrument which was used for call recording but also provides proof that additional copies of the same were prepared and handed over to the prosecuting agency. Hence, the authenticity of the intercepted data is duly proved by these certificates U/s 65 B Indian Evidence Act furnished by PW-8 who only was in possession of the password of the Voice Logger System and the assigned system which was attached with the main voice logger through LAN for the purpose of interception of the calls. PW-8 in his cross examination also stated that the said Voice Logger System was mechanized in such a way that the contents of the intercepted material could not be edited or deleted.
71. Ld. Defence Counsels have further challenged the authenticity of the recorded intercepted data averring that there is discrepancy in the duration of recorded calls as mentioned in RCIR and the CDR of the intercepted mobile numbers. However, PW-8 has furnished the clear explanation for the said discrepancy stating that the duration of time mentioned in the CDR generated by the telephone service provider in respect of a call contained only the period when the call was picked up and it was terminated whereas the duration of time reflected in the Voice Logger installed at CBI office contained the period from the point when first signal CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -63- was received by the Voice Logger from the respective telephone service providers. These durations included ring time and even a blank or busy tone after disconnection of the said call at the point of telephone service providers. He further explained that sometimes the time duration reflected in the Voice Logger System was less in comparison to the duration of call reflected in the CDR with respect to a particular call due to dropping of signals and other technical glitches. In a similar fashion, the time of recording of a particular call as mentioned in the CDR may vary from that recorded by the Voice Logger System as the time setting of the Voice Logger System installed at Special Unit and the main switching system installed at the end of service provider were set manually by two different persons.
72. Objection was also raised regarding non appearance of certain calls in CDR of a particular mobile number whereas they were shown in RCIR and duly intercepted as well. Clarifying the same, PW-8 said that when the user was roaming in other circles, the data logged in their respective roaming switches do not reflect in the CDR of the intercepted mobile number provided by the original service provider. Moreover, many Voice Over Internet Protocol (VoIP) Services offer free SIP-to-SIP calling. This is when a VoIP phone calls another VoIP phone without ever going through the public switched telephone number. These communication transmissions do not cost money and therefore are generally kept off the CDR as they are not billed.
73. Ld. Defence Counsels harped on the question of non supply of CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -64- CDR used by PW-8 for comparing the intercepted calls data with the actual calls to the IO but PW-8 clarified that he had received only a soft copy of the CDR from the concerned service provider and it was not supplied to the IO as IO did not ask for it. Even otherwise, minor technical defaults while appreciating electronic evidence cannot be given undue weightage specially when the requirement of law for proving the said secondary piece of evidence has duly been complied with.
74. Ld. Defence Counsels have also challenged the admissibility of evidence of PW-8 Sh. M.C. Kashyap on the ground that though this witness was elaborately cross examined by Ld. Counsels for A-1 to A-4 but during cross-examination of this witness by Ld. Counsel for A-5 to A-7, PW-8 expired and his cross-examination could not be completed. Perusal of cross- examination of PW-8 shows that this witness was cross-examined with respect to every minute technicality and detail by Ld. Counsels for A-1 to A- 4 and even when Ld. Counsels for A-5 to A-7 was cross examining this witness, all the relevant important questions were more or less asked from him. Even otherwise, the line of cross-examination of all the Ld. Defence Counsels is same in this case and thus the fact that this witness expired in the midst of his cross-examination cannot make his testimony inadmissible. In 'Mt. Horil Kuer & Anr. Vs Rajab Ali & Ors', 1935 SCC OnLine Pat 208, AIR 1936 Pat 34 it has been held :
"5. This decision which was followed in 1929 Lah 840 (7) seems to me, if I may say so with respect, to state the law CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -65- correctly. I do not understand the observations of the learned Judge to mean that there is any hard and fast rule that the probative value of such evidence is small, and in my view there is no such rule. The weight to be attached to the evidence depends on the circumstances and the Court should look at the evidence carefully to see whether there are indications that by a completed cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. In the present case, no circumstances have been brought to my notice which would tend to the view that Jailal's evidence was not entitled to weight. Jailal was the nearest presumptive male reversioner. He was actually a signatory to the document of transfer. What he deposed was (if he was interested at all) against his own interest and the fact that at the time of his deposition he was on his death bed makes it as the Courts below pointed out unlikely that he would have been actuated by any ulterior motive to distort facts in favour of the party for whom he deposed. There was some cross-
examination and it was through no fault either of Jailal or of the party calling him that it could not be completed. Therefore, there was no legal objection to receiving in evidence the deposition of Jailal, and the Courts below have fallen into no error of law in relying on his evidence."
75. Another limb of argument of Ld. Defence Counsel is whether the CDs and RCRs were handed over to IO Sh. Ram Singh or to Sh. Satender Singh, Inspector CBI, ACU-III by the Special Unit, CBI. In this context, PW-8 contended that he had handed over CDs and documents pertaining to 75 interacted calls to Sh. Satender Singh. The seizure memo Ex.PW-8/A (colly) which was prepared at the time of handing over the relevant data also CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -66- bear signature of Sh. M.C. Kashyap i.e PW-8 at point A and it has been clearly mentioned that the same is taken over by Sh. Satender Singh with his signatures at point C. The statement of PW-8 is corroborated by the statement of Sh. Satender Singh (PW-38) who also deposed that through this seizure memo Ex.PW-8/A (colly), he had taken over possession of the articles mentioned therein from Sh. M.C. Kashyap (PW-8). Merely because PW-39 IO Sh. Ram Singh stated in his cross examination that he had taken the relevant data from Special Unit, CBI does not disprove statement of PW-8 and PW-39. At this juncture, it cannot be lost sight of the fact that an IO investigates several cases on daily basis and this case being more than a decade old, there is every possibility that IO might have got confused regarding minor details pertaining to a particular case.
76. Moreover, PW 39 IO Ram Singh stated in his examination in chief that through seizure memo Ex.PW8/A Sh. Satender Singh had seized the articles mentioned therein as per the directions of Sh. M.C Kashyap. Similarly, through seizure memo Ex.PW8/B Sh. Deepak Purohit seized the articles mentioned in the said seizure memo regarding 88 interacted calls as per the directions of IO Sh. Ram Singh. The said seizure memo bears the signature of Sh. Deepak Purohit at point B. ADMISSIBILITY OF TRANSCRIPTS OF RECORDED CALLS
77. Ld. Defence Counsels have also challenged the credibility of the CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -67- transcripts of the recorded conversation stating that it has not come on evidence as to who had prepared those transcripts as the transcripts are neither attested by any witness nor contain a footnote in this regard. Moreover, there is a discrepancy in the statement of PW-11 Sh. Lalit Mohan and the IO regarding the person who had prepared the transcript. No certificate U/s 65 B of Indian Evidence Act is annexed with the transcripts making them inadmissible in evidence.
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78. The transcript of recorded conversation of 75 calls was got prepared by Mr. Lalit Bhatt. There is a footer in this transcript which clearly states "Prepared by Lalit Bhatt PC CBI AC-I New Delhi" on all pages. Mr. Lalit Bhatt was also examined as PW11 who testified that he was directed by SP AC-I Sh. Ramneesh to assist IO for preparation of transcripts and an unsealed IO copy of CD was given to him for the said purpose. He specified that "he had heard all calls in the said CD using laptop and prepared transcript of all conversation heard by him". It is alleged by Ld. Defence counsel that since PW-11 testified that he had mentioned names in the transcript on the basis of identification by IO Ram Singh therefore the said transcript is doctored by the IO. PW11 stated in his examination in chief that "the names of persons whose voices were heard in the calls were identified by Sh. Ram Singh, the IO and that is how I mentioned their names in the transcripts". This deposition of witness does not make the transcript doctored by IO. In fact, in RC IR, the copy of which was handed over by Sh. M.C. Kashyap as IO copy, the mobile numbers of the conversants have already been mentioned. Thus, IO could have easily provided names of the conversants to PW11 on the basis of ownership of mobile / land-line numbers. The fact that PW11 deposed that "I had written date, time and duration on the transcripts after noting it down from the call itself" proves that he had duly heard the entire conversation before preparing the transcript of the same. Merely because gist of each call was handed over to him by IO does not mean that he did not hear the said calls or conversations through the CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -69- CD provided to him especially in light of the fact that it has nowhere come on record that this gist bore the date, time and duration of call.
79. Similarly, with respect to 88 intercepted and recorded calls, PW39 IO Ram Singh deposed in his chief examination that during the course of investigation the transcript of 88 calls was prepared by his steno on his dictation. Now, since the job of the steno was only to type the dictation given by IO Ram Singh to him/her, it was not necessary to record the steno's statement or mention her/his name along with the charge-sheet. Normally, a document, though typed by a steno, is stated to be the document of a person who dictates the contents of the said document to the steno and not the one who types the same at the directions of somebody else. Thus, there was no requirement of recording the statement of said steno or to prepare a separate memo for it.
80. Moreover, since both these transcripts of 75 and 88 intercepted calls were prepared on a word document and there was no involvement of LAN or Internet on it therefore, there is no requirement of furnishing a certificate u/s 65-B of Indian Evidence Act in support of these documents.
81. Explaining the reasons for some missing transcripts, IO Ram Singh deposed that he found the same to be irrelevant. Even otherwise, the calls as recorded in furnished CD relating to these missing transcripts were submitted by the IO in the Court at the time of filing of the charge-sheet, CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -70- therefore, no malice can be attributed to the IO for not separately filing transcripts which in fact are prepared only for the convenience of the prosecuting agency and the Court and for no other purpose.
82. Defence has also disputed the admissibility of CDRs (Call Detail Records) and CAF (Customer Application Form) of various mobile and land-line numbers of accused persons. It is argued by Ld. Defence Counsel for Accused No. 7 that CAF of mobile number of A-7 is not duly proved since the certified Voter ID card allegedly filed along with the said CAF was issued in 2006 whereas year of submission of CAF is 2005. However, PW16 Sh. Israr Babu, who was working as an alternate Nodal officer in Vodafone in 2011, clarified during his cross-examination that the discrepancy in the year of Voter ID card must have been due to the re- verification of KYC details. During re-verification, the Voter ID card might have got updated because of which there is discrepancy in the year of the Voter ID Card of accused NO. 7. Moreover, PW-39 IO Ram Singh specifically stated in his chief examination that a mobile Black Berry Pearl Model No. 8100 was also seized from the possession of Accused No. 7 Rattan Pal Singh through memo Ex.PW39/G by Sh. Jagdish Inspector, CBI, Chandigarh which corroborated the ownership of the said mobile number by Accused No. 7 himself.
83. Aspersions were also raised about the admissibility of certificate CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -71- under Section 65-B of Indian Evidence Act annexed along with the CDRs. PW16 Sh. Israr Babu from Vodafone proved the CDR and CAF of mobile No. 9999686888 and mobile No. 9888831023 of B.L. Bajaj (A-2) and Rattan Pal Singh (A-7) respectively and also furnished certificates u/s 65-B of Indian Evidence Act in support of these CDRs. Merely, because the certificate Ex.PW16/C and certificate Ex.PW16/F does not bear a specific name of the Nodal Officer who signed the certificate does not mean that the certificate is invalid, more so when it states that :
"CDR has been produced from Computer System using printer and its contents are true reproduction of the original ..... conditions as laid down in Section 65-B (2)
(a) to 65-B (2)(d) of Evidence Act, 1872 regarding the admissibility of Computer output in relation to the information and the computer in question are fully satisfied in all aspects".
84. PW18 Sh. Rajiv Vashisth, who was working as Nodal Officer in Bharti Airtel Ltd., duly proved the certified copies of CAF and CDRs of land-line number 0120 - 4280351 of B.L. Bajaj, mobile number 9849010101 of Sh. BijayMandhani, mobile number 9893123123 of Bhatia Coal Sales, mobile number 9893023025 of Bhatia International Ltd., land-line number 0120 - 4314950 and land-line number 47608050 (old number 47078888) of NALCO. The said CDRs and CAF were handed over by him to the Prosecuting Agency through letter Ex.PW18/A. A certificate u/s 65-B of Indian Evidence Act Ex.PW39/J has been duly furnished by the Nodal CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -72- Officer of Bharti Airtel to Superintendent of Police, ACU-I, CBI with respect to the above CDRs and CAF certifying that the information enclosed therewith is a true extract of the relevant data created in the usual and ordinary course of business and stored on the designated hard disk of the computer system of the company and the associates. This certificate also clarifies that only the concerned user of the system knows the password of the system.
85. PW-17 Sh. Virender Pal Singh, who was working as SDE (Vigilance) for Senior GMTD Noida admitted letter Ex.PW17/A through which he had sent information relating to application form in original of telephone numbers 0120 - 2540898 and 0120 - 2502758 along with CDRs of these numbers to SP/CBI. The original application form of No. 0120 - 2540898 shows that it is in the name of A.K. Srivastava and also bears his photograph. Though this witness turned hostile and was cross-examined by Ld. PP/CBI regarding the fact as to whether he had handed over the said documents to SP/CBI or not but his duly admitted letter Ex.PW17/A along- with the above referred documents which have been annexed along with the letter Ex.PW17/A, clearly establishes the said fact.
86. Thus, the purpose of proving the above stated documents in order to establish the ownership of all the mobile and land-line numbers has been duly fulfilled. Neither any suggestion has been put forward to PW16, CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -73- PW17 and PW18 or to any other witness, nor it is the case of the defence that the above referred mobile and land-line numbers do not belong to the concerned owners named therein and no suggestion has come forth regarding the alleged real owner, if any, of these numbers.
87. Ld. Defence Counsels have also challenged the authenticity of the specimen voice samples recorded of the accused persons. However, PW- 28 Sh. P.K. Gottam, Principal Scientific Officer at CFSL, DFSS, New Delhi deposed that while he was posted in Photo Division of CFSL, CBI he recorded voice samples of B.L. Bajaj (A-2), Anita Bajaj (A-4), Rattan Pal Singh (A-7), Chandni Srivastava (A-3) and A.K. Srivastava (A-1), through voice sample memos Ex.PW28/A to Ex.PW28/E respectively in CDs Ex.PW28/F-3, Ex.PW28/G-3, Ex.PW28/H-3, Ex.PW28/I-3 and Ex.PW28/J-3 respectively.
