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Delhi District Court

Cbi vs . 1) Sh. Om Prakash Sharma, on 19 March, 2013

                                         1

          IN THE COURT OF SH. PRADEEP CHADDAH: 
       SPECIAL JUDGE: CBI­01, CENTRAL DISTRICT. DELHI



CC No.  255/07                            RC  6(A)/91

                                     PS   CBI/SIU­IX/ND



CBI  Vs. 1) Sh. Om Prakash Sharma,
             S/o Late Sh. Ram Richhpal Sharma,
             R/o. C­8//8258, Vasant Kunj, New Delhi.
           ( then posted as DIG, CBI, SIC­II, New Delhi)

Date of Institution                  :  14.09.92
Judgment Reserved                    :  04.03.13
Judgment Delivered                   :  19.03.13


                        J U D G M E N T   

1. CBI filed the present charge sheet against accused O.P. Sharma S/o Late Sh. Richpal Sharma U/s 7 and 13(2) r/w 13(1)(d) of the P.C. Act.

CC 255/07 CBI Vs. Om Prakash Sharma 2

2. Accused who was DIG of CBI, SIC­II was alleged to have demanded bribe from Sh. L.K. Kaul, a friend of Sh. Surender Jain for not implicating Surender Jain and others and for not applying TADA against them.

3. On 20.04.91, a case U/s 120­B IPC and Section 3 and 4 of TADA and Section 56 r/w Sec. 8(1) of FERA was registered against Ashfaq Hussain Lone. The case was being supervised by accused O.P. Sharma. During course of investigation of said case, residential and office premises of Surender Jain, residential premises of Jainender Jain an employee of Surender Jain were searched on 03.05.91. Both of them were threatened by accused O.P. Sharma on 03.05.91, 04.05.91 and 10.05.91 during course of interrogation. The threat was of invoking provisions of TADA against them. Surender Jain then contacted L.K. Kaul who was known to accused O.P. Sharma to intervene. O.P. Sharma demanded illegal gratification from L.K. Kaul.

4. L.K. Kaul and Surender Jain then agreed to pay illegal CC 255/07 CBI Vs. Om Prakash Sharma 3 gratification in installments to avoid threatened arrest and to also get accused O.P. Sharma arrested at appropriate stage. O.P. Sharma accepted Rs. 19 lacs from L.K. Kaul in installments. The conversation between him and accused were tape recorded.

5. On 10.06.91, L.K.Kaul lodged written complaint with CBI to the effect that accused O.P. Sharma had demanded and accepted huge amount of money and was further demanding Rs. 10 lacs. A trap team was constituted. O.P. Sharma then accepted Rs. 10 lacs at his residence K­ 7/3, Multistorey Flats, Sector­13, R.K. Puram at about 10.40 pm on 16.6.91 from L.K. Kaul. CBI team then rushed towards O.P. Sharma who ran inside and bolted the door. After apprehension of the accused, his hand wash was taken. The sodium carbonate solution test gave positive reaction. The bag containing GC notes worth Rs. 10 lacs was found lying in the open balcony of flat no. K 6/3, 6th floor, Multistorey Flats just beneath window of the covered balcony of the accused O.P. Sharma. It was prayed in the chargesheet that accused be summoned and prosecuted for the offence.

CC 255/07 CBI Vs. Om Prakash Sharma 4

6. After appearance of the accused and completing other formalities, my Ld. Predecessor framed the following charge:

"Firstly, that you while being employed as Deputy Inspector General of Police in CBI, and as such a public servant, on 4.5.91 demanded illegal gratification of Rs. 30 lacs from the complainant Lav Kumar Kaul as a motive or reward and in consideration of your showing favour in discharge of your official duty viz your not arresting L.K. Kaul's friend Surender Kumar Jain r/o A­13, Friends Colony (East) New Delhi and J.K. Jain r/o G­36, Saket, New Delhi, cousin and business associate of the said Surender Kumar Jain, in a case under TADA which had been registered by CBI in April 1991 vide RC No. 5(S)/91 SIU (V), pursuant to recovery of huge amount of cash from their premises during the raids conducted by CBI on 3.5.91 in CC 255/07 CBI Vs. Om Prakash Sharma 5 connection with the aforesaid case under TADA and you also obtained a sum of Rs. 19 lacs as part payment from Lav Kumar Kaul during May, 1991 and another sum of Rs. Ten lacs was obtained by you from Lav Kumar Kaul on 16.6.91 at your residential flat No. K­7/3, M.S. Flats, R.K. Puram, New Delhi and thereby you committed an offence punishable u/s 7 of Prevention of Corruption Act, 1988 and within my cognizance.

Secondly, that you while being employed as Deputy Inspector General of Police in CBI obtained illegal gratification of Rs. 29 lacs, as aforesaid, from complainant Lav Kumar Kaul by corrupt or illegal means or otherwise by abusing your position as such public servant and thereby you committed an offence of criminal misconduct as specified under section 13(1)

(d) and punishable under section 13(2) of the CC 255/07 CBI Vs. Om Prakash Sharma 6 Prevention of Corruption Act, 1988 and within my cognizance.

Thirdly, that on 16.6.1991 when CBI team came to your residence at about 10.10 pm to conduct a raid for apprehending you while accepting bribe from the complainant Lav Kumar Kaul and entered your house on receipt of the signal from the complainant you threatened members of the raiding party to kill them by shooting with your revolver and thereby you committed an offence punishable u/s 506(II) IPC and within my cognizance."

7. After charge was framed, accused pleaded not guilty and claimed trial. Prosecution in support of its case examined 21 witnesses, while accused examined seven D.Ws in his defence.

8. PW1 was Mr. M.S. Kholia. He deposed that during 1991­92 he CC 255/07 CBI Vs. Om Prakash Sharma 7 was posted as Crime Assistant, Incharge (Accounts) in CBI, SIC­II, New Delhi. The accused O.P. Sharma was DIG at that time. TA bill no. 327/91­92 SIC­II of accused O.P. Sharma was received in the office on 05.06.91. The bill was entered in office diary no. 2078 dt. 06.06.91. It had been submitted by the accused. His signatures appeared at point B. The bill was Ex. PW1/A. On the reverse of the bill calculations were made by him (PW1 M.S. Kholia). The bill was passed for Rs. 892/­. Accused received the payment of Rs. 892/­ on 17.9.91 vide his signatures at point F. He further deposed that seizure memo dt. 21.02.92 was Ex. PW1/B. It contained his signatures at point A. The TA bill Ex. PW1/A was handed over to Mr. K.C. Sharma, DSP.

9. Upon being cross examined, he claimed that PW1/A was carbon copy of the original as the original had been sent to PAO office.

10. PW2 was complainant Lav Kumar Kaul. He deposed that he knew Surender Jain for last 15 years. On 03.05.91 Surender Jain came to his house and informed him that one of his employee had been CC 255/07 CBI Vs. Om Prakash Sharma 8 raided by CBI and they were under constant threat of being involved in some case under TADA. He requested him to talk to accused O.P. Sharma and get the matter settled since he knew him. Surender Jain informed him that huge amount of cash and Indra Vikas Patra had been seized from Jainendra Jain besides other documents. He then deposed further that he fixed up appointment with O.P. Sharma for 04.05.91. O.P. Sharma informed him that it was very serious case and the money which was seized was meant to be passed on to terrorist. Finally he agreed to settle the matter for consideration of Rs. 30 lacs. Surender Jain and he was not in favour of paying bribe, but buckled under the threat of being involved in TADA. They agreed to pay bribe amount in installments. Surender Jain gave him Rs. 4.8 lacs, Rs. 4.2 lacs, Rs. 3 lacs, Rs.3 lacs and Rs. 5 lacs. Of the said amount, he delivered Rs.19 lacs to O.P. Sharma. The conversation between him and the accused were duly recorded.

11. On 10.06.91, he made a complainant to director CBI. The said complaint which was in his handwriting was Ex. PW2/A and contained CC 255/07 CBI Vs. Om Prakash Sharma 9 his signatures at point A. On 15.06.91 he received a phone call from Anand Kumar, DIG. On 16.06.91 at 10 a.m. he met Anand Kumar DIG, Mr. Nambudari Joint Director CBI at Jaam Nagar Hutments. The tapes; recorded by him were played. He told them that accused O.P. Sharma was pressurizing for balance payment of Rs.11 Lacs and he had promised to pay him Rs.10 Lacs on 17.06.91. At instance of CBI officers he came up with the GC notes . A phone call was made to accused from CBI office. He informed the accused that he was speaking from Model Town and would reach in an hour. Anand Kumar called H.C. Singh DSP who came with witnesses, one of them was Mr. Baghi. All the numbers of GC notes were noted down. Some powder was sprinkled on them and demonstration was given. Memo of proceedings Ex.PW2/B was prepared. List of GC notes was Ex.PW2/C.

12. They left CBI office in two vehicles and reached near main gate of compound of the accused. He dropped Baghi and H.C. Singh and drove the car to parking lot. The team took positions. Upon ringing the bell, accused O.P. Sharma opened the door. Election results were CC 255/07 CBI Vs. Om Prakash Sharma 10 being announced on TV which was switched on in the room. He then claimed that he asked the accused to get a bag and take the notes. Accused produced a browning mashroom colour airbag Ex.P­1. He took the money from briefcase and put it in his bag. He went inside the flat to keep the bag. The briefcase in which money was carried to his flat was Ex.P­2. The witness claimed that he went out and lighted his cigarette which was prearranged signal to the team. Raiding party rushed to his door. Accused saw the raiding party and bolted the door from inside. The door had automatic latch and could be closed by merely pushing it. It took 15­20 minutes to open the door as son of the accused was holding the door from inside. When the team members entered into the flat, accused ran into his bedroom and bolted it from inside. A short while later he opened the bed room door and appeared with a revolver in his hand. SP Satpal Singh and DSP H.C. Singh told him to hand over the revolver. He told the CBI team that he had given the money. The flat of the accused was searched but they did not find bag Ex.P­1. Then one inspector was able to see bag lying in the balcony of the flat beneath flat of the accused. Window of the CC 255/07 CBI Vs. Om Prakash Sharma 11 bedroom of the accused was open. The flat underneath flat of accused was in occupation of Mr. Moorthy. They informed him about the developments. A photographer was called and he took photographs of the bag. Hands of the accused were washed. The solution turned pink. It was poured into two bottles and sealed. Proceedings conducted at the spot were recorded. Search of the flat of the accused revealed foreign exchange, bottles etc. Memo prepared was Ex.PW2/D.

13. Witness was shown two thousand currency notes of Rs.500/­ each collectively marked as Ex. P­3 in the Court. He identified them as the same which he had handed over to the accused and had been recovered from the airbag Ex.P­1. He further submitted that he had handed over 7 tapes. A sealed parcel was opened in the court it contained 5 audio cassettes and 2 micro cassettes. The cassettes were played in the court. PW Lav Kumar Kaul identified not only his own voice but voice of accused, wife of accused, PW Surender Jain and others. He further claimed that all the transcripts had been properly prepared and depicted correctly the conversation which had taken CC 255/07 CBI Vs. Om Prakash Sharma 12 place. While the cassettes were being played in the court, Ld. Counsel for the accused had raised objections but the said objections were set aside by my learned predecessor.

14. The witness was cross­examined by Ld. Counsel for the accused wherein he claimed that Surender Kumar Jain (Surender Jain) was not related to him nor he was business partner. But, he knew him as a friend. He claimed that when he met Surender Jain on 3.5.91, search was being conducted at the house of Janender Jain. Surender Jain confessed to him that diary had been seized from house of Janendra Jain. In the said diary names of politicians, bureaucrats and VIPs were written to whom payments had been made by him. He wanted to get back his diary and other documents. Till then no money had been demanded. He claimed that threats were coming from various DSPs working under the accused for arrest of Surender Jain and Janender Jain. Only thereafter, Surender Jain had told him (PW Luv Kumar Kaul) that he was ready to spend any amount as necessary to avoid threatened arrest under TADA. The witness claimed further that on CC 255/07 CBI Vs. Om Prakash Sharma 13 next day i.e. 4.5.91 he had contacted accused at his residence for appointment. The complaint Ex.PW2/A was written by him at his house. He also admitted having made 20 complaints against CBI to CBI Director and Prime Minister against two false cases registered against him. He denied the suggestion that accused had not asked him to come to his residence in the evening of 4.5.91. He claimed that he did not remember if he had mentioned in his complaint Ex.PW2/A that accused had agreed to settle the matter for Rs.30 Lacs. He denied the suggestion that accused had not demanded any money or Rs.30 Lacs to settle the matter. He could not remember the dates on which Surender Jain had given him first installment of money of Rs.20 Lacs in five installments, but claimed that he had made a record and could provide the dates on the next date. He claimed that he had made payment to the accused in the sequence he had received in from Surender Jain. Only from the last installment of Rs. 5 Lacs, he had paid Rs.4 Lacs to the accused. These payments had been received from Surender Jain and passed on to the accused between 5.5.91 and 10.6.91. Entire amount of Rs.19 Lacs was not paid in May. Some of it was paid in June'91. The CC 255/07 CBI Vs. Om Prakash Sharma 14 amount had been paid in five installments to the accused at his house at R.K. Puram and he had recorded conversation of accused regarding every payment made by him. Surender Jain and Janender Jain were being summoned in CBI office by DSP working under the accused. He admitted that he had not joined in any investigation to recover Rs. 19 Lacs. He denied the suggestion that no deal of bribe of Rs.30 Lacs had been settled with the accused. He denied the suggestion that he had made a false statement in this account. Surender Jain had agreed to spend money on 3.5.91 itself. He claimed that he did not remember if accused had told him that diary seized from house of Janendra Jain contained names of Rajiv Gandhi, L.K. Advani, R.B. Dhawan, Pranab Mukherjee, Bhajan Lal, Arjun Singh, Natwar Singh, Yashwant Sinha, Chander Shekhar, Balram Jakhar, Lalit Suri, Buta Singh and Vijay Karan Director CBI. But he had told him that payments had been made to them.

15. Regarding complaints made by him (PW Luv Kumar Kaul) he expressed his ignorance regarding enquiry being conducted. He denied CC 255/07 CBI Vs. Om Prakash Sharma 15 the suggestion that he had taken money from Surender Jain on the pretext of handing over to the accused but instead pocketed the same. Regarding case pending against him (PW Luv Kumar) he claimed that he was involved in cheating case, trial of which was still pending and charges still had not been framed. He claimed that he was an engineering graduate and proprietor of M/s. Auto Part India Pvt. Ltd. He had not applied in Karnataka Bank for loan. He denied the suggestion that he was close to DIG Mr. M.D. Sharma and Director CBI Mr. Vijay Karan. He denied the suggestion that he had conspired with Vijay Karan Director CBI, former Prime Minister Chander Shekhar, Central Minister Kamal Murarka and Sanjay Singh to false implicate the accused.

