Delhi District Court
(C.B.I. vs . J.M.Sahai on 31 July, 2015
Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai
Dated : 31.07.2015.
IN THE COURT OF : MS. ANU GROVER BALIGA :
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
In the matter of :
CBI VS. J.M.Sahai
CBI NO.: 18 /11
FIR NO. RCAC3/2003A0001
dated 20.02.2003
Branch CBI/ACUIII/New Delhi
U/s : 7 of Prevention of Corruption
Act,1988
CENTRAL BUREAU OF
INVESTIGATIONS (C.B.I)
...Through
[Sh.Harish Kr. Gupta, Ld.Special Public Prosecutor for CBI]
v e r s u s
Sh J.M.Sahai
S/o Late Sh Kamla Sahai,
ExDirector ( Marketing),
Minerals and Metals Trading Corporation Limited,
Corporate Office, New Delhi
R/o Bagicha, A58, Sector39,
Noida201303, Uttar Pradesh
.....Accused
C.C. No: 18/ 2011 Page No. 1 of 89
Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai
Dated : 31.07.2015.
[Through Sh.Amardeep Singh,
Advocate]
Date of Institution : 30.06.2004
Date on which the case was : 01.10.2011
received on transfer in this court
Date of reserving judgment : 04.07.2015
Date of pronouncement : 31.07.2015
: J U D G M E N T :
1.The present charge sheet has been filed against the accused J.M.Sahai under section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the PC Act).
2. Briefly stated the allegations against the accused contained in the charge sheet and the documents filed along with it are as follows :
(a) On the basis of a source information, the ACUIII branch of CBI, New Delhi on 20.02.2003 registered a criminal case RC.AC3/2003A0001 under section 7 of the PC Act, 1988, on the C.C. No: 18/ 2011 Page No. 2 of 89 Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
allegations that the accused being the Director (Marketing) Minerals and Metals Trading Corporation Ltd., (hereinafter referred to as MMTC Ltd), Corporate Office, New Delhi, while functioning as a public servant, during JuneJuly'2002, had attempted to obtain for himself an illegal gratification of USD 100,000 from one Sh. P.S.Nathan, the Liaison Agent in India of M/s Crossland Marketing (2000) Pvt. Ltd., Singapore for showing favours in the matter of import of 200,000 Metric Tonnes of wheat by the Singapore Firm from India.
(b) During investigation of the aforementioned complaint, the following facts emerged therefrom :
(i) The accused J.M.Sahai had functioned as Director (Marketing) in the Corporate Office of MMTC Ltd. at Scope Complex, New Delhi, a company of the Government of India from 03.10.2001 to 26.07.2002 and the work entrusted to him included dealing with sale of Agro products. Further, as Director, J.M.Sahai was also a member of the Sale Purchase Committee (SPC) of Directors of MMTC Ltd. and had a C.C. No: 18/ 2011 Page No. 3 of 89 Judgment in the matter of:-CC No.18/11
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significant role to play both at the stage of drawing up of contracts and subsequent execution of business deals with private parties.
(ii) MMTC Ltd. had been exporting wheat and rice to various foreign buyers by sourcing the food grains from various depots of Food Corporation of India. One foreign buyer namely M/s Crossland Marketing (2000) Pte. Ltd., Singapore represented by M/s Apoorva Agencies, Chennai was dealing with MMTC Ltd. for the export of wheat and in this regard one Sh. P.S.Nathan, Proprietor of M/s Apoorva Agencies, Chennai was acting as the Liaison agent in India for the said Singapore firm.
(iii) During early April'2002, the accused asked Sh.
P.S.Nathan to meet him at the India Habitat Center, New Delhi and during the said meeting the accused told Sh. P.S.Nathan that he would cooperate to enhance business on beneficial terms provided he is paid at least US Dollar 0.50 per Metric Tonne of wheat on every occasion.
(iv) Sh. P.S.Nathan had no intention to meet the illegal demands made by the accused. He started avoiding personal meeting C.C. No: 18/ 2011 Page No. 4 of 89 Judgment in the matter of:-
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with him but continued to conduct his business through FAX and telephonically.
(v) On 01.07.2002 Sh. P.S.Nathan sent an enquiry to the accused asking for best prices for 150,000 Metric Tonnes of Indian Milling Wheat, both new and old crop for shipment from August to first half of November'2002 for supply to M/s Crossland Marketing (2000) Pvt. Ltd.
(vi) In response to this, Sh. Nathan received a telephonic offer from accused on 02.07.2002 which Sh. Nathan replied on the same day counter proposing the prices for new crop at USD 99.50 per Metric Tonne and for old crop at USD 98.50 per Metric Tonne and the intended quantity of purchase as 150,000 Metric Tonnes to 200,000 Metric Tonnes and while this deal was being negotiated, both Sh. Nathan and accused spoke over telephone in order to finalize the business on mutually acceptable terms.
(vii) On 03.07.2002 accused reiterated his demand for payment at USD 0.50 per Metric Tonne for 200,000 Metric Tonnes C.C. No: 18/ 2011 Page No. 5 of 89 Judgment in the matter of:-CC No.18/11
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(which would work out to USD 100,000) to cooperate and enhance business on beneficial terms and Sh. Nathan reluctantly indicated to the accused that he would be willing to consider the said demand favourably.
(viii) On 04.07.2002 Sh. Lekh Chand, CGM (Agro) after discussion with the accused confirmed the business at USD 99.50 per metric tonne for new crop and at USD 98.75 per Metric Tonne for old crop which was also accepted and confirmed by Sh. Nathan for purchase of 1.2 lakh Metric Tonnes of new crop, 30,000 of Metric Tonnes of old crop with option to enhance the quantity to 2 lakh Metric Tonnes.
(ix) On 04.07.2002 at 19:7:25 hours accused called Sh.
Nathan on his mobile number 9841017106 and wanted to furnish details of his bank account to remit USD 0.50 / PMT demanded by him from Sh. Nathan. Since Sh. Nathan was unwilling to pay any bribe, he informed the accused that he would call him back and decided to tape record the conversation relating to demand of bribe. Thereafter Sh. Nathan called accused on his mobile number 9810372513 from his landline telephone number 0443773156. During the conversation, accused informed that he C.C. No: 18/ 2011 Page No. 6 of 89 Judgment in the matter of:-
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(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
wanted the demanded bribe amount to be paid in two installments and advised Sh. Nathan to remit the first installment of USD 50,000 in USD Account no. 11373579 of Tech Edge Consultants Limited at Lloyds TSB, 215, High Street (309442), Branch Hounslow, Middlessex, TW 31 DN. Sh. Nathan tape recorded the above mentioned telephonic conversation and also informed Sh.S.D.Kapoor, Chairman and Managing Director of MMTC Limited about the conduct of accused. Sh. S.D.Kapoor informed Sh.Nathan that he would take suitable action if Sh. Nathan produced evidence regarding demand of bribe by the accused.
(x) On 06.07.2002 Sh. Lekh Chand, CGM (Agro) put a note for concurrence of Finance and approval of Director (Marketing) and after its approval, the note for consideration of Sale Purchase Committee of Directors was submitted on 10.07.2002 by Sh. Lekh Chand, CGM (Agro), which was approved by the SPC of Directors in their 764th meeting held on 11.07.2002. Following the acceptance of offer by Sh.
Nathan and its final ratification by the Sale & Purchase Committee of Directors of MMTC Ltd., a Sale Contract No. C.C. No: 18/ 2011 Page No. 7 of 89 Judgment in the matter of:-
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MMTC/Agro/Wheat/200203/09 dated 11.07.2002 was entered into by the Agro Division of MMTC Ltd, New Delhi with M/s Crossland Marketing (2000) Pte. Ltd. 133, New Bridge Road, Chinatownpoint, HEX 1706, Singapore through their Liaison Agent in India Sh.Nathan of M/s Apoorva Agencies, Chennai for export of 120,000 Metric Tonnes of new crop Wheat at USD 99.50 per Metric Tonne and 30,000 Metric Tonnes of old crop wheat at USD 98.75 per Metric Tonne with option to enhance the quantity of 200,000 Metric Tonnes. The contract was executed by the Regional office of MMTC Ltd. at Chennai and exports of wheat were made from Tuticorin Port between 26.08.2002 and 18.11.2002. USD 200,000 was received by MMTC Ltd. being advance amount on 15.07.2002 through telegraphic transfer and the balance amount of USD 196,810,60.25 was received on 29.08.2002 through letter of credit drawn on the Banker of MMTC Limited.
(xi) During the third week of July'2002, Sh. Nathan visited MMTC Ltd. Corporate Office in Delhi and handed over the audio cassette with description, "FEI FERRO EXTRA BASF 60 IEC I Fantastic Sound C.C. No: 18/ 2011 Page No. 8 of 89 Judgment in the matter of:-
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on side 'A' and BASF Tape FEI - Made in Germany - Fantastic Sound IECI 60 on side 'B' which contained the tape recorded teleconversation held on 04.07.2002 between him and the accused to Sh.S.D.Kapoor, Chairman and Managing Director, MMTC Ltd., New Delhi alongwith his covering letter dated 16.07.2002 and briefed as to what had transpired between him and the accused. This complaint of Sh. Nathan was then conveyed by Sh.S.D.Kapoor, the Chairman and Managing Director of MMTC Ltd. to Sh. Deepak Chatterjee, Commerce Secretary, Govt. of India on 24.07.2002. The Commerce Secretary summoned the accused and confronted him with the complaint of Sh. P.S.Nathan. Thereafter, accused decided to resign from his post citing personal reasons and accordingly, submitted letter dated 24.07.2002 addressed to the Secretary, Department of Commerce, Ministry of Commerce and Industry, Udyog Bhawan, New Delhi through the CMD, MMTC Ltd., New Delhi resigning from the post of Director (Marketing) with a request to relieve him of his duties w.e.f. 26.07.2002 and to waive the notice period of 3 months. Upon the acceptance of his resignation by the competent authority, accused was C.C. No: 18/ 2011 Page No. 9 of 89 Judgment in the matter of:-CC No.18/11
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relieved of his duties in MMTC Ltd. as Director (Marketing) as well as Chief Manager (of which he was keeping lien upto 02.10.2006) with effect from 26.07.2002 (AN) vide Office Order No. CGM(P)/I/2002 dated 26.07.2002 conveyed through letter No. MMTC/CGM(P)/Misc/2002 dated 26.07.2002 of the Chief General Manager (Personnel), MMTC Ltd., Corporate office, New Delhi.
