Delhi District Court
Rc 5(A)/87, Cc No.82/11 - Cbi vs . A.K. Sinha & Ors. on 11 September, 2014
1
IN THE COURT OF ANOOP KUMAR MENDIRATTA,
SPECIAL JUDGE (PC ACT), CBI-08 (CENTRAL),
TIS HAZARI COURTS, DELHI.
CC No.82/11
RC 5(A)/87, CBI/ACU-II/ND
Central Bureau of Investigation
Versus
1.A.K. Sinha
S/o Shri Balmiki Prasad
(I.A.S. 1964, then Secy. 20 Point Programme to the Govt. of Haryana,
Chandigarh)
R/o 667-P, Sector-06,
Panchkula, Haryana.
2.Kamal Oswal
S/o Shri K.L. Oswal
R/o D-35, Defence Colony, New Delhi.
3.Vimal Oswal
S/o Shri K.L. Oswal,
(Partner M/s Agvet Chemicals, 301 Meghdoot, 94 Nehru Place, New
Delhi)
R/o D-35, Defence Colony, New Delhi.
Date of FIR : 13.12.1987
Date of Institution : 22.08.1990
Arguments concluded on : 30.08.2014
Date of Judgement : 11.09.2014
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
2
JUDGEMENT
1. RC 5/87-ACU (II) u/s 120-B IPC r/w 5 (2) r/w 5(1) (d) of PC Act 1947 & Sec. 5(2) r/w 5(1) (d) of PC Act (Act II of 1947) was registered in ACU (II) Branch of Delhi Special Police Establishment, New Delhi on 23.12.1987 against Dr. A.K. Sinha, I.A.S. (Haryana 1964) former Director of Agriculture, Govt. of Haryana, Chandigarh and others. As alleged in the FIR, preliminary enquiry was registered on 17.11.87 against Shri A.K. Sinha as it was suspected that while working as Director of Agriculture during 1980-81 in Govt. of Haryana at Chandigarh he arranged an agency in favour of M/s. Agrochem Sales, New Delhi from M/s. May & Baker (India) Ltd., Bombay/New Delhi for the sale of their product "Tolkan" - a weedicide used for agricultural purpose and also arranged its sale in substantial quantity to the Deptt. of Agriculture, Govt. of Haryana. It is further the case of prosecution that M/s. Agrochem sales, New Delhi received Rs. 63,000/- as commission from M/s. May & Baker (India) Ltd., Bombay/Delhi for the sale of their product to Govt. of Haryana without any work being done by them and out of the said commission Dr. A.K. Sinha and his relatives obtained 50% of the amount from M/s. Agrochem Sales, Delhi.
2. As per case of prosecution, investigation revealed that during 1979-80, Haryana Govt. was in need of some chemical to destroy a kind of grass called Philaris-Miner, which was very common in RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
3Haryana and was destroying the wheat plant. M/s. May & Baker (India) Ltd., Bombay was the manufacturer of a weedicide 'Tolkan' and they had appointed their commission agent M/s. Farmaid India Ltd., Delhi to propagate their product 'Tolkan' in different states i.e. UP, Haryana & Punjab. Shri R. Sen Gupta acting Manager of M/s. May & Baker (India) Ltd., was the Incharge of Delhi region which included the areas of Punjab, Haryana & UP. Shri Sen Gupta was facing some language problem and therefore, B.R. Saxena (PW17) working in M/s. May & Baker, was appointed to assist him to propagate their product in Haryana.
It is further the case of prosecution that during 1979-80, Shri Saxena visited Chandigarh and met Dr. A.K. Sinha, who was the then Director of Agriculture, Haryana and explained him about the use of 'Tolkan' which was very effective to destroy Philaris-Miner (grass). Whenever Shri B.R. Saxena visited Dr. Sinha's office, he found Kamal Oswal of M/s. Agrochem Sales, Delhi sitting with him. Further, during the discussion about the supply of 'Tolkan' to State of Haryana, Dr. A.K. Sinha (A1) told Shri B.R. Saxena that the order of supply of 'Tolkan' with their firm could only be placed to supply a maximum quantity if commission @ 2% would be paid to M/s. Agrochem Sales (A2). Dr. A.K. Sinha further told him that if no commission would be paid to Kamal Oswal no supply order would be placed upon M/s. May & Baker. These facts were communicated by Shri Saxena to his Managing Director and since the firm wanted to sell the weedicide and propagate their sale, therefore, there was no other alternative but to RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
4accept the demand of Dr. A.K. Sinha. Accordingly, the firm M/s. May & Baker (India) agreed to pay commission to Kamal Oswal of M/s. Agrochem Sales, Delhi.