16. On being further cross­examined witness claimed that he got acquainted with Surender Jain 2­3 years prior to the date of incident. He had become his personal friend. He denied the suggestion that false case was instituted against the accused to get rid of the accused from the investigation being done in matter involving politicians and CC 255/07 CBI Vs. Om Prakash Sharma 16 bureaucrats who figured in the Jain Diaries. Upon being asked whether in any of the seven tapes there was any recording of conversation to the effect "Sharmaji mei itne paise laya hun, aap yeh rakh lo", witness replied that in one of those seven tapes this conversation had been recorded. But, he could not recollect that specific tape. The transcripts had not been prepared in his presence. He denied the suggestion that tape recorded conversation were fabricated and the voices had been stimulated to suggest that recorded conversation contained voice of the accused.

17. He could not remember if he had stated in his statement that after DSP S.C. Singh and other CBI officers and witnesses rushed towards them, accused immediately went inside his flat and locked it from inside. The photographer had reached the spot after about 30­45 minutes of the spotting of the bag. After police party entered the flat after getting the door opened, they started making search of the premises and he remained in the drawing room throughout. At that time Anand Kumar DIG of CBI was also present over there. Anand CC 255/07 CBI Vs. Om Prakash Sharma 17 Kumar had not accompanied them. After CBI team had entered the flat, they searched the premises for about 30 minutes. Different officers were searching different portions of the house simultaneously. He had signed recovery memo Ex.PW2/D after reading the same. He claimed the after accused opened the door, he greeted him and may have shook hands with him. He denied the suggestion that no money had passed on to the accused and so he had not given pre determined signal.

18. Upon being cross examined further by Ld. Defence counsel, witness stated that Surender Jain talked to him about the present case on the day next to the day of raid. He had informed that raid had been conducted on O.P. Sharma but he had not discussed this case with him. He further claimed that he had stated in his complaint earlier also that money had been paid to O.P. Sharma in connection with the case against Jain as referred above.

19. Upon being further cross­examined he claimed that on 16.6.91 CC 255/07 CBI Vs. Om Prakash Sharma 18 he had reached office of CBI at about 12 in the afternoon and remained there till they proceeded for raid. He claimed that he had no instructions from CBI that the briefcase containing GC notes was to be brought back by him after handing over the bribe to the accused. Briefcase Ex.P­2 did not bear signatures of any member of the raiding party or witness. Cloth bag Ex.P­1 also did not bear signatures of any member of the raiding party. He denied the suggestion that briefcase Ex.P­2 was not the one in which treated GC notes had been kept. He expressed ignorance about the person who had counted the said GC notes. The photographer had remained at the spot for about an hour while he (PW L.K. Kaul) remained over there for 2­3 hours and then went to CBI office. He did not remember whether after reaching CBI office he had signed some documents over there. Eight/ten CBI officers had entered the drawing room of the accused and immediately rushed to different rooms and carried out search. He denied the suggestion that accused had not accepted the briefcase containing money from him and that he had not demanded any money on behalf of Surender Jain. He claimed that no witness was present at the time he CC 255/07 CBI Vs. Om Prakash Sharma 19 had handed over tapes to Joint Director CBI Mr. Sahni.

20. The witness further claimed that he was an NRI and had a bank account in London in early 80's. He denied the suggestion that the account in London was opened by him to divert the money received by him by cheating in BPT Land Scam. He admitted a case had been registered against him which was pending in the court of Special Judge. He admitted further that Hon'ble Supreme Court had barred him from visiting UK in land scam case. The cassettes had been handed over to Mr. Sahni about a month before date of raid. He did not know Mr. Sahni before handing over the tapes to him. He admitted having met DIG Anand Kumar and Joint Director Mr. Namboodari five/six days before sending of complaint. His first statement was recorded on the day next to the day of the raid and his second statement had been recorded within 2/4 days of the raid. He denied the suggestion that his statements were subsequently formulated by CBI according to their requirement. He denied the suggestion that in absence of the accused at the spot, he (L.K. Kaul) transferred the money into cloth bag from CC 255/07 CBI Vs. Om Prakash Sharma 20 the briefcase which was later on planted to have been recovered to create false evidence against the accused. He denied the suggestion that no cloth bag was brought by the accused and that he did not transfer money from briefcase to the cloth bag. He denied the suggestion that he had deliberately left independent witness Bhagi behind in connivance with CBI to create false evidence against the accused. He further claimed that apart from the cassettes submitted by him to the CBI, there was still another cassette in existence. It had been recorded in the CBI office by Mr. Vineet Gupta SP. The said cassette contained voices of Mr. Vineet Gupta, accused and his own. Regarding few specific sentences recorded in the cassette witness expressed his ignorance about the speaker and the context in which they had been spoken. Thereafter, Side 'B' of micro cassette Ex.PW2/J was played in the court and witness was put question regarding a sentence "tumne bhi phasana tha (to implicate) humne bhi phasana hai". PW L.K. Kaul said that he had spoken the said sentence to some CBI officers whose name he did not recollect. He admitted that during conversation with CBI officers he had played the cassette relating to CC 255/07 CBI Vs. Om Prakash Sharma 21 the accused.

21. In further cross­examination he could not recollect in what context he had uttered the word "121336 paise de sara kaam kar diya". He stated that in recording a police officer had spoken that he would include it in his report pertaining to O.P. Sharma. He claimed that he did not remember as to which type of instrument was used by him for recording conversation between him and O.P. Sharma. He had recorded some conversation in micro cassette and some conversation on normal tapes. He had visited CBI office in connection with this case 4­5 times, but he did not remember the dates. And towards end of his cross­examination he denied the suggestion that he had edited and dubbed the voices attributed the same to the accused in the conversation tapes. C.M. Sharma was then DIG and he had not discussed the matter with him. He expressed his ignorance if Surender Jain had visited office of C.M. Sharma in connection with this case. Lastly, he denied the suggestion that he had made false statement and had got the accused implicated falsely in connivance with CBI high ups CC 255/07 CBI Vs. Om Prakash Sharma 22 at instance of influential politicians and other persons involved in Jain Hawala case.

22. Thereafter, CBI examined Mr K. K. Arora of CFSL as PW3. He deposed that on 18.6.91 two sealed bottles were received in their office in connection with the present case. He had received the same later on with their seals intact. He chemically examined the contents and submitted his report Ex.PW3/A. The bottles contained left hand wash and right hand wash. In his cross­examination he claimed that the colour of the solution depends upon the quantity of phenolphthalein present on the hands. He denied the suggestion that he had merely signed the report at instance of his assistant.

23. The fourth witness to be examined was Mr. Bansi Lal Malhotra. He deposed that on 16.6.91 he was posted as Superintendent Customs. At directions of Asstt. Commissioner, he reported to CBI office at Jamnagar House along with Mr. P.N. Bhagi. They met a DSP Mr. Singh whose full name he did not remember. DSP introduced them to CC 255/07 CBI Vs. Om Prakash Sharma 23 Mr. Kaul who had made a complaint regarding demand of bribe by O.P. Sharma. Mr. Singh produced Rs.10 Lacs and informed that the said money had been brought by Mr. Kaul for giving to the accused. A list was prepared containing details of the GC notes. A powder was applied to them and demonstration was given. Ex.PW2/B and C contained his signatures. There were 6­7 members in the team and they reached R.K. Puram at about 8 p.m. Complainant was to go inside the residence of the accused at 7th floor while rest were to remain on the 6th floor. Complainant was also given a recorder and instructed to deliver the notes to the accused. Mr. Kaul went in and came out after 10­15 minutes. He informed that accused had kept GC note in a gray colour airbag having tag of some airlines. Accused shut the door of his house. After about 10­15 minutes son of the accused opened the door and he saw accused for the first time. Upon asking about bribe accused denied having received it. House was searched but airbag was not found in the house. It was thereafter seen lying on the floor of 6th floor flat underneath balcony of the bedroom of the accused. Flat of the 6th floor was got opened. Mr. Moorthy occupant of the flat allowed them CC 255/07 CBI Vs. Om Prakash Sharma 24 inside. They recovered the bag which was identified by Mr. Kaul. Its zip was found to be open. The said GC notes were of Rs.10 Lacs and Mr. Moorthy denied his ownership. Bottle Ex. MO­3 and MO­4 contained his signatures. The witness could not remember if any proceedings were conducted regarding the airbag in the balcony of 6th floor before it was brought to the flat of the accused. He identified tag of the air lines Ex.PW4/A as the one which had been recovered from the spot and also the site plan.

24. The witness was cross­examined by learned defence counsel. Therein he claimed that his statement was not recorded on the day of trap and he was called to CBI office after about a month. Regarding hand wash of the complainant he claimed that it had not been taken in his presence. He could not remember if there was any window in the bed room of the accused. He denied the suggestion that entrance to the house of the accused was not visible from the sixth floor. Lastly, he denied the suggestion that he had been tutored by the CBI.

CC 255/07 CBI Vs. Om Prakash Sharma 25

25. CBI thereafter examined DSP Mr. S.P.S Dutta as PW5. He deposed that in 1991 he was posted in Jammu Branch of CBI. He was entrusted with investigation at Srinagar Airport pertaining to this case. He had been given a tag Ex.PW4/A for verification. He went to Srinagar airport and made enquiries. The enquiry revealed that signatures on the tag were of Sub Inspector Mr. R.D. Kumar of CRP. Perusal of passenger manifest revealed that accused had travelled on 01.06.91 from Srinagar to Delhi carrying hand baggage weighing 7 Kg. A certificate in this regard was Ex.PW5/A which contained signatures of Mr. Manan, Station Manager, Indian Airlines. Letter signed by Mr. Madan Lal SP CBI Jammu was Ex.PW5/B. Upon being cross­ examined the witness admitted that the tag Ex.PW4/A did not contain the year. He had also not recorded statement of any person whom he had examined. The Station Manager had refused to handover the copy of passenger manifest. He admitted that departmental enquiry had been initiated against him but no punishment had been awarded to him.

26. Next witness thereafter who entered the witness box was Mr. R. CC 255/07 CBI Vs. Om Prakash Sharma 26 S. Jaggi, DSP CBI Special Unit. He deposed that in 1991 he was posted in ACB, Delhi as Inspector. Upon being directed he reached CBI Special Unit at Akbar Road Jaam Nagar House New Delhi at about 7 p.m. on 16.6.91 and met Mr. H.C. Singh and other officers and two independent witnesses P.N. Bhagi and B.L. Malhotra from customs. Complainant was there and he (PW R.S. Jaggi) was informed that complainant had made a complaint against O.P. Sharma, the then DIG CBI. Complainant also stated that he had been authorized by Surender Jain to lodge complaint on his behalf as he was not well. Complainant produced Rs.10 Lacs. Their numbers were noted down and phenolphthalein powder was applied and practical demonstration was given by Mr. S.K. Peshin. PW P.N. Bhagi was asked to touch the powder and the solution turned pink. The notes were put in a bag. Complainant was asked not to shake hands with the accused and P.N. Bhagi was to act as a shadow witness. Micro cassette recorder was arranged. Blank cassette was handed over to the complainant to record conversation which might take place at the time of transaction. The team left for R.K. Puram at about 9.15 p.m. and reached there was CC 255/07 CBI Vs. Om Prakash Sharma 27 10.10 p.m. Complainant entered the building and reached 7th floor with his briefcase. Rest of the team members followed him and took position at the stairs on 6th floor. He saw complainant entering flat No. K­7­3. After about 20­30 minutes complainant and accused came out of the house and complainant gave prearranged signal of lighting his cigarette. Upon it all of them rushed towards the entrance. By then accused went inside his flat and bolted the door from inside. Mr. L.K. Kaul informed them that accused had accepted the money. He had taken it out of the briefcase and kept it in a brown colour airbag. They tried to force open the door and it took about 10­15 minutes to open it. Son of the accused Amit Sharma tried to stop them. O.P. Sharma slipped inside his bed room and bolted it from inside. He also threatened to shoot. After lot of pursuation accused opened the door. His both hand wash was taken one by one. The solution turned pink. It was poured in bottles and signed by the witnesses and bottles were sealed. The team members started searching for the money. He himself entered the bed room. It had a balcony and a window pane of the balcony was found open. From there he saw airbag lying in the CC 255/07 CBI Vs. Om Prakash Sharma 28 balcony of the flat just below flat of the accused. The team then went to flat No. K­6­3. It was occupied by a south Indian Officer. They went inside the flat with his permission and saw the bag. The occupant told them that the bag did not belong to him or his family member. Zip of the bag was found open and notes could be seen. Photographs were taken. Independent witnesses were asked to take out the GC notes and tally their numbers and the numbers tallied. The bag and the GC notes were seized. The recorded conversation was played and heard with help of earphones. The seal after being used was handed over to Mr. Bhagi. Site plan Ex.PW4/B was prepared by him. Ex.P­1 was the airbag while briefcase was Ex.P­2. Upon being cross­examined he stated that probably his statement was recorded on a typewriter. Accused had not stated in his presence that he had not accepted the bribe. They remained at the spot till about 4.30 or 5 a.m. Photographer had been summoned at the spot during investigation from the Special Unit. Bag was taken to flat of the accused and memos were prepared over there. Signatures of accused were taken on seizure memo. He claimed that Mr. S.P. Singh was working as SP CBI on that CC 255/07 CBI Vs. Om Prakash Sharma 29 day but he did not remember if he had participated in the raid. He did not remember if complainant had been asked to take P.N. Bhagi with him. He denied the suggestion that door of the flat of the accused was not forced open or that son of the accused was not blocking the door. The balcony of the sixth floor flat was bigger in size than balcony of the accused and airbag was lying in centre of the balcony just in front of the door opening towards the balcony. Lastly, he denied the suggestion that he had made a false statement.