(xii) Accused while working as Director (Marketing) in MMTC Ltd. during the relevant period was officially provided with MTNL landline nos. 24362239, 24362097 (unlisted), 24362200 (Extn. 1492) and 24362072 (fax) at the office, BSNL landline No. 951202571991 in his residence at Bagicha, A58, Sector39, Noida and Airtel Mobile No. 9810372513. In addition, the accused had personal BSNL landline No. 951202573039 in his residence at A58, Sector39, Noida. Further Sh.Nathan was having BSNL landline Nos. 3773156, 3773717, 3771629 and 3770648 installed in his residencecumoffice premises at No. 53, 3rd Street, Krishna Nagar, Virugambakkam, Chennai92. While the telephone No. 3773717 and 3770648 are C.C. No: 18/ 2011 Page No. 10 of 89 Judgment in the matter of:-
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subscribed in the name of Sh. Nathan, the other two numbers 3773156 and 3771629 are in the name of Akhilesh Trading Company Ltd. of which Sh. Nathan was a Promoter Director. In addition, he was also having Mobile Phone No. 9841017106 in his personal name. The call details of all the aforementioned landline and mobile phones of Sh. Nathan and the accused collected during investigation confirmed that the accused and Sh. Nathan were in regular touch with each other and that on 04.07.2002, the accused had spoken to Sh. Nathan from his office telephone No. 01124362239 on mobile no. 9841017106 of Sh. Nathan in the evening and that Sh. Nathan dialed back from his landline telephone No. 0443773156 to the Mobile No. 9810372513 of the accused and that between the period 04.07.2002 and 26.07.2002 accused had also contacted Sh. Nathan on many occasions through telephone.
(c) It has been further asserted by the investigating agency that during investigation, the original tape submitted by Sh. Nathan was seized from Sh. S.D.Kapoor, CMD, MMTC Ltd. and transcripts of tele conversation contained in this seized audio cassette was prepared in the C.C. No: 18/ 2011 Page No. 11 of 89 Judgment in the matter of:-CC No.18/11
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presence of independent witnesses. Accused J.M.Sahai refused to give his sample voice for comparison with his questioned voice in the above mentioned audio cassette. However, his voice in the said cassette was identified by Sh.Mahesh Y. Bidiker, General Manager (Administration) and Vijay Pal, General Manager (Finance), both of MMTC Ltd., Corporate Office, New Delhi who had occasions to speak to the accused, both personally and over phone in connection with official dealings. Sh. Nathan who was interacting with the accused, both personally and telephonically in connection with the Agro business on behalf of M/s Crossland Marketing (2000) Pte. Ltd., Singapore also identified and confirmed his voice as well as that of accused J.M.Sahai in the said cassette. The sample voice of Sh. Nathan was also collected which he gave readily when asked and the same was got compared with his voice in the seized cassette.
(d) The Central Forensic Science Laboratory, New Delhi vide its opinion No. CFSL2003/P0468 dated 28.11.2003 confirmed the questioned voice of Sh. Nathan in the seized audio cassette as that of Sh. C.C. No: 18/ 2011 Page No. 12 of 89
Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
Nathan. The same exercise could not be done in the case of accused J.M.Sahai as he had declined to give his sample voice. The CFSL opined positive on the identity of the voice of Sh.P.S.Nathan.
(e) A Letter Rogatory was also then got issued on 13.02.2004 under the orders of the Court and pursuant to the investigation in respect of USD Account no. 11373579 of M/s Tech Edge Consultants Ltd. at Bank Lloyds TSB, Bank Sort Code 309442, 215, High Street, Branch Hounslow, Middlessex, TW 31 DN, statements of witnesses Sh.
Prem Pasricha, Ms Sue Arnold and Sh. Sanjeev Kapoor were recorded which revealed that the Bank account number told by the accused to P S Nathan was infact in the name of M/s Tech Edge Consultants Ltd, a company which had been established in U.K on the instructions of Sanjeev Kapoor and the said Sanjeev Kapoor was a friend of the accused. The said statements clearly brought out the connection of accused with the aforementioned Bank account and therefore corroborated the statement of P S Nathan that the accused had furnished him the details of aforementioned account and had instructed him to transfer the demanded C.C. No: 18/ 2011 Page No. 13 of 89 Judgment in the matter of:-
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amount to the said account.
3. On the basis of the material on record, one of the Ld. Predecessor of this Court had framed charges against the accused for having committed an offence punishable under section 7 of the PC Act, to which the accused pleaded not guilty and claimed trial.
4. The prosecution in order to prove its case has examined 30 witnesses in all. PW1 B.C.Pawar and PW19 S.S.Khurana are both officials of M/s MMTC Ltd., who have proved before the Court the service records / personal file containing the date of appointment of accused, his designation, his duties, his date of resignation, etc. As per the deposition of these two witnesses, the service book / personal records of the accused have been Exhibited as Ex. PW1/1 and Ex. PW1/2 respectively. The office order as per which the accused was relieved after he had tendered his resignation, has been Exhibited as Ex. PW1/7. The records produced by these two witnesses have not been disputed by the accused.
5. PW3 Sh. Murli Singh Negi, PW4 Captain Rakesh C.C. No: 18/ 2011 Page No. 14 of 89 Judgment in the matter of:-
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Bakshi, PW7 Sh. M.K.Jain, PW17 Sh. Raghubir Chandra, PW18 Smt. Ranganayaki & PW29 Sh. L.Shekhar are the officials / Nodal officers of various telephone providers, who have been examined by the prosecution to prove the telephone / mobile records of the connections that were used by the accused and P.S Nathan during the relevant period. As per the deposition of these witnesses, the records produced by them have been exhibited and are not being referred to here in detail and shall be discussed with, in the latter part of the judgment as and when required.
6. PW2 Sh. S.D.Kapoor, PW13 Sh. P.S.Nathan and PW27 Sh. Deepak Chatterjee, the then Commerce Secretary in the Ministry of Commerce are the main prosecution witnesses who have deposed about the specific allegations made against the accused. PW13 P.S.Nathan has described in detail the manner in which the accused while functioning as a public servant in his capacity during JuneJuly'2002 attempted to obtain for himself an illegal gratification of USD 100,000 from him for showing favours in the matter of import of 200,000 Metric Tonnes of wheat by M/s C.C. No: 18/ 2011 Page No. 15 of 89 Judgment in the matter of:-
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Crossland Marketing (2000) Pte. Ltd., Singapore from India.
7. PW13 P.S.Nathan has interalia deposed that he is the Proprietor of M/s Apoorva Agencies and that main activities of his firm is to act as a liaison agent, brokers and in some cases as inspectors in the matters concerning international trade. As per his deposition, it was in the year 2000 that M/s Crossland Marketing (2000) Pvt. Ltd., Singapore had contacted him and authorized him to act as their liaison agent in India for purchasing wheat from the Government of India. He has also inter alia deposed that in the same year he had approached the Chief General Manager and General Manager of Agro Division of M/s MMTC Ltd. and had requested them for offers for supply of wheat to M/s Crossland Marketing (2000) Pvt. Ltd., Singapore and as per this witness at that stage, the accused was not posted in the Agro Division of M/s MMTC Ltd. and he had conducted his business with M/s MMTC Ltd. through then CGM Sh. Bhargava and GM Sh. Bidikar of M/s MMTC Ltd. C.C. No: 18/ 2011 Page No. 16 of 89
Judgment in the matter of:-
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(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
8. He has further interalia deposed that it was in the year 2002 that he had for the first time met the accused in his office of M/s MMTC and that on the same day the accused had suggested him to meet him at a restaurant at Indian Habitat Center, Lodhi Road, New Delhi, and that it was at the said meeting at the restaurant that the accused demanded US $ 0.05 per MT for each transaction for himself. This witness has further stated that he did not agree to the demand made by the accused and that since his intention was not to get involved in any such unethical affairs he tried to explain the difficulties of the competitive business and also told him that he was not in a position to decide because he was only working as a Liaison Agent and that he would talk to his Principal, M/s Crossland Marketing (2000) Pvt. Ltd. He has further gone on to depose that thereafter there were telephonic conversations between him and accused for the purposes of communication and finalization of the final price for purchase of wheat by M/s Crossland Marketing (2000) Pvt. Ltd. and that it was during the said conversations when the accused was demanding a bribe, did he think of recording his conversation with the accused. C.C. No: 18/ 2011 Page No. 17 of 89
Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
9. He has further deposed that he had procured a pencil recorder, a recording instrument from the market and for the first time recorded the conversation which he had with the accused on 04.07.2002 and according to the witness it is in this conversation that the accused had disclosed a bank account number wherein he had wanted the witness to deposit the first installment of amount of US $ 50,000 on 04.07.2002 itself. As per the witness he had kept the pencil recorder in his safe custody and had thereafter transferred the recorded conversation to a cassette Ex. P5, which he had then handed over to S.D.Kapoor, Chairman of M/s MMTC Ltd. in the month of July'2002 itself and had appraised Sh.S.D.Kapoor of the demands being made by the accused.
10. As per record, during the deposition of this witness the cassette in question was played in the Court and he had identified his own voice and that of the accused in the said cassette and had also confirmed that the transcript Ex. PW10/B is the conversation contained in the C.C. No: 18/ 2011 Page No. 18 of 89 Judgment in the matter of:-
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cassette. As per this witness, while handing over this cassette to Sh.S.D.Kapoor, he had also attached a letter thereto and said letter as per the deposition of this witness has been exhibited as Ex. PW2/4. According to this witness his sample voice was recorded by the CBI during investigation and on playing of the said cassette containing his voice sample Ex. P7 he had identified his own voice sample.
11. PW2 Sh.S.D.Kapoor, Chief Managing Director of M/s MMTC Ltd. deposed that during his tenure accused J.M.Sahai was Director (Marketing) in M/s MMTC Ltd. This witness has interalia deposed that in the first week of July'2002 P.S.Nathan had informed him that he had clinching evidence against the accused demanding one lac US $ in connection with wheat export to M/s Crossland Marketing (2000) Pvt. Ltd. As per this witness he had told P.S.Nathan to send the clinching evidence to him and that he had thereafter received a cassette alongwith covering letter Ex. PW2/4 and pursuant thereto he sought an appointment with the Commerce Secretary to bring the same to his notice. He has also C.C. No: 18/ 2011 Page No. 19 of 89 Judgment in the matter of:-
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interalia deposed that the Commerce Secretary gave him an appointment for 24.07.2002 and in the said meeting after he apprised the Commerce Secretary of the issue, the said Secretary then summoned the accused immediately and confronted him with the allegations. According to this witness accused did not refute the allegations and then and there informed the Secretary that he would be submitting his resignation. This witness had further deposed that accused had then submitted his resignation Ex. PW2/5 which was forwarded by him to the Ministry of Commerce vide letter dated 26.07.2002 and according to this witness the accused was relieved from his duty with effect from 26.07.2002 after the competent authority conveyed its approval and acceptance of resignation of accused with effect from 26.07.2002 and also waiver of notice period of three months before resignation.
12. PW27 Sh. Deepak Chatterjee, Commerce Secretary has also in his deposition deposed about the chronology of events leading to the resignation of the accused. His material deposition is to the effect C.C. No: 18/ 2011 Page No. 20 of 89 Judgment in the matter of:-
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that in July'2002 Sh. S.D.Kapoor, Chairman and Managing Director of M/s MMTC Ltd. had brought to his notice a complaint against the accused regarding demand of money for export of a commodity and that after receiving the said complaint he had summoned the accused and had confronted him about the complaint received and that the accused did not deny the facts constituting the complaint and immediately told him that he wants to resign. This witness had categorically deposed that he had brought all these facts to the notice of Sh. M.Maran, the then Commerce Industry Minister. He has further deposed that on receiving the resignation letter of the accused, a note sheet dated 26.07.2002 was prepared by his office and was put up before him wherein he had endorsed that he had already mentioned the issue to the Commerce Minister and that the resignation of the accused be accepted with effect from 26.07.2002.