It is further the case of prosecution that M/s. Farmaide India Ltd. (Delhi) was the sole commission agent of the firm M/s. May & Baker (India) Ltd., in Haryana, Punjab & UP and was getting the commission for the sale of their product in Delhi region. The firm M/s. May & Baker (India) Ltd., agreed to pay additional commission to Kamal Oswal of M/s. Agrochem Sales, Delhi at the instance of Dr. A.K. Sinha.
It is further alleged that Dr. A.K. Sinha, Director of Agriculture, Haryana held a meeting with Director of Plant Protection Officers, Haryana, Govt. of Chandigarh on 17/11/80 and took the decision to purchase 155 LT of weedicide including 45 MT of 'Tolkan' for the state of Haryana. Supply order to M/s. May & Baker (India) Ltd., to supply 45 MT of 'Tolkan' was issued on 17/11/80 and subsequently regular supply order was placed on the firm on 26/11/80 for the supply of weedicide in 10 days. It is further the case of prosecution that though the supply order was for 45 MT by M/s. May & Baker but Govt. of India allowed only 36.8 MT of 'Tolkan' for Haryana state & out of which 35.3 MT was for Deptt. of Agriculture, 1.5 MT for IFFCO & HAFED. Investigation also revealed that as per the policy of the Government M/s. May & Baker India had to take the weedicide from Hindustan Insecticide Ltd., and after repacking it in 1 kg. bags had to supply at various distribution centres of Haryana Govt. at RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
5district Headquarters. M/s. May & Baker supplied 35.117 MT to Haryana Govt. 1.5 MT to IFFCO & HAFED. After the supply of 'Tolkan' to Haryana Govt., M/s. May & Baker paid a sum of Rs. 63,000/- to M/s. Agrochem Sales (now Agvet Chemicals) as commission for the sale of 'Tolkan' to Haryana Govt. The commission was received by M/s. Agrochem Sales/Agvet Chemicals vide 2 drafts No. 042055/14 dt. 4/2/81 of Rs. 50,000/- and No. 71777/51 dt. 24/4/81 of Rs. 13,000/- drawn on Syndicate Bank, Prabha Devi Branch, Bombay. Further, the aforesaid 2 demand drafts were received by M/s. May & Baker, Delhi Branch and were paid to Kamal Oswal & Vimal Oswal of M/s. Agrochem Sales, Delhi (The name of which was later on changed to M/s. Agvet Chemicals, New Delhi).
It is further the case of prosecution that M/s. Agrochem Sales, Delhi was started by Kamal Oswal in 1979 and later it was renamed as Agvet Chemicals. Further, Vimal Oswal (brother of Kamal Oswal) and Mrs. Ritu Oswal W/o Kamal Oswal were the partners of the firm. Though Kamal Oswal was not a partner of this firm but was an active member. It was also revealed that the firm had an a/c No. 884 in Punjab & Sind Bank, Janpath and the drafts of Rs. 63,000/- were received by Kamal Oswal and Vimal Oswal. It is also alleged that Kamal Oswal and Vimal Oswal were never appointed as commission agents nor did they propagate about 'Tolkan'.