27. Mr. Janender Kumar Jain was the next witness to be examined. He deposed that he was working with Bhilai Engineering Corporation Ltd. since 1970. The company was managed by Surender Jain, B.R. Jain and N.K. Jain. Surender Jain was the Managing Director in 1991. On 03.05.91 his house was searched by CBI team at about 6.30 a.m. He told the CBI officers that Surender Jain was Managing Director and he was residing in Friends Colony. In course of search, cash Rs.58 Lacs Indian Currency, foreign currency of about Rs.57,000/­ and Indira Vikas Patra were recovered. In the evening a senior officer of CBI CC 255/07 CBI Vs. Om Prakash Sharma 30 came to his house and made enquiries about TADA as the search was under TADA. He also told him regarding provisions of TADA. The witness was cross­examined by Ld. PP. He admitted therein that his statement was recorded by CBI. He could not admit or deny if the senior officer who visited his residence in the evening was the accused. However, he claimed that it was one Mr. Sharma. He could not remember if he had disclosed in his statement u/s 161 Cr.P.C. that name of the said senior officer was O.P. Sharma. He admitted that he had been told that search was regarding funding of terrorist. However he denied the suggestion that accused had threatened to deal him under TADA. He admitted that he was taken to CBI office in the morning of 04.05.91 and enquiries were made and he was allowed to go in the evening and directed to come back again next day. Mr. M.P. Singh had met him and also made enquiries from him. During course of same cross examination he claimed that he could not remember if he had stated to CBI in his statement that accused had threatened to deal him under TADA and had asked him to call Surender Jain. He also denied that he had told CBI that due to recovery of huge currency from his CC 255/07 CBI Vs. Om Prakash Sharma 31 house, he was worried about threatened arrest under TADA as accused was connected with recovery of currency notes under TADA. He further claimed that he could not remember if he had stated in his statement to CBI that Surender Jain had told him that he knew L.K. Kaul who had close connection with the accused. He denied the suggestion that he had been won over by the accused and so he was not deliberately identifying the accused.

28. The witness was cross examined by Ld. Counsel for the accused wherein he claimed that CBI had seized some documents in form of diaries which reflected payment of money to some persons. However he was not aware if the payments pertained to politicians and bureaucrats. He also admitted that on basis of diaries and documents, about 30 cases were instituted against him. He also admitted that in one case, penalty of Rs. 3 crores was imposed on him. The documents recovered from his house related to companies owned by Surender Jain and others. The currency recovered from his house belonged to Surender Jain and others.

CC 255/07                                            CBI Vs.  Om Prakash Sharma  
                                          32

29.       PW­8   was   Mr.   Phool   Singh.     He   deposed   that   he   knew   the 

accused as he was his PA. His duty was to connect incoming calls for the accused since he was DIG. In his absence the calls used to be attended by him. He could identify voice of the accused since he was his DIG. The witness further stated that he used to receive telephone calls made by Mr. Khanna of Greater Kailash. The telephone used to be simultaneously picked up by the accused in his chamber. When he enquired from Mr. Khanna the purpose of making telephone call the accused told him (PW Phool Singh) as to why he was making much enquiry from Mr. Khanna. Further accused instructed him to connect the phone to him directly of Mr. Khanna. Later on he came to know that Mr. Khanna was in fact L.K. Kaul. Cassettes were played in the court. Cassettes Sr.No. 2 Side 'A' , Sr. No. 1 Side 'A', Sr. No. 3 Side 'A' were played. After hearing witness stated that the light voice in the cassettes was of the accused and heavy voice was of Mr. Khanna. While hearing cassette S. No. 3, Mr. Phool Singh claimed that phone call was attended by him and also contained his voice in addition to voice of Mr. Khanna and accused. Cassette S. No. 4 side A was played CC 255/07 CBI Vs. Om Prakash Sharma 33 and the witness identified voice of the accused and Mr. Khanna and claimed that he had attended the call and his voice was also there in the cassette. Similarly, audio cassette Ex.PW2/I­2 side 'A' was played. Witness identified voice of L.K. Kaul as well as that of the accused. L.K.Kaul used to call the accused and used to introduce himself as Khanna of Greater Kailash. Thereafter, Micro Cassette Ex.PW2/L side ­A was played. Witness identified voice of the accused as well as of L.K. Kaul. Upon being cross­examined witness admitted that there were sounds like cracker and banging in micro cassette Ex.PW2/L. His statement had been recorded by CBI and he had told the IO that voices in the two cassettes played in the court were of L.K. Kaul. He could not remember as to when his statement was recorded for the first time. Phone calls from Mr. Khanna of Greater Kailash/ L.K. Kaul were being received by him since January 1991. By May/June 1991 he started recognizing voice of Khanna. Witness further claimed in his cross­ examination that every time the call was received he used to ask for identity of the caller. After receipt of call from Mr. Khanna he used to confirm his identity as Mr. Khanna. The telephone line of the accused CC 255/07 CBI Vs. Om Prakash Sharma 34 was direct. There were two telephone instruments on the line. One instrument was in the room of the accused while other one was with him. He then claimed that the cassettes which had been played in the court had been brought in unsealed condition. He had been using cassette player recorder. It was not possible to partially erase a recorded cassette and record something new on the erased portion. Further the witness claimed that he had worked with SP A.K. Suri from 1986 to 1990 as his PA. He did not remember if accused had conducted any enquiry regarding excess expenditure incurred on the official car of Mr. Suri. He denied the suggestion that he was party to maintaining of the record of the expenses of the car. Upon being questioned by the court as to how he came to know that actual name of Khanna was L.K. Kaul, the witness replied that he had been made to hear many cassettes by the IO to identify voice of the accused. In one such cassette he heard Khanna talking to a lady in which he had introduced himself as L.K. Kaul. He had not been shown any transcription of cassettes at the time of recording of his statement and lastly he claimed that he had never talked to L.K. Kaul but had seen him from a distance.

CC 255/07 CBI Vs. Om Prakash Sharma 35

30. Mr. T. Narayanan Moorthy was examined as PW­9. He deposed that he had retired as Addl. Secretary, Departmental of Telecommunication, Government of India. In 1991 he was posted as Dy. Director General, Telecom Engineering Centre, Delhi. He used to stay in Flat no. 3, K­Block, 6th Floor, R.K. Puram, New Delhi. Accused used to reside on the 7th floor above his flat. On 16.6.91 he was sleeping and at about 11.00 pm there was knocking at his door. The persons knocking his door informed him that something had fallen in the balcony of his flat. He volunteered to pick up the thing from his balcony and hand it over to them. The visitors informed him that it was a CBI raid. Thereafter he permitted them inside. They took photographs of the bag and then picked it up from the balcony. Then the bag was brought inside the room. He himself saw that there were 20 bundles of GC notes of Rs. 500/­ each. On counting, the money was found to be Rs. 10 lacs. There were other small items like key ring, baggage tag, soap wrapper and a piece of paper in the bag. One Mr. Kaul was asked to stay in his house. He handed over a small tape recorder and a cassette which was sealed at the spot. The team CC 255/07 CBI Vs. Om Prakash Sharma 36 remained in his house till about 2.30 am. Ex. P­1 was a same bag which was recovered from his balcony. Recovery memo Ex. PW2/D running into 4 pages contained his signatures. It was prepared in his flat and signed by him in the early morning of 17.6.91. Indian Airlines Cabin Baggage tag Ex. PW4/A also contained his signatures. The witness was cross examined by Ld. Counsel for the accused. In his cross examination, he claimed that after about a month, a CBI officer had made enquiries from him but he was not sure whether his statement had been recorded or not. Initially there were three persons at his door. Subsequently more people came inside his flat. He had checked IDs of the first batch of visitors but not of those who had come in subsequently. The photographer had reached after about 10 minutes of reaching of the first batch. He had not put his signatures on the GC notes, nor any identification mark. He did not know if DIG Anant Kumar had reached the spot and lastly he claimed that his statement was not shown to him and nor it was read over to him. However he denied the suggestion that the signatures on the bag and the tag were obtained subsequently.

CC 255/07 CBI Vs. Om Prakash Sharma 37

31. PW­10 was Mr. Ram Singh from CFSL. He deposed that he had retired as Director CFSL and had examined approximately 1 lac exhibits. An unsealed audio cassette of Meltrack­DR­90 was received on 7.2.92 at CFSL in connection with the present case. He had examined the audio contents. The examination revealed that pulses were recorded and it was concluded on the basis of recordings that the acoustics impulses generated in the audio recording were as a result of dialing of set of digits 673597 using a telephone that generated such audio impulses. He prepared report which contained his signatures Ex. PW10/A. Upon being cross examined, he claimed that Meltrack­ DR­90 was manufacturing trade name of a tape with duration of 90 minutes. Micro cassette was not sent to him for comparison. He did not know if the cassette had been prepared from a micro cassette. He had not prepared any transcript of the contents. He had not examined conversation part of the contents. He had only examined the acoustic impulse resulted due to dialing of numbers. The gaps/pauses in the tape might be due to erases. He also claimed that dialing pulse could be substituted by transfer from one tape to another if the dialing pulse had CC 255/07 CBI Vs. Om Prakash Sharma 38 already been recorded in another tape elsewhere for substitution. He claimed that spectrograph resulting these numbers were recorded by him with help of his helper in the laboratory in the present matter and lastly he denied the suggestion that he had not written any paper on the subject and he volunteered that scientific results on voice spectrography had been published in various CBI bulletins and conferences he had presented in India and abroad in addition to two PhD thesis.

32. Mr. M.P. Singh Retired DIG was PW­11 in the case. He deposed that in 1991 he was DSP in SIC­II branch of CBI, Delhi. He was IO of RC 5(S)/91, SIU­V u/s 120­B IPC, u/s 3&4 TADA and u/s 56 r/w 8 (1) FERA. He deposed further that on 3.5.91, 11 places were searched in connection with the said case including residence of J.K. Jain. DSP Mr. D.P. Singh had conducted search in the residence of J.K. Jain. Mr. D.P. Singh informed him telephonically that one business Associate of J.K. Jain was S.K.Jain and his residence A­13 Friends Colony was also to be searched. Thereafter he (PW M.P. Singh) issued authorization u/s CC 255/07 CBI Vs. Om Prakash Sharma 39 165 Cr.P.C. in the name of DSP Mr. Manku. Search was done and in the evening Mr. Manku came back with S.K.Jain. He (PW M.P. Singh) informed S.K. Jain that search had been conducted in relation to terrorist funding case. He could not interrogate S.K. Jain thoroughly due to other searches. Lateron he summoned S.K. Jain but S.K. Jain did not appear. Case was transferred on 4.7.91 to Sh. D.K. Chaudhry. Mr. Rajender Singh S.P and accused O.P. Sharma then DIG were supervisory officer of the case. Upon being cross examined, the witness admitted that some diaries had been recovered from J.K. Jain which contained names of political leaders of party in power and also in opposition. Names of senior bureaucrats were also mentioned therein. The diaries also revealed cash amounts paid to those politicians and bureaucrats. Charge sheets were filed subsequently as money was paid by Jain to those politicians and bureaucrats. He admitted that in 1991 C.M. Sharma was Joint Director and overall incharge of case registered under TADA. He had not attended any meeting with C.M. Sharma for arrest of accused persons in that case. He could not exactly recollect names mentioned in the diary but admitted that it contained CC 255/07 CBI Vs. Om Prakash Sharma 40 names of L.K. Advani, Buta Singh, Sharad Yadav and Balram Jakhar. He was not sure if name of former Union Ministers Arif Mohd. Khan and Zafar Sharif also figured in the diary. He could not recollect if names of bureaucrats namely Shiv Shankar, R.K. Dhawan, Yashwant Sinha and Natwar Singh were also there but all of them had been charge sheeted. He submitted that he did not deem it necessary to arrest S.K. Jain and J.K Jain in the said case and no charge sheet was filed against them under TADA. There were discussions for invoking provisions of TADA against Jains' but he had opposed the same. He also admitted that supervision of the case was being conducted by Joint Director C.M. Sharma of UP Cadre.

33. Thereafter, CBI examined Sh. Harish Chand Singh as PW12. He deposed that in June 1991 he was posted in CBI Branch Jodhpur and was camping in Delhi in connection with investigation of a CBI case. On 16.6.91 he was summoned by SP Mr. S.P. Singh and entrusted with investigation of the present case. FIR along with complaint of L.K. Kaul was given to him. He was taken to SU Branch by S.P Singh CC 255/07 CBI Vs. Om Prakash Sharma 41 where he interrogated L.K. Kaul and satisfied himself about demand of Rs. 10 Lakh by the accused O.P. Sharma. At his instance Mr. Kaul made a telephone call to residence of O.P. Sharma and conversation was recorded and cassette was sealed. L.K. Kaul told O.P. Sharma that he had arranged Rs. 10 Lacs and Rs. 1 Lac was short. O.P. Sharma then told L.K. Kaul to bring Rs. 10 Lacs to his residence. Two independent witnesses namely Mr. Malhotra and Mr. Bhagi (wrongly typed as Mr. Bagai) were summoned and a trap team was constituted comprising of other CBI officers. Complainant had 20 bundles of Rs. 500/­ each. Their numbers were noted down and they were smeared with phenolphthalein powder. Demonstration was given and Mr. Bhagi was asked to touch the GC notes and dip his fingers in solution of sodium carbonate. The GC notes were put in a briefcase brought in by the complainant and he was asked to deliver them on specific demand to O.P. Sharma. He was also directed not shake hands with the accused and after transaction he was to give signal by lighting a cigarette. The brief case was to be brought back. Mr. Bhagi was directed to remain close to the complainant and watch the transaction.