13. PW9 Sh. Mahesh Bidiker, PW10 Sh.P.D.Bajaj, PW11 Sh.Jaleesh Dinakaran, PW12 Sh.S.K.Nayyar, PW14 Sh. Pawan C.C. No: 18/ 2011 Page No. 21 of 89 Judgment in the matter of:-
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Kumar, PW17 Sh. Raghubir Chandra & PW20 Sh. Vijay Pal are all those witnesses which were joined by the CBI as witnesses to the playing of audio cassette Ex. P5.
14. PW5 Lekh Chand and PW6 M. Thyagarajan, are the officials of M/s MMTC Ltd., who as per their depositions had been working as Chief General Manager (Agro) and General Manager (Agro) respectively during the tenure of the accused as Director (Agro), during the relevant period. Both these witnesses have interalia deposed about the communications that took place between P.S.Nathan on behalf of M/s Crossland Marketing (2000) Pte. Ltd., Singapore and M/s MMTC Ltd. They have identified the official / counter offer that were made by P.S.Nathan and M/s MMTC Ltd. and have also proved the contract that was finally entered between P.S.Nathan and M/s MMTC Ltd. pertaining to the export of wheat.
15. PW28 Sh. Devender Singh and PW30 K.Y.Guruprasad C.C. No: 18/ 2011 Page No. 22 of 89 Judgment in the matter of:-
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are the Investigating Officers of the CBI, who have conducted the investigations in this case and the main Investigating Officer PW30 K.Y.Guruprasad has in his deposition deposed in detail about the investigation conducted by him and has got exhibited the documents which he had collected during investigation.
16. PW22 Sh. Kushal Singh and PW23 Sh.S.R.Banerjee are the witnesses that were joined by the Investigating Officer during the search proceedings of the house of the accused during the course of investigations and these witnesses have interalia deposed about the house search.
17. PW24 Inspector Vijay Kumar, Interpol, CBI and PW25 Sh. D.K.Ghosh, PRO, Ministry of External Affairs are the witnesses produced by the prosecution to prove the Letter Rogatory sent to United Kingdom asking for some evidence/records and the evidence received pursuant thereto.
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Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
18. PW26 Sh. Sanjeev Kapoor has not supported the case of the prosecution in as much as he has resiled from his purported statement given under section 161 Cr.PC. This witness had purportedly informed the Investigating Officer during investigation that his relative one Sh. Prem Pasricha is one of the Proprietor of M/s Tech H Consultants Ltd., U.K., account number of which the accused had furnished to P.S.Nathan for transferring the amount demanded by the accused.
19. The entire incriminating evidence produced by the prosecution was put to the accused by the Ld. Predecessor of this Court and the statement of accused was recorded under section 313 Cr.P.C.
20. In the said statement accused has interalia denied the allegations made by the prosecution and has interalia taken a stand that he had made telephonic conversations with P.S.Nathan, for the purposes of negotiations and finalization of the contract and that during none of the C.C. No: 18/ 2011 Page No. 24 of 89 Judgment in the matter of:-
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said telephonic conversations he had demanded a bribe from P.S.Nathan. According to the accused though he was a Member of Sale Purchase Committee, he did not have a significant role to play at the stage of bringing up of contracts and execution of business deals with private parties and therefore, according to the accused he was not in any way instrumental in business contract of P.S.Nathan and that the said contract had been entered into with P.S.Nathan in the usual course of business of M/s MMTC Ltd. and that therefore, he never had any occasion to demand a bribe from P.S.Nathan. Accused has also denied that he resigned from his services only because the then Commerce Secretary Deepak Chatterjee had confronted him with the complaint of P.S.Nathan. According to the accused, he had been offered the Chairmanship of Taurian Exim Pvt. Ltd., Mumbai on 22.07.2002 and that therefore he had tendered his resignation on 24.07.2002 and in the first week of August'2002 had joined the said company at their Delhi office as Chairman. According to the accused, he has been falsely implicated in this case due to personal grudges that M.Y. Bidiker, Y.N. Bhargava, C.C. No: 18/ 2011 Page No. 25 of 89 Judgment in the matter of:-CC No.18/11
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S.D.Kapoor and P.S.Nathan had against him. As per the accused it was he who had got transferred M.Y. Bidiker from Agro Division after he had found his performance below average and had suspected him of having dishonest intentions and due to this M.Y.Bidiker bore a serious grudge against him. He has also gone on to state that he had later discovered that P.S.Nathan was not the liaisoning agent of M/s Crossland Marketing (2000) PTE Ltd., Singapore and that in fact M/s Cross Land was a ghost company run by S.D.Kapoor, M.Y.Bidiker, Y.N.Bhargav and P.S.Nathan.
21. In support of his defence, accused has produced two witnesses Sh. Surender Kumar Nemesh, Manager, MMTC Ltd. as DW1 and Col. Louis Benedict Mendonca, General Manager (HR) of Taurian Iron and Steel Company Pvt Ltd. as DW2.
22. DW1 has brought the office records maintained by M/s MMTC Ltd. which reveal that J.M.Sahai had stayed in Mumbai from 22.07.2002 till 24.07.2002. DW2 has interalia deposed that accused C.C. No: 18/ 2011 Page No. 26 of 89 Judgment in the matter of:-
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J.M.Sahai was employed with their company which was earlier known as Taurian Exim Pvt. Ltd. which subsequently changed its name to Taurian Iron and Steel Company Pvt. Ltd. He has placed on record office copy of appointment letter of his company which interalia reveal that accused had joined the said company on 01.08.2002 as Chairman.
23. Final arguments in this case have been advanced by Ld. Special Public Prosecutor for CBI Sh. Harish Gupta and Ld. Defence Counsel Sh. Amardeep Singh.
24. Ld. Special P.P. for CBI has interalia contended that the oral testimony of the prosecution witnesses, PW2 Sh. S.D.Kapoor, PW13 Sh. P.S.Nathan and PW27 Sh. Deepak Chatterjee have proved beyond reasonable doubt that the accused had attempted to obtain for himself an illegal gratification of USD 100,000 from Sh. P.S.Nathan, Liaison Agent in India of M/s Crossland Marketing (2000) Pte. Ltd., Singapore for showing favours in the matter of import of 200,000 Metric Tonnes of C.C. No: 18/ 2011 Page No. 27 of 89 Judgment in the matter of:-
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wheat by the Singapore Firm from India. He has also contended that the call detail records of the mobile phone being used by the accused and P.S.Nathan during the relevant period of time also clearly reveals that the accused was in continuous touch with P.S.Nathan before the contract was finalized and this according to him corroborates the oral testimony of PW2, PW13 and PW27. He has further pointed out that the conversation in which the accused informed P.S.Nathan about the bank account in U.K. where the accused wanted P.S.Nathan to transfer an amount of 50,000 $ was tape recorded by P.S.Nathan and that the prosecution has duly proved the said conversation before this Court during trial and according to Ld. SPP the said conversation completely corroborates the oral deposition of PWP.S.Nathan. It is also the contention of Ld. SPP that this Court must bear in mind the deposition of PW27 Deepak Chatterjee that the accused, on being confronted with the complaint made against him admitted his guilt before PW27 and tendered his resignation. This conduct of the accused, according to Ld. SPP is a very material and relevant fact which is admissible in evidence C.C. No: 18/ 2011 Page No. 28 of 89 Judgment in the matter of:-CC No.18/11
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as per Section 8 of the The Indian Evidence Act and which also corroborates the allegations made against the accused. It is thus the contention of Ld. SPP that the entire chain of circumstances proved by the prosecution on record clearly proves that the accused has committed an offence with which he has been charged.
25. On the other hand, Ld. Defence Counsel has interalia contended that the evidence proved on record by the prosecution is absolutely insufficient to hold the accused guilty of the offence that has been charged with. According to the Ld. Defence counsel the entire case put up by the prosecution is highly improbable if one considers the chronology of events put up by the prosecution itself. Ld counsel has pointed out that it was on 1.7.2002 that P.S Nathan on behalf of M/s Crossland, admittedly sent an enquiry to M/s MMTC Ltd. seeking best price of wheat and admittedly by 11.7.2002 a contract was signed and entered into by MMTC Ltd. and M/s Cross Land, the principal of P.S Nathan. The contention of Ld. Counsel is that if at all the accused had C.C. No: 18/ 2011 Page No. 29 of 89 Judgment in the matter of:-
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the intention to ask favours from P.S Nathan for executing the aforementioned contract, he would not have at all let the contract be executed within such a short period of time and without actually receiving the alleged illegal gratification. Ld Counsel has strenuously contended that the entire process of the negotiation of the contract as well as its execution within a span of a few days only clearly reflects that there was no demand or favour asked from the accused at all. Ld Defence Counsel Sh. Singh has also submitted that this Court must bear in mind that both P.S Nathan and S.D Kapoor have admitted in their cross examination that the accused alone could not have favoured P.S Nathan as he alone could not have taken a decision with respect to the rates to be fixed for the export of wheat and the same required the approval of the Sale & Purchase Committee of MMTC Ltd. His contention therefore is that the accused was not even in a position to demand any favour from P.S Nathan. It is also his contention that the accused cannot even be held to be a public servant as no witness has categorically deposed that MMTC Ltd. is a government company. In addition, Ld. Defence Counsel has made C.C. No: 18/ 2011 Page No. 30 of 89 Judgment in the matter of:-CC No.18/11
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the following submissions to contend that the prosecution has miserably failed to prove its case beyond all reasonable doubt:
● There is absolutely no explanation forthcoming from the prosecution with respect to the delay in filing of the FIR. He has pointed out that as per the allegations brought on record, it was on 16.07.2002 that PW13 P.S.Nathan had for the first time disclosed to PW2 S.D.Kapoor about the purported demand made by the accused, which was brought to the notice of PW27, the then Commerce Secretary Deepak Chatterjee on 24.07.2002 and yet none of these prosecution witnesses have tendered any explanation whatsoever as to why no complaint against the accused was registered with the investigating agency in the year 2002. In such facts, according to Ld. Defence Counsel the delay in filing of the FIR in the present case is fatal to the case of prosecution.
● It is also his contention that even after the registering of the FIR, the Investigating officer took an exceptionally long period of time C.C. No: 18/ 2011 Page No. 31 of 89 Judgment in the matter of:-
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to conclude the recording of statement of witnesses, particularly of the most material witness PW13 P.S.Nathan and that the IO PW30 has been unable to explain the said delay at all. Various discrepancies in the proceedings drawn out by the IO during investigation have also been pointed out to contend that the investigation done was completely unfair and the material collected was fabricated.