It is further the case of prosecution that out of Rs. 63,000/- received as commission from M/s. May & Baker, Vimal Oswal gave Rs. 31,500/- to Shri Balmiki Prasad Sinha, father of Dr. A.K. Sinha RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
6(now deceased). Vimal Oswal sent drafts no. 909626/7/81 dt. 26.7.81 for Rs. 18,000/- and no. 165147/4/81 dt. 29.6.81 of Rs. 7,000/- of Punjab & Sind Bank to Shri Balmiki Prasad (father of Dr. A.K. Sinha) as part of 50% commission out of the commission received from M/s May & Baker India Ltd. for supply of 'Tolkan' to Haryana Govt. The balance amount of Rs. 6,500/- was shown as paid in cash to Shri Balmiki Prasad in the Books of a/c of the firm maintained by M/s Agrochem Sales. Also, a credit note in duplicate of Rs. 31,500/- issued by M/s. Agrochem Sales was found from the possession of Dr. A.K. Sinha during search of his office room during investigation. It is further the case of prosecution that late Balmiki Pd. Sinha, father of Dr. A.K. Sinha was living to his native place at Siwan in Bihar and was an old man and did not visit Bombay or Delhi during 1979-80 due to his old age. Further, Sh. Balmiki Prasad was declared an unsound & inactive man by his sons & wife in the title suit no. 104 of 1985 pending in the Court of Sub-Judge, Siwan (Bihar). Investigation also revealed that Sh. Balmiki Prasad received the two demand drafts no. 909626/2/81 dated 17.3.81 of Rs. 7,000/- & 165147/4/81 dt. 29/6/81 of Rs. 18,000/- of M/s. Agrochem Sales, Delhi which were got encashed by him and subsequently sent a draft of Rs. 15,000/- dt. 2.9.81 in the name of Smt. Rama Sinha, wife of Dr. A.K. Sinha to Chandigarh. It is further alleged that Dr. A.K. Sinha has shown this amount of Rs. 15,000/- as loan from his father in his statement of income- expenditure of year 1981-82, 82-83. It is also the case of prosecution that Dr. A.K. Sinha also took Rs. 25,000/- from M/s.
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
7Agvet Chemicals on 12.6.84 in the name of his wife's firm M/s Sinhtron Electronics showing as interest free loan. It is further the case of prosecution that Dr. A.K. Sinha by way of aforesaid transaction obtained such huge undue pecuniary advantage for himself or for others in conspiracy with Kamal Oswal and Vimal Oswal and thereby committed criminal misconduct by abusing his official position as a public servant in discharge of his official duty.
3. Charge was framed against accused Kamal Oswal and Vimal Oswal u/s 120B IPC r/w Section 5(2) r/w 5(1)(d) of PC Act, 1947 AND against Dr. A.K. Sinha u/s 120B IPC r/w Section 5(2) r/w 5(1)
(d) of PC Act, 1947 and substantive offence u/s 5(2) r/w 5(1)(d) of PC Act, 1947.
4. In support of its case, prosecution examined 28 witnesses numbered as PW1 to PW29. (Note: no witness appears to be numbered as PW10 by the ld. Predecessor).
•PW1 Shri Rattan Pal Singh, Agricultural Development Officer, •PW2 Shri Ashok Kumar Sinha, Officer, Punjab & Sindh Bank. •PW3 Sardar Charan Singh.
•PW4 Shri Y.R. Karnad.
•PW5 Shri C.P. Singh, Managing Director.
•PW6 Shri Kulwant Singh •PW7 Shri N.K.Sharma Assistant Manager, State Bank of India.
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
8•PW8 Shri Prabhu Nath Tewari, Cashier, Central Bank of India. •PW9 Shri J.R. Ranada.
•PW11 Shri Baldev Singh Senior Manager, Punjab & Sindh Bank. •PW12 Shri Jatinder Singh Jolly.
•PW13 Shri Om Prakash Gupta.
•PW14 Shri A.S. Dighe.
•PW15 Shri Ashok Kumar Rajpal.
• PW16 Shri Sanjay Chakravarty, Parliament Assistant. •PW17 Shri Bhaskar Raj Saxena.