CC 255/07 CBI Vs. Om Prakash Sharma 42 A micro cassette recorder was provided to complainant Mr. L.K. Kaul to record the conversation between him and accused O.P. Sharma. The team reached residence of O.P. Sharma at about 10 p.m. He (H.C. Singh), Mr. Bhagi and complainant travelled in car of complainant. Remaining team members travelled by taxi. Accused stayed at seventh floor. He (H.C. Singh), one witness and two CBI inspectors went to 8th floor near staircase while remaining team members took position on the 6th floor near the staircase. The entrance gate of O.P. Sharma was visible from both the positions. He saw L.K. Kaul entering house of O.P. Sharma along with the briefcase. Both of them case out of the entrance door after 15­20 minutes. L.K. Kaul lighted a cigarette and they all rushed towards the entrance door. O.P . Sharma locked the door from inside. L.K. Kaul informed them that GC notes had been handed over and conversation had also been recorded. They knocked but O.P. Sharma did not open the door and threatened to shoot. They kicked and forced open the door. Upon entering they met Amit. O.P. Sharma had gone inside his bed room and bolted the door from inside. After persuasion he came out holding a loaded revolver in his right CC 255/07 CBI Vs. Om Prakash Sharma 43 hand and live cartridges in the left hand. On asking he kept the revolver and the cartridges on the table. Accused denied having accepted any bribe. Upon dipping his both hands one by one in a solution of sodium carbonate, solution turned pink. The solutions were poured in glass bottles and labelled RHW and LHW. They were also sealed and signatures of independent witnesses were obtained on the slips. Complainant had informed that money had been transferred to airbag. Despite search it was not recovered. After 20­25 minutes Inspector Jaggi informed that airbag was lying in balcony of a flat on the 6th floor just below balcony of the house of the accused. They then went to the 6th floor flat Mr. Moorthy opened the door. They introduced themselves and went to the balcony where airbag was lying with its zip open and GC notes were visible. Photographs of the bag were taken and it was brought inside house of Mr. Moorthy . The number of GC notes were tallied. A security check tag of Srinagar Airport was attached to the airbag. Key ring and a piece of paper was also found in the bag. Both independent witnesses signed recovery memo Ex.PW2/D which was prepared. Tape recorder was played and CC 255/07 CBI Vs. Om Prakash Sharma 44 thereafter cassette was sealed. Briefcase was also seized. Ex.P­2 was the briefcase in which L.K. Kaul had carried the money. The airbag recovered from the 6th floor flat was Ex.P­1. The witness was shown micro cassettes and normal audio cassettes but he could not recollect their contents. He identified the GC notes Ex.P­3 after tallying their numbers with Ex.PW2/C. He also identified the glass bottles containing hand washes and security check tag of Indian Air Lines. Micro cassette Ex.PW2/L was played in court. One could make out discussions regarding elections, but they were not very clear. After hearing cassette Ex.PW2/H­2 witness remarked that one voice was of L.K. Kaul and the other one should be of the accused O.P. Sharma since telephone call was made at his residential number. Upon being cross­examined witness claimed that he would not be able to tell the telephone number of the instrument from which call had been made to the residence of the accused. But, it was installed in the SU Branch. The investigation had remained with him till 27.6.91. He had taken the micro cassette to CFSL for preparing copies, but he had not requested them to prepare transcripts. He denied the suggestion that the micro CC 255/07 CBI Vs. Om Prakash Sharma 45 cassette has been tampered with. He had opened the micro cassette while handing it over and resealed after receiving it back. He denied the suggestion that he had not prepared handing over memo Ex.PW2/B or that it was not prepared at that time and was prepared subsequently. Independent witnesses had signed inside the briefcase but he had not signed. However, he could not show signatures of the witnesses on the briefcase. He further stated that bag was lying in the extended balcony of Mr. Moorthy just below window of balcony of Mr. O.P. Sharma. However, he could not tell the exact distance. The vertical gap between floor of the balcony of Mr. Moorthy and window sil of house of O.P. Sharma was 6­8 ft. He denied the suggestion that gap was more than 14 ft. Bottom of the window of the house of the accused was at the height of 4­5 ft. from the floor. He could not remember if the window was of iron or wood and also the direction in which its shutter opened. He could not also tell if the hinges were on the bottom side or on the top. Nobody had taken position in the stairs on 7 th floor. Few team members had taken position in front of entry door of flat on the 6th floor after climbing the stairs. It took them about 12­15 minutes CC 255/07 CBI Vs. Om Prakash Sharma 46 to break open the entry door of flat of the accused. He denied the suggestion that no person from other flats were called because they wanted to falsely plant the bag containing money. He denied the suggestion that Anti Corruption Division of CBI had exclusive jurisdiction to investigate cases under PC Act. He denied the suggestion that Director CBI had discussed the matter with him before laying the trap. He did not know all CBI senior officers who were present at the spot barring one or two. He could identify S.P. Singh in photograph X­1. Mr. Bhagi was supposed to be shadow witness, but he had not asked L.K. Kaul as to why he was not taking Bhagi with him. When he reached outside flat of the accused, complainant had already entered the flat. They did not take into possession broken latch/bolt after the door was broken open. He did not know if L.K. Kaul knew O.P. Sharma earlier. While house of the accused was being searched he followed the search team to all parts of the house. He denied the suggestion that bag was planted by CBI in the balcony of Mr. Moorthy. He denied the suggestion that tag had been planted to falsely implicate the accused. He had not recorded statements of L.K. Kaul, B.L. CC 255/07 CBI Vs. Om Prakash Sharma 47 Malhotra, P.N. Bhagi, Surender Jain, J.K. Jain because he was not investigating the case. Lastly, he denied the suggestion that he had not conducted fair investigation.

34. CBI thereafter examined Mr. R.D. Kumar as PW13. He deposed that in 1991 he was posted as Sub Inspector with CRPF and was posted at Srinagar. After 5 or 6 months he was transferred to Pune. He was posted in Srinagar in March/ April 1991. He used to check cabin baggage of the passengers at Srinagar Airport. After checking the baggage he used to sign the tag. Cabin baggage tag Ex.PW4/A contained his signatures. Date 1/6 meant 01.06.1991. After seeing the tag, he further submitted that passenger had boarded the plane. Upon being cross­examined by Ld. Defence counsel he admitted that the tag did not bear the year nor name of the airport. However, he volunteered that he had been posted only at Srinagar Airport and at no other airport. He denied the suggestion that the tag did not bear his initials and date.

35. Thereafter, CBI examined Surender Jain as PW14. He claimed CC 255/07 CBI Vs. Om Prakash Sharma 48 that he was an industrialist. He did not recollect any incident which had taken place on 3.5.91. He did not know any L.K. Kaul or O.P. Sharma. He denied having any knowledge of matter involving accused or any demand of bribe. He claimed that his premises No. 13, New Friends Colony were searched in 1991 by CBI. He claimed that CBI was suspecting him of funding terrorist activities in Kashmir and he was having links with terrorists. He knew nothing about house No. 29, Pamposh Enclave, Greater Kailash ­I. He did not remember how many telephone connections were there in house. He did not remember their numbers either. Cassettes Ex.PW2/E­1, PW2/F­2, PW2/K were played. Witness denied his voice and purpose of recording. He had personal staff and Jenny was main staff member. Whenever call was made to him from outside, Jenny used to connect him. He did not remember his extension number. Witness was then cross­examined by Ld. PP wherein he claimed that he had visited CBI office 400/500 times. He had been summoned in connection with Jain diary case, leakage of diaries matter, but he had not visited CBI office regarding case of trapping of O.P. Sharma. He admitted that his premises were searched CC 255/07 CBI Vs. Om Prakash Sharma 49 in connection with TADA matter. He did not remember having told M.P. Singh that he was innocent. He denied making of statement, portions of which were read out to him in the court u/s. 161 Cr.P.C. He did not remember whether he had asked the CBI officers about reason of raid. He further claimed that he had not stated that M.P. Singh had taken him to the accused O.P. Sharma who had asked him to meet in private and threatened to implead him in a TADA case. He also denied having stated that accused O.P. Sharma had told him that lot of incriminating material had been recovered from premises of Janender Jain who was working for him. He also denied the suggestion that L.K. Kaul was his friend. He claimed that he had also not told the IO that he had asked L.K. Kaul to meet O.P. Sharma. He also claimed that he had not told CBI that accused had demanded Rs. 30 Lacs for not impleading them in TADA matter. He had also not told CBI that he felt worried and had been left with no option but to fulfill the demand to avoid arrest. He had not given any money to L.K. Kaul for delivery to O.P. Sharma but admitted that he had discussions with Janender Jain about the raid and Janender Jain had told him that CBI had raided his CC 255/07 CBI Vs. Om Prakash Sharma 50 premises and taken away some papers. He had thereafter contacted Kapil Sibbal regarding the raid.

36. He also claimed that he had never met accused in any hotel. He never came to know about arrest of O.P. Sharma. Lastly he denied the suggestion that he had been won over by the accused. In his cross examination by advocate for the accused he admitted that some cases had been registered and tried for recovery of documents from Janender Jain with allegations of payment made to bureaucrats and politicians. Those bureaucrats and politicians were made accused alongwith him.

37. The next witness to be examined by the CBI was Mr. A.K. Parashar Economic Advisor. He deposed that in 1992 he was posted as Dy. Secretary, Departmental of Personnel and Training, Ministry of Personnel, Public Grievance and Pensions. As per rules, orders passed in the name of President could be authenticated by officers of the rank of Under Secretary and above. Sanction order for prosecution of the accused contained his signatures. President of India was competent to CC 255/07 CBI Vs. Om Prakash Sharma 51 remove O.P. Sharma. He had received copy of RC and other documents with a letter for grant of sanction. After going through documents, he had put up the case before competent authority. Competent authority was the Prime Minister. Soon thereafter, he received back the file with approval for grant of sanction. Thereafter he issued sanction order Ex. PW15/A. In his cross examination he had denied the suggestion that he had mechanically signed the sanction order and he had not prepared it.

38. Prosecution thereafter examined Mr. Satpal Singh as PW­16. He deposed that in June 1991, he was working as SP, SIU­IX branch of CBI. On 16.6.91 which was Sunday, he was directed to come to the office, where he was told by Supervisory officer Sh. Anand Kumar that L.K. Kaul of Greater Kailash had made a complaint in writing that a DIG O.P. Sharma had threatened to implicate Surender Jain and Janender Jain under TADA unless they pay huge amount to him. Thereafter the present FIR was registered which is Ex. PW16/A and the investigation was entrusted to H.C. Singh, DSP, camping in Delhi. A CC 255/07 CBI Vs. Om Prakash Sharma 52 trap team was organised and independent witnesses were arranged. In presence of trap party a telephone call from official telephone number of Special Unit was made to residence of accused. L.K.Kaul categorically mentioned that he was able to mobilize only Rs. 10 lacs. The handing over memo was completed by about 21:45 hours and the entire trap party reached residence of the accused O.P. Sharma at R.K. Puram. Complainant went inside the flat and was seen off by the accused at his door. On seeing members of the trap party accused O.P. Sharma bolted the door from inside. After getting the door opened, hand wash of the accused was taken which changed its colour. The bag was sighted in the balcony of 6th floor flat which was in occupation of a senior officer whose name he did not recollect. The party then went to 6th floor, got the bag photographed, took its possession. Accused was arrested and released on personal bond. Upon being cross examined by Ld. Counsel for the accused, he claimed that he would not be able to tell the exact numbers of members of the trap team who took position on 7th floor as few of them had taken position between 6th floor and 7th floor. He could not tell as to after how much time of recovery of the CC 255/07 CBI Vs. Om Prakash Sharma 53 bag, photographer had reached the spot. He denied the suggestion that DIG Anand Kumar was at the spot during his presence. Upon being shown photograph Mark­X, he identified photograph of Anand Kumar. He could not remember as to whether he had travelled in vehicle of complainant. He also could not recall in which vehicle independent witness Mr. Bhagi had travelled. He denied the suggestion that he had given any false statement. The recovery memo Ex. PW2/D had been prepared by the IO while he was there to supervise the raid. He could not recollect if finger prints of the accused O.P. Sharma were taken. He also could not recollect if any report was received to the effect that chance prints had been developed from GC notes. The charge sheet had been filed during his tenure. He denied the suggestion that any document had been deliberately withheld. Relying upon his memory he deposed further that investigation/enquiry of the case against Jains was being supervised by the accused O.P. Sharma and perhaps office of DSP Chattwal and S.K. Saxena were searched by CBI during investigating the present case. He denied the suggestion that Senior officers of CBI were interested in Jains and for that reason the accused CC 255/07 CBI Vs. Om Prakash Sharma 54 was raided and falsely implicated to hamper investigation of the case against Jains. The recovery memo had been prepared at the residence of O.P. Sharma and no proceedings had been conducted at house of Mr. T. Narayanan Moorthy except recovery of the bag.

39. Thereafter CBI examined Mr. R.C. Katoch. He deposed that on 16.6.91 he was working in technical cell of Special Unit. He was called from his residence to residence of the accused at about 11.00 pm. He reached there by 11.30 pm. CBI team was already there. He did not remember the exact flat number but he was taken to flat beneath flat of the accused. A reddish mehroon coloured bag Ex. P­1 was lying in the balcony. Currency notes of Rs. 500/­ each were visible at the top. He took 12 photographs from various angels. The same were marked X to X­11. The negatives had been handed over to the IO, whose name he did not recollect. During course of his cross examination by Ld. Counsel, he was confronted with his statement Ex. PW17/DA in which it was not mentioned that he had gone to his office and collected the camera. He admitted that he had not made any entry in any record for CC 255/07 CBI Vs. Om Prakash Sharma 55 getting camera and film issued. He had not developed the negatives of photographs Mark X to X­11. He could not remember if DIG Anand Kumar was also there or not. Lastly he denied the suggestion that he had deposed falsely.

40. Thereafter Mr. L.N. Rajpal entered the witness box as PW­18. He was Senior Scientific Officer of CFSL. He deposed that he had taken 10 photographs, which were Ex. PW18/A­1 to PW18/A­10 after he had been taken to flat in Moti Bagh by CBI officers. In his cross examination, he claimed that he had made no enquiries from CBI officers about history of the bag and photograph Ex. PW18/A­2 was taken by him while standing in the balcony of the flat where bag was lying. He could not tell height of the windows depicted in the photographs or that if windows opened upward.

41. PW­19 was Rajinder Singh Manku. He deposed that on 3.5.91 he was asked to perform temporary duty in SIU­1X. He was authorized to conduct search at residence of S.K. Jain at A­13, New Friends CC 255/07 CBI Vs. Om Prakash Sharma 56 colony alongwith two independent witnesses namely Sh. R.K. Chauhan and Captain G. Tiwari. Upon his visit S.K. Jain was not available. After securing his presence the premises were searched while observing all the formalities from 10.45 am to 3.30 pm. Nothing incriminating was found. S.K. Jain enquired from him about the case. He (PW­19 R.S. Manku) informed him that investigation was being done by Mr. M.P. Singh. S.K. Jain wanted to meet M.P. Singh and went to CBI office alongwith him where he was introduced to M.P. Singh. It was revealed that S.K. Jain was enjoying very high standard of life and was maintaining 3­4 cars. He denied the suggestion that S.K. Jain had not accompanied him to CBI office.