88. The said memos bear the signature of the accused persons whose specimen voice samples were recorded at point B along with signatures of Sh. Jayesh Bhardwaj and Sh. Manish Kumar Jain at points C & D, as identified by PW28. He further deposed that these voice samples were recorded in presence of independent witnesses Sh. Satya Narayan Prajapati to whom the seal was handed over after putting the same on the memos. Sh. Jayesh Bhardwaj and Sh. Manish Kumar Jain were nominated from CFSL (Physics Division) to attend the specimen voice recording by PW 28. This CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -74- witness also certified regarding the voluntariness of the accused persons to get the sample voice recorded in his presence. As per this witness, the process of voice sample recording was done from 3 pm to 6.15 pm which was contradicted by Ld. Defence Counsels stating that the timings as mentioned in the voice files in the CD containing voice samples is 20:57 or 21:14 etc. The said issue raised by Ld. Counsel for accused persons is not tenable as possibility of said discrepancy being based on human error can't be ruled out. Even otherwise, it is a minor contradiction which does not make the prosecution case doubtful.
89. It is also averred that since the independent witness Sh. Satya Narayan Prajapati has not been examined to prove the voice samples therefore, the authenticity of the same is not proved. It is not the quantity but the quality of evidence which matters in a criminal trial. Here PW28 clearly proves the authenticity of specimen voice samples whose testimony is corroborated by the specimen voice recording Memos Ex.PW28/A to Ex.PW28/E bearing the signatures of all the persons who were present at the time of this recording as well as testimony of PW39 IO Ram Singh who also identified his signature at point E on the said memo.
90. PW-39 IO Ram Singh also testified regarding recording of specimen voice samples of witnesses Bijay Mandhani and A.K. Singh through memos Ex.PW12/J dt. 5.9.2011 and Ex.PW13/A dt. 12.9.2011 CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -75- respectively. He stated that these voice samples were recorded by Sh. Deepak Purohit as per his instructions and also identified the signature of Sh. Deepak Purohit on the above-stated memos. The voluntariness of these specimen voice samples were established by the witnesses themselves who identified their voice samples in the Court. PW-25 and PW-26, who are witnesses to the sample voice recording of Sh. A.K. Singh and Sh. B.L. Mandhani respectively also proved the same.
91. Similarly, PW-31 Sh. Ashutosh Deo Tiwari, Principal Scientific Officer (Photo Division) CFSL proved the specimen voice sample recording of Gurwinder Singh Bhatia (A-5) on 6.5.2011, BijayMandhani on 5.09.2011 and A.K. Singh on 12.09.2011 through memos Ex.PW-31/A, Ex.PW-12/J and Ex.PW-13/A respectively. He also identified the signature of Sh. Sunil Kumar and Sh. M.K. Jain from Physics Division on the said memos and proved the voluntariness of the accused in getting their voice samples recorded.
92. PW-27 Sh. S.K. Munjal who witnessed the specimen voice sample recording of Jaswinder Singh Bhatia (A-6) proved the sample voice recording memo Ex.PW-27/A in CD Ex.PW-27/E.
93. Dispute is also raised regarding the authenticity of the seal of CFSL (Photo Division), the sample of which is marked on the specimen CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -76- voice sample memos stating that since the said seal bears Mark "X" with four dots, it cannot be the original seal of CFSL (Photo Division). PW-39 IO Ram Singh as well as PW-28 P.K. Gottam and PW-31 Sh. Ashutosh Deo Tiwari deposed regarding the authenticity and genuineness of the said seal of Photo Division.
94. The specimen voice samples of accused persons were thereafter sent to CFSL along with the CD containing intercepted call records for voice examination and identification. PW32 Dr. Subrat Kumar Chaudhary, Sr. Scientific Officer examined the CDs containing the specimen voice Samples (S1 to S7) along with the sealed CD containing intercepted calls (Ex.Q) and after Auditory and Spectographic examination of the above said questioned and specimen voice recordings, he filed his report dt. 23.3.2011 Ex.PW32/A(colly.) and report dt. 8.6.2011 Ex.PW32/B(colly.). In both these reports, PW32 clearly opined that on examination, specimen voices contained in Ex.S1 to S7 tallied with the respective questioned voices contained in Ex.Q. This witness further proved in his report that he had received the CDs containing specimen voice samples sealed with the seal having impression of "X". Thus, the seal which was put on the CDs after recording the voice samples and the seal affixed on the CDs received by CFSL was the same meaning thereby that the CDs were not tampered with from the time they were sealed by the person recording the voice sample till they reached CFSL for examination.
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95. Thus, from CFSL report Ex.PW-32/A (colly.) and Ex.PW-32/B (colly.), it is proved that the questioned voices in the intercepted call records were the probable voices of accused persons whose specimen voices were recorded. The testimony of this witness is corroborated by the testimony of PW-12 Sh. Bijay Mandhani who was made to hear the recorded intercepted conversations in the Court and he not only identified his voice but also the voices of accused persons in those intercepted calls. Thus, the testimony of the expert witness is corroborated by the testimony of Sh. Bijay Mandhani and thus the fact that it was in fact the accused persons (A-1, A-3, A-5, A-6 and A-7) who had interacted with Sh. Bijay Mandhani in the intercepted recorded conversations as recorded in CDs produced in Court, stand duly proved not only from the expert report Ex.PW-32/A and Ex.PW-32/B but also from the testimony of the Approver Bijay Mandhani.
EVIDENDIARY VALUE OF APPROVER SH. BIJAY MANDHANI
96. An Approver is someone who has been charged with a crime but later confesses and agrees to testify for the prosecution. He receives a lighter sentence or perhaps a pardon as compensation for his confession and testimony. Such an agreement between the offender and the prosecutor enable a strong case against the co-accused, aids in successful prosecution and shortens the investigative period. In 'K.K. Dalmia Vs. Delhi Administration 1962 AIR 1821', it has been held that an accomplice is CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -78- someone who voluntarily assists and cooperates with others in committing a crime. He is referred to as a particeps criminis or an active participant in the crime.
97. An Approver's evidence must pass the twin test of credibility and adequate support of his testimony. This double test for Approver's evidence was established in the seminal case of 'Sarwan Singh Vs. State of Punjab AIR 1976 SC 2304'. Section 114 illustration (b) of Indian Evidence Act states that an accomplice is a person who is unworthy of credit unless and until the evidence presented by the Approver is corroborated by additional evidence. Further, Section 133 of Indian Evidence Act provides that an accomplice shall be a competent witness against accused person and the conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
98. Thus, on combined reading of both the sections, it can be said that though conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the Courts will as a matter of practice seek corroboration while accepting his testimony.
99. In the present case, Sh. Bijay Mandhani, Director of M/s Maheshwari Brothers Coal Ltd. was made an Approver after he wrote a letter Ex.PW-12/DA dt. 5.8.2011 to CBI stating that he was ready to cooperate in investigation provided he is made an Approver in this case. His statement u/s CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -79- 164 Cr.P.C was recorded and he was granted pardon for the offence, being a co-accused. The defence has tried all its wit in snapping the testimony of PW-12 Sh. Bijay Mandhani by spotlighting discrepancies in his statements recorded in this case U/s 161 Cr.P.C, U/s 164 Cr.P.C and before this Court as well as his statement recorded in ED case. It is further argued that CBI has adopted a lackadaisical approach in not investigating relevant facts relating to this case as alleged by the Approver Sh. Bijay Mandhani.
100. In his statement before the Court, PW-12 Sh. Bijay Mandhani stated that in November 2010, he had received a call from an unknown number to meet A.K. Srivastava, CMD NALCO at Hotel Maurya Sheraton in Delhi. Accordingly, he met him in the lobby of the hotel wherein they discussed about the allotment 2,00,000 MT of washed coal and A.K. Srivastava asked him to meet B.L. Bajaj and also shared the number of B.L. Bajaj with him. Subsequently, in the month of December, he met B.L. Bajaj in lobby of a five - star hotel in Delhi with A.K. Singh wherein B.L. Bajaj asked Mr. Mandhani for remuneration for A.K. Srivastava and himself for smooth transaction of supply of washed coal and timely payment. Mr. Bajaj also demanded Rs.200/- per metric ton which after negotiations was reduced to Rs. 150/- per metric ton as remuneration. B.L. Bajaj also asked Mr. Mandhani to speak to G.S. Bhatia of M/s Bhatia International about the said remuneration.
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101. The entire testimony of Mr. Bijay Mandhani is corroborated by his statement U/s 164 Cr.P.C Ex.PW-12/F (colly.) wherein he has averred the same facts as have been deposed by him in the Court. There is no material discrepancy in all these statements i.e statement before the court, statement U/s 164 Cr.P.C and the statement of Mr. Bijay Mandhani recorded by CBI u/s 161 Cr.P.C on 6.8.2009 and 9.9.2011 Mark PW12/DE. The essence of all the three statements as well as the material events disclosed by Mr. Bijay Mandhani in all the three statements are thus the same.
102. Ld. Defence Counsels have challenged the veracity of the statement of Mr. Bijay Mandhani by stating that Mr. Bijay Mandhani clearly said that A.K. Srivastava did not ask for any remuneration against the tender or for any other purpose in his cross-examination. Further, they also brought forth the statement made by Mr. Bijay Mandhani in his bail application and in his cross-examination that the tender evaluation process at NALCO is strictly as per NIT/tender guidelines. In 'State of UP vs. Krishna Master (2010) 12 SCC 324', it has been held that :
"While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -81- evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper- technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole..."
(emphasis supplied) CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -82-
103. Thus, minor discrepancies in the statement of Mr. Mandhani do not go to the root of the matter especially when there is a time gap of more than a decade in his statement recorded U/s 161 Cr.P.C by the Prosecuting Agency and his statement recorded before the Court. Even otherwise, Mr. Mandhani has made a uniform statement regarding meeting A-1 A.K. Srivastava at Hotel Maurya, Delhi wherein A.K. Srivastava discussed about the ongoing tender process with him and also asked him to talk to B.L. Bajaj and passed on the number of B.L. Bajaj to him. He also remained consistent while deposing that he met B.L. Bajaj at Hotel Hyat, Delhi and also he had asked A.K. Singh, his friend, to hand over Rs. One Crore to B.L. Bajaj who in turn handed over the same to B.L. Bajaj near Oberoi Hotel. Mr. Bijay Mandhani was also corroborated by the testimony of PW-13 A.K. Singh who also stated the same facts. There was only a small confusion in the statement of A.K. Singh regarding his knowledge about the contents of the packet handed over by him to B.L. Bajaj near Oberoi Hotel but when this witness was specifically asked questions by the Ld. Prosecutor after taking permission of the Court, he deposed that inside the one packet there were two packets which were handed over by Mr. Bijay Mandhani to him to be given to B.L. Bajaj as remuneration. Regarding the contents of the said packet, PW- 13 A.K. Singh deposed that he did not see the contents as the packet was closed but Mr. Bijay Mandhani had told him that each packet had Rs. 50 lakhs. He also admitted his statement Ex.PW-13/1 when he was so confronted in this aspect with his statement u/s 161 Cr.P.C. Ld. Defence CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -83- counsels further brought forth the averments made by Mr. Bijay Mandhani in his anticipatory bail applications and in his application U/s 306 Cr.P.C Ex.PW-12/DB stating that in these applications Mr. Bijay Mandhani had clearly stated that FIR in this case had no connection with applicant or that he is not involved in the offence. Ld. Defence counsels have also highlighted the conduct of Mr. Bijay Mandhani wherein non-bailable warrants were issued against him and subsequently, proceedings U/s 82 Cr.P.C were also initiated against him. It is not disputed that in the initial charge-sheet, it was specifically mentioned by the IO that further investigation qua Mr. Bijay Mandhani and Mr. A.K. Singh was pending. Subsequently, attempts were made by the Prosecuting Agency to interrogate both these persons but since Mr. Mandhani was outside India and warrants against him could not be executed therefore, they could not do so. Meanwhile, under legal advice Mr. Bijay Mandhani moved an application to become an Approver in this case and also started moving anticipatory bail applications containing admitted facts and thus merely because he had pleaded his innocence in those applications or had pleaded those facts which would keep him out of the rigors of law does not mean that the statement made by Mr. Bijay Mandhani is not trustworthy. Further, the only reason for not citing Mr. Bijay Mandhani as a co-accused even after having sufficient evidence against him by the Prosecuting Agency was only due to the fact that Mr. Bijay Mandhani was made an approver and thus was granted pardon by a separate order of the Court. Discrepancies, if any, in the statement made by Mr. Mandhani in this CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -84- case and the statement given by him in the ED matter are obviously due to the different perspective from which those statements are recorded being different offences having different ingredients altogether. Further more, there is no material discrepancy in the statement made by Mr. Mandhani before the Court in this case as well as in ED case. PW-12 even identified the voices of G.S. Bhatia, B.L. Bajaj and A.K. Singh in the Court as well when the recorded intercepted CD was played before him stating that he can identify these voices as he had heard these voices several times on phone. He also admitted in his entire testimony several times that he was made to hear the recorded conversation when he was called by CBI for investigation.
104. It is the substantive evidence of a witness recorded in the court during trial which matters and is relevant for establishing a case. Here, the statement made by Mr. Mandhani in the Court is further corroborated by the testimony of A.K. Singh as well as the recorded intercepted conversations of various accused persons which have been duly proved in the Court as has been discussed above. Thus, the testimony of Approver Bijay Mandhani has become a strong piece of evidence against the accused having been corroborated in material particulars.
DEMAND AND ACCEPTANCE OF ILLEGAL GRATIFICATION
105. Before I delve into the multifarious contentions advanced by Ld. Defence Counsel on one hand and Ld. Public Prosecutor on the other hand, it CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -85- would be expedient at this juncture to set out the relevant provisions of Section 7 and Section 13 (1) (d) read with Section 13 (2) P.C. Act 1988.
106. Section 7 in The Prevention of Corruption Act, 1988 reads as under :
"7. Public servant taking gratification other than legal remuneration in respect of an official act.--Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years and shall also be liable to fine.
(Explanations) --(a) "Expecting to be a public servant".
If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
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(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."
107. Section 13 in The Prevention of Corruption Act, 1988 reads as under :
"13. Criminal misconduct by a public servant.--
(1) A public servant is said to commit the offence of criminal misconduct,--
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -87- any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,--
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(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 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 be not less than [four years] but which may extend to [ten years] and shall also be liable to fine.
108. The essential ingredients of Section 7 of P.C. Act 1988 are :
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1) the accused must be a public servant or expecting to be a public servant ;
2) he should accept or obtain or agree to accept or attempt to obtain from any person ;
3) for himself or for any other person ;
4) any gratification other than legal remuneration ;
5) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour ;
109. Section 13 (1) (d) P.C. Act has the following ingredients which need to be proved before bringing home the guilt of a public servant under the said provision, namely :
1) the accused must be a public servant ;
2) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or by abusing his official position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest ;
3) to make out an offence U/s 13 (1) (d), there is no requirement that the valuable thing or pecuniary advantage should have been received as a motive or reward ;
4) an agreement to accept or an attempt to obtain does not fall within 13 (1)
(d) to make out an offence under this provision. There must be actual CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -89- obtainment.