● According to the Ld. Defence Counsel, the three main prosecution witnesses in the present case, namely PW2, PW13 and PW27 can hardly be stated to have withstood the test of cross examination. It is the submission of Ld. Counsel that testimony of none of these witnesses can be stated to be sufficiently trustworthy or credible to hold the accused guilty of the allegations made against him by the said witnesses. Ld. Counsel has pointed out to various contradictions in the depositions of the said witnesses (which will be discussed later on in the judgment), to contend that the entire complaint against the accused is an after thought of P.S.Nathan and C.C. No: 18/ 2011 Page No. 32 of 89 Judgment in the matter of:-CC No.18/11
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S.D.Kapoor to falsely implicate the accused. He has also pointed out that admittedly S.D. Kapoor has himself been chargesheeted by the CBI under the provisions of the P.C Act and this according to him, makes S.D Kapoor not worthy of credence at all. Ld Counsel has also contended that the inability of PW27, the then Commerce Secretary to explain as to why no action whatsoever was taken against the accused, if infact he had admitted his guilt before the said Secretary makes the case of the prosecution highly improbable. He has also pointed out that no statement of this Secretary was recorded under section 161 Cr.PC by the Investigating agency under section 161 Cr.PC. ● The next contention of Ld. Counsel is mainly that the tape recorded conversation being relied upon by the prosecution is absolutely inadmissible in evidence. It is his contention that the said conversation is not only a mere piece of corroborative evidence which in the facts of the present case cannot even be relied upon to corroborate the other evidence. He has contended that the C.C. No: 18/ 2011 Page No. 33 of 89 Judgment in the matter of:-CC No.18/11
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evidence brought on record by the prosecution clearly reveals that there was every possibility of tampering with the said purported tape recorded statement and that therefore, the tape recorded conversation contained in it is absolutely inadmissible in evidence in view of the law laid down by the Hon'ble Supreme Court in the case titled and reported as Ram Singh Vs. Col. Ram Singh, (1985 (Supp) SCC 611. He has pointed out that in the said judgment, the Hon'ble Supreme Court has laid down the conditions that are necessary to be fulfilled before admitting a tape recorded statement in evidence and that one of the conditions laid down by the Apex Court is that every possibility of tampering with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. It is the submission of the Ld. Defence Counsel that in the present case the facts that have come to the fore during trial make it apparent that there was every possibility of tampering with the purported tape recorded conversation and that therefore, the C.C. No: 18/ 2011 Page No. 34 of 89 Judgment in the matter of:-CC No.18/11
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said conversation according to the Ld. Counsel cannot be read in evidence.
● It has been pointed out by Ld. Defence Counsel that in the present case PW13 P.S.Nathan in his cross examination has for the first time revealed that he had recorded the purportedly conversation between himself and accused firstly on a pencil recorder and had thereafter transferred the same in another separate cassette. Ld. Counsel has pointed out that in the statement tendered by this witness under section 161 Cr.PC to the Investigating agency there is not a whisper of any such pencil recorder. It is the contention of Ld. Defence Counsel that in view of this deposition of P.S.Nathan it was imperative upon him to have handed over the said pencil recorder to the Investigating agency, which could have then got it examined by the expert and in the absence of the same this Court cannot at all admit into evidence the audio cassette which had been purportedly prepared by this witness. He has submitted that in such similar facts in a case titled as "Ashish Kr. Dubey Vs. CBI" C.C. No: 18/ 2011 Page No. 35 of 89
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in CRL.A. No. 124 of 2008, the Hon'ble Delhi High Court declared such a cassette to be inadmissible in evidence in view of the law laid down in Ram Singh's Case (Supra).
26. Ld. Defence Counsel has also pointed out that infact the depositions of PW2 S.D.Kapoor, PW13 P.S.Nathan & PW27 Deepak Chatterjee also proves that the purported audio cassette was not sealed or kept in safe or official custody for more than a year and that therefore, even on this ground the said cassette cannot be admissible in evidence in view of the law laid down in Ram Singh's Case (Supra). It is also his contention that even the voice identification proceedings conducted by the Investigating officer without seeking the permission of the Court are absolutely illegal and cannot be relied upon to hold that the voice therein belongs to the accused. He has also pointed out various discrepancies in the statements of the witnesses who allegedly identified the voice of the accused in the cassette in question, to contend that the said voice identification cannot be relied upon at all.
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● It has been next contended by Ld. Counsel that the purported statements of two witnesses recorded in England, being relied upon by the prosecution to corroborate the testimony of P.S.Nathan that the accused had informed him of a bank account, to which he had wanted the demanded amount to be transferred, also cannot be read in evidence in view of the provisions of Section 74 & 78 of the Indian The Indian Evidence Act and Section 166 A Cr.PC. In support of this contention Ld. Defence Counsel has relied upon the judgment of Hon'ble Delhi High Court announced in the case titled and reported as Srichand P.Hinduja & Others Versus State through CBI, 2005 (2) JCC 1153.
27. In support of his other contentions, Ld. Defence Counsel has relied upon the following judgments : ● State of Andhra Pradesh Versus M.Madhusudhan Rao, 2008 (4) Crimes 350 (SC).
● Paramjit Singh & Ors. Versus State of Punjab & Ors., 1997 C.C. No: 18/ 2011 Page No. 37 of 89 Judgment in the matter of:-
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Supreme Court Cases (Crl.) 486.
● Ramesh Kumar Versus State, 1984 (3) Crimes 943. ● Laxmipat Choraria and Others Versus State of Maharashtra, 1968 AIR (SC) 938.
● Mahabir Mandal and Others Versus State of Bihar, 1972 Cr.L.J 860.
● Nilesh Dinkar Paradkar Versus State of Maharashtra, 2011 (4) SLT 35.
● Judgment pronounced on 4.4.2014 by the Hon'ble High Court of Delhi, in Criminal Appeal No. 124 of 2008 in case titled as Ashish Kumar Dubey Versus State through CBI.
● Srichand P.Hinduja & Others Versus State through CBI, 2005 (2) JCC 1153.
● State of Karnataka Versus M.Muniswamy, VIII (2000) SLT
646. C.C. No: 18/ 2011 Page No. 38 of 89 Judgment in the matter of:-
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● Judgment pronounced by the Hon'ble Supreme Court in CA No. 2928 of 2008 in case titled as Tukaram S.Dighole Versus Manikrao Shivaji Kokate.
● Judgment pronounced by the Hon'ble Supreme Court in CA No. 1794 of 2008 in case titled as Lal Bahadur & Ors. Versus State (NCT of Delhi).
● Judgment pronounced by the Hon'ble Supreme Court in CA No. 1507 of 2005 in case titled as Sahebrao & Anr. Versus State of Maharashtra.
● Judgment pronounced by the Hon'ble Supreme Court in CA No. 2280 of 2009 in case titled as S.Govindaraju Versus State of Karnataka.
● Judgment pronounced by the Hon'ble Supreme Court in CA No. 84 of 2011 in case titled as Gangabhavani Versus Rayapati Venkat Reddy & Ors.
● Judgment pronounced by the Hon'ble Supreme Court in CA No. 663 of 2010 in case titled as Mohan Singh Versus State of Bihar.
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28. In rebuttal, Ld. SPP for CBI has contended that PW 1 has clearly deposed that MMTC Ltd. is a Public Sector Undertaking Company of Government of India. He has also pointed out that the accused himself has suggested to this witness that 99.7% shares in MMTC Ltd belong to the Government and he therefore, contends that in view of such deposition/suggestion the accused cannot at all be heard to contend that MMTC Ltd. is not a government company and that he is not a public servant. It is also the submission of Ld. PP that the explanation
(d) to section 7 of the PC Act makes it clear that the fact that the accused was not in a position to alone approve the contract rates of wheat, is irrelevant for the purposes of deciding his culpability. As regards the contention of the defence with respect to the delay in registering the FIR in the present case, Ld SPP has pointed out that the same was registered on the basis of source information and not on the basis of any complaint made by PW13, PW2 or PW27 and that therefore, according to Ld. SPP no reliance can be placed upon their depositions to contend that there has C.C. No: 18/ 2011 Page No. 40 of 89 Judgment in the matter of:-CC No.18/11
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been a delay in the filing of the present FIR. Ld SPP has also submitted that the mere fact that a chargesheet also stands filed against S.D Kapoor in another matter cannot be made a ground to discard his testimony in this case. Ld. SPP has also pointed out that it is a matter of record that the accused had refused to give his voice samples to the investigating officer and that this itself gives rise to an adverse inference that in voice in the tape recorded conversation proved by the prosecution is that of the accused only. It is also the contention of Ld. SPP that deposition of the expert witness PW8, in particular that he had checked the continuity of the voice recorded in the cassette amply proves that there is no tampering in the cassette in question and that therefore, the conversation in the said cassette can be admitted into evidence to corroborate the testimony of PW13 P.S.Nathan. Ld. SPP has relied upon various judgments of the Hon'ble Supreme Court to contend that tape recorded conversation proved on record by the prosecution in this case is admissible in evidence. In particular he has relied upon the following judgments : C.C. No: 18/ 2011 Page No. 41 of 89 Judgment in the matter of:-CC No.18/11
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● Ziyauddin Burhanuddin Bukhari Versus Brijmohan Ramdass Mehra & Ors., 1975 SCR 453.
● R.M.Malkani Versus State of Maharashtra, 1973 SCR (2) 417. ● Judgment pronounced by the Hon'ble Supreme Court on 4.8.2005 in CA No. 373375 of 2004 in judgment titled as State (N.C.T. Of Delhi) Versus Navjot Sandhu @ Afsan Guru.
● Judgment pronounced by the Hon'ble Supreme Court in SLP (C) No. 18879 of 2007 in case titled as All India Anna Dravida Munnetra Kazhagam Versus L.K.Tripathi and others. ● Mahabir Prasad Verma Versus Dr.Surinder Kaur, in 1983 SCR (3) 607.
● Srichand P.Hinduja Versus State Through CBI, 121 (2005) DLT 1.
● Ashok Debbarma Versus State of Tripura, (2014) 4 SCC 747.
● Avinash Kumar Versus State, 1963 Cri LJ 706.
29. It is also the contention of Ld. SPP that even if the said C.C. No: 18/ 2011 Page No. 42 of 89 Judgment in the matter of:-
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cassette, for the sake of arguments is held to be inadmissible in evidence, the testimony of PW13 P.S.Nathan is clear and categorical to hold the accused guilty of the offence that he had been charged with. According to Ld. SPP the lengthy cross examination of PW13 has not brought out any material inconsistency to the fore, which makes his evidence untrustworthy. Ld. SPP has further contended that the depositions of PW24 and PW25 clearly shows that the statements of the two witnesses Sh Prem Pasricha and Ms Sue Arnold recorded at Magistrates Court in U.K were received by the Investigating agency in India in response to the Letter of Rogatory issued by one of the Ld. Predecessors of this Court and that therefore the said statements are admissible in evidence and clearly corroborate the testimony of PW13 P.S.Nathan that the accused had given him the number of a bank account that one of his acquaintances Sanjeev Kapoor held in England and to which he wanted the demanded amount to be transferred to. He has pointed out the said two witnesses have narrated that one company namely Tech Edge Consultants Limited was established in U.K upon the instructions of Sanjeev Kapoor and that C.C. No: 18/ 2011 Page No. 43 of 89 Judgment in the matter of:-CC No.18/11
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two bank accounts including the bank account bearing number 11373579 at Bank Lloyds T S B, High Street, Middlessex, TW 31 DN had been opened in the name of said company. Thus according to the Ld. SPP none of the objections contentions raised by Ld. Defence Counsel had any merit and he has reiterated that prosecution has brought sufficient evidence on record to prove the guilty of the accused.