42. PW­20 was Mr. C.M. Sharma Joint Director, CBI. He claimed that he knew Aslam Khan as a friend. He belonged to a royal family of Afghanistan. He had met Arif Khan through Aslam Khan and his elder brother. Aslam telephoned him one day and expressed his desire to meet him. He came to meet alongwith Mr. Jain. Premises of Jains had been raided by CBI. To his knowledge, S.K. Jain had no connection CC 255/07 CBI Vs. Om Prakash Sharma 57 with terrorist activities. He was not in favour of arrest of simple hawala dealers in RC no. 5(S)/91­SIU­V of SIC­II. He was interested in arresting those involved in funding of terrorists and recipients of money. Nand Kishore had been arrested without his permission. He was basically a hawala dealer. In his cross examination he claimed that it was in 1991 he came to know that premises of Jain referred by him had been searched. However he denied the suggestion that the said investigation related to funding by Jains to various politicians and bureaucrats. At the time of search of premises of the Jain, he was incharge of the unit but could not tell as to how long he remained as incharge thereafter. He admitted that a diary had been recovered from Jains but he had just seen it once and returned it to the officer concerned who had brought it to him. He claimed that he was not interested in arrest of Jain under TADA but it was true that some persons had been arrested under provisions of TADA. Normally progress of the investigation of case under TADA was discussed by Supervisory officer i.e. S.P. and DIG with him and files relating to investigation of the case would have been sent to him from time to CC 255/07 CBI Vs. Om Prakash Sharma 58 time. According to note of DSP M.P. Singh, Nand Kishore had been arrested on 3.6.91. However Shambhu Dayal would have been interrogated by CBI before search was conducted at premises of Jains on 3.5.91. He admitted that premises of Jains were searched on basis of disclosure by Shambu Dayal and others and Rs. 58,09,100/­ and foreign currency and Indira Vikas Patra were recovered. He admitted he had opposed arrest of Jains by O.P. Sharma, but he could not remember if O.P. Sharma wanted to arrest Jains. He had also suggested that matter should be referred to Enforcement Directorate and Income Tax Authorities for action against Jains. He denied the suggestion that Senior officials of CBI had connived and got instituted a false case against the accused as he wanted to arrest Jains and scuttle the investigation against bureaucrats and politicians who figured in Jain diaries. Some files dealt with the accused in which he had made notings while he was functioning as DIG of CBI were also produced. According to one noting, the persons who had not been arrested so far fell in two categories. Category one were of bankers/financers while category two was of recipients of hawala money. He admitted that he CC 255/07 CBI Vs. Om Prakash Sharma 59 made a note opposing arrest of Nand Kishore on 18.6.91. Lastly he denied the suggestion that few notings made by the accused had been deliberately removed.

43. The last witness to be examined by the prosecution was Kailash Chand Sharma. He deposed that he was working in CBI as DSP in Jaipur. In June 1991 he was summoned by the Head Quarters and directed to assist investigation of this case. During course of investigation he recorded statement of about 23 witnesses, sent audio cassette to CFSL lab for knowing telephone number to which call was made from SU Unit of CBI on 16.6.91 He also transcribed contents of micro cassette. The transcription memo was Ex. PW2/L1. He had received 12 postcard size photographs from Prem Nath. The receipt memo was Ex. PW21/A. Micro cassette had been opened for identification of the voice of the accused by D.R. Meena and A.W. Degwekar, who were SPs and worked under control of the accused. Office TA bill from 17.3.91 to 1.6.91 was seized by him. He had been entrusted with seven audio cassettes by the previous IO. He heard CC 255/07 CBI Vs. Om Prakash Sharma 60 them and prepared transcriptions. After completion of investigation he obtained sanction for prosecution and filed the charge sheet. In his cross examination by Ld. Defence counsel, he claimed that he had recorded statement of Mr. T. Narayanan Moorthy in CBI office. The independent witness P.N. Bhagi and B.L. Malhotra had been summoned. He could not remember the dates on which they had been summoned. He denied the suggestion that statement of H.C. Singh was subsequently formulated in CBI office in accordance with requirement of the case. He admitted that some portion of statement u/s 161 Cr.P.C. of P.N. Bhagi and B.L. Malhotra were same line to line. He admitted similarity in statement of other witnesses in some portions. Specimen finger prints of the accused had not been taken during investigation. He admitted that as per PW­16/DD, report had been received from finger print division of CFSL. He denied the suggestion that voice sample of O.P. Sharma was taken and sent to CFSL for identification. Further down in his cross examination he admitted that voice sample had been taken for comparison vide memo Ex. PW21/DA. Further down in his cross examination he claimed that he had seized TA bill of CC 255/07 CBI Vs. Om Prakash Sharma 61 the accused which reflected his travel from Srinagar to Delhi on 1.6.91 and so he recorded the words "Srinagar" and " 1.6.91". He admitted that he had visited flat of the accused and also balcony of the flat underneath. He could not remember if there was grill on window of the bedroom. He submitted that PW Bhagi was specifically directed to remain with the complainant L.K. Kaul at the time of passing of the money. But Bhagi had not accompanied the complainant inside flat of the accused for seeing the transaction. He further admitted that he knew that there was Mr. Chatwal in CBI and his office had been searched in connection with this case but he had never met him. He expressed his ignorance if office of Mr. Chatwal had been searched at instance of CBI officers. Seven tapes had been sent to CFSL for preparation of copies and the eighth cassette was sent to get noise level reduced. They were not sent for preparation of transcripts. Further he claimed that he did not force the accused to give his voice samples. He had heard the tapes and there indeed were pauses and gaps at certain places and few sentences were not audible. Upon being questioned about the reason for preparing copies for the second time, witness CC 255/07 CBI Vs. Om Prakash Sharma 62 responded that the earlier copies prepared by CFSL were not audible. He denied the suggestion that transcript prepared by him was false and that the tapes had been tampered. He also denied the suggestion that no transcripts had been prepared in presence of independent witness Mr. Bhagi and Mr. Malhotra and their signatures had been subsequently obtained. Lastly, he denied the suggestion that he filed false charge sheet against the accused and that he had not conducted the investigation properly and had falsely involved O.P. Sharma at the instance of Senior officers.

44. After closing PE, statement of the accused recorded u/s. 313 Cr.P.C wherein he denied case of the prosecution. He claimed that he was not aware of the acquaintance of L.K. Kaul with Surender Jain and it was false evidence that Surender Jain had asked L.K. Kaul to talk to him. There was no demand of bribe made by him from Surender Jain or L.K. Kaul and it was also not correct that any amount was paid by Surender Jain to L.K. Kaul for being given to him. He claimed that a false complaint had been made by L.K. Kaul in connivance with CBI CC 255/07 CBI Vs. Om Prakash Sharma 63 officers. However, he admitted that indeed L.K. Kaul had come to his residence. He admitted that CBI officer had searched his flat and claimed that perhaps they wanted to plant money but they could not do so and so they planted money in the balcony of the flat below his flat. Regarding recordings, he claimed that Surender Jain had denied his voice and his receptionist had not been examined and evidence of L.K. Kaul was motivated. No evidence had been led by accused regarding bad blood between him and L.K. Kaul. He admitted that house of Janender Jain had been searched in connection with a case under provisions of TADA. He claimed that C.M. Sharma was Joint Director and was interested in Jain who was known to him through Aslam Khan. The witnesses had falsely deposed under pressure of CBI. Since 1984 he had been investigating and supervising investigation and prosecution of sensitive cases and matters under TADA pertaining to terrorists in J&K, Punjab, Manipur, Maharashtra. He had contributed to solving of cases of murder of Gen. Vaidya, Nirankari Baba, hijacking cases, attempts on the life of Rajiv Gandhi etc. He had clean and an accurate service record and had also received President Medal.

CC 255/07 CBI Vs. Om Prakash Sharma 64 During investigation of RC 5 (S)/91­SIU­V, one Shambhu Dayal Sharma made a confession. On his confession, premises of J.K. Jain and S.K. Jain were searched and cash was recovered. In order to save Jains and highly placed politicians and bureaucrats, the present false case was registered against him. He admitted that he knew L.K. Kaul as he was supervising a case against him. On 16.6.91 he had retired to his bedroom. Upon ringing of call bell his son Amit opened the door. He went to the drawing room where L.K. Kaul was sitting. He shook hands with him. He did not specify any purpose and started discussing election bulletins. After some time he went out of the drawing room and CBI officers entered his house.

45. He also examined seven witnesses in his defence.

46. DW­1 was J. P. Subnani. He deposed that he was posted as Scientific Assistant in CFSL (CBI­Photo Division Office) during June 1991. They used to be summoned in court for preparing copies. In this particular case, cassette was not received in CFSL. The copies had been CC 255/07 CBI Vs. Om Prakash Sharma 65 prepared in court. After preparing copies and cassette which was prepared before him were handed over to the I.O. D­15 which was memo Ex. PW12/A contained his signatures. Upon being cross examined by Ld. PP, he submitted that room no. 512 was occupied by their head of department in 1991. He did not remember if P.N. Bhagi and B.L. Malhotra were present at the time copies of cassettes were prepared. After seeing Ex. PW12/A (D­15, wrongly typed as D­12), witness remarked that cassette had been prepared in room no. 512 of CFSL building.

47. The next witness to be examined was Puran Kumar Inspector, CBI. He produced file relating to RC no. 5(S)/1991­SIU­V/SCR­II. The file was of terrorists funding case. We discard the testimony of this witness since his examination in chief was never completed and he was not subjected to cross examination by Ld. PP.

48. The third witness to be examined was Mr. Vineet Kumar Gupta, Special Director, CBI. He deposed that in 1991 he was posted as S.P. CC 255/07 CBI Vs. Om Prakash Sharma 66 CBI, Special Unit, New Delhi. He did not know complainant L.K. Kaul but had met him in connection with his grievance regarding demand of bribe. He had discussed with him whatever information was required to be obtained from him. A micro cassette Ex. PW2/J was played in the Court, but witness was unable to identify his voice. He claimed that without referring to records, he would not be able to tell if any report was submitted to the unit which dealt with laying of the trap. He did not remember if complainant had produced any cassette before him or having taken any cassette from complainant.

49. The fourth witness to be examined in defence was Mr. O.P. Chatwal, Retired DIG, CBI. He deposed that in 1983 he was posted as DSP in SIC­I of CBI. Accused O.P. Sharma was SP in the unit from 1980 to 1983. He was investigating RC no. 3/83, SIU­II involving L.K. Kaul. Till 1983 O.P. Sharma was supervising the investigation. He identified signatures of accused O.P. Sharma and the then DIG, C.M. Sharma on letter Ex. DW4/A. He also identified signatures of C.M. Sharma on letter Ex DW4/B which had been written to Regional CC 255/07 CBI Vs. Om Prakash Sharma 67 Passport Officer. The witness also identified signatures of Mr. R.C. Arora, DIG, CBI on letter Ex. DW4/C addressed to Director, Directorate of Enforcement, Khan Market. He claimed that his office was searched in June 1991, but he was not sure of the exact date. He was not present in India at that time. The search had been carried out at instance of L.K. Kaul. He identified signatures of accused O.P. Sharma on document Ex. DW4/D, which was note sheet of file pertaining to case of funding of terrorists. Upon being cross examined by Ld. PP, he claimed that he had merely identified signatures and writings on various documents and had nothing to say about their contents.

50. The fifth witness to be examined by the accused was ASI Rajender Singh. He produced malkhana register. Page no. 152 contained entries relating to deposit of case property in respect of RC 6/91/SIU­IX. The property had been deposited on 17.6.91 by DSP, CBI, Jodhpur. A micro cassette in a sealed cover had been deposited. It had been issued to DSP H. C. Singh on 21.6.91. A brown air bag had been deposited in malkhana on 17.6.91. It had been issued to K.C. CC 255/07 CBI Vs. Om Prakash Sharma 68 Sharma on 15.7.91 and was deposited again in malkhana on 16.7.91. One Indian Airline baggage tag was deposited on 21.6.91 and the same was issued to K.C. Sharma on 15.7.91 and was deposited back on 16.7.91 .

51. Mr. Suraj Mal Head Clerk was sixth defence witness to be examined. He deposed that in each office there is a diary register regarding receipt of dak. A dispatch register is also maintained for outgoing letters. Receipt and dispatch registers of the year 1991 and 1992 of S.P., SIU­IX, CBI, CGO Complex, Lodhi Road have been destroyed/weeded out in pursuance to order dt. 24.2.2011. Copy of the order was Ex. DW6/A. He identified signatures of Sh. Santosh Rastogi on reply Ex. DW6/B. According to the said reply, it was certified that registers had been weeded out.

52. The last witness to be examined was Sh. Ravinder Pandit. He identified signatures of Mr. Joginder Naik, AIG (P)­II, CBI on letter Ex. DW7/A. He deposed further that dak registers of the year 1991 CC 255/07 CBI Vs. Om Prakash Sharma 69 have been weeded out as per order enclosed with letter Ex. DW7/A.

53. I have heard Ld. Senior PP Sh. Praneet Sharma and Mr. S.P. Minocha Ld. Counsel for the accused very extensively on large number of occasions. I have also gone through written synopsis filed on behalf of accused. In the written synopsis Ld. Counsel for the accused discussed large number of contradictions in the testimony of various witnesses. He claimed that entire investigation was tainted. Conduct of trap laying team was not above board and top politicians and bureaucrats had all the reasons to get the accused trapped in order to save their own skins.

54. Ld. Counsel for the accused submitted that the airlines tag did not bear the year nor it mentions the airport "Srinagar". To my mind it does not matter because PW R.D. Kumar had deposed about it. He had claimed that he used to check cabin baggage of passengers and used to sign the tag. Ex.PW4/A (D­21) was the tag. It contained his signatures and date "1/6". He claimed that he was posted at Srinagar airport in 1991. He had never been posted at any other airport. So, it is clear that CC 255/07 CBI Vs. Om Prakash Sharma 70 the tag Ex. PW4/A was signed by Mr. Kumar at Srinagar airport on 01.06.91, and at no other place and date as he had remained posted only at a single airport and i.e. Srinagar and that too in the year 1991.

55. Ld. Counsel further submitted that PW L.K. Kaul was not asked to bring back the briefcase in which GC notes had been kept and it was also signed by the witnesses. The briefcase which was produced in the court did not contain signatures of the witnesses. Ld. Counsel further submitted that taking hand wash of the accused became irrelevant because complainant L.K. Kaul had shook hand with the accused. He further claimed that faint pink colour indicates hand shake and not touching of GC notes because the quantity of powder which is transferred in a hand shake from one hand to another is less than the quantity transferred from GC notes to the hands of those who touch them. It will not go to help of the accused because the GC notes which had been smeared with phenolphthalein were kept not in pockets of the complainant L.K. Kaul but were kept properly packed in a briefcase. Hands of L.K. Kaul would not have got smeared with phenolphthalein CC 255/07 CBI Vs. Om Prakash Sharma 71 powder. So there is no question of transfer of phenolphthalein powder from the hands of L.K. Kaul to hands of the accused. After being trapped, accused asked for taking of hand wash of the Kaul. According to the accused, it was refused. After arrest accused was not taken to jail but was released on bail then and there. He was a senior CBI officer and nor a layman. He was fully aware of law and procedures of CBI. He did not make any complaint to any senior officer in this regard. Atleast, he could have sent a letter by registered post listing his grievance. He did not do so. So, it indicates that it was nothing else but an after thought.