110. In 'B. Jayaraj Vs State of A.P (2014) 13 SCC 55' it has been held by the Hon'ble Apex Court that mere possession and recovery of currency notes from the accused without proof of demand would not bring home the offence U/s 7 of P.C. Act. It was further observed that presumption U/s 20 of the Act could not be drawn in respect of an offence U/s 7 of the Act. Such a presumption could have been drawn only if there was a proof of acceptance of illegal gratification for which proof of demand was a sine qua non.
111. In 'Neeraj Dutta Vs. State (NCT of Delhi), (2023) 4 SCC 731', it was held that:
"71. As already noted, all evidence let in before the court of law is classified either as direct or circumstantial evidence. " Direct evidence" means when the principal fact is attested directly by witnesses, things or documents. For all other forms, the term "circumstantial evidence" which is "indirect evidence" is referred, whether by witnesses, things or documents, which can be received as evidence. This is also of two kinds, namely, conclusive and presumptive. Conclusive is when the connection between the principal and evidentiary facts - the factum probandum and factum probans - is a necessary consequence of the laws of nature : "presumptive" is when the inference of the principal fact from the evidence is CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -90- only probable, whatever be the degree of persuasion which it may generate (best, 11th Edn., Section 293). Thus, circumstantial evidence is evidence of circumstances as opposed to which is called direct evidence. The prosecution must take place and prove all necessary circumstances constituting a complete chain without a snap and pointing to the hypothesis that except the accused, no one had committed the offence vide Navaneethakrishnan Vs. State.
72. The principal fact can be proved indirectly by means of certain inferences drawn from its existence or its connection with other circumstantial evidence. It is often said that witnesses may lie but not the circumstances. However, the court must adopt a cautious approach while basing its conviction purely on circumstantial evidence. Inference of guilt can be drawn only when all incriminating facts and circumstances are found to be incompatible with the innocence of an accused. In other words, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
73. It is trite law that in cases dependent on circumstantial evidence, the inference of guilt can be made if all the incriminating facts and circumstances are incompatible with the innocence of the accused or any other reasonable hypotheses than that of his guilt, and provide a CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -91- cogent and complete chain of events which lweave no reasonable doubt in the judicial mind. When an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. If the combined effect of all the proven facts taken together is conclusive in establishing the guilt of the accused, a conviction would be justified even though any one or more of those facts by itself is not decisive. [Sharad Birdhichand Sarda Vs. State of Maharashtra [Sharad Birdhichand Sarda Vs. State of Maharashtra, (1984) 4 SCC 116 :
1984 SCC (Cri.) 487 ("Sharad Birdhichand Sarda") as reiterated in Prakash").] "74. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1) (d)(i) and (ii) of the Act.
(b) In order to bring home the guilt of accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -92- demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(I) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and
(ii) of the Act.
(iii) In both cases of (I) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act.
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -93- Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (I) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
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(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is a discretionary in nature."
(emphasis supplied) Further, paragraph 76 of the aforesaid judgment provided that:
"76. Accordingly, the question referred for consideration of this Constitution Bench is answered as under :
In the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of culpability/guilt of a deduction of culpability/guilt of a public servant under Section 7 and Section (13)(1)(d) read with Section CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -95- 13(2) of the Act based on other evidence adduced by the prosecution."
(emphasis supplied)
112. In the present case, PW-12 Sh. Bijay Mandhani testified in crystal clear words that he never had any conversation with Accused No. 1 A.K. Srivastava on phone and that he met A.K. Srivastava only once at a 5- star hotel in Delhi wherein besides discussing about the ongoing washed coal tender of NALCO, A-1 asked Mr. Bijay Mandhani to talk to B.L. Bajaj and also passed the phone number of B.L. Bajaj to him. This fact is corroborated by the intercepted calls (as duly proved) between Bijay Mandhani and B.L. Bajaj soon thereafter whereby they decided to meet in Delhi. Subsequent conversation between them with respect to the payment of remuneration/reward at the rate of Rs.150/- metric ton for the ongoing washed coal tender and discussion of other projects show alliance between B.L. Bajaj and Mr. Bijay Mandhani after the telephone number of B.L. Bajaj was passed on to Mr. Bijay Mandhani by A.K. Srivastava. Further B.L. Bajaj also asked Mr. Bijay Mandhani to communicate regarding the fixation of remuneration at the rate of Rs.150 /- per metric ton to G.S. Bhatia of M/s Bhatia International Ltd. and also asked him to tell G.S. Bhatia to talk to B.L. Bajaj. From the subsequent calls, it could be noticed that there were regular conversations between G.S. Bhatia and B.L. Bajaj as well. Calls were also made by B.L. Bajaj to A.K. Srivastava and vice versa.
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113. All these instances show a nexus between A.K. Srivastava, CMD/NALCO who otherwise had no business to talk to Mr. B.L. Bajaj regarding the tender process at NALCO as B.L. Bajaj was only a friend and ex-colleague of A.K. Srivastava. In addition, even Mr. Bijay Mandhani and G.S. Bhatia had no rationale to talk to B.L. Bajaj on regular basis on phone regarding ongoing washed coal tender of NALCO, especially when B.L. Bajaj had nothing to do with the said tender process. After listening to the intercepted calls record, it is clearly made out that Bijay Mandhani and B.L. Bajaj even had knowledge about those facts / events which had not taken place till then regarding the internal matters of NALCO. For example, B.L. Bajaj informed Mandhani that the price bids are about to get opened after 2-3 days by NALCO and actually they were opened on 13.12.2010 (i.e., after 2-3 days itself). Similarly, on 9.12.2010 Bijay Mandhani told G.S. Bhatia that the tender for the supply of 2 lakhs MT of washed coal will be distributed between them, being L-1 and L-2 in the ratio of 60 : 40 whereas the decision to distribute the said tender in the ratio of 60:40 between L-1 & L-2 was taken by NALCO after 15.12.2010. This proves that B.L. Bajaj had knowledge about the internal information of NALCO through A.K. Srivastava before hand which he subsequently communicated to Bijay Mandhani who in turn told those facts to G.S. Bhatia.
114. B.L. Bajaj also used to inform Bijay Mandhani and G.S Bhatia about the future visits of CMD / NALCO i.e., A.K. Srivastava to Delhi which CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -97- matched with his travel itinerary, meaning thereby that B.L. Bajaj used to be well informed in advance by A.K. Srivastava regarding those visits, which fact is also proved from the telephonic conversations between B.L. Bajaj and A.K. Srivastava.
115. Circumstances and calls which go on to prove nexus between A.K. Srivastava and B.L. Bajaj are as follows :-
a). Call No. 3 dt. 7.12.2010 Ex.PW12/Z(colly.).- In this call between Bijay Mandhani and B.L Bajaj, B.L. Bajaj told Mandhani that "I am discussing with you or Mr. Abhay Srivastava". .... "I have been advised just to convey you 100 number". In this call itself, B.L. Bajaj tells Mandhani that "I just conveyed to Abhay Srivastava that you opened the tender, bole ke Bajaj Saheb I have been advised by top that unless and until these two things are done physically, then I told him No No I have already promised to Mandhani"........ " to bola Okay Bajaj Saheb I am doing this so he approved it so hopefully".
b) Call No. 38 dt. 5.1.2011 Ex.PW12Z-21- In this call between Bijay Mandhani and B.L. Bajaj, B.L. Bajaj tells Mandhani "Saheb se baat hui thi kal hi unhone approve kar diya hai"..... "dusra yeh hai ki saheb jaise 10 aur 11 tareekh yahan rahenge Delhi mein"..... "phir meri meeting hai saheb se"..... "yeh usme daal ke meri Abhay se detail mein charcha ho chuki hain".
c) Call No. 7 dt. 30.1.2011 Ex.PW11/A(colly.) - In this call between CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -98- Chandani Srivastava / A.K. Srivastava and B.L. Bajaj, B.L. Bajaj asked A.K. Srivastava "haan to kal 31 hai to aapse mulakaat karni thi 5 minute kab baat hogi" to which A.K. Srivastava replied "10 baje" and B.L. Bajaj confirmed him "to theek hai kal 10 baje mulakaat karte hai".
d) Call No. 28 dt. 15.2.2011 Ex. PW9/X-13 - In this call between B.L. Bajaj and A.K. Srivastava, A.K. Srivastava asked B.L. Bajaj "chaliye, accha, I just wanted to check-up ke kaam aaj complete ho gaya" to which B.L Bajaj replied "Nahi aaj nahi hua kal hoga". A.K. Srivastava further said "phir main appse .... this Saturday-Sunday phir miluga".
e) Call No. 42 dt. 20.2.2011 Ex.PW9/X-19 - In this call between B.L. Bajaj and A.K. Srivastava, B.L. Bajaj informes A.K. Srivastava about his travel plans and ask him "ki uska kuch final hua uske"..... and A.K. Srivastava replied "nahi abhi final nahi hua hai abhi to discussions mein hai abhi karenge final". B.L Bajaj further makes a plan to meet A.K. Srivastava and informs A.K. Srivastava "kal hi hua tha parso aur baaki jo hai mangal tak ho jaayega".
f. Call No. 53 dt. 22.2.2011 Ex.PW9/X-21 - In this call between B.L. Bajaj and A.K. Srivastava " wo dusra wala hai uska kaam kal ho jaayega, kal meri mulakaat ho gayi hai unse".......
116. Further, nexus between B.L. Bajaj and Bijay Mandhani is CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -99- proved from Call No. 2 dt. 6.12.2010 Ex.PW12/U, Call No. 3 dt. 7.12.2010 Ex.PW12/Z, Call No. 5 dt. 7.12.2010 Ex.PW12/W, Call No. 7 dt. 8.12.2010 Ex.PW12/X etc.. Nexus between B.L. Bajaj and G.S. Bhatia is proved from Call No. 11 dt. 1.2.2011 Ex.PW9/X3, Call No. 20 dt. 7.2.2011 Ex.PW9/X-7, Call No. 21 dt. 8.2.2011 Ex.PW9/X-8 etc.
117. There were also regular interactions between G.S. Bhatia and Mr. Bijay Mandhani which are demonstrated from Call No. 1 dt. 9.12.2010 Ex.PW11/A (colly.), Call No. 2 dt. 14.12.2010 Ex.PW12/N, Call No. 3 dt. 5.1.2011 Ex.PW12/O, Call No. 4 dt. 9.1.2011 Ex.PW12/P etc.
118. In all these calls, the accused are talking about various aspects of the ongoing tender for supply of 2 lakhs MT of washed coal, which in turn points out towards meeting of mind between all these accused persons regarding transactions related to the above stated project.
119. Though A.K. Srivastava CMD/NALCO never made any direct demand of remuneration / illegal gratification from Bijay Mandhani or G.S. Bhatia but the fact that he passed the phone number of B.L. Bajaj to Bijay Mandhani shows that A.K. Srivastava with full knowledge wanted B.L. Bajaj to convey payment of remuneration / illegal gratification to Bijay Mandhani and G.S. Bhatia with respect to the washed coal tender of NALCO.
120. Demand of illegal gratification by B.L. Bajaj as a conduit for CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -100- A.K. Srivastava is proved from the following calls :-
Call No. 2 dt. 6.12.2010 Ex.PW12/U - In this call, B.L. Bajaj and Bijay Mandhani made a plan to meet at Taj Man Singh and also demand was made by B.L. Bajaj in code words -
"B.L. Bajaj - Accha wo aap washed coal ko puch rahe theh.
Bijay Mandhani - haan ji haan ji.
B.L. Bajaj - abhi bata du phone mein Bijay Mandhani - haan Bataiye B.L. Bajaj - 100 rupaya Bijay Mandhani - aisa hai ki meri kaafi charcha ho chuki hai detail mein B.L. Bajaj - haan ji B.L. Bajaj - main aap ke saath baithuga to kar dunga aaj aapka khul raha hai tender aajaiye approval kar diya hai most likely ho jaayega.
Bijay Mandhani - theek hai sir theek hai. B.L. Bajaj - aur baaki baate hain jo meri to abhay to chhod dijiya. Baaki jo meri jahan baat karni ccahiye thi maine baat kiya hain to aap ke liye kaafi khabre hain. So aap saat baith ke kar lenge".
121. Further, in Call No. 3 dt. 7.12.2010 Ex.PW12/Z, B.L. Bajaj mentioned about Abhay Srivastava to Bijay Mandhani which goes on to prove that there was more than a casual friendship between B.L. Bajaj and A.K. Srivastava, otherwise, why he would mention about A.K. Srivastava with Mandhani with whom he was talking about NALCO deal. Further demand of Rs.100/- is clear from the following conversations :
"B.L. Bajaj - Ok, the No. 1 regarding that earlier where you told ke 50 is the first that were a course. You told 50 CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -101- where of course they re thing no let up please make it 100, first order of first you told 50 than I have been advised just to convey you 100 No. 1.
Bijay Mandhani - Ok, Ok".
122. Further, this demand of Rs.150/- per MT was conveyed by Mr. Bijay Mandhani to G.S. Bhatia vide Call No. 24 dt. 14.12.2010 Ex.PW12/Z- 7 which is :-
"Bijay Mandhani - Indoor mein, accha wo kal price bid to khul gaya apna, iska NALCO ka.
G.S. Bhatia - OK.
Bijay Mandhani - hello G.S. Bhatia - haan ji haan mere ko khabar laga, aap L-1 hai.
Bijay Mandhani -wo jo, haan wo hi hai ki, nahi wo to usi hisaab se kiye the aapne, theek hai. Bijay Mandhani - wo baat jaayega wo koi issue nahi hai, accha inka jo baat hua 150 rupaye me baat hua hai. G.S. Bhatia - Batana chahiye na yaar. Bijay Mandhani - nahi maan raha, 200 ke neeche nahi aa raha tha, finally 150 mein kiya hai, to aapko main bata dunga.
G.S. Bhatia - theek hai.
Bijay Mandhani - Delhi mein aap kaise, kab, jab bhi aap jaao unse mil lena aap.
G.S. Bhatia - theek hai, theek hai, nahi nahi waha to main jaata rehta hu main, ek do baar maine appointment ki koshish bhi ki thi to unhone bahar bahar se kahi. Bijay Mandhani - nahi nahi nahi, wo khali aapko bolege kisse milna hai.
G.S. Bhatia - theek hai, theek hai".