•PW18 Shri Ziledar Singh •PW19 Shri T Prakash Shetty •PW20 Shri Pardeep Kumar •PW21 Shri Ashok Kumar Malhotra •PW22 Shri S.L. Misra •PW23 Shri K.S. Rao •PW24 Shri A.P. Raman •PW25 Shri K.D. Tripathi •PW26 Shri J.N. Prasad •PW27 Shri S.K. Saxena •PW28 Shri Jai Swadesh •PW29 Shri Parshotam Lal
a) PW1: Shri Rattan Pal Singh, Agricultural Development Officer, Directorate of Agriculture stated that on 3.12.87 he was posted as Agriculture Development Officer, Directorate of RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
9Agriculture, Sector-17, Chandigarh. Further, he had handed over five files of the department to Shri J.N. Prasad, DSP, CBI which were seized vide memo Ex.PW1/A, and bears his signatures at point-A. Details of the files were recorded in the receipt memo alongwith the numbers of pages contained therein and the same are Ex.P1 to P5. Further, at the relevant time, he was the custodian of file Ex. P1 to P4 and file Ex.P5 was in the custody of Accounts Branch and he handed over said file to Shri Prasad, DSP, CBI after collecting from Accounts Branch.
b) In order to prove the encashment of drafts by Shri Balmiki Prasad (father of Dr. A.K. Sinha) prosecution examined the concerned bank witnesses from Bihar along with PW3 Sardar Charan Singh who had identified Balmiki Prasad at the time of encashment.
➢PW2: Shri Ashok Kumar Sinha, Officer, Punjab & Sindh Bank stated that in the year 1981 he was posted as Cashier-cum-Clerk at Punjab & Sindh Bank, Frazer Road, Patna and on 07.04.81 he was on duty at cash payment counter. He further stated that payment of bank draft Ex.PW2/A dated 17.03.81 in favour of Balmiki Prasad for Rs.7,000/- issued by Punjab & Sindh Bank, Janpath, New Delhi branch was made by him to Balmiki Prasad after obtaining his signatures at the back of the draft. Further, the draft bears his initials on the stamp of the bank as cashier and one Charan Singh, partner of Surjit Cycle Store having account in our branch, verified the RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
10signatures of Balmiki Prasad. The signatures of said Charan Singh were identified by an officer of the bank namely Shri Surjit Singh Chawla. Also, the signatures of Balmiki Prasad were verified before passing the draft and sending it to his counter for payment. While making payment, another signatures were obtained at the back of the draft.
➢PW3 Sardar Charan Singh stated that he was partner of M/s Surjit Cycle Store, Station Road, Patna and the firm had a bank account in Punjab and Sind Bank, Frazer Road, Patna. He further stated that he identified signatures of Shri Balmiki Prasad on the reverse side of Draft Ex.PW2/A at the request of Sh. Balwant Singh and Sh. Gurcharan Singh who were known to him though he did not know Balmiki Prasad. He further identified his signatures at point X, which he had appended on the draft Ex.PW2/A in token of verification of signatures of Shri Balmiki Prasad.
➢PW7: Shri N.K.Sharma, Assistant Manager, State Bank of India deposed that during the period 1981 to 1993, he was posted as Assistant Manager in Siwan Branch of State Bank of India. Account no. C-8771 was opened in the name of Shri Balmiki Prasad by the order of Shri S.P. Srivastava, Passing Officer of the bank and identified signatures of Shri Balmiki Prasad at point A and B on the back side of Account Opening Form-cum- S.S. Form (Ex.PW7/A) and of Shri S.P. Srivastava at point-C. He further stated that transfer pay RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
11slip dated 31-08-81 (Ex.PW7/B for Rs.18,000/-) was deposited by Balmiki Prasad and passed by Shri S.P. Srivastava, Passing Officer. Further, pay in slip dated 20-01-82 (Ex.PW7/C for Rs.6,000/-) deposited by Balmiki Prasad was passed by the bank. He further stated that withdrawal form dated 02-09-81 (Ex.PW7/D) amounting to Rs.17000/- bearing the signatures of depositor Shri Balmiki Prasad at points-A and B was passed by Shri BK Chaudhary, Officer of the Bank. Further, cheque no. 438527 dated 09-08-82 (Ex.PW7/E in favour of Self) amounting to Rs.2000/- and cheque no. 438528 dated 11-08-82 (Ex.PW7/F in favour of Self) amounting to Rs. 2000/- issued by Shri Balmiki Prasad were passed by Shri SN Prasad, Officer of the bank. He further stated that withdrawal form dated 21-01-82 (Ex.PW7/G) amounting to Rs.6000/- bearing signatures of Shri Balmiki Prasad was passed by Shri DK Chaudhary, Officer of the bank. He further proved statement of account no. C-8771 (Ex.PW7/H) in the name of Shri Balmiki Prasad which contains entry dated 31.08.81 crediting amount of Rs.18,000/- by draft.