30. I have carefully considered the submissions made by the Ld. Counsels and have carefully considered the entire record and the judicial dicta referred to by the Ld. Counsels. It is first and foremost made clear that the submission of Ld. Defence Counsel that the present prosecution is not maintainable for MMTC Ltd has not been proved to a Government Company and the accused cannot be termed as a public servant has absolutely no merit in view of the categorical deposition of PW1 that MMTC Ltd is a public sector undertaking company of Government of India and the own suggestion of the accused that the share of the Government of India in MMTC Ltd was 99.7% and the remaining .3% C.C. No: 18/ 2011 Page No. 44 of 89 Judgment in the matter of:-
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was held by Financial Institutions of Government of India.
31. Coming now to the merits of the case, as narrated herein above the prosecution is relying upon the oral testimony of PW13, PW2 and PW27, corroborated by (i) the conversation recorded between the accused and PW13 wherein the accused assertedly informed PW13 the details of the bank account where he wanted PW13 to transfer the demanded bribe amount (ii) the telephone records revealing that the accused and PW13 had been in continuous touch with each other (iii) and the material collected in United Kingdom pursuant to the Letter Rogatory issued by the Court, to contend that the said evidence is sufficient to bring home the guilt of the accused.
32. This Court shall first consider the deposition of PW13, P.S Nathan, on whose allegations namely that the accused had demanded a bribe from him, the prosecution has centered its case. The first issue that is to be taken note of with respect to the deposition of PW13 P.S Nathan C.C. No: 18/ 2011 Page No. 45 of 89 Judgment in the matter of:-
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is that he has not been particular in deposing any of the exact dates on which the events, alleged in the charge sheet, took place. To elaborate, though in the charge sheet it has been alleged that the accused had demanded illegal gratification from P.S Nathan for the first time in April, 2002 when he had asked him to meet him at the Indian Habitat Centre, P.S Nathan during his evidence in Court has not mentioned the said month at all. On being questioned in this regard by the Ld. SPP this witness has merely stated that he does not remember the date and the month in which he had first met J.M Sahai or the date or month on which J.M Sahai had instructed him to meet him at a restaurant in Indian Habitat Centre and had for the first time demanded illegal gratification from him. His deposition in this regard is only that on some day in the year 2002 (infact in the evidence sheet, the year is recorded as 2000 as having been spoken by the accused but this court has accepted the submission of the Ld. SPP that the same could be a typing error), the accused had asked him to meet him at the Indian Habitat Centre and during the said meeting had demanded US dollars 0.50 per metric ton for each transaction for C.C. No: 18/ 2011 Page No. 46 of 89 Judgment in the matter of:-CC No.18/11
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himself. Now, apart from PW13 deposing about the said meeting with the accused at the Indian Habitat Centre, there is no other prosecution witness who has claimed knowledge of the said meeting. In other words, apart from the sole testimony of PW13 that there had been a meeting between himself and the accused in the Indian Habitat Centre where the accused had for the first time demanded illegal gratification from PW13, there is no other proof in respect of the said meeting. It is also to be borne in mind that apart from failing to give any specific date of the said meeting, this witness PW13 P.S Nathan during his crossexamination has even failed to specify as to who all were present in the said meeting. On being questioned in this regard, this witness has evasively deposed that he does not recollect as to whether besides himself and the accused, anybody else was or was not present at the said meeting in the Indian Habitat Centre. In the considered opinion of this court it is absolutely unacceptable that a witness would forget such a detail. Further, yet again though in the chargesheet it has been alleged that after P.S Nathan on 1.7.2002 sent an enquiry to the accused asking for best prices for wheat, C.C. No: 18/ 2011 Page No. 47 of 89 Judgment in the matter of:-CC No.18/11
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on 3.7.2002 the accused made a demand of USD 100,000, this witness P.S Nathan does not at all depose about any such demand made by the accused specifically on 3.7.2002. No doubt, this witness has stated that after the said alleged meeting at Indian Habitat Centre, the accused had reiterated his demand repeatedly during the various telephonic conversations that he had with him, there are no specific dates given by him of the said telephone calls at all nor is there any statement made by him to the effect that after he had made an enquiry from MMTC Ltd. with respect to the rate of wheat on 1.7.2002, the accused had telephonically contacted him and demanded US dollars 100,000. The only specific date given by this witness is that of 4.7.2002 when he recorded in a cassette, conversation that took between himself and the accused and wherein the accused demanded the illegal gratification from him again and also furnished him the details of the bank account where he wanted the same to be transferred.
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specify the date on which he apprised for the first time PW2 S.K Kapoor about the demand made by the accused though as per his deposition in July, 2002 itself, he had met S.D Kapoor in his office in Delhi and had given him a letter dated 16.7.2002 along with the cassette in question. Even this statement given by PW13 P.S Nathan is contradicted by PW2 S.D Kapoor for this witness has categorically deposed that P.S Nathan had not at all met him personally in July, 2002 and according to him, the cassette in question was not handed over personally to him at all by P.S Nathan and that infact this cassette had come from Chennai office of P.S Nathan either through post or through special messenger.
34. Despite the aforementioned material lacuna in the deposition of this star witness of the prosecution, the contention of the Ld. SPP is that since his deposition is corroborated by the cassette in question Ex. P5, the telephone detail records of the accused and P.S Nathan revealing that both of them were in continuous telephonic touch and the material collected in the United Kingdom pursuant to the LR, this Court should C.C. No: 18/ 2011 Page No. 49 of 89 Judgment in the matter of:-
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not have any doubts about the credibility of this witness. In the considered opinion of this Court, the contention of Ld. SPP with respect to the cassette Ex. P5 will have to be negated for the facts that have emerged during trial make the said cassette absolutely inadmissible in evidence in view of the law laid down by the Hon'ble Supreme Court and the Hon'ble Delhi High Court in the cases relied upon by the Ld. Defence counsel.
35. Before adverting to the judicial dicta relied upon by the Ld. Defence counsel it will be relevant herein to note the following material facts that have emerged with respect to the cassette Ex. P5 during the trial of this case.
● PW13 P.S Nathan for the first time during his deposition recorded in the court made a statement that initially he had recorded the conversation between himself and the accused on a pencil recorder and only thereafter had transferred it to another cassette. He admits that during no point of the investigation did he inform the C.C. No: 18/ 2011 Page No. 50 of 89 Judgment in the matter of:-
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investigating agency about the use and existence of such a pencil recorder.
● There is no clarity whatsoever with respect to the custody of the cassette from July, 2002 to March, 2003 when the IO K.Y Guruprasad seized the cassette for the first time. As narrated hereinabove, though according to P.S Nathan, he had personally handed over the cassette Ex. P5 to S.D Kapoor along with a letter dated 16.7.2002, according to S.D Kapoor this cassette was received from the Chennai office. Even this witness, S.D Kapoor is unable to specify whether the cassette came in a sealed cover or in an open envelope. Further, though according to Sh. S.D Kapoor he had handed over the cassette in question to Sh. Deepak Chatterjee, the then Commerce Secretary, on the date when he had first met Sh Chaterjee to apprise him about the complaint received by him against the accused and the cassette was returned to him by the office of Commerce Secretary only after one month thereafter, according to Deepak Chatterjee, Sh. S.D Kapoor had taken back C.C. No: 18/ 2011 Page No. 51 of 89 Judgment in the matter of:-CC No.18/11
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the said cassette back with him on the same day when he had brought the accused and the cassette before him. ● Though as per the deposition of the IO, the cassette Ex. P5 was seized by him on 18.3.2003 in the presence of PW2 S.D Kapoor and PW10 P.D Bajaj and PW10 P.D Bajaj in his crossexamination has stated that the cassette was seized in his presence by the IO, K.Y Guruprasad and that he, S.D Kapoor and the said IO had signed the cassette before the same was sealed, the audio cassette Ex P5 produced in Court during trial was not found bearing the signatures of S.D Kapoor or the IO (Even if the contention of Ld. SPP that the deposition of PW10 should be interpreted to mean that these persons had signed on the envelope containing the cassette and not the cassette, is accepted, it is to be noted that no envelope containing the signatures of these persons has been produced during trial).
● Similarly, when the IO during crossexamination is asked the procedure that he followed at the time of seizing and sealing the C.C. No: 18/ 2011 Page No. 52 of 89 Judgment in the matter of:-CC No.18/11
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cassette Ex. P5, he deposed that whenever he had sealed the cassette in the presence of witnesses, he had taken their signatures on the envelope in which the cassette was sealed on the date of its seizure and sealing, he admitted that the envelope in which he had taken the cassette in possession for the first time on 18.3.2003, has not been filed on judicial record.
● Further, though it is the case of the investigating agency that the audio cassette P5 was desealed and played on 4.8.2003, in the presence of PW17, Sh. Raghubir Chandra and this witness in his crossexamination has deposed that he had signed on the cassette and its inlay card which was shown to him on 4.8.2003 and that the cassette and inlay card were also signed by PW9 Bidikar, PW20 Vijaypal as well as by the IO K.Y Guruprasad on 4.8.2003, no such signatures were found on the audio cassette or the inlay card on their production during trial.
36. Now, if the principles laid down in the judicial dicta relied C.C. No: 18/ 2011 Page No. 53 of 89 Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
upon by the Ld. Defence Counsel are applied to the aforementioned facts, it becomes clear that the cassette Ex. P5 cannot be held admissible in evidence. In Ram Singh Vs Col. Ram Singh, 1985 (Supp) SCC 611 ( Supra the judgment relied upon by the Ld. Defence counsel) the Hon'ble Supreme Court has laid down the following conditions which are necessary to be fulfilled before admitting a taperecorded statement in evidence.
"(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the taperecorded statement has to be proved by the maker of the record by satisfactory evidencedirect or circumstantial.C.C. No: 18/ 2011 Page No. 54 of 89
Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
(3) Every possibility of tampering with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of the The Indian Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
37. Clearly in the present case, the facts laid out in the proceeding paragraph reveal that the condition 5 has not been fulfilled at all. The said facts make it apparent that right from the time the cassette was assertedly prepared, it changed hands frequently and further there was no proper custody or sealing of the said cassette. Further, the fact that PW13 P.S Nathan has deposed in Court that he had first of all C.C. No: 18/ 2011 Page No. 55 of 89 Judgment in the matter of:-
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(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
recorded the conversation between himself and the accused on a pencil recorder and had thereafter only transferred it to another cassette and the said pencil recorder was never seized nor examined by any expert, the possibility of the tampering of the cassette Ex. P5 cannot be ruled out at all. In CRL.A. No. 124 of 2008 titled as Ashish Kr. Dubey Vs. CBI (a judgment referred to by Ld. Defence Counsel), the Hon'ble Delhi High Court after discussing the entire law with respect to the admissibility of a tape recorded evidence and in particular referring to the dicta laid down by Hon'ble Supreme Court in Ram Singh's Case (Supra), held that in absence of the recording device being examined by an expert for ruling out the possibility of tampering, the cassette containing the recorded conversation is an inadmissible piece of evidence. In the case before Hon'ble Delhi High Court also the recording device namely MCR was neither sent to CFSL for examination nor was produced before the court and in such facts the Hon'ble Delhi High Court held that the condition laid down by the Hon'ble Delhi High Court in Ram Singh's Case namely that every possibility of tampering with must be ruled out, has not been C.C. No: 18/ 2011 Page No. 56 of 89 Judgment in the matter of:-CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
satisfied and that therefore the Ld. Trial Court had erred in considering the taperecorded statement as admissible in evidence. In the present case also the statement of PW13 P.S Nathan is categorical that he had used a pencil recorder as the recording device and since it cannot be doubted that a pencil recorder is a device which is capable of being examined by an expert and of being produced in a court and the same has not been done, it will have to be in view of the judicial dicta laid down by the Hon'ble Delhi High Court in Ashish Kumar Dubey's case that condition No. 3 laid down by the Hon'ble Supreme Court in Ram Singh's case has not been satisfied. None of the judgments referred to by the Ld. SPP lay down any proposition contrary to the one laid down in Ashish Kumar Dubey's case. The result of the same therefore is that the cassette Ex. P5 cannot be read in evidence at all. As such this court, finds it unnecessary to examine the remaining contentions of the defence made with respect to the identification of the voice of the accused therein. For the same reason, the contention of the Ld. SPP that an adverse inference should be drawn against the accused for he had refused to give a sample of his voice has no C.C. No: 18/ 2011 Page No. 57 of 89 Judgment in the matter of:-CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
relevance now.