123. Further, Call No. 43 dt. 10.1.2011 Ex.PW12/Z-25 corroborates CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -102- the fact of meeting of A.K. Srivastava with Bijay Mandhani as in this call Bijay Mandhani told G.S. Bhatia that A.K. Srivastava called him to hotel and gave him the telephone number of B.L. Bajaj. The relevant extract are as follows :-
"G.S. Bhatia - aa.... main kya 3-4 din baad hi indore aaya tha to Bajaj ka phone aaya tha to Bajaj kya yeh .... ajeeb aadmi hai bola aaj hi bhej do, maine bola ki aaj to main indore mein hu, meri tabiyat bhi theek nahi hain to main aaj to nahi aa sakta hu, sunder ko bhej du kya, matlab yeh Bajaj, who is mare ko to jyada iske baare mein bataya bhi nahi aapne.
Bijay Mandhani - yeh koi purana koi.... unka NTPC ka koi purana koi company ka Director hai yeh. G.S. Bhatia - Ok, Ok, Ok Bijay Mandhani - to yeh kya hai, inse bhi close hai aur upar bhi jo inke boss hain unse bhi close hai, apne aap believe in me. Phir yeh bahar se bola to, phir unhone, Srivastava Saheb ne mere ko bulaa hotel mein aur inka number de ke bola ki inse aap baat karo. G.S. Bhatia - Haan to meri aaj subah baat hui unse. Bijay Mandhani - to mera, mere mera pura working kiya hua hai koi issue nahi hai, mai to just kabhi aap kabhi jaao to mil lena kisi aur ko bol dena mil lenge jaake. G.S. Bhatia - haan haan.
Bijay Mandhani - aur bol dena ki hamara jis din aata hai uske G.S. Bhatia - Haan.
Bijay Mandhani - 2-3 din mein hum aapko ek to kara denge aur balance 10, 15 din mein.
G.S. Bhatia - samajh gaya, samajh gaya. Bijay Mandhani - hain, kal , kal , kal release ho jaayega, 80 hazaar ton aapka.
G.S. Bhatia - hun.
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -103- Bijay Mandhani - to ek 20 hota, ek 20 hota 75 karwa dena baaki hafta 10 din baad karwa dena. G.S. Bhatia - theek hai, theek hai.
Bijay Mandhani - hain.
G.S. Bhatia - order kab release hoga. Bijay Mandhani - Kal ho jana chahiye. G.S. Bhatia - accha to isko, maane yeh jo bhejna hai, yeh pehle maane order se pehle bhejna hai isko. Bijay Mandhani - nahi nahi, pehle keh dena maine de diya, maine kal usko de diya ek".
124. The above-stated calls along with Call No. 28 dt. 15.2.2011 Ex.PW9/X-13 wherein, A.K. Srivastava is asking B.L. Bajaj about the status of the payment received, goes on to prove that though the demand of Rs.150 per metric ton of illegal gratification was directly demanded by B.L. Bajaj from Bijay Mandhani but he was doing that on behalf of A.K. Srivastava as A.K. Srivastava was constantly in touch with B.L. Bajaj regarding the status of the payment received. The relevant extracts of the conversation between A.K. Srivastava and B.L. Bajaj are :
"A.K. Srivastava - chaliye accha, I just wanted to check- up ki kaam aaj complete ho gaya.
B.L. Bajaj - nahi aaj nahi hua, kal hoga. A.K. Srivastava - accha B.L. Bajaj - hain na, phone aaya tha unka. A.K. Srivastava - theek hai.
B.L. Bajaj - to kal umeed hai, ho jaayega, matlab 90 per cent kal ho jaayega.
A.K. Srivastava - matlab kal ho jaayega to parso. B.L. Bajaj - parso haan, parso, job will be done. A.K. Srivastava - haan ya Friday tak aap kar loge.
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -104- B.L. Bajaj - haan haan aaram se, ek din kaafi hota hai. A.K. Srivastava - theek hai to chaliye, mai aapse phir".
125. A conjoint reading of all the above calls clearly prove the demand of illegal gratification of Rs.150/- per MT by B.L. Bajaj for A.K. Srivastava and himself from Bijay Mandhani and G.S. Bhatia. Though A.K. Srivastava never made any demand directly but from the testimony of PW12 Bijay Mandhani and from the above intercepted call records, it is evidently proved that A.K. Srivastava had passed on the phone number of B.L. Bajaj to Bijay Mandhani so as to enable B.L. Bajaj to make demand of illegal gratification / remuneration on his behalf from Bijay Mandhani who in turn was asked to also convey this demand to G.S. Bhatia.
126. The Acceptance of illegal gratification by B.L. Bajaj for A.K. Srivastava is proved from Call No. 20 dt. 7.2.2011 Ex.PW9/X-7, the relevant extracts of which is as follows :
"B.L. Bajaj - .... Number 3 about the past eighty thousand, there was some commitment, 50 percent was done 50 per cent has not yet been done, so far that also Jaswinder confirmed me to done last week, so that has also not been done, ok so kindly look into this if I get sufficient feed back from you people then only I can help you all".
127. This conversation of B.L. Bajaj with G.S. Bhatia shows that B.L. Bajaj had received 50 per cent of the illegal gratification for himself and for CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -105- A.K. Srivastava and for the remaining 50 per cent, he was regularly asking G.S. Bhatia to get the same done by putting pressure on him as is evident from Call No. 21 dt. 8.2.2011 Ex.PW9/X-8, Call No. 35 dt. 18.2.2011 Ex.PW9/X-16 and Call No. 71 dt. 24.2.2011 Ex.PW9/X-34 in addition to the above discussed call. Moreover, in almost all these calls, B.L. Bajaj refers to a "top man" that he received a call from top man or that he has to give confirmation to top man for payment. From conversation dt. 1.2.2011, Call No. 11 Ex.PW9/X-3, it is clear that 'top man' refers to A.K. Srivastava as in this Call, B.L. Bajaj tells G.S. Bhatia that he had talked to the top man the previous day which is in fact corroborated from the fact that B.L. Bajaj indeed met A.K. Srivastava on 31.1.2011as is also proved from Call dt. 30.1.2011 Ex.PW9/X-2 between B.L. Bajaj and A.K. Srivastava.
128. Merely, because Mr. Mandhani said that "in our business we all are rivals and competitors and have the habit of bullying, talking big, misinformation campaigning and circulating wrong information to create any kind of information and misguidance to the other players" does not mean that he was doing the same before the court as well. This particular statement was made by him to G.S. Bhatia only in the context of removal of M/s Gupta Coal Fields from the tender process for future as well as well as for incorporation of certain tender conditions by NALCO at his instance. However, as far as other parts of conversation are concerned, which are relevant to this case, Bijay Mandhani himself confirmed those facts and CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -106- repeated the same in his statement U/s 164 Cr.P.C as well as during his testimony before this court. Certain fragments of evidence cannot be sifted by defence to suit them as the entire evidence has to be read as a whole.
129. Further, Section 20 of P.C. Act, 1988 provides as under :
"20. Presumption where public servant accepts any undue advantage -
Where, in any trial of an offence punishable under section 7 or under section 11 it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under Section 11."
130. Thus, Section 20 of the Act deals with presumption where public servant accepts gratification other than legal remuneration. It uses the expression 'shall be presumed' in sub-section (1) and sub-section (2) unless the contrary is proved. The said provision deals with a legal presumption which is in the nature of a command that it has to be presumed that the accused accepted gratification as a motive or reward for doing or for bearing to do any official act, if the condition envisaged in the former part of the section is satisfied. The only condition for drawing a legal presumption U/s CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -107- 20 of the Act is that during trial, it should be proved that the accused had accepted or agreed to accept any gratification.
131. In 'State of Madras Vs A. Vaidyanatha Iyer AIR 1958 SC 61' it was observed that presumption U/s 20 of the Act would arise where illegal gratification has been accepted. The legislature has used the words 'shall presume' and not 'may presume' which means the presumption has to be raised as it is a presumption of law and therefore it is obligatory on the court to raise it.
132. Perusal of the intercepted conversation between the accused persons reveal that Mr. G.S. Bhatia had introduced Jaswinder Singh Bhatia, being the employee of M/ s Bhatia International to B.L. Bajaj and B.L. Bajaj was regularly talking to Jaswinder Singh Bhatia regarding the future tender projects as well as regarding the remuneration in the present tender process. Call No. 11 dt. 1.2.2011 Ex.PW9/X-3 reveals that B.L. Bajaj had even met Jaswinder Singh Bhatia /A-6 to discuss about the future projects and had carved out a strategy in that regard. There are records of direct intercepted calls between Jaswinder Singh Bhatia and B.L. Bajaj wherein B.L. Bajaj is asking and pressurizing Jaswinder Singh Bhatia to make remaining part payment of illegal gratification / remuneration against the ongoing washed coal tender of NALCO and A-6 states that he is arranging the money and is in direct contact with A-5 / G.S. Bhatia as well as A-7 / Ratan Pal Singh Bhatia.
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -108- There are discussions of "tie-ups" with influential persons between B.L. Bajaj and J.S. Bhatia meaning thereby that J.S Bhatia was well aware that B.L. Bajaj acts as a conduit for the purpose of arranging award of tender to persons by making suitable arrangements before hand. The relevant extracts of conversation which reveal the above-stated facts are as follows:-
Call No. 12 dt. 1.2.2011 Ex.PW9/X-4 -
"B.L. Bajaj - Aur aaj mangalwar tha aapne kaha tha. J.S. Bhatia - main aaj aapko bhej raha hu. B.L. Bajaj - hain.
J.S. Bhatia - aaj bhej raha hu aapko main. B.L. Bajaj - aaj bhej rahe hain theek hain. J.S. Bhatia - haan, main bhej raha hu aapko wo bhej raha hu.
B.L. Bajaj - aur isko khatam karwao isko sala jo hai na 2-3 dono mein lag ke karo isko yaar.
J.S. Bhatia - nahi theek hain sir main isko karta hu."
133. Use of code words between the accused persons clearly shows that there were discussions regarding giving and taking of illegal gratification between them. Call No. 14 dt. 2.2.2011 Ex.PW9/X-5 and Call No. 16 dt. 3.2.2011 Ex.PW9/X-6 also shows conversations between B.L. Bajaj and Jaswinder Singh Bhatia as well as conversations between B.L. Bajaj and Rattan Pal Singh wherein B.L. Bajaj is asking both of them about the status of the payment of remuneration / illegal gratification and they are seeking time on one pretext or the other.
134. Further, Call No. 20 dt. 7.2.2011 Ex.PW9/X-7 clearly shows that CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -109- there was a nexus between A-5, A-6 & A-7 wherein A-5 was directing A-6 who in turn was directing A-7 to make the part payment of illegal gratification to B.L. Bajaj for A.K. Srivastava and himself. The relevant extracts of the said conversations are as follows:-
"B.L. Bajaj - Haan but a....a... number three about the past eighty thousand their was some committment, 50 % was done 50 % was not yet had been done, so for that also Jasvinder confirmed me to done last week, so that has also not been done, ok so kindly look into this if I get sufficient feedback and support from you people then only I can help you all na.
G.S. Bhatia - Nahi nahi aapse baat hone ke baad. B.L. Bajaj - frankly speak G.S. Bhatia - maine jaswinder ko pura feedback de diya tha, Jaswinder ne mujhe 2-3 option bataye the to Jaswinder I just ask him also because he was travelling Jaswinder ne mujhe confirm kiya ki main aapko feedback de raha hu.
B.L. Bajaj - nahi nahi nahi since last one week he has not spoken to me and incidentally today I got a call from the top man also so that I was in souk I could't reply him satifactorily bole Bajaj Saheb.
G.S. Bhatia - lekin.
B.L. Bajaj - How to help him.
G.S. Bhatia - Ji haan jab tak feedback nahi hoga to reply kaise ho sakta hain."
135. G.S. Bhatia is continously referring to J.S. Bhatia in his conversations with B.L. Bajaj which makes it evidently clear that J.S. Bhatia was acting on the directions of G.S. Bhatia in order to help him in arranging CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -110- and passing on the illegal gratification to B.L. Bajaj for A.K. Srivastava. Further the folllowing conversations between B.L. Bajaj and J.S. Bhatia shows that J.S. Bhatia was very well aware about the purpose of payment because of which he was very cautious while talking to B.L. Bajaj and was also asking for some time to make the said payment. Call No. 22 dt. 10.2.2011 Ex.PW9/X-9 reveals the same which is as follows:-
"B.L. Bajaj - Haan dasya si ki ki Bajaj Saheb I am sorry yeh hai, wo hai thoda late hai, maine kaha na na na uski chintya aap na kare, hum kahe ki bas jo date de wo date ko adhere kare baaki ....
J.S. Bhatia -ac.. actually Delhi ki thodi se problem chal rahi thi, is karke thoda time lag gaya, main Tuesday tak complete kar devaga Sir.
B.L. Bajaj - ..... main tenu phone ita si ki Tuesday to final kar de total, theek hain.
J.S. Bhatia - do din wich karoga sir, ek din wich pura nahi karanga, do din wich kar devaga lekin. B.L. Bajaj - kyunki main na, menu banda ko bla ke na bahar bhejna si, teen baari mein nahi bhej paya. J.S. Bhatia - I know, I know, I can understand nahi nahi tusi dekho na.
B.L. Bajaj - Awanga mein.
J.S. Bhatia - Main tenu pehle wala dono si main gap bolya si par mein.
B.L. Bajaj - Arre nahi nahi.
J.S. Bhatia - mere paas aa gaya si to mein ek ke liye bol deta.
B.L. Bajaj - aisa karna lage Surender ki budhwar mat rakhna, mangal wo... mangal, budhwar mila ke kar de, nahi.
J.S. Bhatia - Theek hai Sir, theek hai. B.L. Bajaj - to main unhe kawawaga na ki us bande nu CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -111- na budhwar ko bulawanga, main mangal ko aadha kar lewange, budhwar nu aadha kar lewange aur bande tu apna budhwar bulawange sham nu."
136. Further, there were calls between B.L. Bajaj and Ratan Pal Singh /A-7 wherein also discussions about payment of illegal gratification were done in code words like "roses" or the words are being said very cautiously which clearly highlight that they were aware that they are doing an illegal act. Further both of them in their conversations are also referring G.S. Bhatia and J.S. Bhatia, thus establishing a nexus between all three of them with B.L. Bajaj in his illegal activity of illegal gratification. The relevant extract of the conversations are as follows:-
Call No. 32 dt. 7.2.2011 Ex.PW8/X-15 "RPS (Rattan Pal Singh) - accha, sir bas we are arranging for you sir, je bhi honda main tenu call karna aaj ke aaj.
B.L. Bajaj - aaj ho jaayega na.
RPS - haan haan sir kal actually mein personal work siga te main chutti te seega, te main aaj, aaj jimai hi honda main tenu call karda, theek hai sir. B.L. Bajaj - haan haan, aaj pura hon di gal ho gai hain yaar.