➢PW8: Shri Prabhu Nath Tewari, Cashier, Central Bank of India stated that he had been working as Cashier in Central Bank of India, Siwan branch since 1980. He proved the following documents:
•Account opening form dated 21-09-81 (Ex.PW8/A) opened in the name of Shri Balmiki Prasad bearing his signatures at point A; •Specimen signatures of Balmiki Prasad on specimen signatures card (Ex.PW8/B) passed by R.P. Singh, Branch Manager; •Pay in slip dated 21-09-81 (Ex.PW8/C for Rs.1,000/-) in account no.
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.12
12169 filled by Shri Balmiki Prasad;
•Pay in slip dated 01-09-83 (Ex.PW8/D for Rs.1,500/-) deposited in account no. 12169 by Shri Balmiki Prasad;
•Pay in slip dated 16-02-84 (Ex.PW8/E for Rs.1,500/-) in account no. 12169; two withdrawal forms dated 30-04-85 amounting to Rs.1200/- (Ex.PW8/F) and dated 17-12-84 amounting Rs.1100/- (Ex.PW8/G); •Statement of account no. 121969 of account holder Balmiki Prasad dated 04-11-87 (Ex.PW8/H) prepared by Vinay Rajan Verma, Clerk and countersigned by Shri K.D. Tripathi, Branch Manager.
c) PW4 Shri Y.R. Karnad is a witness to obtaining of specimen handwriting of Vimal Oswal in his presence.
PW4 Shri Y.R. Karnad stated that on 31.05.88 he joined as a witness in the investigation in this case. In his presence, specimen handwritings of Vimal Oswal (Ex.PW4/A to Ex.PW4/C) were obtained on 3 sheets and he attested those specimen handwritings as a witness. Further, specimen signatures of Vimal Oswal were also obtained which were attested by him as a witness and the said specimen signatures sheets are Ex.PW4/D to PW4/F bearing his signatures at respective points-A.
d) PW5 Shri C.P. Singh and PW6 Shri Kulwant Singh are witnesses to sanction for prosecution granted in respect of accused Dr. A.K. Sinha.
➢PW5: Shri C.P. Singh, Managing Director stated that on RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
1327.07.90, he was working as Deputy Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions, Govt. of India, New Delhi. Further, a request was received from CBI to accord sanction for prosecution in respect of Arun Kumar Sinha and he was authorised signatory to accord sanction on behalf of Govt. of India. Accordingly, he had signed the sanction order on behalf of Govt. of India on 27.07.90. He further deposed that as a Deputy Secretary, Incharge of the subject alongwith other officers, they had gone through the original papers i.e. investigation report, proposal from CBI, statements of witnesses, original documents etc. He further proved sanction order Ex. P.W.5/A bearing his signatures at point-A. ➢PW6: Shri Kulwant Singh stated that on 13.06.90, he was posted as Chief Secretary to the Govt. of Haryana and was authorised under the rules of business of the Government to sign sanction order for prosecution on behalf of the Governor of the State, in respect of Shri Arun Kumar Sinha, Director of Agriculture, Govt. of Haryana. Further, he had signed the order of sanction Ex.PW6/A for prosecution of accused Arun Kumar Sinha, the then Director of Agriculture, Govt, of Haryana and the sanction was signed by him on behalf of Governor of Haryana. He further deposed that he had applied his mind to the matter of sanction after perusing the file that had been placed before him.
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
14e) Prosecution examined PW9 Shri J.R. Ranada and PW14 Shri A.S. Dighe who worked as Junior Accountant in M/s May & Baker for proving the payment of commission of Rs.63,000/- by way of drafts in favour of M/s Agrochem Sales.