38. Coming now to the telephone records produced by the Nodal Officers PW4 Captain Rakesh Bakshi, Nodal Officer Airtel, Bharti Cellular Limited and PW18 Smt. Ranga Nayaki, Accounts Officer, Chennai Telephones, the same are being relied upon by the prosecution to prove that the accused from his mobile telephone bearing no. 9810372513 was in continuous telephonic touch with P.S.Nathan and that on 4th July'2002, he had made calls from the said mobile on the landline number 3773156 / 3773717 / 3771629 of P.S.Nathan. The contention of the Ld. Defence Counsel with respect to the said telephone records is firstly that the prosecution has failed to prove that the mobile number 9810372513 was subscribed in the name of the accused and secondly that the records produced by PW18 are inadmissible in evidence in view of the fact that this witness PW18 has admitted in her cross examination that she was not maintaining the data center / server from which the original call details had been extracted and that she had only received a soft copy of these call C.C. No: 18/ 2011 Page No. 58 of 89 Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
details record from the data center, which she had got printed and had certified the same. Though this court does agree with the Ld. Defence Counsel that in view of the statement given by PW18 in her cross examination that she had never even seen the original call detail records, her mere statement that she had certified the same can hardly be stated to satisfying the requirements of Section 65 B of the Evidence Act, this Court finds no merit in the contention of the Ld. Defence Counsel that the records produced by PW4 have also no relevance as the prosecution has failed to prove the Customer Application Form (CAF) of the mobile number 9810372513. This is so because PW9, M.Y Bidikar, an official of MMTC Ltd. has specifically deposed that the aforementioned mobile number was allotted to the accused only and the accused has not chosen to challenge the said testimony of PW9. However, having said so, this Court has to agree with the Ld. Defence Counsel that the telephone call detail record produced by PW4 merely prove that the accused was in continuous telephonic touch with P.S.Nathan and that this fact alone cannot be stated to be corroborative of the deposition of PW13 C.C. No: 18/ 2011 Page No. 59 of 89 Judgment in the matter of:-CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
P.S.Nathan that the accused had demanded a bribe from him during the said telephonic conversations, for it cannot be ignored that the telephone records of the telephone being used by P.S.Nathan, Ex. PW29/B and Ex. PW18/D, proved on record by the prosecution itself show that he had also been in continuous telephonic touch during the months of March, April, June and July 2002 with PW2 S.K.Kapoor, Sh. Bidikar, the other officials of MMTC Ltd. Though P.S Nathan during his crossexamination, tried to evade the questions being put to him in this regard by deposing that he does not remember whether he had spoken to the aforementioned officials of MMTC Ltd., during the said period, the telephone records proved by the prosecution itself and the entries therein pointed out by the ld. Defence Counsel to this witness clearly prove that he had been in continuous telephonic touch with the aforementioned officials of MMTC Ltd., during the relevant period. Further in view of the fact that the cassette in question cannot be read in evidence in view of the discussion in the preceding paragraphs, the mere fact that the accused had made a call to P.S.Nathan on 04.07.2002 can be stated to be of much significance, C.C. No: 18/ 2011 Page No. 60 of 89 Judgment in the matter of:-CC No.18/11
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more so when according to P.S.Nathan, during the discussion/negotiations of the contract, as a matter of routine he was in touch with the officials of MMTC Ltd. Thus in the considered opinion of this Court, the telephone records relied upon by the prosecution as a corroborative piece of evidence are not of much significance.
39. Coming now to the next piece of corroborative evidence being relied upon by the prosecution namely the statements of one Prem Pasricha and Ms Sue Arnold recorded at Andover Magistrate Court, with respect to the Bank account of the company, Tech Edge Consultants Limited, the contention of the Ld. SPP is that the said statements can be read by this court in evidence against the accused as the same have been received from the competent authority in United Kingdom, pursuant to the Letter Rogatory issued by the Ld. Predecessor of this court and the same are admissible in evidence being public documents in terms of section 74 of The Indian Evidence Act and by virtue of provisions of section 166 A Cr.P.C and section 78 of The Indian Evidence Act. Ld SPP C.C. No: 18/ 2011 Page No. 61 of 89 Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
has pointed out that the statements of these two persons reveal that the bank account number told by the accused to P.S Nathan in his telephonic conversation recorded in Ex. P5, was infact in the name of M/s Tech Edge Consultants Ltd, a company which had been established in UK on the instructions of one Sanjeev Kapoor, who was a friend of the accused and that the said statements clearly bring out the connection of accused with the aforementioned Bank account and therefore corroborate the statement of P.S Nathan that the accused had furnished him the details of the aforementioned account and had instructed him to transfer the demanded amount to the said account.
40. To appreciate the said contention of Ld. SPP, it will be proper to reproduce the relevant provisions of section 166 A Cr.P.C and section 74 and 78 of The Indian Evidence Act. Section 166 A Cr.P.C provides :
(1) Notwithstanding anything contained in this Code, if, in the course of an investigation into an offence, an application is made by the investigating officer or any officer or any officer superior C.C. No: 18/ 2011 Page No. 62 of 89 Judgment in the matter of:-CC No.18/11
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in rank to the investigating officer that evidence may be available in a country or place outside India, any Criminal Court may issue a letter of request to a Court or an authority in that country or place competent to deal with such request to examine orally any person supposed to be acquainted with the facts and circumstances of the case and to record his statement made in the course of such examination and also to require such person or any other person to produce any document or thing which may be in his possession pertaining to the case and to forward all the evidence so taken or collected or the authenticated copies thereof or the thing so collected to the Court issuing such letter. (2) The letter of request shall be transmitted in such manner as the Central Government may specify in this behalf. (3) Every statement recorded or document or thing received under subsection(1) shall be deemed to be the evidence collected during the course of investigation under this Chapter.}
41. Section 74 provides what documents are to be considered as public documents and the definition of the public documents as given in the said section is as follows:
(1) Documents forming the acts, or records of the acts
(i) of the soveregin authority.
(ii) of officials bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, C.C. No: 18/ 2011 Page No. 63 of 89 Judgment in the matter of:-CC No.18/11
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(of any part of India or of the Commonwealth), or a foreign Country (2) Public records kept ( in any State) of private documents.
42. Further section 78 of The Indian Evidence Act inter alia provides the mode of proving public documents of a Foreign country and sub section (6) of the same provides that the public documents in a foreign country may be proved (6) Public documents of any other class in a foreign country:
by the original, or by a copy certified by the Legal keeper thereof, with a certificate under the seal of a Notary Public, or of ( an Indian Consul) or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.
43. The contention of the Ld. SPP in view of the aforementioned provisions is that the statements of Prem Pasricha and Ms Sue Arnold recorded at Andover Magistrates Court are to be deemed to be the evidence collected during the course of investigation (in view of sub C.C. No: 18/ 2011 Page No. 64 of 89 Judgment in the matter of:-
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(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
section (3) of section 166 A Cr.P.C) and since the same has been authenticated in the manner provided in by sub section (6) of section 78 of The Indian Evidence Act, they can be read in evidence against the accused by this court. In the considered opinion of this court the reliance of Ld. SPP on the provisions of section 74 and 78 of The Indian Evidence Act and 166 A Cr.P.C to contend that the said statements can be read in evidence , is completely misplaced. No doubt the said statements purportedly tendered by Prem Pasricha and Ms Sue Arnold, by virtue of the provisions of section 166 A Cr.P.C are to be considered as evidence collected during the course of the investigation, the same cannot be considered as a piece of substantive evidence which can be read against the accused in view of the fact that the aforementioned persons have not been produced in the witness box during trial. The said statements by virtue of section 166 A Cr.P.C are on par with statements recorded u/s 161 Cr.P.C by the Investigating Officer in India during the investigation of an offence and can only be used for the purposes of corroborating or contradicting a witness u/s 145 and 157 of The Indian Evidence Act. C.C. No: 18/ 2011 Page No. 65 of 89
Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
However when the witness himself has not made any deposition during trial before the court, the question of reading, in evidence, his previous statements given during investigation, does not arise at all. The Hon'ble Delhi High Court in the case titled and reported as Srichand P. Hinduja Vs. State Through C.B.I 2005 (2) JCC 1153 (a judgment relied upon by both the Ld. SPP and Ld. Defence Counsel) has clearly held that the word " evidence" used in section 166 A Cr.P.C is by itself much wider than evidence as defined in section 3 of the Evidence Act and unless a document is proved in accordance with the method indicated in the Evidence Act itself, it cannot be read in evidence by a court, only by virtue of section 166 A Cr.P.C. This court does not agree with the ld. SPP that the statements recorded during investigation in the Magistrates Court in U.K are in the nature of public documents and that the same can be read in evidence during trial, without their narrators being produced in the witness box. No doubt had Sh Prem Pasricha and Ms Sue Arnold appeared in the witness box then the said statements could have been read, for the purposes of section 145 and section 157 of the Indian C.C. No: 18/ 2011 Page No. 66 of 89 Judgment in the matter of:-CC No.18/11
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Evidence Act, without the person who had recorded the said statements, being produced in the court but in the absence of the said persons appearing in the witness box, the said statements cannot at all be read in evidence against the accused.
44. Now in view of the exclusion of the statements of Prem Pasricha and Ms. Sue Arnold from consideration as evidence and in the absence of PW13 P.S.Nathan deposing in court that the accused had informed him about Sanjeev Kapoor being holder of the bank account of M/s Tech Edge Consultants Limited, the only fact that remains on record and can be read against the accused is that one Sanjeev Kapoor was known to the accused (Admittedly, PW26 Sanjeev Kapoor examined by the prosecution has turned hostile and has denied having to do anything with the aforementioned account). This mere incriminating fact can hardly be stated as corroborating the oral deposition of PW13 P.S.Nathan.