RPS - theek hai Sir, theek, theek hai menu wo ho. B.L. Bajaj - t... entire lot hai na.
RPS - right sir, right, right, thanks."
Call No. 56 dt. 23.2.2011 Ex.PW9/X-23, CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -112- "RPS - Sir.
B.L. Bajaj - ki hai Rattan Pal.
RPS - Sir ho gaya Sir one three roses ready. B.L. Bajaj - one three.
RPS - Haan ji Sir one three.
B.L. Bajaj - nahi one point three ya one three. RPS - nahi nahi one three, thirteen nahi nahi galat hain kinee matlab.
B.L. Bajaj - chaali chaali.
RPS - haan chaali balance hai to hune terah hain yeh. B.L. Bajaj - Yeh wa sa kyu yeh sab karna hain aaj terah na na na i don't like it chaali gal karo thats all, not thirty nine not forty one.
RPS - Nahi Sir mainu to innei arrange kare hain baaki sir ne.
B.L. Bajaj - theen hain rain de na phir hain nu nahi kya tell your chairman .......... jab tak chaali nahi honda don't call me at all, ok.
RPS - yes sir, theek hai sir main te itna. B.L. Bajaj - wh... wh.. now I find that the even the chairman words are not being honoured. RPS - right sir tussi ekdum theek ho but mainu sir ji message sir ji message sir, jo menu te arrange hoya main enu dasya baaki.
B.L. Bajaj - nahi yesterday Jasvinder met me. RPS - haanji, haanji.
B.L. Bajaj - he told me tomorrow, hundred percent entire.
RPS - haanji, haanji, haanji.
B.L. Bajaj - then you are giving me a different things kya tereh I am sorry, I am not coming to you people unless and forty is there, then let me see ki whether I will come or not that also I'll, I will have to decide now. RPS - right theek hai Sir.
B.L. Bajaj - your words are not honoured, Its not my CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -113- suno Rattan Pal I am working for some one else, Its not mine.
RPS - ok sir I agree but mannu bhi sir jo message hai Jaswinder Sir da I am doing the same mannu, theek hain unhone main message de denda todda. B.L. Bajaj - ki kaya si, tere waaste kya si unne. RPS - hainji B.L. Bajaj - tera waaste kaya si.
RPS - arrange waaste kya si pura lekin arrange terah hoya si sir unne.
B.L. Bajaj - nahi nahi nahi message de dena. RPS - kar lenge.
B.L. Bajaj - Jaswinder da message terah de hai ke chaali da haiga."
137. Thus, these conversations prove that Rattan Pal Singh / A-7 and Jaswinder Singh Bhatia / A-6 knew about the payment of illegal gratification to B.L. Bajaj who told them that he was working for "top-man" which means that they were also aware that illegal gratification is for A.K. Srivastava and B.L. Bajaj both.
138. Thus, all the essential ingredients of Section 7 and Section 13 (1)
(d) P.C. Act, 1988 stand duly proved beyond reasonable doubt through the testimony of witnesses, intercepted conversations as well as other supporting corroboratory evidence as disclosed above. The chain of circumstantial evidence is so closely associated with demand and acceptance of illegal gratification by A-1 through A-2 from A-5, A-6 and A-7 that no other inference other than the guilt of accused persons can be drawn from it. These CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -114- circumstantial corroboratory evidence are so tightly linked with each other like beeds of a chain that they are incompatible with the presumption of innocence of any one accused as well even if taken individually. There is no doubt in my mind on the basis of above discussed evidence that A-1 Abhay Kumar Srivastava (A.K. Srivastava) has committed offences U/s 7 and Section 13 (1) (d) r/w Section 13 (2) Prevention of Corruption Act, 1988.
139. The entire conversation between A-1, A-2, A-5, A-6 and A-7 show that they were acting in conspiracy with each other with the common objective of passing on the illegal gratification to A-2 for A-1. There is a common thread running between their conversation which clearly shows an agreement amongst all of them to commit an illegal act. In 'Kehar Singh & Ors. Vs State (Delhi Administration) (1988) 3 SCC 609' it is held that conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely upon evidence of acts of various parties to infer that they were done in reference to their common intention.
140. Further, in 'State of Himachal Pradesh Vs Krishan Lal AIR 1987 SCC 773' it has been held that 'if pursuant to criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actually participated in the commission of the offence'.
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141. In the present case, A-1, A-2, A-5, A-6 and A-7 have entered into criminal conspiracy and A-5, A-6 and A-7 conspired together as well as with A-2 to pass on the illegal gratification to A-1. A-1, on the other hand, entered into criminal conspiracy with A-2 to ensure payment of illegal gratification by A-5, A-6 and A-7 to him and was regularly taking updates from A-2 regarding the success of the said job.
142. A-2 B.L. Bajaj acting as a conduit for A-1 A.K. Srivastava was regularly having conversations and tie ups with G.S. Bhatia, J.S. Bhatia and Ratan Pal Singh regarding payment of illegal gratification and thus B.L. Bajaj was actively aiding A-1 to get illegal gratification from the bidders of tender. Moreover, G.S. Bhatia of M/s Bhatia International Ltd agreed to deliver illegal gratification to A-2 for A-1 at the rate of Rs. 150 per MT and even paid 50% of the said gratification. Jaswinder Singh Bhatia and Ratan Pal Singh acting as two hands of G.S. Bhatia helped him in passing of this illegal gratification to B.L. Bajaj for A.K. Srivastava and thus A-2, A-5, A-6 and A-7 were aiding A-1 in securing illegal gratification.
143. Section 12 of Prevention of Corruption Act, 1988 provides as under :
12. Punishment for abetment of offences defined in section 7 or 11.--Whoever abets any offence punishable under section 7 or section 11 whether or CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -116- not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
144. Since, 'abetment' has not been defined Under P.C. Act, we may refer to its exhaustive definition in Section 107 of Indian Penal Code. As per that Section, a person abets the doing of a thing when he does one of the acts mentioned herein :
1) instigates any person to do that thing, or
2) engages with one or more person or persons in any conspiracy for the doing of that thing, or
3) intentionally aids by any act or illegal omission the doing of that thing.
145. Further, explanation to Section 107 IPC reads as under :
"Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act and thereby facilitates the commission thereof, is said to aid the doing of that thing."
146. Here, A-2, A-5, A-6 and A-7 not only conspired but also were facilitating A-1 by aiding him in order to receive remuneration / illegal gratification for the ongoing tender process and the said remuneration was in fact received by A-1 through A-2. Thus, A-2, A-5, A-6 and A-7 are also guilty of offences U/s 12 Prevention of Corruption Act, 1988.
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147. CBI has also alleged that the remuneration / illegal gratification received from G.S. Bhatia of M/s Bhatia International Ltd. was got converted into three gold bars of 1 kg each by A-1 A.K. Srivastava through B.L. Bajaj (A-2) from Sh. Vinod of Tirupati Jewellers and that the wives of A-1 and A-3 i.e A-2 Chandni Srivastava and A-4 Anita Bajaj had gone to Bank of Maharashtra, UPSC Branch to deposit these gold bars in locker no. 127. It is at this stage when CBI got a tip from an informer, pursuant to which FIR was registered and a trap team was constituted comprising of CBI officers including two female officers and independent witnesses. On 25.02.2011, CBI team reached Bank of Maharashtra, UPSC Branch at around 10:15 a.m and stood outside where they observed that A-2 and A-4 reached the bank together and thereafter Chandni Srivastava operated the locker. When these two ladies came outside the bank they were apprehended and were taken inside the bank again by CBI officers where the locker was again got operated by them. The articles which were recovered from locker no. 127 were got valued through an independent valuer and thereafter accused persons were arrested. It was also revealed during investigation that Chandni Srivastava impersonated herself as Anita Bajaj while opening a saving bank account and locker at Bank of Maharashtra, UPSC Branch through forged PAN card and Voter ID card and thereafter kept operating the said locker in the name of Anita Bajaj.
148. Consequently, charges U/s 419/466/471/474 IPC as well as CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -118- Section 120B r/w Section 419/466/471/474 IPC were framed against Chandni Srivastava. Accused A.K. Srivastava was charged with offence U/s 471 IPC r/w Section 34 IPC and Section 120B r/w Section 419/466/471/474 IPC. B.L. Bajaj and Anita Bajaj were charged with offences U/s Section 120B r/w Section 419/466/471/474 IPC.
149. Section 419 IPC provides as under :
"419. Punishment for cheating by personation.--Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Cheating by personation has been defined U/s 416 IPC which provides that :
"416. Cheating by personation.--A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. Explanation.--The offence is committed whether the individual personated is a real or imaginary person. Illustration :
(a) A cheats by pretending to be a certain rich banker of the same name. A cheats by personation.
(b) A cheats by pretending to be B, a person who is deceased. A cheats by personation."
150. Thus, the essential ingredients of cheating by personation are CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -119-
1) Whoever cheats
2) By pretending to be some other person, or
3) Knowing substituting one person for another, or
4) Representing that he or any other person is a person other than he or such other person really is.
151. In 'Aparajita Nath Vs State of Assam', 2006 SCC OnLine GAU 160, it has been held that :
"5. The question that needs to be determined is whether mere pretension tobe some other person is in itself sufficient to constitute an offence of cheating. From the provisions of Section 416 IPC as quoted above, we find that pretending to be some other person is one part of the offence but the other part is that one must cheat somebody by pretending to be some other person."
152. The ingredients required to constitute the offence of cheating for an offence U/s 416 IPC are :
a) there should be fraudulent or dishonest inducement of a person by deceiving him
b) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property, or
c) the person so deceived should be intentionally induced to do or not to do anything which he could not do until he was not so deceived.
d) damage or harm to the person in mind, body or property.
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153. Section 466 IPC provides as under :
"Forgery of record of Court or of public register, etc. Whoever forges a document or an electronic record, purporting to be a record or proceeding of or in a Court of Justice, or a register of birth, baptism, marriage or burial, or a register kept by a public servant as such, or a certificate or document purporting to be made by a public servant in his official capacity, or an authority to institute or defend a suit, or to take any proceedings therein, or to confess judgment, or a power of attorney, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
154. Section 471 IPC provides as under :
Using as genuine a forged (document or electronic record) "Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]."
155. Essential ingredients of Section 471 IPC are as under :
1) Fraudulent or dishonest use of a document as genuine
2) The person using it must have knowledge or reason to believe that the document is a forged one.
156. Section 474 IPC provides as under :
"Having possession of document described in Section 466 CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -121- or 467, knowing it to be forged and intending to use it as genuine - [Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as genuine, shall, if the document or electronic record is one of the description mentioned in section 466 of this Code], be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; and if the document is one of the description mentioned in section 467, shall be punished with [imprisonment for life], or with imprisonment of either description, for a term which may extend to seven years, and shall also be liable to fine."
157. In the present case, testimony of PW-1 Ms. Rita Gupta is relevant to prove not only the offence of cheating by impersonation and forgery by Chandni Srivastava but also to prove meeting of mind between A- 1 A.K. Srivastava and A-3 Chandni Srivastava to get a locker opened at Bank of Maharashtra, UPSC Branch in the name of Anita Bajaj by using forged PAN card and Voter ID card.
158. Ms. Rita Gupta, who was posted as Deputy Manager at Bank of Maharashtra, UPSC Branch deposed that on 21.06.2010 Branch Manager Sh. C.K. Verma had introduced her to a gentleman and a lady as a Chairman of NALCO from whom deposits were received in bank and instructed her to open a saving bank account and locker in the name of the lady accompanying him. At this instruction, saving bank account bearing no. 60045917165 and a CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -122- locker bearing no. 127 was opened after the lady accompanying CMD NALCO furnished her voter ID card and PAN card along-with their photocopies. This witness identified the account opening form bearing photograph of Chandni Srivastava but name and signature of Anita Bajaj as well as the KYC document form as Ex.PW-1/A (colly). PW-1 candidly stated in the court that it was the lady whose photograph is affixed on the account opening form (i.e Chandni Srivastava) who had signed the said form as Anita Bajaj.
159. Similarly, PW-1 also proved the application for hiring safe deposit locker no. 127 in the name of Anita Bajaj, cumulative deposit receipt (CDR) No. 60045924581 for Rs. 10,000/- and a locker agreement as Ex.PW- 1/B (colly). Here also, PW-1 stated that Chandni Srivastava had signed the said form in the name of Anita Bajaj. PW-1 further deposed that the locker was operated by Chandni Srivastava in the name of Anita Bajaj on 21.06.2010.
160. In fact, PW-1 distinctly identified Chandni Srivastava in the court as the lady who had visited Bank of Maharashtra, UPSC Branch on 21.06.2010 and got opened a saving bank account and locker in the name of Anita Bajaj. She also identified A.K. Srivastava in the court as a person who had accompanied Chandni Srivastava on 21.06.2010 for opening the said CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -123- account and locker. The identification of A-1 and A-2 in court is challenged by Ld. Defence Counsel stating that PW-1 was made to identify A-1 earlier by CBI and even otherwise CBI should have got conducted TIP of A-1 and A-3 in the absence of which identification in court is not relevant. In 'Sidharth Vasishth @ Manu Sharma Vs State (NCT of Delhi)' (2010) 6 SCC 1 it has been held that substantive evidence is the evidence of identification in court. The identification parades belong to the stage of investigation and there is no provision in the code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. Thus, identification of A-1 and A-3 in court by PW-1 is a substantive piece of evidence against them.
161. Ld. Defence Counsels have further tried to challenge the testimony of this witness by stating that she did not follow banking guidelines and procedures while getting the account and locker opened as neither the account opening form was completely got filled in by her nor did she verify the authenticity of the ID cards furnished by Chandni Srivastava. She also did not verify the signatures of Chandni Srivastava from the specimen signature card when she signed in the locker call register for operating the locker. It cannot be ignored that PW-1 Ms. Rita Gupta was CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -124- introduced to Chandni Srivastava by her Branch Manager as a lady accompanying Chairman of NALCO ("a big man") and therefore she had no reason to doubt the veracity of Chandni Srivastava or even that of A.K. Srivastava. In fact, there was every reason for her to believe them. Testimony of PW-1 is further corroborated by PW-30 Sh. D.R. Handa, who had prepared the CFSL report dated 11.03.2011 Ex.PW-30/A as an handwriting expert. PW-30 examined the questioned documents i.e the account opening form, KYC documents, locker agreement, CDR etc. along- with the specimen handwriting and signature of Chandni Srivastava (S-1 to S-18) and Anita Bajaj (S-19 to S-36) and opined that the questioned documents Q-2 to Q-5, Q-7, Q-8, Q-10, Q-12, Q-15, Q-19, Q-21 to Q-28, Q-30 to Q-32 matches with the specimen writing and signatures marked as S-1 to S-18 of Chandni Srivastava. He further opined that Q-33 i.e the second entry in the locker call register of 25.02.2011 matches with the specimen signatures and writing marked S-9 to S-36 of Anita Bajaj.