➢ PW9: Shri J.R. Ranada stated that he joined M/s. May & Backer India Limited, Delhi Branch as a Clerk in the year 1964. He further stated that there was no account of M/s. Agro Chem Sales in the company and the account of M/s. May Backer was in Grindlays Bank, Connaught Place, New Delhi. He further denied having knowledge of the bank drafts dated 24-04-81 and 04-02-81 (Mark PW9/A & PW9/B).
➢PW14: Shri A.S. Dighe stated that he worked as Junior Accountant in May & Baker House, Bombay from 1967 to 1994. He further proved seizure memo dated 16-06-88 Ex.PW14/A, vide which he had handed over documents to CBI; copy of ledger account of the firm (Ex.PW14/A1); letter dated 24-04-81 (Ex.PW14/A2) duly signed by Shri RL Desai, Accountant of company addressed to Manager, Syndicate Bank for arranging demand draft of Rs.13,000/- in favour of Agrochem Sales and demand draft of Rs.35,000/- in favour of Farmaids India; Debit Advice (Ex.PW14/A3) issued by Syndicate Bank in respect of May & Baker dated 04.02.81 in respect of demand draft for Rs.50,000/- in favour of Agrochem Sales as per letter dated 04.02.81; letter dated 04-02-81 (Ex.PW14/A4) addressed to Manager, RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
15Syndicate Bank duly signed by Shri R.L. Desai for issuing demand draft for Rs.50,000/- in favour of Agrochem Sales.
f) PW11 Shri Baldev Singh, Officer, Punjab & Sindh Bank, Janpath Branch, New Delhi; PW12 Shri Jatinder Singh Jolly, Manager, Punjab & Sindh Bank, Janpath Branch, New Delhi and PW15 Shri Ashok Kumar Rajpal, Sub Manager, Punjab & Sindh Bank, Janpath, New Delhi are the witnesses from Punjab & Sindh Bank, New Delhi who proved the account and credit entries of M/s Agrochem Sales and M/s Agvet Chemicals in account no. 834 & 888 respectively and the fact that the drafts issued for commission by M/s May & Baker were credited in aforesaid accounts. They also proved the drafts of Rs.7,000/- and Rs.18,000/- issued by M/s Agrochem Sales in favour of Shri Balmiki Prasad (father of Dr. A.K. Sinha).
➢PW11: Shri Baldev Singh stated that he remained posted as an Officer in Punjab & Sindh Bank, Janpath Branch from 1983 to 1988.
He further proved the following documents:
•Cheque no. 002154 dated 17-03-81 amounting to Rs.7003.50 of account no. 834 of Agro Chem Sales (Ex.PW11/A) issued for preparation of demand draft in favour of Shri Balmiki Prasad bearing the signatures of Vimal Oswal at points A and B;
•Demand draft no. 909626/2/81 dated 17.03.81 (Ex.PW11/C) for Rs. 7,000/- prepared on the basis of the voucher Ex.PW11/B bearing signatures of Shri Askok Rajpal, the then Branch Manager at point-A RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.16
payable at Frazer Road Patna Branch issued in favour of Shri Balmiki Prasad;
•Cheuqe no. 011701 dated 29-06-81 amounting to Rs.18,009/- (Ex. PW11/D) debited from the account no.888 of Agvet Chemicals and bearing signatures of Shri Vimal Oswal at point-A for purpose of issuing draft for Rs.18000/- in favour of Shri Balmiki Prasad, payable at Patna; •Credit voucher dated 29-06-81 (Ex.PW11/E) for preparation of bank draft no. 165147/4/81 (Ex.PW11/F);
He further proved two certificates dated 19-12-86, Ex.PW11/G1 and G2 issued by Janpath Branch of Punjab & Sindh Bank in respect of issue of aforesaid drafts.
➢PW12: Shri Jatinder Singh Jolly stated that he remained posted in Punjab & Sindh Bank, Janpath Branch as a Manager from 1985 to 1991.