56. Ld. Counsel further submitted that there was no motive for O.P. Sharma to accept bribe. PW7 and PW14 namely Surender Jain and J.K. Jain denied providing money to L.K. Kaul. He further submitted that accused was keen to arrest Jains and so there was no occasion for him to demand any bribe. He submitted that rather his superior C.M. Sharma was going soft on Jains. C.M. Sharma was Joint Director of CBI and he had admitted that he was not interested in arresting Jains CC 255/07 CBI Vs. Om Prakash Sharma 72 under TADA. He had also opposed arrest of Jains by O.P. Sharma. He wanted to refer the matter to income tax department. He wrote a note on 22.5.91 that accused be interrogated continuously to eliminate any terrorist link. Ld. Counsel submitted that if accused had received money, he would have been going soft on the Jains. He had also made a note dt. 5.6.91 to arrest remaining financers and thoroughly interrogate them. I would like to submit that his note for continuous interrogation of the accused persons was not meant for Surender Jain but for those who had been arrested in the hawala case. Further the accused in his note expressed necessity to arrest not Surender Jain but Javed, Rohtash Sharma and Prakash Lunia and interrogate them.

57. Hon'ble Supreme Court in Omwati Vs. Mahender Singh & Others: AIR 1998 SC 249, held that proving of motive was not necessary to sustain conviction, but in case prosecution puts forward a specific case as to motive then it must prove it satisfactorily. Hon'ble Bombay High Court in Kusta B. Khandnekar Vs. Goa : 1987 Cri. L. J. 89, held that motive is not to be treated as a constituent ingredient of CC 255/07 CBI Vs. Om Prakash Sharma 73 the offence. My Lord Mr. Justice P. Sathasivam and My Lord Mr. Justice B.S. Chauhan in B.K. Mondal Vs. State of West Bengal : AIR 2010 SC 3638 held that motive is best known to the accused and absence of proving of motive does not affect evidence of witnesses. Their Lordship also held, "therefore in a case there is direct trustworthy evidence of witnesses as to commission of offence, motive part loses its significance".

58. Coming back to the case in hand, even if the record indicates that accused was interested in arresting Jains and there was no occasion for him to seek bribe, we cannot overlook testimony of witnesses and specially Mr. T. Narayanan Moorthy from whose balcony recovery was made. Accused was residing in the flat on the 7th floor above flat of Mr. T. Narayanan Moorthy. It is just impossible for any individual to throw a bag full of money from the ground to balcony of 6th floor. The only possibility which is possible is that bag is thrown from the floor above 6th floor. Mr. T. Narayanan Moorthy was a senior bureaucrat with no axe to grind. His conspiring with CBI officers to frame the CC 255/07 CBI Vs. Om Prakash Sharma 74 accused is just not possible. Even accused did not make any such claim. So, alleged absence of motive does not come to aid of the accused.

59. Ld. Counsel also argued that bag was planted in the balcony of Mr. Narayanan Moorthy by the CBI officers. Mr. Narayanan Moorthy had checked even identity cards of the CBI team after they had knocked at his door. If he could have gone to the extent of checking of their identify card he would have noticed them carrying bag inside his house. By the time CBI team knocked door of Mr. Narayanan Moorthy, bag already lay in his balcony. I have already observed above that it is next to impossible that Mr. Narayanan Moorthy had conspired with CBI officers to frame the accused. Moreover, the bag bore tag of Indian Airlines. It was signed by Mr. R.D.Kumar. Mr. R.D.Kumar had deposed in his testimony that security tag Ex. PW4/A contained his signatures as he used to sign on the tag after checking baggage of the passengers. He had also claimed that he was posted at Srinagar Airport in 1991 and he never had been posted at any other airport. If Mr. R.D. Kumar had been posted in 1991 at Srinagar Airport and had no other CC 255/07 CBI Vs. Om Prakash Sharma 75 airport in his career then certainly we can be sure that baggage tag Ex. PW4/A was signed by him during his posting on 01.06.1991 at Srinagar Airport. How could CBI Officers pick up a bag from the house of accused, put money in it and take it to the house of Mr. T. Narayanan Moorthy for planting. The bag indeed belonged to the accused as it bore the baggage tag which was identified by PW13 Sh. R.D. Kumar. The accused had travelled from Srinagar to Delhi on 01.06.1991. Even certificate issued by Indian Airlines Ex. PW5/A is to the effect that O.P. Sharma had travelled from Srinagar to Delhi on 01.06.91. In his statement u/s. 313 Cr.P.C. even accused did not make any claim that he had not travelled on 01.06.1991 from Srinagar to Delhi by Indian Airlines or that bag had been picked up from his house and was filled with GC notes by CBI officers.

60. L.K. Kaul had been investigated earlier by O.P. Sharma. This fact he himself claimed in his statement u/s 313 Cr.P.C. Is IO of a case supposed to shake hands with a person whom he had investigated and then also discuss politics. The answer has to be in negative. In the first CC 255/07 CBI Vs. Om Prakash Sharma 76 place, an accused (L.K. Kaul) who was investigated has no business to visit flat of the investigation officer. The officer has no business to shake hands with him and then invite him inside. There can be only one situation where investigation officer shakes hands with the accused and also invites him inside his flat and that is they had some other sort of relationship other than purely that of investigation officer and the accused. They had some other kind of dealing between them. This reinforces claim made by the complainant that accused had sought bribe for going easy on the Jains.

61. Ld. counsel for accused submitted that documents had been withheld by CBI. CBI had taken voice sample and fingerprints of the accused but did not mention it in the chargesheet. So it should be held against CBI. He relied upon case titled as Union of India Vs. P. Biswas : 2006 (1) CC cases (SC) 124. Hon'ble Supreme Court had held in the said case that if material documents had been annexed to the chargesheet then the trial judge would not have held the accused guilty. In the said case accused was surveyor of Mercantile Marine CC 255/07 CBI Vs. Om Prakash Sharma 77 Department of government. He had pointed defects to the master of the ship but they were withheld by the prosecution. Here in a case before us what was withheld was voice sample and fingerprints. They cannot be equated with pointing out defects in the ship. Here oral testimony of Mr. Moorthy and evidence of other witnesses clearly point to the guilt of the accused. Accused had put CFSL Report Ex. PW16/DD1 to PW16 Mr. Satyapal Singh . According to the report print Q­1 photographed and lifted from one GC note was compared with specimen fingerprints of the accused. It did not tally. So Ld. Counsel for the accused submitted that accused had not handled those GC notes. Sh. Praneet Sharma on the other hand submitted that after accepting the money, accused had bolted his flat from inside. He had gone inside his bed room with the currency notes and had bolted the bed room also from inside. He had ample time alone with those GC notes in the privacy of his bed room. So according to Ld. PP he could have very easily wiped out his fingerprints from those GC notes. He was Senior officer of CBI and was well aware of the procedures. I find myself in agreement with this contention of Ld. PP. Only one chance print was CC 255/07 CBI Vs. Om Prakash Sharma 78 found on one bundle of GC notes. Accused was alone in his bedroom for 15/20 minutes with bundles of GC notes. Being CBI Senior officer he knew how to wriggle out of the trap. He could have wiped the bundles. So merely because his fingerprints were not found on GC notes should not mean that he did not handle them. Ld. Counsel further argued that Ex. PW2/D was the recovery memo which was signed by PW­9 Mr. T. Narayanan Moorthy. According to him Mr. T. Narayanan Moorthy had not witnessed the entire facts which were recorded in the recovery memo Ex. PW2/D. To my mind, it does not matter. Mr. T. Narayanan Moorthy had signed the recovery memo. He had also claimed that the said memo was prepared in his flat. He may not have witnessed the entire happenings mentioned in recovery memo but he indeed had witnessed with his own eyes part of it. So merely because Mr. Moorthy had not witnessed the entire happenings, the recovery memo should not be discarded.

62. Ld. Counsel for the accused further submitted that according to letter written by SP, CBI Delhi to SP, CBI Jammu (D­12), photostate CC 255/07 CBI Vs. Om Prakash Sharma 79 copy of the tag was sent. PW5 Mr. SPS Dutta deposed that original tag was sent to him. This is a minor insignificant variance. Let us not forget that Mr. Dutta had entered the witness box in the year 2008 i.e. almost after 17 years of the event. Moreover Ex. PW5/A (wrongly typed as Ex. PW4/A) is a certificate issued by Indian Airlines. It was signed in the presence of Mr. Dutta. According to it, accused O.P. Sharma indeed had travelled from Srinagar to Delhi by IC 424 on 1.6.91. So it is clear that indeed accused had travelled by Indian Airlines Flight on 1.6.91 from Srinagar to Delhi and as such, affixation of tag on his bag was something in routine and normal.

63. Ld. Counsel for the accused also assailed the tape recording which had been done in the instant case. He submitted that in the tape recordings there should be no possibility of tampering. The tape should be sealed. Voices should be identified. He claimed that the tapes in the present case were in possession of CBI even before registration of RC and so they could be always tampered. Ld. Counsel further submitted that recordings of the spot proceedings were not CC 255/07 CBI Vs. Om Prakash Sharma 80 sealed. They went to CFSL in unsealed condition. It was also opened 3­4 times. There was also no evidence of sending the sample voices to CFSL for comparison.

64. Ld. Counsel for the accused had relied upon case titled as Subhash Vs. CBI: Manu/DE0060/2005. The said case was decided by My Lord Mr. Justice Pradeep Nandrajog. In the said case, the Hon'ble Judge expressed his surprise upon relying of tape recorded conversation on testimony of PW­3 and on voice identification by PW­3. Prosecution had not taken specimen voice samples of the accused or PW­3 and tape recorded conversation were not sent for analysis or voice spectography. Hon'ble Judge had held that no reliance could be placed on the alleged tape recorded conversation. Ld. Counsel for the accused had also relied upon case titled as Pratap Singh Vs. State : AIR 1964 SC 107 (V 51 C 8). Hon'ble Apex Court had held that if in any particular case there was well grounded suspicion of tampering with tape recording, it would be a good ground for the Court to discard it. Ld. Counsel had also relied upon a very recent decision of Hon'ble Delhi High Court titled as Deepak Kumar CC 255/07 CBI Vs. Om Prakash Sharma 81 Vs. State : Cri. Appeal No. 1315 of 2011 decided on 09.01.2012. Hon'ble Court had referred to previous decisions of Hon'ble Apex Court wherein some pre conditions were laid down for accepting tape recordings. They are as follows:

(a) The voice of the speaker should have been duly identified by the maker or by others who recognize the voice. Where the maker has denied the voice, it will require very strict proof to determine whether or not it was really the voice of the speaker.

(b) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence, direct or circumstantial.

(c) Every possibility of tampering with or with erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

(d) the statement must be relevant according to the rules of Evidence Act.

(e) The recorded cassette must be carefully sealed and kept in safe or official custody.

CC 255/07 CBI Vs. Om Prakash Sharma 82

(f) The voice of the speaker should be clearly audible and not lost or distorted by other sound or disturbance.

65. Now coming back to the case in hand PW­12 TLO stated that call was made by complainant L.K. Kaul to accused O.P. Sharma and the conversation was recorded and the cassette was sealed. Witness from CFSL PW­10 deposed that cassette in unsealed condition had been received. If we take a look at the report Ex.PW10/A and the letter which had been sent to the Laboratory which is D­17, we will find that CFSL was simply asked to find out the telephone number which had been dialed. Nothing more had been sought regarding identification of the voices recorded therein. The CFSL expert after examining, in his report Ex.PW10/A simply said that telephone No. 673597 had been dialled. He did not say anything about the voices recorded therein as he was not asked for. The cassettes had been played in the court and most of them were unclear and inaudible. Ld. PP submitted that voices of complainant L.K. Kaul and accused O.P. Sharma were duly identified by PW­8 Phool Singh who was PA to the accused. No doubt CC 255/07 CBI Vs. Om Prakash Sharma 83 it is true that PA was a in a position to identify voice of his boss, but it would be difficult to believe that he was in a position to identify voices of the callers who asked for his boss. As I have observed earlier most of the cassettes were unclear and full of disturbances. I myself heard the cassette five times in the court and was able to only make out few sentences. The cassette containing spot conversation was sent to laboratory not for identification of voices but merely for finding out the telephone number to which call had been made. We do not have the benefit of any expert opinion about the voice of the accused and the complainant. The cassette had been sent in unsealed condition. Ld. PP had submitted that merely because there is possibility of tampering should not be a ground for discarding of cassettes. I find myself unable to agree with this contention. CBI had all the means at its disposal and despite that the IO deemed it prudent to open up the sealed cassettes before sending them to CFSL laboratory. Atleast they should have been sent there in a sealed condition which would have vouched for their genuineness. Moreover the tapes were with CBI for a month before raid. In this background I deem it appropriate to discard the tape CC 255/07 CBI Vs. Om Prakash Sharma 84 recordings which had been done in the present case as most of the cassettes were inaudible, full of disturbances and as such possibility of interpolations and manipulations cannot be ruled out.

66. Another aspect of argument of Ld. Counsel was that whatever was spoken by the complainant in presence of police officials was hit by Sec. 162 of Cr.P.C. and hence became inadmissible as hearsay. So whatever complainant L.K. Kaul told the CBI team which also included independent witness after coming out of house of accused should be discarded and not relied upon. In Sunil Kumar Vs. State: (CBI) 2007 (2) JCC 1315 a police official sought bribe. Mr. S.K. Peshin was trap laying officer in the case. Accused directed complainant to keep bribe money in his table drawer. Complainant put the money in table drawer of the accused. Thereafter accused invited complainant for a cup of tea and came out of the room. On the way accused told Ct. Ashok Kumar to get the money which was kept in the table drawer. Accordingly Ct. Ashok Kumar picked up the money and kept it in his pant pocket when he was arrested by CBI team including S.K. Peshin. In the said case PW S.K. Peshin himself had not heard the accused telling constable CC 255/07 CBI Vs. Om Prakash Sharma 85 Ashok Kumar to remove the money from the table drawer. S.K. Peshin had been informed about it by other witnesses who had heard accused telling Ashok Kumar to remove the money. So that part of statement of S.K. Peshin was held to be inadmissible being hearsay. Here it is not so. Here the members of the CBI team and the independent witness themselves heard whatever complainant L.K. Kaul had told them. Another case relied upon by Ld. Counsel for the accused was Banarsi Dass Vs. State of Haryana : (2010) 4 SCC 450. In the said case the main eye witnesses PW­2 & PW­4 had turned hostile and not supported prosecution. Prosecution had also examined Mr. S.K. Joshi and Hari Ram PW­10 & PW­11 respectively. While Mr. S.K. Joshi was SDM, Mr. Hari Ram was DSP. Hon'ble High Court had relied upon testimony of Mr. Joshi and Hari Ram. Hon'ble Apex Court held that they were neither eye witnesses to the demand nor the acceptance of money by the accused from PW­2 Mrs. Satpal Kaur. Their testimony regarding demand and acceptance of bribe was based on hearsay i.e. whatever was told to them by PW­2 and PW­4. On the other hand, Sh. Praneet Sharma had relied upon case of Yusufalli Esmail Nagree Vs. CC 255/07 CBI Vs. Om Prakash Sharma 86 The State of Maharashtra : 1968 CRI. L.J. 103 and State of Madhya Pradesh Vs. Ramesh : (2011) 4 SCC 786.