162. Defence has challenged the authenticity of this report as well by stating that the admitted signatures of Chandni Srivastava and Anita Bajaj were not taken by the IO and the sample handwriting and signatures can easily be modified / manipulated by the accused persons. In order to establish this, defence elaborately cross examined PW-30 Sh. D.R. Handa on each and every writing formation but PW-30 stood the test of exhaustive cross-examination and deposed that the deviations pointed out by defence CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -125- were natural variations in the writing of any person. Moreover, prosecution also examined PW-5 Sh. Satya Narain Prajapati, who proved the specimen handwriting of Chandni Srivastava and Anita Bajaj as Ex.PW-4/1 (colly) and Ex.PW-4/2 (colly) respectively stating that the same were taken in his presence. Moreover, as per the testimony of Sh. D.R. Handa (PW-30), he has an experience of 40 years wherein he has examined more than 4 lakh exhibits in above 4000 cases. Thus, being an expert he would have furnished his report on some material basis and thus his testimony cannot be outrightly rejected merely on the ground that the admitted signatures of the accused persons were not procured by the IO.
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163. The expert report Ex.PW-30/A is further corroborated by the testimony of PW-2 Sh. Manmohan Katnaur, who was also working as Deputy Branch Manager in Bank of Maharashtra, UPSC Branch in 2010-2011. This witness deposed that on 25.02.2011 (i.e the day on which trap proceedings were conducted) he was on duty and was also looking after the locker operation as the concerned officer was on leave. At around 10:30 - 10:45 a.m, one lady approached him for operating locker no. 127 and was accompanied with another lady. PW-2 also pointed out in the court towards Chandni Srivastava as the lady who had operated locker no. 127 on 25.02.2011 in the name of Anita Bajaj. He further identified Anita Bajaj correctly in the court as the lady who had accompanied Chandni Srivastava in the bank. As per the testimony of this witness, the locker bearing no. 127 was operated by Chandni Srivastava on 25.02.2011 after making an entry in the locker call register as Anita Bajaj and after these ladies were apprehended by CBI, they were again made to operate the locker but this time actual Anita Bajaj made an entry in the locker call register for operating locker no. 127. However, the keys of the said locker were produced by Chandni Srivastava from her purse when the ladies were asked to again operate the locker after being apprehended by CBI. This witness also identified entry made at Q-32 of locker call register Ex.PW-1/C at around 10:55 a.m to have been made by actual Chandni Srivastava and the entry made at Q-33 at around 11:15 a.m to have been made by Anita Bajaj. Both these entries has his initials in the locker call register and therefore being an eye witness his testimony becomes CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -127- a substantive piece of evidence specially when it is corroborated by testimony of other witnesses and expert opinion. He also identified the articles recovered from the said locker as per Locker Operation Memo Ex.PW-2/A to be four gold bars of 1 kg each make Credit Suisse, three gold bars weighing 1 kg each make PAMP Suisse, 2 gold bars weighing 1 kg each UBS make, 1 gold bar weighing 1 kg of ARGOR-HERAEUS make, 8 gold bangles, 4 gold coins, 1 mini gold biscuit, cash amounting to Rs. 4.5 lakhs wrapped in newspaper dated 20.01.2011 and cash amounting to Rs. 5 lakhs wrapped in newspaper dated 10.09.2010. The value of articles recovered from locker no. 127 were got valued by the IO through a government registered valuer Mr. Om Prakash Malhotra, who submitted his report Ex.PW-3/A. Even as per the Search-cum-Seizure memo of Chandni Srivastava Ex.PW-3/B, the locker key bearing no. 120 of locker no. 127, Bank of Maharashtra was recovered from the purse of Chandni Srivastava along-with the photocopy of ID proof i.e election ID card bearing her photograph but name of Anita Bajaj on it. The defence has disputed the admissibility of seizure memo Ex.PW-3/B stating that the alleged articles were in fact not received from the purse of Chandni Srivastava. However, as per Search-cum-Seizure memo Ex.PW-3/B, search of purse of Chandni Srivastava was conducted in the presence of independent witnesses i.e Sh. K. Ramesh and Sh. Jangvir Singh, which is in fact corroborated by their testimonies as well in the court. Further, seizure memo Ex.PW-3/B is signed by both these witnesses and also by Sh. R.S. Solanki (PW-37), Sh. Satender Singh (PW-38), Sh. Ram Singh (PW-39) as CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -128- well as lady Head Constable T.S. Niva Anal. There is no material discrepancy in the said seizure memo and therefore there is no reason before me to doubt this document.
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164. The testimony of this witness is further corroborated by the testimony of independent witnesses i.e PW-3 Sh. Jangvir Singh and PW-4 Sh. K. Ramesh, both working at Pavan Hans Helicopters. Both these witnesses deposed in sync with PW-2. Being a part of the trap team, they had witnessed the entire trap proceedings that had taken place on 25.02.2011. PW-3 stated that Chandni Srivastava herself admitted that she had operated the locker bearing no. 127 on 25.02.2011 in the name of Anita Bajaj and in his presence PW-2 pointed out towards Chandni Srivastava in the bank before the Branch Manager and CBI officers as the lady who had operated the locker that day. As per PW-3 as well, the keys of the locker were recovered from the purse of Chandni Srivastava along-with the photocopy of the voter ID card Ex.PW-3/C having her photograph and name of Anita Bajaj on it. PW-4 identified Chandni Srivastava and Anita Bajaj in the CCTV footage which was collected from Bank of Maharashtra by the IO. He also deposed that the locker keys were recovered from the purse of Chandni Srivastava along-with photocopy of voter ID card Ex.PW-3/C. Thus, the testimony of PW-1 along-with the testimony of PW-2 to PW-4 as well as the handwriting expert report Ex.PW-30/A corroborate each other and go on to prove that Chandni Srivastava had impersonated herself as Anita Bajaj for opening saving bank account bearing no. 60045917165 as well as locker bearing no. 127 at Bank of Maharashtra, UPSC Branch as well as for operating the said locker and for that purpose she had forged and used forged PAN card and voter ID card as genuine, thus causing loss to the public exchequer and gain CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -130- to herself and her husband A.K. Srivastava. Defence examined DW-1 Sh. R.S. Chauhan from Pawan Hans Helicopters Ltd., who brought with him RTI record dated 18.07.2014 pertaining to duty record of K. Ramesh of Pawan Hans Helicopters Ltd on 25.02.2011, Ex.DW-1/A (colly). As per the said RTI record, K. Ramesh has punched in and out of the office on 25.02.2011 whereas as per the prosecution he was at Bank of Maharashtra, UPSC Branch with the trap team that day. Explaining the same, PW-4 stated in his evidence that somebody might have punched in the office on his behalf that day as he was on duty only being at CBI office at the instructions of his seniors. Thus, merely because there is punch in and out entry in the attendance register of K. Ramesh does not dispute his presence during trap proceedings as his presence is proved by testimony of other witnesses who were also the members of the trap team.
165. The other trap team members i.e Smt. Sunita Chamoli (PW-34), PW-37 Sh. Rajesh Solani, PW-38 Sh. Satender Singh and PW-39 IO Sh. Ram Singh also deposed in tandem with the independent witnesses i.e PW-3 and PW-4 and from the testimony of all these witnesses it was duly proved that a trap team was infact constituted on 25.02.2011 on receipt of a source information who had visited Bank of Maharashtra, UPSC Branch and had apprehended Chandni Srivastava and Anita Bajaj red handed while they were coming out of the bank after operating locker no. 127. PW-39 IO Sh. Ram Singh stated that by letter dated 03.03.2011 he had sent the handwriting of CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -131- Chandni Srivastava and Anita Bajaj to CFSL for examination with the questioned documents.
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166. No explanation has been advanced by the defence as to why the photograph of Chandni Srivastava was affixed in the photocopy of voter ID card and PAN card which were in fact in the name of Anita Bajaj. PW-39 had in fact sent a requisition dated 03.03.2011 Ex.PW-36/E to DIT (S-III) Directorate of Income Tax, New Delhi for obtaining the details of PAN card bearing no. AECPB2918L (copy of which was furnished by Chandni Srivastava for opening of the bank account and locker). In response, it was reported that the PAN card bearing no. AECPB2918L is in the name of Anita Bajaj, daughter of Sh. Narender Lal Puri. There is no explanation given by defence as to how on the PAN card bearing no. AECPB2918L, photocopy of which was seized from bank records, photograph of Chandni Srivastava came into being when in fact the said PAN card was issued to Anita Bajaj by the income tax department. Further, no clarification has been furnished as to why this forged document having photograph of Chandni Srivastava and name of Anita Bajaj was furnished by Chandni Srivastava to the bank for opening her locker knowing very well that this PAN card does not belong to her. Had Chandni Srivastava been innocent she would have raised an objection to a document having her photograph but name of Anita Bajaj then and there instead of the fact that a similar document i.e photocopy of voter ID card was recovered from her purse as per personal search cum seizure memo Ex.PW-3/B. Moreover, Chandni Srivastava in fact used the forged document i.e the photocopy of the voter ID card, knowing very well that the said document is infact forged for operating locker no. 127 at Bank of CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -133- Maharashtra, UPSC Branch on 25.02.2011. All the trap team members have proved the search cum seizure memo Ex.PW-3/B to establish that the locker keys as well as the photocopy of the forged voter ID card was recovered from the purse of Chandni Srivastava on 25.02.2011. The defence of Chandni Srivastava that she was not aware about opening of any such account by Anita Bajaj using the photograph of Chandni Srivastava is baseless as there is no reason why Anita Bajaj would open a locker in her own name but bearing the photograph of Chandni Srivastava as in that case the bank personnel would have clearly identified the said document to be forged and would have never allowed Anita Bajaj to operate the said locker as there was photograph of Chandni Srivastava on the account opening form as well as on the photocopy of the ID cards. If Chandni Srivastava would have been unaware about any such account or locker or the use of her photograph on any forged ID card, she would not have been present at Bank of Maharashtra, UPSC Branch on 25.02.2011 with Anita Bajaj when she was apprehended by CBI.
167. Defence has further pointed out towards various discrepancies in the statement of witnesses and contradicted them with their statements U/s 161 Cr.P.C, however, in 'Mrityunjoy Biswas Vs Pranab (2013) 12 SCC 796' as well as in 'Subodh Nath Vs State of Tripura (2013) 4 SCC 122' it has been held that :
"Minor discrepancies on trival matters not touching the core of the case, hyper technical approach by CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -134- taking sentences torn out of context here or there from the evidence, attaching importance to more technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole."
(emphasis supplied)
168. Further, in 'State of UP Vs Krishan Master (2010) 12 SCC 324' it has been held that :
"While appreciating the evidence of a witness, the approach must be whether the evidence of a witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of believe. Minor discrepancies on trival matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to more technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole."
169. In the present case as well, all the witnesses have deposed in sync with each other regarding the material aspects and minor discrepancies CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -135- here and there due to confusion created in their mind during lengthy cross examinations, which are not touching the core of the case do not go on to discredit their worthiness regarding their testimony. Further, certain technical errors committed by the Investigating Officer also do not create a dent in the case of the prosecution specially when the entire chain of evidence pointing out towards the guilt of the accused is duly established by corroboration of testimonies of various witnesses and expert reports. Further, it cannot be lost sight of the fact that statement of witnesses U/s 161 Cr.P.C were recorded in the year 2011 whereas they have deposed before this court after nearly a decade of getting their said statements recorded and therefore discrepancies are bound to happen between that statement which was recorded in 2011 itself when the incident was fresh in the mind of witnesses and the statement which they gave before the court after the expiry of more than ten years of the date of incident. Both these statements cannot be verbatim of each other. Further, the statements of the witnesses recorded by Enforcement Directorate was for the purse of a completely different case which has different ingredients to be proved and therefore their testimony in this case cannot be compared with their testimony or case before the Enforcement Directorate.
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170. Defence has also challenged the presence of A-1 A.K. Srivastava at Bank of Maharashtra, UPSC Branch on 21.06.2010 i.e on the date when the saving bank account and locker was got opened by Chandni Srivastava in the name of Anita Bajaj by stating that PW-20 Sh. C.K. Verma, Branch Manager of Bank of Maharashtra, UPSC Branch in 2010 has deposed that he knew Sh. Bajaj since 2005 and that 2-3 females had gone to UPSC Branch of Bank of Maharashtra in around 2010 stating that they were from the family of B.L. Bajaj and wanted to open a saving bank account in their name. These ladies were introduced to be from the family of B.L. Bajaj by the driver who had accompanied them and they were forwarded to Ms. Rita Gupta by Sh. C.K. Verma. On the basis of this statement of Sh. C.K. Verma and the fact that Sh. C.K. Verma had handed over two blank saving account opening forms to those ladies, the defence contends that in fact lady from the family of B.L. Bajaj i.e Anita Bajaj had visited Bank of Maharashtra, UPSC Branch on 21.06.2010 for getting her account opened. However, even if the testimony of this witness is believed then also a mere fact that C.K. Verma knew B.L. Bajaj before hand or that he had introduced bank staff to Sh. Bajaj and had handed over blank forms to him does not mean that on 21.06.2010 Mr. Bajaj or Anita Bajaj had visited the bank or had got their saving bank account or locker opened that day itself. C.K. Verma has not testified regarding the date on which B.L. Bajaj or his family members had visited the bank or had got their account opened meaning thereby that they could have another account in the same bank or they might just have taken documents i.e CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -137- blank forms from the bank without infact opening any account therein. There is no reason to doubt the testimony of PW-1 Ms. Rita Gupta who has no personal interest in implicating Chandni Srivastava or A.K. Srivastava in this case and whose testimony is duly corroborated by the circumstantial evidence brought on record and testimonies of other material witnesses as well.