He proved •Seizure memo Ex. P.W.12/A bearing his signatures at point 'A vide which he had handed over documents mentioned therein to CBI; •Statement of Account in respect of A/c no. 888 (Ex.PW12/B) duly certified by him in respect of M/s. Agvet Chemicals; •Account Opening Form (Ex.PW12/C) in respect of A/c no. 888 duly signed by H.S. Batra, the then Manager of the said branch; •Photocopy of Partnership Deed (Ex.PW12/D) taken for opening the bank account.
He further stated that in statement of account (Ex.PW12/B), an entry RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.17
for crediting Rs. 50,000/- on 22-06-81 and a debit entry of Rs.18,900/- dated 31-06-81 had been made.
➢PW15: Shri Ashok Kumar Rajpal stated that he worked as Sub- Manager in Punjab & Sindh Bank, Janpath from September 16, 1976 to 31-12-81 and he knew Kamal Oswal, Vimal Kumar Oswal and Ritu Oswal of M/s. Agro Chem Sales and M/s. Agvet Chemicals, who were maintaining Account nos. 834 and 888 in the bank.
He further proved •Cheque no. 002150 dated 17-03-81 duly signed by Vimal Oswal and Ritu Komal;
•Draft (Ex.PW2/A) amounting to Rs.7000/- payable to Balmiki Prasad; •Account opening form in respect of account no. 834 duly signed by Vimal Oswal and others;
•Credit voucher (Ex. PW11/B) bearing his signatures.
He further stated that as per cheque Ex.PW11/D, it had been endorsed by Vimal Oswal that a draft of Rs. 18000/- be issued in favour of Balmiki Prasad, payable at Patna. Similarly, cheque Ex.PW11/A also bears the same endorsement by Vimal Oswal regarding issuance of draft of Rs.7000/- in favour of Balmiki Prasad. He further stated that as per directions, demand draft Ex.PW11/B bearing no. 909626/2/81 dated 17-03-81 and DD no. 165147/4/81 were issued.
He further proved statement of account of M/s. Agro Chem Sales (Ex.PW15/B), which is the true extract of the ledger duly signed by RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.18
Shri Baldev Singh, an Officer of the branch bearing the credit entry of Rs.50,000/- dated 13-02-81 and Rs.13,000/- dated 18-06-81.
g) PW13 Shri Om Prakash Gupta who worked as part time Accountant with M/s Agrochem Sales for writing cash book and ledger proved the entries in the cash book of the said firm from 01.08.80 to 30.06.81.
He stated that as per Cash Book of the said firm from 01-08-1980 to 30-06-1981, at page 24 a credit entry of Rs.31,500/- (Ex.PW13/A) was made on 11.02.1981 by Sunil Kumar Mittal, his sister's son who was working under his supervision. Further, entry dated 29-06-81 (Ex.PW13/B) recorded on page no. 59 regarding payment through draft no. 165147 for Rs.18,000/- had been made in the name of Balmiki Prasad by Sunil Mittal. He further deposed that all entries in the cash book were in the hand of Sunil Mittal.
He further stated that credit notes dated 11-02-81 (Ex.PW13/C1), credit note dated 17-03-81 (Ex.PW13/C2) and credit note dated 29-06-81 (Ex.PW13/C3) were signed by Vimal Oswal. He also stated that Production Memo dated 30-11-87 (Ex.PW13/D) bears the signatures of Kamal Oswal.
h) PW16: Shri Sanjay Chakravarty is a witness to obtaining of specimen handwriting of Vimal Oswal in his presence.
He stated that on 31-05-88, while working as LDC in Bureau of Public Enterprises, New Delhi, he was called in the office of CBI and RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
19specimen writings of Vimal Oswal (Ex.PW 4/A to Ex.PW 4/F) bears his signatures at point B which were obtained in his presence.
i) PW17: Shri Bhaskar Raj Saxena stated that during 1978-1983, he was working in May & Baker Head Office at Bombay in the capacity of Dy. Sales Manager and the company was involved in four categories of products i.e. i) Pharmaceutical for human beings,
ii) animals, iii) agro chemicals and iv) photographic products. As a Dy. Sales Manager, his task was to develop and make marketing arrangements for the agro chemical products mainly "Tolkan" and used to tour Punjab, Haryana and Western U.P. besides Delhi and Chandigarh. At Delhi Branch office, there was a Branch Manager by the name of Shri Sengupta and they used to work together. However, later on Shri Sengupta had some language problem as he was from Bengal and other problems. For the development, he used to visit Agriculture University in Hissar, Haryana and Pant Nagar and also met Dr. A.K. Sinha at Chandigarh and Dr. Rajat at Faridabad who was Secretary Insecticides Board.