67. In the first judgment relied upon by Ld. PP, a government servant Mr. Munir Ahmed Sheikh a notice clerk with Bombay Municipal Corporation was offered bribe by the accused. He lodged complaint and trap was laid. A micro phone connected to tape recorder was installed in the room in a concealed manner. Accused came and offered bribe and handed over GC notes. Conversation between accused and Mr. Sheikh was recorded in the tape recorder. At that time, police officers had hid themselves in a room. Accused was not aware of their presence while Mr. Sheikh knew about presence of the police officers and recording of their conversation. Hon'ble Apex court held that neither accused nor Mr. Sheikh could be regarded as having made statement to the police as contemplated by Sec. 162 Cr.P.C. The accused was not making statement to any police officer. Rather he was not even aware of their presence. He was talking to Mr. Sheikh who was a police decoy and the statement made to Mr. Sheikh could not be CC 255/07 CBI Vs. Om Prakash Sharma 87 treated as statement made to the police.

68. In the second case relied upon by Ld. PP, Hon'ble Apex Court referred to a previously decided case of Sukhar Vs. State of U.P.:

(1999) 9 SCC 507. Hon'ble court had held therein that statements sought to be admitted must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter.

69. Sh. Praneet Sharma further submitted that whatever was told by the complainant to the team members including independent witness was relevant and in view of Sec. 6 of the Evidence Act must be admitted in evidence.

70. Sec. 6 of the Evidence Act is an exception to hearsay rule. It makes statement admissible when such statement is proved to form part CC 255/07 CBI Vs. Om Prakash Sharma 88 of res gestae, to form a particular statement as a part of same transaction or the incident soon thereafter.

71. Sec. 5 of the Evidence Act says that evidence has to be given of facts and issues and relevant facts. While Sec. 6 talks of relevancy of facts forming part of same transaction. The first illustration to Sec. 6 of the Evidence Act is to the effect that A was accused of murdering B by beating him. Whatever was said and done by A or B or the bystanders at the beating or shortly thereafter formed part of the transaction and was thus relevant. In an English case titled as R Vs. Nye : (1977) 66 Cr. App. R 252, Court of Appeal had held that statement made to police officer by the victim of assault identifying the assailant few minutes after the assault was admissible as res gestae. In Sukhar Vs. State of U.P. : (1999) 9 SCC 507, the bench comprised of three Hon'ble Judges of the Apex Court. They referred to book written by Sarkar on Evidence 15th Edition in which law relating to applicability of Sec. 6 of the Evidence Act was summarized as follows:

The declarations (oral or written)must relate to the act which is CC 255/07 CBI Vs. Om Prakash Sharma 89 in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction which is continuous.

72. Now coming back to the facts in hand, L.K. Kaul had not made statement to the police. He had made statement in presence of police officers to the CBI team which also comprised of independent witnesses. He was simply informing them about acceptance of bribe by the accused. As summarized above by Hon'ble Apex Court, L.K. Kaul's statement related to act in issue (acceptance of bribe). He did not state any independent fact. Whatever he had stated was part of the transaction and thus admissible and could be relied upon by the Court. Even if for the sake of arguments, we discard part of trap laying officer's statement regarding the utterances of L.K. Kaul, still whatever L.K. Kaul deposed in the Court regarding acceptance of bribe by the accused, was relevant and admissible. This can be coupled with CC 255/07 CBI Vs. Om Prakash Sharma 90 recovery of GC notes from the flat of Mr. Moorthy on the 6th floor. To sum up, I hold that utterances made by L.K. Kaul after coming out of flat of the accused, are relevant and admissible.

73. Ld. Counsel for the accused further submitted that as accused was inconvenient for bureaucrats and politicians. The persons involved in the case whose names figured in the Jain diaries were very strong politically. Transferring him would have raised eye brows. It is no doubt true that names of prominent politicians appeared in the Jain diaries, but they would not have taken the trouble of enacting all this drama just to get him removed from the job. A simple administrative order transferring few CBI officers including the accused O.P. Sharma could have done the trick. There would not have been any need for them to enter into criminal conspiracy with L.K. Kaul just to oust the accused from investigation of the Hawala case.

74. Further Ld. Counsel submitted that in case bag was thrown from balcony of the 7th floor to balcony of 6th floor, it would have created lot of noise. It is true that noise would have been created but it would have CC 255/07 CBI Vs. Om Prakash Sharma 91 been a thud noise and could have gone unnoticed. The bag contained only currency notes and not any metal object which would have generated rattling noise inviting attention.

75. Ld. Counsel also submitted that there were contradictions in testimony of the witnesses and so accused is entitled to acquittal. PW­4 Sh. B.L. Malhotra could not remember if there was any window in the bed room of the accused or not. PW­16 was unable to tell the exact members of the members of the trap team who took position on the 7th floor. He also could not tell as to after how much time of the recovery, photographer had been summoned to the spot. PW­21 Mr.K.C. Sharma in his cross examination dt. 8.9.2011 initially claimed that specimen voice sample of O.P. Sharma was not taken and soon thereafter he admitted taking of voice sample. It was also claimed that L.K. Kaul was inconsistent. In his examination in chief, he claimed that accused O.P. Sharma had asked him to come to his residence in the evening of 04.05.91 but in his cross examination he claimed that he had gone in the morning of 04.05.91. It was also pointed out by Ld. Counsel that at places there were material improvements made by the witness. L.K. CC 255/07 CBI Vs. Om Prakash Sharma 92 Kaul in his cross examination claimed that he could not remember if it was recorded in handing over memo that he was directed not to touch the currency notes. He also could not remember having stated this fact in his subsequent statement to CBI. PW­16 S.P. Singh could not say with certainty if the photograph placed on record were of the spot of trap or of any other place. Ld. Counsel had also submitted that it had emerged from cross­examination of PW21 Mr. K.C. Sharma that statement of independent witness Mr. P.N. Bhagi was not recorded by the IO. He claimed that the independent witness Mr. Bhagi did not actually accompany complainant L.K. Kaul inside flat of the accused and TLO Mr. H.C. Singh could not assign any reason for the same.

76. It is no doubt true that there are some contradictions here and there but they not go to roots of the matter. Let us not forget the time gap between the incident and the dates of testimony of the witnesses in court. The charge itself was framed after 12/13 years of the incident and only thereafter witnesses begin to be examined. PW­20 H.C. Singh who had laid the trap entered the witness box after nearly 20 CC 255/07 CBI Vs. Om Prakash Sharma 93 years of incident. No individual has a computer like photogenic memory. Hon'ble Apex Court in Ramani @ Rameshwar Vs. State of M.P.: AIR 1999 SC 3544 held:

"When eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non discrepant."

77. In the later decision in case titled as Krishna Mochi Vs. State of Bihar : (2002) 6 SCC 81 my lord Mr. Justice B.N. Aggarwal held:

"The court while appreciating the evidence should not loose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping CC 255/07 CBI Vs. Om Prakash Sharma 94 fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same."

78. In case titled as Thoti Manohar Vs. State of Andhra Pradesh:

2012 Cri. L.J. 3492, Hon'ble Apex Court held:

"The minor discrepancies on trivial matters not touching the core of the matter cannot bring discredit to the story of the prosecution. Giving undue importance to them would amount CC 255/07 CBI Vs. Om Prakash Sharma 95 to adopting a hyper­technical approach. The Court, while appreciating the evidence, should not attach much significance to minor discrepancies, for the discrepancies which do not shake the basic version of the prosecution case are to be ignored".

79. In yet another case titled as Harijana Thirupala & Ors. Vs. Public Prosecutor Andhra Pradesh: 2002 (6) SCC 470, it was held that case of prosecution should be judged as a whole having regard to totality of evidence. In reaching conclusion about guilt of the accused, Court has to appreciate, analyse and assess the evidence put up before it by yard stick of probabilities, its intrinsic value and animus of witnesses.

80. In Sardul Singh Vs. State of Haryana : AIR 2002 SC 3462, Hon'ble Apex court had observed that there could not be any prosecution case with cast iron perfection in all respects. It was duty of CC 255/07 CBI Vs. Om Prakash Sharma 96 the court to analyse, sift and assess the evidence on record.

81. Here, none of the contradictions damages the main case or roots of the matter. The case is very old. The incident took place in the year 1991 and witnesses commenced with their testimony only in 2004. The main complainant deposed after a gap of 16 years and TLO deposed after 18 years and the SP deposed after 19 years and Joint Director after 20 years of the incident. Human memory is short and one cannot be expected to recollect finer details over a long period of time. So naturally some discrepancies do crop up here and there. The insignificant discrepancies should be ignored. They should not come in the way of dispensation of justice. There is no significant discrepancy which has cropped up in the instant case which should affect case of the prosecution.

82. Surender Jain whose diaries had been seized tried to wriggle out of situations by claiming that he could not remember any fact. He claimed that he did not know L.K. Kaul or O.P. Sharma. But he also CC 255/07 CBI Vs. Om Prakash Sharma 97 admitted that CBI was suspecting him of funding terrorists activities in Kashmir. He could not remember how many telephones had been installed in his house. He also did not remember their numbers. He also did not remember his own extension number. He remembered that his premises had been searched in a TADA matter but claimed that he could not remember if he had asked the CBI officers the reason for the raid. This just is not possible. Every individual whose house is raided will atleast ask the CBI officers the reasons for the raid. It indicates that he is not speaking whole truth. He claimed that he had not told the IO that M.P. Singh had taken him to accused O.P. Sharma who had asked him to meet him in private and also threatened to implead him in a TADA case or that he had demanded Rs. 30 Lacs for not involving him. However he claimed that he had contacted Kapil Sibbal regarding the raid.

83. Admittedly Janender Jain was employee of Surender Jain. Admittedly Janender Jain's premises was searched by CBI in connection with TADA matter. Admittedly huge cash and foreign CC 255/07 CBI Vs. Om Prakash Sharma 98 currency were recovered. Admittedly Surender Jain's premises was also searched. Surender Jain also admitted that he had discussions with Janender Jain about the raid. He also admitted having contacted Kapil Sibbal. If Surender Jain was not involved in nefarious activities there was no occasion for him to contact Kapil Sibbal or to have discussions with his employee Janender Jain. Thus his denial in the cross examination by Ld. PP are sham and he is simply tried to save skin of the accused. His testimony in the court appears to be full of untruths. Surender Jain had claimed that he had not asked CBI the reasons for raiding his house. This is just not believable that a person whose house is raided by CBI will not even ask the reason for raid. And more so, he is not an ordinary poor citizen. He is an exceedingly rich man who by his own admissions has visited CBI office 400/500 times and when CBI is suspecting him of funding terrorists, it is not expected of such a person that he will not even ask the reason for the raid. In this background, his testimony virtually giving clean chit to everybody who mattered and his selected amnesia regarding knowing L.K. Kaul, ignorance of his own extension number, meetings with the accused in a CC 255/07 CBI Vs. Om Prakash Sharma 99 hotel, not having any knowledge of arrest of the accused in the light of his admission that he had been summoned 400 to 500 times by CBI in connection with Jain diaries and search of his premises in TADA matter should be taken with a pinch of salt.

84. PW L.K. Kaul was given a suggestion by Ld. Counsel for the accused that he took money from Surender Jain on pretext of paying to the accused but instead pocketed it. In other words, it is an admission by the accused that Surender Jain gave bribe money to L.K. Kaul for payment of bribe to the accused and L.K. Kaul instead of paying it to the accused had pocketed it. So admission of payment of money by Surender Jain is there. If L.K. Kaul had pocketed it, then it would not have been found in the flat of Mr. Moorthy.

85. L.K. Kaul was also given suggestion that in absence of accused in the flat of the accused, L.K. Kaul transferred GC notes from briefcase to a bag to implicate the accused. It has been established that the bag belonged to accused O.P. Sharma. Certificate issued by Indian Airlines on 20.7.91 is to the effect that O.P. Sharma had travelled to CC 255/07 CBI Vs. Om Prakash Sharma 100 Delhi from Srinagar on 01.06.91. It still has the airline's tag affixed to it. It had the signatures and date of the security check. How could L.K. Kaul get hold of the bag and that too in the house of the accused and transfer the GC notes. So it can be taken as an admission that GC notes indeed had been brought to the house of the accused in a briefcase.

86. Ld. Counsel wanted Court to believe that money had been planted by the CBI. This simply is not believable at all. Had CBI officers wanted to plant money, there was no need to enact dance and drama of recovery from the flat of Mr. Narayanan Moorthy. They could have planted in any corner of house of the accused and moreover it would mean that they entered into conspiracy with Mr. Narayanan Moorthy who resided on the sixth floor flat underneath flat of the accused for planting of the money bag. Accused also did not lead any evidence that Mr. Narayanan Moorthy was having enimical terms with him and there was bad blood between the two and so he had conspired with CBI officers. Rather in his statement u/s. 313 Cr.P.C, he claimed that he did not know even designation of Mr. Moorthy and the CC 255/07 CBI Vs. Om Prakash Sharma 101 department in which he worked. So obviously there could not have been any terms good or bad between Mr. Narayanan Moorthy and the accused.

87. Ld. Counsel for the accused also submitted that the entire event was stage managed by CBI. He claimed that provisions of CBI Manual were not followed. Compliance with CBI manual was not an empty formality. Hon'ble Supreme Court in Vineet Narayan's case had also laid down certain guidelines. According to CBI manual the present case should have been investigated by ACD and not by SCD. PW­12 H.C. Singh had admitted that according to CBI Manual all cases which were not registered under P.C. Act were to be handled by Special Crime Division. As per Chapter­IV of CBI Manual, all complaints have to be entered in a complaint register. Here complaint is dt. 10.06.91. Director made endorsement on 14.06.91. No entry was made anywhere.