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171. A general practice is followed in banks that whenever an account is opened through reference of a well known person, the bank does not insist upon filling of the entire account opening form by that person and just takes the signature of the customer / client at the requisite places, fills in the requisite details and takes the photographs and soft copy of ID cards to get the account opened. In this case as well, perusal of Ex.PW-2/A (colly) i.e the saving bank account opening form clearly shows that photograph of Chandni Srivastava was taken and the requisite details were filled along-with the signatures of Chandni Srivastava at requisite places who signed as 'A.Bajaj' on all those places impersonating herself as Anita Bajaj. She also furnished photocopy of PAN card bearing no. AECPB2918L having her photograph and name of Anita Bajaj as well as signatures of 'A.Bajaj' and voter ID card having her photograph and name of Anita Bajaj along-with the said account opening form. Customer Information Form was also filled and signed by her in the name of Anita Bajaj. Further, to open a locker she signed as 'A.Bajaj' on the agreement of letting of locker and furnished a locker security of Rs. 10,000/- in the name of Anita Bajaj. Further, perusal of entries dated 25.02.2011 in locker call register shows that the said account was operated twice in the name of Anita Bajaj that day wherein the name of Anita Bajaj is written in the first entry as Q-32 and in the second entry as Q-33. These entries were sent to CFSL and on examination it was found by the handwriting expert PW-30 that entry no. Q-32 was infact in the handwriting of Chandni Srivastava whereas the second entry i.e Q-33 was infact in the CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -139- handwriting of Anita Bajaj. This finding was corroborated by the testimonies of PW-2 who is an eye witness and PW-3, PW-4 as well as PW-34, PW-37, PW-38 and PW-39.
172. The defence has also challenged the authenticity of the locker call register by stating that certain entries on the said register have been made on those dates which were falling on a Sunday which is unbelievable as the bank is closed on Sunday and that there are gaps in between certain entries or that there are no initials of the bank officer across various entries made in the locker call register, making the register inadmissible in evidence. However, as a common practice it is well known that the entries in the locker call registers are made by the bank clients who have locker in the bank and there is every possibility that in a hurry they might write a wrong date / time or some times leave a gap between the previous entry and their entry. It is further noticed that when the officer Incharge of the locker is not present on the seat no initials are made across those entries and a representative of that bank officer generally takes the common keys in the locker room to open the locker without making any initials across those entries in the locker call register.
173. Defence has also confronted the prosecution witness PW-1 with the term deposit account opening form Ex.PW-1/DC as well as slip Ex.PW-
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -140- 1/DE by which Rs. 10,000/- were withdrawn from the bank account by Anita Bajaj and deposit receipt of Rs. 30,000/- Ex.PW-1/DB in the name of Anita Bajaj. It is submitted by Ld. Defence Counsel that the said deposit receipt Ex.PW-1/DB bears the signatures of B.L. Bajaj as the depositor of that amount which were not got examined by CBI deliberately to falsely implicate A-1. Even if the version of defence is accepted, there is every possibility that B.L. Bajaj would have deposited Rs. 30,000/- in the said account on 21.06.2010 after the same was got opened by A-1 and A-3. Further, a missing photograph or name and signatures of Anita Bajaj on term deposit account opening form Ex.PW-1/DC does not mean that the saving bank account was also got opened by Anita Bajaj only as in that case the bank would not have allowed Anita Bajaj to furnish her ID proof with photograph of Chandni Srivastava on it. Presence of Chandni Srivastava at the time of opening of account cannot be ruled out as the ID proofs which were furnished for the purpose of opening the said account had photograph of Chandni Srivastava on them and had Anita Bajaj visited the bank for opening the said account and would have furnished the said ID proofs, the forgery would have been detected then and there.
174. Ld. Defence Counsels have further disputed the Locker Operation cum Seizure Memo Ex.PW-2/A on the ground that signatures of various witnesses on that memo and on the Locker Operation cum Seizure Memo which was filed with the disproportionate assets case against A-1, are CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -141- at different places though the nomenclature of memo remains the same. There is a dispute regarding the time of conclusion of the proceedings as well since on one memo the time is mentioned whereas on the other it is not so mentioned. It is an admitted position that there are several cases against accused persons. In all those cases Locker Operation cum Seizure memo was prepared and annexed and therefore several sets of this memo would have been prepared. Just because the signatures of the witnesses to this memo are at different places at different memos does not make this memo inadmissible and in fact it proves that in all the different cases the witnesses were made to sign the memo individually rather than getting the photocopy of the first memo signed by them prepared mechanically.
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175. From the above discussion, it is clearly made out that it was in fact Chandni Srivastava who had impersonated herself as Anita Bajaj on 21.06.2010 for opening the bank account and locker and she had forged the PAN card and voter ID card which were originally issued in the name of Anita Bajaj by putting her photograph on it and had used the said forged PAN card and voter ID card as genuine for the purpose of opening a bank account and locker at Bank of Maharashtra, UPSC Branch. In fact, she was found in possession of photocopy of forged voter ID card bearing her photograph with name of Anita Bajaj on it which was duly recovered from her purse when her personal search was conducted on 25.02.2011 as has been proved from the testimony of all the trap team members as well as independent witnesses and PW-2 as well.
176. Hence, all the essential ingredients of Section 419 IPC i.e
(a) fraudulent and dishonest inducement of bank officials by Chandni Srivastava by revealing her identity as Anita Bajaj to them for the purpose of opening a locker in the name of Anita Bajaj but with her photograph.
(b) Impersonation of Chandni Srivastava as Anita Bajaj in front of the bank officers
(c) Inducing the bank officers to deliver a locker and to open an account for her which they would have not done if they would have known that the person opening the locker is using forged ID card CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -143-
(d) causing loss to public exchequer and gain to herself and her husband stand duly proved.
177. Further, Chandni Srivastava had also forged the PAN card of Anita Bajaj by putting her photograph on it and thereafter used the said forged ID card for opening the saving bank account and locker at Bank of Maharashtra. She was also found in possession of photocopy of forged voter ID card which was recovered from the hand bag during personal search. The fact that these documents were used by Chandni Srivastava for opening and operating locker no. 127 clearly means that she only had personal interest in forging the said document. There is no other person who would have done this forgery to use it as genuine.
178. Causing loss to the public exchequer and gain to herself and her husband by Chandni Srivastava is further alleged by the prosecution. It is the case of the prosecution that the illegal gratification received from A-5 G.S. Bhatia of Bhatia Coal Ltd. was used by A.K. Srivastava to purchase gold bars through B.L. Bajaj which were deposited in locker no. 127 of Bank of Maharashtra, UPSC Branch. To prove this allegation, Ld. PP for CBI has relied upon duly proved intercepted calls bearing no. 23, 43, 50, 53, 59, 60, 62, 63, 64, 65, 67, 68 and 73 of Ex.PW-11/A (colly) (D-47).
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179. In Call no. 23 dated 10.02.2011, Ex.PW-9/X-10 B.L. Bajaj inquired about the rate of gold from Mr. Vinod of Tirupati Jewellers as on that day and also told him that he needed 'three' till Monday Tuesday. He clearly asked Vinod that if the rate is near 20 then Vinod should purchase three for him. The relevant extracts of the conversation is as under :
B.L. Bajaj (BLB) : Nahi maen keh raha tha ki mujhe mangalwar, somvar, mangal ko teen chahiye Vinod (Vin) : Haa Ji BLB : Aur main man..... Budhwar ko na aapka purana hisab kitab sab khatam kar ke na Vin : Haa Ji BLB : Sab mein khatam kar dena chahta hu budhwar ko Vin : Ji BLB : Haa, aur jiske liye kuchh kaam karta hu uss bhi main kahunga ki mangal, budh ko samaan aana chahiye Vin : Achha accha BLB : Toh Vin : Sir dekho shayad tutega, agar kaho toh matlab maen tay kar deta hu, nahi toh haa aisa hain, aisa hain isliye abhi meri phone se baat ho gayi hain isiliye, BLB : Agar bees ke lagbhag rate aata hain toh teen ko sauda kar lijiyega, teen ka
180. This conversation not only proves that B.L. Bajaj wanted to purchase 'three' at suitable rate but also that he was working for and at the CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -145- instance of a third person which is further proved by this statement made by B.L. Bajaj i.e "BLB : Aap jaane hain meri aadat, maen toh darpok, maen socha ki sala agle se hundered percent jab tak baat sahi naa ho jaye, aur agla late kar de do chaar din baad toh phir maen kaha rahunga, isiliye maen aapko."
This conversation was duly proved by Vinod of Tirupati Jewellers as he identified his own voice and voice of B.L. Bajaj in this and the subsequent conversations.
181. Further, as per Call no. 43 dated 21.02.2011 Ex.PW-9/X1 B.J. Bajaj again inquired about the rate of gold from Mr. Vinod and told him that he would receive more money on Wednesday as has been told to him by somebody thus proving that he was receiving money in installments from somebody out of which he was ordering 'three'. The relevant extracts of the conversation are as follows :
"BLB : Budhwar ko aur aa jayega, agle se baat ho gaya hain, toh 40 lagbagh aur aa jayega, toh teen lena hain yaar.
Vin : Haa koi baat nahi, who maen ek do din, jis din bhav thoda theek hoga naa uss din mein khareed ke rakh lunga.
182. In Call no. 50 dated 22.02.2011, Ex.PW-9/X-20 B.L. Bajaj again CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -146- inquired about the rate of gold from Vinod and told him to get three the next day. The relevant extracts of the conversation are as follows :
Vin : Abhi thoda sa aane doh isko neeche phir le lena, jaldi mut karo nahin toh nuksan ho jayega. BLB : Nahin theek hain naa achha, kal aap teen lete aaiyega Vin : Achha le aaunga BLB : kal aapko phone kar denga gyarah baje, kal aapko hum phone kar denge gyarah baje Vin : Haa toh maen le hi aaunga bas aapne keh diya maen le hi aaunga BLB : Nahi nahi nahi nahi maen.... maen maen aapko naa jisko dena hain naa woh bhi toh yaha rehna chahiye naa dusra maen keh raha tha Vin : Ji BLB : ki kal naa ho sakta hain 40 humko aur aa jaaye Vin : Haan koi baat nahi woh toh BLB : toh 40 aa jayega toh hum de ke aapse kar lenga usko phir theek hain Vin : theek theek
183. Here also, B.L. Bajaj is referring to some other person to whom this 'three' has to be handed over to and also orders Vinod to purchase 'three' the next day. This conversation when read with Call no. 53 dated 22.02.2011 Ex.PW-9/X-21 between B.L. Bajaj and A.K. Srivastava clearly proves that the third person for whom the 'three' was being purchased was infact A.K. Srivastava and there was a future modus operandi which was being cooked between the two. The relevant extracts of the conversation are :
CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -147- "BLB : Woh dusra wala hain uska kaam kal ho jayega, kal meri mulakat ho gayi hain unse A.K. Srivastava (AKS) : O.K. fine BLB : Toh kal ho jayega AKS : Theek hain to parso ka wo BLB : parso ka leken mera yeh kehna tha daam bahut zyada abhi hain sab log suggest kar rahe hain thoda ruk jaane ko aapko.
AKS : Koi khas nahin hain aath so hain na BLB : Haan aath so paach hain aaj, aaj aath so paach hain AKS : Arey kaam khatam kijiye koi usmein BLB : Aa.. dekh lenge kal hain na AKS : nahin lekin toh madam ne yeh kaha BLB : Haa AKS :ke wo mere saath hi jayengi BLB : Achha AKS : theek hain toh Thursday ka hum log Thursday sham ko niklenge BLB : theek hain kal ho jayega toh AKS : Haa toh kal agar ho jaata toh Thursday ko hum log karke maen Thursday ko nikalna chahunga BLB : theek hain"
184. Here, B.L. Bajaj is also discussing about the rate of Rs. 805/- with A.K. Srivastava which on the same day in call no. 50 he was discussing with Vinod, meaning thereby, he is discussing the rate of gold with A.K. CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -148- Srivastava for which A.K. Srivastava tells him to finish off the work since he wanted to leave with his wife on Thursday. From this conversation, it is also evident that wife of A.K. Srivastava i.e Chandni Srivastava had a role to play in the entire modus operandi. Further, again in Call no. 59 dated 23.02.2011 Ex.PW-9/X-25 B.L. Bajaj informs A.K. Srivastava that he would receive 50% on 24.02.2011 to which A.K. Srivastava tells him to confirm so that he can tell 'madam accordingly'. The relevant extracts of the conversation are :
"AKS : Haa kal ka programme BLB : fifty fifty a... kal mulunga maen aapse, kitne baje, doh baje AKS : nahin doh baje ka agar programme pakka hain toh phir uss thang se maen madam to bol ke rakhunga na BLB : Haa toh kal doh baje maen aapko a.... usse pehle aapko maen khabar de dunga maen AKS : theek hain, OK fine BLB : uske pehle maen aap ko khabar de dunga AKS : OK khabar de denge aur doh baje ka phir hum programme aise hi tentative rakhte hain BLB : Hain Na AKS : Theek Hain BLB : kum se.... ka..... pehle wala hain wo toh jaa hi sakta hain AKS : nahin ba.... doh baar kyu karenge jab karna hain to ek hi BLB : Nahin nahin usmein koi pareshani nahin hain aisa kuchh nahin hain CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -149- AKS : Mujhe BLB : Hum dekh lenge yahi AKS : Dekh lijiyega agar ho.... ho jaaye..... ho jayega toh ek saath kar denga sab BLB : Haa theek hain"
185. Again in Call no. 60, Ex.PW-9/X-26 dated 24.02.2011 B.L. Bajaj confirms regarding 50% payment and A.K. Srivastava tells him that there is a change in the programme and that he would leave Delhi now on 25.02.2011 in the evening since he has a meeting in the morning. Hearing this, B.L. Bajaj assures him that he would get the work completed in the morning itself. Here, the relevant extracts of the conversation are as under :
"AKS : Haa BLB : Aaj shaam ho sakta hain, hum yeh keh rahe theh AKS : Haa nahin mera actually thoda sa programme change ho gaya hain BLB : Haa Boliye AKS : Kal mera gyarah baje ek meeting aa gayi hain BLB : where AKS : kal subah se shaam tak BLB : Kal shaam tak hain naa aat AKS : Haa BLB : Haa toh kal shaam tak aaram se kar AKS : Haa wo kar lenge kar lenge BLB : Haa toh kal shaam tak khatam kar dunga CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -150- AKS : kal shaam nahi kaa kaa kal shaam ko toh maen nikal jaunga BLB : Haa toh kal dopehar tak ho jayega AKS : Haa kal dopehar tak haa haa BLB: Achha suniye naa."
186. In Call no. 62 dated 24.02.2011, Ex.PW-9/X-28 Vinod tells B.L. Bajaj that he has received the items ordered by B.L. Bajaj. A minute reading of all these conversations would show that there were parallel conversations between B.L. Bajaj and Mr. Vinod of Tirupati Jewellers at one end and between B.L. Bajaj and A.K. Srivastava on the other regarding purchase of 'three' and for future modus operandi. Bajaj had instructed Vinod to purchase 'three' on 22.02.2011 and Vinod confirmed regarding the said purchase on 24.02.2011 in call no. 62 Ex.PW-9/X-28. In the meanwhile, regular information is passed on between B.L. Bajaj and A.K. Srivastava regarding receipt of remaining 50% and regarding completion of work for which rate of gold was being discussed and also for making a programme with wife of A.K. Srivastava i.e Chandni Srivastava for which A.K. Srivastava kept updating B.L. Bajaj regarding his changed itinerary.