C.C. No: 18/ 2011 Page No. 67 of 89
Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
45. The next contention of the Ld. SPP is that this Court must bear in mind that the testimony of PW13 P.S Nathan is also corroborated in material particulars by PW2 S.K Kapoor. As regards this witness, though it has been rightly contended by Ld. SPP that the chargesheeting of this witness in another case cannot be made a ground to discard his testimony in this case, it has already been noted hereinabove that this witness has completely contradicted PW13 P.S Nathan with respect to the handing over of the cassette P5. It is also to be taken note of that though PW13 P.S Nathan in his crossexamination has deposed that he had communicated to S.D Kapoor about his previous meeting with the accused at Indian Habitat Centre, PW2 S.D Kapoor does not talk about any such communication given to him by P.S Nathan and is categorical in his evidence to state that he had received a call from Mr. Nathan for the first time regarding the allegation against the accused in the first week of July, 2002 when P.S Nathan had informed him that he had clinching evidence of the accused demanding favours from him. It would be also relevant at this stage to consider another material fact that has emerged to C.C. No: 18/ 2011 Page No. 68 of 89 Judgment in the matter of:-
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(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
the fore with respect to this witness namely that he despite being informed by P.S. Nathan in the first week of July, 2002 that the accused was asking allegedly favours from him did not at all think it proper to then not go ahead with approving the proposal mooted by the accused in the Sale Purchase Committee. It is infact a bit strange that Sh. S.D Kapoor being known to P.S Nathan (in as much as he has been interacting with P.S Nathan for a substantial period of time since the year 2000 when P.S Nathan had applied to MMTC Ltd. for the first time) and despite being informed by him that the accused was asking favours from him with respect to the rates to be fixed for the export of Wheat to M/s Cross Land did not think it proper, as the Chairperson of the Sale and Purchase Committee, to take the allegations made by P.S Nathan to be serious and examining the terms on which the accused had assertedly recommended the grant of contract in favour of M/s Cross Land and instead went ahead to grant approval to the contract piloted by the accused. As per the telephonic records of the telephones used by P.S Nathan, produced by the prosecution itself both P.S Nathan and S.D Kapoor were in continuous C.C. No: 18/ 2011 Page No. 69 of 89 Judgment in the matter of:-CC No.18/11
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touch with each otherinfact the telephone records reveal that P.S Nathan had on more than one occasion, even spoken to S.D Kapoor at his residence at late night hours in such kind of acquaintance, in the ordinary course of conduct, S.D Kapoor should have believed P.S Nathan if he at all had informed him about the accused asking favours from him. Though this witness S.D Kapoor in his crossexamination has sought to give an explanation that since the evidence i.e cassette in question came into his possession only after 11.7.2002 he did not deem it proper to debar the accused from attending the meeting of sale purchase committee held on 11.7.2002,no explanation is forthcoming from him as to why he being the Chairman and MD of MMTC Ltd. could not have insisted on reexamining the terms and conditions approved by the accused for awarding of contract to M/s Cross Land, in view of the allegations made against the accused by P.S Nathan. In the considered opinion of this court though no doubt it can be stated that Sh. S.D. Kapoor was right in demanding evidence from P.S Nathan in support of his allegations that the accused was demanding favours from him for awarding contract in favour C.C. No: 18/ 2011 Page No. 70 of 89 Judgment in the matter of:-CC No.18/11
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of M/s Cross Land, nothing stopped Sh. S.D. Kapoor in stalling the process of awarding the contract to P.S Nathan and examining the rate of export of wheat fixed by the accused as being the Director Marketing, instead of approving the same in a casual manner in his capacity as the Chairman and MD of the sales purchase committee.
46. At this stage, this Court finds it necessary to also first consider in brief the defence put forward by the accused, for this Court completely agrees with the Ld. Defence Counsel that the case put forward by the prosecution is also not to be viewed in isolation but is to be examined in the background of the defence raised. As narrated hereinabove, the accused in his statement tendered under section 313 Cr.P.C., has interalia, stated that he has been falsely implicated in the present case at the instance of PW13 P.S Nathan and other high ranking officials of MMTC Ltd. namely Sh. Bidikar, Sh. Y.N. Bhargava and Sh. S.D Kapoor. He has, interalia, stated that after he i.e accused had taken over as Director Marketing, he had found the performance of Sh. Bidikar C.C. No: 18/ 2011 Page No. 71 of 89 Judgment in the matter of:-
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(PW9) to be below average and that he had also suspected him to have dishonest intentions and that he therefore, had got him transferred out from his division in the very beginning of the year 2002 itself and that for this reason, Bidikar bore a serious grudge against him. According to the accused, P.S Nathan was also not happy with him as he had increased the rate of wheat for the July contract offer given by M/s Cross Land. It is also the statement of the accused that he had discovered after the filing of this complaint that M/s Cross Land Marketing Singapore was a ghost company run by S.D Kapoor, Sh. Bidikar, Sh. Bhargava and Sh. P.S Nathan and that P.S Nathan had not submitted any documents at the time of entering his first agreement with MMTC Ltd., to show that he was an agent of M/s Cross Land Marketing and that the officials Incharge of Marketing Division namely Sh. S.D Kapoor, Bhargava and Sh. P.S Nathan had given a go by to the formalities which were to be followed when P.S Nathan for the first time was awarded the contract by MMTC Ltd., in the year 2000 and that it is these persons only who had wanted to get him i.e the accused shunted out of MMTC Ltd.
C.C. No: 18/ 2011 Page No. 72 of 89
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(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
47. Now the aforementioned defence put forward by the accused cannot at all be stated to be improbable if one considers the following facts that have been pointed out by the Ld. Defence Counsel to have emerged during trial:
a. PW5 Sh. Lekh Chand, who was posted as Chief General Manager (Agro) at the relevant time has stated in his cross examination that Sh. M.Y Bidikar was not happy with his transfer and that he had the feeling that he was transferred from the Agro Division at the instance of the accused. This witness has further deposed that he was aware that P.S Nathan was not happy with the increase in the price of Wheat from April to July contract.
b. PW13 P. S Nathan in his crossexamination has admitted that apart from Sh. S.D Kapoor it was Sh. Bidikar and Sh. Bhargava of the Agro Division of MMTC Ltd. with whom he had interacted when he had applied to MMTC Ltd. for the contract for the first time in the year 2000 and that at the said time he had not submitted C.C. No: 18/ 2011 Page No. 73 of 89 Judgment in the matter of:-
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(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
with the MMTC Ltd. any Power of Attorney executed by M/s Cross Land in his favour or any Board Resolution or any other kind of document whatsoever executed by M/s Cross Land in recording therein that he was their agent in India. It is also strange that despite being the agent of this company for a period of 2 years, on being questioned, he is unable to tell any of the names of the Directors of the said company except that of one Sh. C.C.Ng.
c. Further, though PW13 P.S Nathan in his cross examination categorically deposed that his relations with S.D Kapoor, Y. N Bhargava and Sh. Bidikar were purely professional and that he used to speak to them telephonically only for the purpose of business and that he used to say a causal "Hello' to them as and when he used to visit the office of MMTC Ltd. for his business proposals, he was unable to explain at all as to why the telephone records of his land line and mobile number, Ex. PW29/B and Ex. PW18/D placed on record by the prosecution itself, revealed that he remained in continuous touch with Sh. Bidikar and Sh. Y.N Bhargava even in April, May and July, 2002 despite C.C. No: 18/ 2011 Page No. 74 of 89 Judgment in the matter of:-CC No.18/11
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being aware that both these officials were transferred from the Agro Division in the beginning of the year 2002 itself.
48. In the considered opinion of this Court, the aforementioned facts, the defence raised by the accused and the contradictions between the depositions of PW13 P.S. Nathan and PW2 S D Kapoor (discussed in the preceding paragraphs) and the conduct of PW2 S.D Kapoor, in going ahead with the contract in question despite being allegedly made aware by P.S Nathan of the conduct of the accused, all read in conjunction make it clear that the deposition of PW2 S.D Kapoor cannot be held to be sufficiently credible.
49. Coming now to the next contention of Ld. SPP namely that the deposition of PW27 Deepak Chatterjee revealing the conduct of the accused in resigning immediately on being confronted with the allegations made against him supports the deposition of PW13, it would be relevant now to consider that the testimony of PW27 Deepak C.C. No: 18/ 2011 Page No. 75 of 89 Judgment in the matter of:-
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Chatterjee in detail. Ld. SPP has very vehemently contended that this court should not have any reasons to disbelieve the testimony of this person who was holding the rank of Commerce Secretary at the relevant time. No doubt this Court is in agreement with the Ld. SPP that generally a person holding the responsible post of Commerce Secretary should not be doubted for giving false deposition against the accused, more so when the accused has not levelled any allegations against him except to the extent that he might have acted at the instance of Sh Maran, the then Commerce Minister with whom Sh. P.S Nathan had some indirect political links, this court has to bear in mind that this witness has not been able to satisfactorily explain that if he himself had found the complaint against the accused genuine why no action was initiated against the accused and why was he allowed to resign with full benefits. In his cross examination this witness has admitted that whenever any complaint used to be received in the Ministry of Commerce against an official and same was found to be genuine and not anonymous, then some action in the form of enquiry/disciplinary action or complaint to CBI was initiated C.C. No: 18/ 2011 Page No. 76 of 89 Judgment in the matter of:-CC No.18/11
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against the employee and that in such cases the Ministry would not accept the resignation of the employee. No doubt, he has deposed that while working as Secretary, he had discretion to allow an employee to resign even if there was a complaint pending against him, however, he himself has made it clear that he used to exercise the said discretion only if he found that the complaint filed was not verifiable or may not lead to any concrete results. In the present case, as per the own deposition of Deepak Chatterjee he had the cassette in his possession which assertedly contained clinching evidence of the accused having demanded favours and thus present is not a case where the complaint was not verifiable or would not have led to any concrete results. In other words, as per the own deposition of the Commerce Secretary the present would have been a case where he would not have allowed the accused to resign. It is relevant to note that this witness has volunteered to state that he had brought the complaint to the notice of the then Ministry of Commerce and that it was the Minister of Commerce who had told him to let the accused resign and then that action would be taken thereafter. He has also deposed that in C.C. No: 18/ 2011 Page No. 77 of 89 Judgment in the matter of:-CC No.18/11
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this regard, he had also, on the file noting prepared by the Ministry of Commerce and Industry, with respect to the resignation tendered by the accused, made an endorsement to the effect that he had mentioned the same to CIM (Commerce and Industry Minister). With respect to the said deposition of this witness, it is to be firstly noted that the IO PW30 has categorically stated that this witness had not told him at all that he had informed the Minister. Secondly, the noting Ex. PW27/B does not at all support the aforementioned deposition of PW27 Deepak Chatterjee and on the contrary, reveals that the accused was allowed to resign as there was no complaint of vigilance pending against him. It would be relevant herein to reproduce the relevant portion of the said noting prepared by the Deputy Secretary, Ministry of Commerce and Industry, exhibited as Ex. PW27/B. "Sh. J. M Sahai was appointed as Director (Marketing), MMTC on 3rd October, 2001, for a period of five years.......... Sh J.M Sahai has made an application for accepting his resignation on personal reasons from 26.7.2002...................