88. Ld. PP on the other hand submitted that even if guidelines CC 255/07 CBI Vs. Om Prakash Sharma 102 have not been scrupulously followed, still the entire investigation is not to be thrown out. It does not become illegal. I find myself in agreement with this contention of Ld. PP. The only things which has to be seen is whether IO was competent to investigate and whether IO had been denuded of his power while investigating a particular offence. Being in a particular branch does not confer any power upon investigation officer. He derives his power from DSPE Act. In the case in hand, the CBI officers wanted to maintain secrecy as accused was very senior officer of DIG rank. Towards this end, they had roped in an officer who had come from outstation in the trap proceedings. To my mind, it cannot be termed as an illegality. At the most, if at all we can term it, we can term it as an irregularity and nothing more. It was a curable irregularity and did not cause any prejudice to the accused. To my mind, it was essential as secrecy was to be maintained since accused was a senior officer of the CBI.

89. Ld. Counsel also assailed character of the complainant L.K. Kaul. He claimed that L.K. Kaul had received 1 Lac pounds from CC 255/07 CBI Vs. Om Prakash Sharma 103 Swarn Singh who was not related to him. He was also involved in a land scam case and Hon'ble Supreme Court had barred him from visiting England. It is no doubt true that as admitted by the complainant he was involved in some such like activities, but should it mean that he has become incapable of deposing? I am afraid, it is not so. Even criminals are competent witnesses in Court of Law. Chapter­ IX of the Evidence Act does not de­bar witnesses who are facing trial to testify in the court. Even an accomplice in the crime is a competent witness against an accused person. It is duty of the Court to accept their testimony while taking all precautions.

90. Ld. Counsel for the accused had also claimed that the entire investigation was tainted. Admittedly L.K. Kaul had handed over the cassette containing recordings to senior officers of CBI about a month prior to the raid. They were inactive during this period and so according to learned counsel they must be planning their strategy. He relied upon case titled as State of Andhra Pradesh Vs. T. Ramulu:

1994 (3) CC Cases 6 (SC). He also claimed that L.K. Kaul had CC 255/07 CBI Vs. Om Prakash Sharma 104 grievance against accused O.P. Sharma and had made complaints against him and top brass of CBI. He also submitted that CBI wanted to get rid of O.P. Sharma because of infamous Jain hawala diaries. CBI had propped L.K. Kaul as a front man. If Surender Jain was willing to pay then there was no reason for him to organise a raid. Raid is to be organised only by a person who is not willing to pay. L.K. Kaul knew CBI officers. He had to take revenge from O.P. Sharma and so he played in the hands of CBI. He further claimed that if Surender Jain was aggrieved he should have lodged a complaint and not L.K. Kaul. On the other hand Sh. Praneet Sharma, Ld. PP submitted that there was no prescribed format for complaint. Anybody who is aware of a crime can lodge a complaint.

91. I would like to refer to case titled as State of Andhra Pradesh Vs. C. Uma Maheswara Rao: 2004 Cri. L.J. 2040. In the said case learned counsel for the accused argued before Hon'ble Supreme Court that complainant had grievance against the accused and also another officer of the Port Trust. Taking advantage of the proximity with CBI CC 255/07 CBI Vs. Om Prakash Sharma 105 officers, a false case was foisted. All these submissions were brushed aside by Hon'ble Apex Court which allowed appeal of the State. In T. Shankar Prasad Vs. State of Andhra Pradesh, Hon'ble Apex Court held that law gave discretion to the court to presume existence of any fact which it thinks likely to have happened. Court may have regard to common course of natural events, human conduct etc. etc. The discretion was envisaged in Section 114 of the Indian Evidence Act. Court must keep in mind stature of the complainant. Rs. 30 Lacs in 1991 would be equivalent to many crores at present. Surender Jain, a Hawala dealer, whose premises were raided along with premises of his accomplice Janender Jain and huge amount of Indian and foreign currency were recovered would not have wanted to come in forefront. The reasons are obvious. So it is not unusual that he propped up L.K. Kaul as a complainant.

92. Ld. Counsel also argued that the case was full of improbabilities. If we go through the complaint, we find that it is not mentioned therein that Surender Jain was not unwilling to pay bribe. Five installments of CC 255/07 CBI Vs. Om Prakash Sharma 106 bribe had already been paid and why accused was got trapped on the sixth occasion. L.K. Kaul had claimed to have recorded dates on which he had paid bribe in installments, but could not produce the diary in which he had so recorded. He further claimed that L.K. Kaul had made complaint against O.P. Sharma and so it is improbable that he would accept money from him. He also argued that a person who gives bribe of Rs. 10 Lacs would not take back the brief case, but would leave it with the bribe seeker along with the money. Moreover, when the air bag containing money was sighted in the balcony of Mr. T. Narayanan Moorthy, its zip was open. Nobody would throw a bag full of money with open zip. He also submitted that the briefcase in which money was carried was signed by independent witnesses, but when it was produced in the court, the signatures were not to be seen. He lastly claimed that PW 16 Sh. S.P. Singh in his cross­examination had claimed that during search of the flat same bag which was containing money, and was mentioned in the proceeding memo, was sighted in the balcony of the sixth floor. So according to him, the bag in which money was recovered was already with CBI Officers when they left CC 255/07 CBI Vs. Om Prakash Sharma 107 their office.

93. He relied upon case titled as Salveraj Vs. State of Tamil Nadu, Ganesh Bhavan Vs. State of Maharashtra, Ghunnu Vs. State of U.P., Shaikh Rafiq Vs. State of Maharashtra, Virpal @Raju Vs. State of NCT of Delhi etc..

94. I would like to take up his last objection first. It is true that PW Sh.S.P. Singh had deposed that the bag which was found containing money was mentioned in the proceeding memo. Proceeding memo is nothing but handing over memo. If we go through handing over memo Ex.PW2/B, we find absolutely no mention of the airbag. Air bag finds mentioned in recovery memo which is Ex.PW2/D. So it is nothing more than a mere typing error. Recovery memo was typed out as proceeding memo. Regarding signatures on the briefcase, I would like to submit that the briefcase would have been handled hundreds of time after it was seized. May be the signatures were too faint and could not be located when the briefcase was produced in the court. Moreover, it CC 255/07 CBI Vs. Om Prakash Sharma 108 does not go to the roots of the matter.

95. Regarding finding of the airbag with zip open, should not mean that bag was thrown with an open zip. It would have been thrown with a closed zip, but due to impact the zip might have got opened.

96. Section 20 (1) of the P.C. Act reads as under:

"Where, in any trial of an offence punishable u/s. 7 or section 11 or Clause (a) or Clause (b) of sub section (1) of section 13, it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate."

CC 255/07 CBI Vs. Om Prakash Sharma 109

97. According to it if an accused has accepted any gratification, it shall be presumed that he had accepted it as a motive or reward. Court has no choice in the matter and 'shall' has to be read as 'shall' and not 'may'. My Lord Mr. Justice K.T. Thomas in Madhukar Bhaskar Joshi Vs. State of Maharashtra: (2000) 8 Supreme Court Cases 571, held:

"Once the prosecution established that gratification in any form cash or kind had been paid or accepted by a public servant the court is under legal compulsion to presume that the said gratification was paid or accepted as a motive or reward to do (or forbear from doing) any official act."

98. In T. Shankar Prasad Vs. State of Andhra Pradesh, My Lord Mr. Justice Arijit Pasayat held:

"When the expression "shall be presumed" is employed in Section 4(1) of the Act, it must have the same import of compulsion.

When the sub­section deals with legal presumption, it is to CC 255/07 CBI Vs. Om Prakash Sharma 110 be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under section 4 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification."

99. So, if accused is found with tainted money, court has to presume that he had accepted gratification as a motive or reward for doing or not doing any official act.

100. In the above cited case, it was also held by the Hon'ble Judge that direct evidence was one of the mode through which a fact could be proved but that was not the only mode envisaged in the Evidence Act. Now coming back the the case in hand, it is true that airbag containing CC 255/07 CBI Vs. Om Prakash Sharma 111 money was not found in the flat of the accused. It was found in balcony of the flat of the sixth floor which was in occupation of Mr. T. Narayanan Moorthy. I have already discounted the possibility of Mr. T. Narayanan Moorthy entering into criminal conspiracy with CBI just to frame the accused. Accused in his statement u/s. 313 Cr.P.C. had claimed that he was not even aware of designation of Mr. Moorthy and the department in which he worked. Mr. Naryanan Moorthy was too senior a officer to enter into such kind of conspiracy with CBI to frame the accused who even did not know him. He would not have permitted CBI to place the airbag in his balcony for this purpose. The only way in which airbag had landed in his balcony was from the floor above. The bag could not have been thrown from the ground to balcony of sixth floor with such a deadly accuracy as the balcony would have been about 60 ft. from the ground. The bag bore baggage tag of Indian Airlines. I have already held earlier that the bag belonged to O.P. Sharma and nobody else. So, it stands established that he had accepted the tainted GC notes. Hon'ble Delhi High Court in Ram Chander Vs. State : 2009 Cri. L.J. 4058, had summarized legal position regarding CC 255/07 CBI Vs. Om Prakash Sharma 112 appreciation of evidence. I would quote part of it as under:

"A presumption as to the demand of bribe can also be drawn if the tainted money i.e. the money tendered as bribe money is recovered from the possession of the accused, which presumption of course is rebuttable.

However, if the explanation given by the accused about recovery of such money is false, it may be taken as an adverse circumstance against the accused.

If the accused gives some defence that can be scrutinized by the test of preponderance of probability while prosecution must prove its case beyond reasonable doubt. However if the explanation given is false it may be used adversely against the accused and may strengthen the presumption U/s. 20 of the Act."

101. In the case in hand no explanation has been offered by the accused regarding those GC notes.

CC 255/07 CBI Vs. Om Prakash Sharma 113

102. Finally to sum up, I hold that prosecution in the present case has been fully successful in making out case against accused O.P. Sharma that he accepted bribe of Rs. 10 Lacs from the complainant L.K. Kaul in connection with case which was being supervised by him pertaining to Hawala transactions involving senior politicians and government servants. Accused O.P. Sharma stands convicted for offence punishable U/s Sec. 7 & 13(1)(d) r/w 13(2) of the PC Act.

103. The third charge against the accused is for threatening members of the raiding party with a revolver. However, there is no convincing incriminating evidence on record of threatening the CBI team. He thus /stands acquitted of this charge punishable u/s. 506 (II) of IPC. As Surender Jain denied having paid bribe, the GC notes worth Rs. 10 Lacs (Ex.P­3) involved in this case along with other case property be confiscated to the State after period of appeal.

Announced in open Court on March 19, 2013. ( PRADEEP CHADDAH ) Special Judge:CBI­01 Central District. Delhi CC 255/07 CBI Vs. Om Prakash Sharma 114 IN THE COURT OF SH. PRADEEP CHADDAH:

SPECIAL JUDGE: CBI­01, CENTRAL DISTRICT. DELHI CC No. 255/07 RC 6(A)/91 PS CBI/SIU­IX/ND CBI Vs. 1) Sh. Om Prakash Sharma, S/o Late Sh. Ram Richhpal Sharma, R/o. C­8//8258, Vasant Kunj, New Delhi.

( then posted as DIG, CBI, SIC­II, New Delhi) ORDER ON SENTENCE

1. This Court had vide its judgment dated 19.03.13 found the convict guilty U/s. 7 and 13(1) (d) r/w 13(2) of PC Act.

2. I have heard Sh. Praneet Sharma, Ld. PP for CBI and Sh. S.P. Monocha ,Ld. Counsel for convict at length.

3. Sh. Praneet Sharma, Ld. PP prayed for taking of strict view of the matter and granting of exemplary punishment to the convict. He further CC 255/07 CBI Vs. Om Prakash Sharma 115 prayed that sentences which should be awarded to the convict should run consecutively. On the other hand, Ld. Counsel for the convict prayed for taking of lenient view.

4. Convict O.P. Sharma was working as DIG in CBI. While supervising a case registered under TADA, he had sought bribe for not arresting Surender Jain and Janender Jain who were hawala dealers, under TADA.

5. Surender Jain propped up his friend L.K.Kaul to settle the deal with the convict. Around Rs. 19 lacs was allegedly paid to the convict before the date of present trap.

6. At the stage of payment of the final installment, L.K. Kaul got the convict trapped. The air bag containing tainted GC notes worth Rs. 10 Lacs was delivered to the convict. After getting wind of CBI raid, the bag was thrown from the 7th floor flat of the convict. It landed in the balcony of Mr. Narayan Murthy who was occupying flat beneath flat of the convict, on the CC 255/07 CBI Vs. Om Prakash Sharma 116 6th floor.

7. Ld. Counsel for the convict filed an affidavit on behalf of convict on point of sentence. He submitted that convict had faced trial for over 19 years. He was at present 75 years old and suffering from various ailments. His aged wife too was keeping ill health. Daughter of the convict had lost her husband at a young age. He and his wife were surviving on medicines. He also annexed photocopies of various treatment record of the convict as well as that of his wife. Ld. Counsel also relied upon case titled as Ram Lal Dogra Vs. State (CBI): 2001 (2) JCC Delhi 239. Hon'ble High Court in the said case was pleased to reduce the sentence to the period already undergone after holding that convict in that case had retired from service and had lost his retiral benefits, had spent sometime in jail and also was suffering from few medical ailments.

8. In the case in hand convict who was a very high ranking CBI officer and was duty bound to act truthfully and honestly deviated from the CC 255/07 CBI Vs. Om Prakash Sharma 117 path. He sought bribe from hawala dealers who were under investigatin by his department to let them off the hook. In a way, he had compromised with security and well being of the nation as the hawala dealers were funding terrorist activities in the country.

9. Hon'ble Supreme Court in Raman Lal Vs. State of Bombay :AIR 1960 SC 961 had held:

" For a public servant to be guilty of corruption is a very serious matter and the Courts would not look upon it with undue leniency."

10. I have given my considered thought. Convict is 75 years old retired public servant. Court must make an effort to strike balance between interest of society and age and related circumstances of the convict. Keeping in mind his age and back ground, I sentence convict O.P. Sharma to undergo one year R.I. U/s 7 of P.C. Act . In addition, he shall be paying fine of Rs. 50,000/­ and in default of payment of fine, he shall be undergoing S.I. CC 255/07 CBI Vs. Om Prakash Sharma 118 for three months. I also sentence him to undergo RI for one years U/s 13 (1)

(d) r/w. 13(2) of P.C. Act. In addition, he shall be paying fine of Rs. 50,000/­ and in default of payment of fine, he shall be undergoing S.I. for three months.

11. The request made by Learned Special PP to the effect that sentences be ordered to run consecutively is declined. Both the sentences of the convict shall run concurrently. He shall also be given benefits of period undergone as under trial (if any).

    Announced in open Court 
    on  March 25 , 2013                     ( PRADEEP CHADDAH )
                                                 Special Judge:CBI­01
                                                Central District. Delhi




CC 255/07                                                     CBI Vs.  Om Prakash Sharma