187. In Call no. 63, dated 24.02.2011 Ex.PW-9/X-29, call no. 65 dated 24.02.2011 Ex.PW-9/X-31 and call no. 68 dated 24.02.2011 Ex.PW- 9/X-33, B.L. Bajaj is having conversation with his wife Anita Bajaj on phone wherein he tells Anita Bajaj to collect 'three pieces' from Vinod of Tirupati CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -151- Jewellers. He also tells her that she would have to visit bank with 'her' i.e to Bank of India. After discussion with Vinod, B.L. Bajaj further told Anita Bajaj to go to the shop of Tirupati Jewellers to collect three pieces and also informed her to keep herself free on 25.02.2011 at around 10 a.m as she would have to visit Bank of India, Mayur Vihar with 'her'. In call no. 68, Anita Bajaj confirmed B.L. Bajaj that her work at Tirupati Jewellers is complete.
188. On 25.02.2011, in Call no. 73 Ex.PW-9/X-35 made at early morning hours between A.K. Srivastava and B.L. Bajaj, B.L. Bajaj informed A.K. Srivastava that he had received three and asked him whether he should send his wife around 10 a.m to the wife of A.K. Srivastava for completing the work. A.K. Srivastava agreed to the same. The relevant extracts of this conversation wherein final conversation is done between B.L. Bajaj and A.K. Srivastava for executing the modus operandi is as follows :
"BLB : Toh jo teen hain wo aa gaya hain AKS : haa BLB : toh wife to maen bhej du main 10 baje aap ki wife ke paas maen AKS : haa BLB : toh bhabhi ji ko leke ye jhaa... chhota ka kaam tha, usse kar dete aaj AKS : Haa wo toh theek hain BLB : Hain naa CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -152- AKS : theek hain BLB : toh maen usko bhej dunga AKS : 11 baje BLB : 10 baje bhej du kya hain ki mujhe aaj 12 baje ke aas paas, kisi ka death hua hamari family mein AKS : Haa haa BLB : toh humko wo... wo.. . wo.. lodhi wale crimation ground mein jhana hain AKS : theek BLB : 12 baje AKS : theek hain BLB : toh hum soch rahe theh ki 10 baje wife nikalti saath mein AKS : theek hain BLB : jaa ke naa, kaam kar kara ke wapas aa jaate AKS : theek hain BLB : aur baake wala aaj jaise hi ho jayega phir aapko batayenge, phir aap ek do din mein usko bhe karwa lenge phine rakh lenge hum, jaisa aap bataiyega kar lenge phir usko bhi.
189. After finalization of the programme, there are two calls between B.L. Bajaj and his wife Anita Bajaj wherein Anita Bajaj tells her husband that she is with 'bhabhi' near India Gate to which B.L. Bajaj inquires whether in Bank of Maharashtra as well her presence is required and she confirms the said question in Call no. 74 Ex.PW-9/X-36 dated 25.02.2011. B.L. Bajaj again asked Anita Bajaj about her whereabouts in a subsequent call Ex.PW- CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -153- 9/X-37 dated 25.02.2011 when she was on her way to Bank of Maharashtra with 'her'. The words 'her' and 'bhabhi' refers to none other than Chandni Srivastava as in any other situation there would have been no conversation regarding these words with A.K. Srivastava.
190. The above referred conversations show a clear meeting of mind and nexus between A.K. Srivastava, B.L. Bajaj, Chandni Srivastava and Anita Bajaj who all were working in tantum with each other in order to purchase three gold bars from Mr. Vinod of Tirupati Jewellers out of the illegal gratification received by B.L. Bajaj for A.K. Srivastava from G.S Bhatia for the tender process. After purchasing the said three gold bars from Tirupati Jewellers, Anita Bajaj and Chandni Srivastava were assigned the job to deposit them in the locker of Bank of India initially which was later changed to Bank of Maharashtra, UPSC Branch and thus there was a clear cut conspiracy between A-1 to A-4 in this entire illegal activity.
191. Ld. Defence Counsels have tried to put a dent on the prosecution case by alleging that B.L. Bajaj had asked Vinod of Tirupati Jewellers to purchase three rings for the wedding of his son and that there was no nexus between B.L. Bajaj and A.K. Srivastava for the same. They have also relied upon the evidence of PW-9 Mr. Vinod Kumar Gupta who identified his voice and voice of B.L. Bajaj in various conversations played in the court before him thus admitting those conversations but turned hostile for purchase of three gold bars for B.L. Bajaj. During cross-examination it was observed by CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -154- the Ld. Predecessor of this court that there is clear cut demand of three by Bajaj from Vinod and there is also a reference to a third person saying 'yaar jinka samaan tha unka phone aa raha tha'. PW-9 further started giving evasive answers regarding the mentioning of 60-70 lakhs in the conversation or reference to 20 lakhs by B.L. Bajaj. Further, he stated during cross- examination that he did not purchase any gold on asking of Mr. Bajaj between 02.02.2011 to 24.02.2011 whereas there is a clear cut admission on his part in call no. 62 Ex.PW-9/X-28 that whatever Mr. Bajaj had ordered it has been brought by Vinod. Thus, the intercepted conversation between B.L. Bajaj and Vinod which has been duly proved clearly disproves the testimony of PW-9. Even otherwise, the testimony of this witness cannot be relied upon in entirety as he has given two completely different versions in his statement to CBI U/s 161 Cr.P.C and before this court as PW-9.
192. This witness, however, admitted that the CCTV footage of his shop was taken by CBI which was in fact shown to him in the court and he admitted that he was speaking to Anita Bajaj who was present in his shop. The said CCTV footage was also got duly proved through PW-24 Anil Khanna and PW-33 Sh. Deepak Purohit who transferred the data of CCTV footage in pen drive Ex.PW-33/A-2 (colly). The fact that no pouch of 'Tirupati Jewellers' was recovered from locker no. 27 in which gold bars were kept as per Locker Operation cum Seizure memo does not mean that the gold bars were not purchased from the said shop. In fact, Search-cum-Seizure CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -155- Memo Ex.PW-3/B of Chandni Srivastava itself shows that she had kept five lakme lipsticks and one lakme kajal in the pouch of Rajasthan Jewellers. However, that does not mean that she had purchased that lipsticks or kajal from the shop of Rajasthan Jewellers.
193. Further, regular conversations of A.K. Srivastava and B.L. Bajaj as referred above wherein A.K. Srivastava had agreed to send his wife with the wife of B.L. Bajaj to bank for executing the modus operandi and the fact that A.K. Srivastava had accompanied his wife Chandni Srivastava to open a saving bank account and locker at Bank of Maharashtra, UPSC Branch on 21.06.2010 (as has been proved above) clearly shows meeting of mind between him and his wife in opening a locker on the basis of forged documents at Bank of Maharashtra for depositing the gold bars purchased from the ill gotten money through B.L. Bajaj. Moreover, the recovery of gold bars from the locker of Bank of Maharashtra clearly completes the chain of events leading to prove the guilt of the accused beyond reasonable doubt.
194. Another limb of argument of Ld. Defence Counsels is that the FIR in the present case has not been properly lodged and is ante dated. It is averred that the said FIR does not bear the signature of IO Sh. Ram Singh and the recording officer of the FIR was not got examined in the court by the prosecuting agency. Perusal of the FIR Ex.PW-39/A (colly) shows that the CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -156- said FIR has been signed by the officer Incharge of the police station Sh. Rakesh Aggarwal, Head of Branch, CBI, SPE, AC1 as well as by the recording officer. Further, IO Sh. Ram Singh to whom the said FIR was marked has proved it in his evidence by identifying the signatures of not only the recording officer but also Head of Branch. It is itself mentioned in the FIR that the same is being marked to Sh. Ram Singh, DSP / CBI and thus the FIR has been duly registered and there is no infirmity in the same.
195. Further, the defence has also challenged the fact that though Sh. Ram Singh was the Investigating Officer in this case, despite that, he was appointed as Team Leading Officer (TLO) of the trap team which was constituted on 25.02.2011 thus vitiating the entire investigation. In 'Puran Prasad Vs State, 2013 SCC OnLine Del 2526', it has been held that :
"15. No doubt the trap laying office should not investigate the matter however, the same does not vitiate the trial and cannot result in setting aside the same or the judgment of conviction."
196. In this case, Sh. Ram Singh was investigating the tender process of NALCO pursuant to which the present trap was constituted and thus just because he was part of the investigation of tender process at NALCO does not mean he could not be the TLO of the trap team constituted on 25.02.2011. Moreover, no prejudice has been caused to defence only because Sh. Ram Singh was the IO as well as the TLO in this case.
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197. Ld. Counsels for A-1 to A-4 have also challenged the arrest of Anita Bajaj and Chandni Srivastava on the ground that they were arrested during evening hours but their arrest memo does not bear signature of any lady officer meaning thereby that they were arrested after sun set without procuring presence of any lady police officer, thus making their arrest illegal. Perusal of Arrest-cum-Personal Search memo Ex.PW-3/E of Chandni Srivastava shows that she was arrested at 6 p.m and at that time her personal search was conducted by Smt. T.S. Niva Anal, Head Constable, CBI meaning thereby that a lady Head Constable of CBI was present at the time of her arrest. Moreover, in the column of name of the relative intimated about the arrest, the name of her son Anjanaya Srivastava and his mobile number is mentioned. Similarly, in the Arrest-cum-Personal Search Memo of Anita Bajaj, Ex.PW-3/F it is stated that she was arrested at 6:15 p.m on 25.02.2011 and at that time Smt. Sunita Chamoli ASI CBI ACIII conducted her personal search meaning thereby that lady ASI of CBI was present at the time of arrest of Smt. Anita Bajaj. Moreover, the name of son-in-law of Smt. Anita Bajaj, Dr. Ashish Arora is mentioned along-with his mobile number as the person who was intimated about the arrest and since Dr. Neha Arora, daughter of Anita Bajaj was present at the time of her arrest therefore the personal belongings of Anita Bajaj were handed over to her. Both these memos clearly go on to prove that there was no illegality in the arrest of either Anita Bajaj or Chandni Srivastava as the Arrest-cum-Personal Search Memos have been duly proved by all the members of the trap team in the court.
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198. On the basis of above discussion, it is proved beyond reasonable doubt that A-1 A.K. Srivastava being a public servant misused his official position and demanded as well as accepted illegal gratification from the bidder of washed coal tender project through B.L. Bajaj (A-2) for the smooth completion of the tender project. In fact, A-1 and A-2 acted in common intention with each other towards the same motive of amassing illegal wealth and safely keeping it in proper custody which they duly executed by opening a bank account and locker in Bank of Maharashtra, UPSC Branch through impersonation and forged documents. Further, A-3 Chandni Srivastava not only aided Abhay Kumar Srivastava in safely keeping the bribe money in the form of gold bars at locker no. 127, Bank of Maharashtra, UPSC Branch but also conspired with Abhay Kumar Srivastava and committed cheating by personation as well as forgery in order to aid his husband A-1 in this process. Wife of B.L. Bajaj i.e Anita Bajaj also was a part of criminal conspiracy as she was the one who acted as an accomplice of Chandni Srivastava and accompanied her to Bank of Maharashtra, UPSC Branch knowing very well that Chandni Srivastava has opened an account there in her name, in order to safely keep the bribe money in the form of gold bars in the locker of that bank. A-5 Gurwinder Singh Bhatia, being one of the bidders of the ongoing washed coal project of NALCO offered bribe money to A.K. Srivastava through B.L. Bajaj for the smooth tender process and in fact delivered the bribe amount to B.L. Bajaj through Jaswinder Singh Bhatia (A-6) and Ratan Pal Singh Bhatia (A-7). In fact, A-6 and A-7 were also very well aware about CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -161- the purpose for which the said amount is being paid to B.L. Bajaj and in fact had regular telephonic conversations with B.L. Bajaj in this regard and for the future projects. Hence, A-5 to A-7 were acting in conspiracy with A-1 and A-2 for delivering the illegal gratification for smooth running of washed coal tender process and had also aided A-1 in his illegal motive of amassing illegal wealth.
199. CONCLUSION
1) A-1 Abhay Kumar Srivastava (A.K. Srivastava) : He is convicted U/s 7 and Section 13 (2) r/w Section 13 (1) (d) Prevention of Corruption Act, 1988. He is also convicted U/s 120 B IPC r/w Section 7 and 12 Prevention of Corruption Act, 1988 and Section 120B IPC r/w Section 419/466/471/474 IPC as well as Section 471 r/w Section 34 IPC.
2) A-2 Bhushan Lal Bajaj (B.L. Bajaj) : He is convicted U/s 12 Prevention of Corruption Act, 1988 and Section 120B IPC r/w Section 7 and 12 Prevention of Corruption Act, 1988. He is also convicted for offence U/s 120B IPC r/w Section 419/466/471/474 IPC.
3) A-3 Chandni Srivastava : She is convicted U/s 12 Prevention of Corruption Act, 1988, Section 419 IPC, Section 466 IPC, 471 IPC and 474 IPC. She is also convicted for offences U/s 120B IPC r/w Section 7 and 12 CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -162- Prevention of Corruption Act, 1988 and U/s 120B IPC r/w Section 419/466/471/474 IPC.
4) A-4 Anita Bajaj : She is convicted U/s 12 Prevention of Corruption Act, 1988 and Section 120B IPC r/w Section 7 and 12 Prevention of Corruption Act, 1988. She is also convicted for offence U/s 120B IPC r/w Section 419/466/471/474 IPC.
5) A-5 Gurwinder Singh Bhatia (G.S. Bhatia) : He is convicted U/s 12 Prevention of Corruption Act, 1988 and Section 120B IPC r/w Section 7 and 12 Prevention of Corruption Act, 1988.
6) A-6 Jaswinder Singh Bhatia (J.S. Bhatia) : He is convicted U/s 12 Prevention of Corruption Act, 1988 and Section 120B IPC r/w Section 7 and 12 Prevention of Corruption Act, 1988.
7) A-7 Ratan Pal Singh Bhatia (RPS Bhatia) : He is convicted U/s 12 Prevention of Corruption Act, 1988 and Section 120B IPC r/w Section 7 and 12 Prevention of Corruption Act, 1988.
Dictated & Announced in the open court today dated 20.12.2023 (Namrita Aggarwal) CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023 -163- Spl. Judge (PC Act) CBI-21 Rouse Avenue Courts Complex/New Delhi CBI No. 202/2019 & 310/2019 (Namrita Aggarwal) Spl. Judge (PC Act) CBI-21/20.12.2023