Sh. Sahai however, has requested in his application that C.C. No: 18/ 2011 Page No. 78 of 89 Judgment in the matter of:-
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condition of notice of three months before resignation may be waived.................................
"In view of the above, the resignation of Shri Sahai may be accepted subject to the vigilance clearance. It is discussed informally with CMD, MMTC Ltd that on acceptance of resignation of Shri Sahai, CMD, MMTC Ltd. would make internal arrangement for discharging the duties of the post held by Shri Sahai until the post is filled up by regular incumbent. Before the file is submitted to C&IM who is the competent authority to accept the resignation of Shri Sahai as well as the waiver of the conditions of three months notice before resignation, the file may be shown to CVO/Director (Vigilance), DoC, for vigilance clearance".
50. Just below this noting there is an endorsement by the Director Vigilance to the effect that CVC clearance has been obtained and there is no pending vigilance case and thereafter appears the endorsement of PW27 Deepak Chatterjee's to the effect that:
"This has been mentioned to CIM. His formal signature on the file may be taken later. Issue letter accepting resignation w.e.f.26.7.2002". C.C. No: 18/ 2011 Page No. 79 of 89
Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
51. A plain reading of the aforementioned noting and the endorsement make it amply clear that the Ministry of Commerce and Industry agreed to accept the resignation of the accused subject to the Vigilance clearance and on the receipt of the said clearance, PW27 Deepak Chatterjee directed for the issuance of the letter of acceptance of resignation. By no stretch of imagination can the endorsement made by Deepak Chatterjee be read to imply that he had mentioned to the Minister about the complaint received against the accused. The aforementioned noting clearly indicates that since no vigilance case was reported to be pending against the accused, his resignation was accepted with immediate effect. The said noting is also in consonance with the defence put forward by the accused namely that he had appeared for a job interview in Mumbai on 22.7.2002 and had received a job offer from a private company based in Mumbai, in the name of Taurian Iron and Steel Company Pvt. Ltd. and the said company desired that he should join their services with immediate effect and that therefore, the accused requested to be relieved from MMTC Ltd. with immediate effect and that since C.C. No: 18/ 2011 Page No. 80 of 89 Judgment in the matter of:-
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(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
there was no Vigilance Case/complaint ever pending against him, his resignation was accepted with immediate effect. The witness DW2, an employee of the aforementioned company, produced by the accused in the witness box has proved that the accused had joined the services of the said Private Company w.e.f. 1.8.2002 and DW1 an official of the MMTC Ltd., has brought some official records to show that the accused was infact in Mumbai on 22.7.2002.
52. The conclusion of the aforementioned discussion is that none of the corroborative evidence being relied upon by the prosecution, except to the extent that the same reveals that the accused was in telephonic touch with P.S.Nathan and one Sanjeev Kapoor was known to the accused, is admissible in evidence and bereft of any material admissible corroborative evidence, the depositions of PW2, PW13, PW27 with the infirmities pointed out hereinabove, cannot held sufficient to hold the accused guilty of the offence that he has been charged with, specially taking into account the fact that there is a delay of about seven months in C.C. No: 18/ 2011 Page No. 81 of 89 Judgment in the matter of:-
CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
the registration of the FIR in the present case.
53. Admittedly, the FIR in the present case was registered on 20.2.2003, though as narrated herein above the accused had allegedly demanded the illegal gratification in JuneJuly, 2002 and thus there is almost a delay of about 7 months in the registration of the FIR. Though the contention of Ld. SPP is that the present FIR was registered on the basis of source information and that therefore the investigating agency cannot be called upon to explain the delay, in the considered opinion of this court, the said contention cannot be accepted in view of the statement made by PW27, Deepak Chatterjee, the then Commerce Secretary. This witness has specifically deposed in his crossexamination that after the accused had tendered his resignation in July, 2002, he had discussed the matter with S.D.Kapoor, the then Chairman of MMTC Ltd. and the same was referred for investigation to CBI and that a CBI official had visited him for inquiry within a month or two of the resignation of the accused J.M.Sahai. In other words, according to this witness by August C.C. No: 18/ 2011 Page No. 82 of 89 Judgment in the matter of:-
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(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
September 2002, a complaint was made to the CBI and a CBI official had also visited him for making inquiry. The contention of Ld. SPP that this witness may have forgotten the correct dates, cannot be accepted at all for this witness has specifically stated more than once in his cross examination that none from CBI had come to him for making inquiries in the year 2003 and that he is very sure that the complaint to the CBI had been made within a month or two of the resignation of the accused. In view of the statement made by PW27 in his cross examination, it is clear that the prosecution has no answer as to why if the complaint was made to CBI in August - September'2002, was the FIR only registered in February'2003. On the other hand, if, however, the contention of the Ld. SPP namely that none of the officials of MMTC Ltd. or the Commerce Secretary had made a complaint to the CBI and that the CBI had registered the FIR only on the basis of another secret source information, is accepted, then the investigating agency has no answer to the contention of the defence as to why the MMTC Ltd. and the Commerce Secretary did not choose to file any complaint against the accused for an entire C.C. No: 18/ 2011 Page No. 83 of 89 Judgment in the matter of:-CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
period of 7 months and simply chose to remain silent till the time the CBI officials approached them and made inquiries from them.
54. Further, in the considered opinion of this court, the said delay cannot be brushed aside as inconsequential as sought to be contended by the Ld. SPP if one considers the circumstances pointed out by the Ld. Defence Counsel, which have emerged during trial and which appear to suggest that the investigating official was deliberately marking time with a view to decide about the shape to be given to the case. In this respect, it is to be taken note of that though after the registration of the FIR on 20.02.2003, the IO of this case as per his deposition, met PS Nathan on 4.3.2003, he chooses not to record any statement of P.S Nathan under section 161 Cr.P.C., and it is only after over three months from the date of registration of FIR, the IO for the first time records the said statement of P.S Nathan on 2.6.2003. Further, in none of the proceedings recorded by him till that day namely Ex. PW10/A does he at all mention the fact that he has already questioned P.S Nathan. Yet again, though now C.C. No: 18/ 2011 Page No. 84 of 89 Judgment in the matter of:-CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
as per the case put forward by the investigating agency, the cassette in question containing the purported conversation between the accused and P.S Nathan with respect to the demand of bribe, was seized by the IO from PW 2 S.D Kapoor in the presence of PW10 P.D Bajaj on 18.3.2003, there is no valid reason given whatsoever by the IO K.Y. Guruprasad, PW30 as to why he did not record the statements of S.D Kapoor and P.D Bajaj on 18.3.2003 and why it is only after two months i.e on 7.5.2003 did he chose to record the statement of S.D Kapoor and that of P.D Bajaj only on 25.7.2003. When the said IO is questioned during the cross examination and asked to reveal the reasons for following such a course of action, he has chosen very surprisingly to state that in the present case and in all the other cases investigated by him, he followed the practice of initially calling a witness only for the purposes of making an inquiry from him and thereafter only after going through all the documents, would he choose to record their statements. In the considered opinion of this court, the said practice being followed by the investigating officer cannot at all be stated to be satisfying the legal principles laid down in this C.C. No: 18/ 2011 Page No. 85 of 89 Judgment in the matter of:-CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
respect. In the cases titled and reported as Ganesh Bhawan Patel Vs. State of Maharashtra, AIR 1979 SC 135 and Mahabir Kumar & Ors Vs. State, III (2014) DMC 21 (DB) (Delhi); Sudarshan Kumar Vs. State, I (2015) CCR 112 (SC); Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773 (judgments relied upon by the ld. Defence counsel), the Hon'ble Supreme Court and the Hon'ble Delhi High Court have explained the importance of recording the statement of witnesses under section 161 Cr.P.C as early as possible and have categorically held that if such statements of witnesses are not recorded on the date of the incident or within a reasonable time of the registration of the complaint, despite the said witnesses being available, the same casts a cloud of suspicion on the credibility of the entire prosecution story and inevitably leads to the conclusion, that the prosecution story was conceived and constructed after a good deal of deliberation. In the present case, apart from recording the statements of PW13 P.S Nathan and PW2 S.D Kapoor belatedly, it is also to be taken note of that the IO K.Y Guruprasad has not at all recorded the statement of Deepak Chatterjee C.C. No: 18/ 2011 Page No. 86 of 89 Judgment in the matter of:-CC No.18/11
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under section 161 Cr.P.C at all. There is no explanation whatsoever forthcoming from the prosecution as to why the said statement was not recorded and all that the Ld. SPP could submit in this respect was that the case diary maintained by the IO records that the IO had made an inquiry from Deepak Chatterjee on 1.8.2003 and that the same can be shown to the Court. Ld. SPP has further submitted that statements recorded under section 161 Cr.P.C have even otherwise a very limited value during trial and he has contended that therefore, no prejudice can stated to have been caused to the accused in the absence of the recording of the statement of Deepak Chatterjee under section 161 Cr.P.C. In the considered opinion of this Court, when PW27 Deepak Chatterjee has himself deposed before this court that no inquiry was made from him in the year 2003, the noting made by the IO in his case diary to the said effect would hardly be of any consequence. Further, this court also does not agree with the Ld. SPP that the recording of the statement of a witness under section 161 Cr.P.C is not necessary. Though no doubt the judgments cited by the Ld. SPP do lay down that the statements recorded under section 161 Cr.P.C have a limited C.C. No: 18/ 2011 Page No. 87 of 89 Judgment in the matter of:-CC No.18/11
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value, none of them lay down a preposition that recording of such statement is not necessary. The Hon'ble Delhi High Court in its judgment pronounced in the case titled and reported as Shamshad Ali Vs. The State, 1984 (2) Crimes 359 negated a similar contention made on behalf of the State before it and held that proper investigation necessarily requires the recording of statements of the witnesses unless they were not known or unavailable. The Hon'ble High Court specifically held that in the absence of the recording of such statements the accused is certainly likely to be prejudiced as he is handicapped from knowing what the witness had stated shortly after the occurrence.
55. In view of the discussion hereinabove, the facts that have come to the fore during trial lead to the conclusion that the prosecution has been unable to explain the delay in filing of the FIR and the said delay cannot be stated to be inconsequential and if the same is considered the same along with infirmities that have emerged during the examination of the three material witnesses of the prosecution namely PW2 S.K C.C. No: 18/ 2011 Page No. 88 of 89 Judgment in the matter of:-CC No.18/11
(C.B.I. Vs. J.M.Sahai Dated : 31.07.2015.
Kapoor, PW13 P.S Nathan and PW27 Deepak Chatterjee, in the considered opinion of this court the accused will have to be granted the benefit of doubt. The inability of the prosecution to have satisfactorily explained the questions raised by the defence does give rise to a reasonable doubt over the case put forward by it. It is well settled law that the prosecution has to prove its case against an accused beyond all reasonable doubt and that if it fails to do so, the accused is entitled to be granted the benefit of doubt and to be acquitted. As such, this Court therefore, hereby holds that the prosecution has been unable to prove its case against the accused J. M Sahai beyond all reasonable doubt and the accused therefore, is hereby acquitted of the offence that he has been charged with.
Announced in the Open Court On the 31st July, 2015 (ANU GROVER BALIGA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.C.C. No: 18/ 2011 Page No. 89 of 89