He further stated that he used to talk about business of "Tolkan" with Dr. A.K. Sinha and used to attend meetings with him frequently. Further, Kamal Oswal was always present in the meeting and Dr. A.K. Sinha emphasized that unless Kamal Oswal is appointed as a stockist he would not place the order for"Tolkan". There was a demand for commission @ Rs.5/- per kg and Dr. A.K. Sinha insisted for giving commission to Kamal Oswal. Further, the order for the RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
20product "Tolkan" was given in favour of M/s May & Baker and an amount of Rs.63,000/- was given as commission in two installments through drafts.
He further stated that he had intimated regarding the demand of commission by Dr. A.K. Sinha to the Managing Director Shri M.R. Hosangady and in the report he submitted that the commission should not be paid because the product would become costlier to the end consumer and as Kamal Oswal was having no network of doing extension work with the farmers. He further deposed that thereupon, Shri Hosangady directly met Dr. Sinha and in order to get the business he agreed to pay the commission. He further stated that Kamal Oswal had nothing to do with the supply, marketing etc. of "Tolkan" product except the fact that he was a very good friend of Dr. A.K. Sinha.
j) PW18: Shri Ziledar Singh working in Agriculture Department stated that letter dated 27.11.79 on page 5 of Ex.P1 bearing signatures of Shri S.S. Gill at point A was issued by the department to M/s. Sandoz India Ltd. Agro Chemical Division regarding supply of 25 M.T of Dosanex 80% WDP.
He further proved letter dated 28.07.79 on page no.24 & 25 of Ex. P1 and stated that the said letter was issued by the department to M/s Bayer India Ltd. regarding supply of 50 M.T. of "Tribunil" 70% WDP.
k) PW19: Shri T Prakash Shetty proved the bank drafts dated RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
2124.04.81 and 04.02.81 issued by M/s May & Baker in favour of Agrochem Sales. He stated that during eighty's he was working as Branch Manager in Syndicate Bank, Mumbai and drafts dated 24.4.1981 and 4.2.1981 (Ex.PW19/1 & Ex.19/2) respectively were issued by Prabha Devi Branch, Bombay in favour of Agro Chem Sales payable at Syndicate Bank, Central Accounts Office, New Delhi.
He further stated that draft Ex.PW19/1 was paid to Punjab and Sindh Bank, Janpath Branch, New Delhi through Central Accounts Office, New Delhi of Syndicate Bank and the second draft Ex.PW19/2 was paid on 13.2.1981 to Punjab and Sindh Bank, Janpath Branch, New Delhi through Syndicate Bank, Central Accounts Office, New Delhi.
He further identified signatures of bank officer namely, Shri Pai at point A on both the drafts and signatures of Shri Kumar at point B on Ex.PW19/1.
l) PW-20: Shri Pardeep Kumar stated that he had worked in Food Corporation of India as Private Secretary of Dr. A.K. Sinha during his service.
He further stated that he was shown some documents during investigation by CBI whereupon he had identified the signatures and handwriting of Dr. A.K. Sinha. He further identified handwriting of Dr. A.K. Sinha on the aforesaid documents pertaining to personal calculations by accused (Ex.PW20/A)(D44).
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
22m) PW21: Shri Ashok Kumar Malhotra stated that in March 1986, he was posted as Deputy Superintendent of Police in ACU II Branch of CBI and case RC 2(A)/86 was registered on 18.03.1986 against Shri A.K. Sinha, the then Zonal Manager, Food Corporation of India, New Delhi u/s 5(2) r/w Section 5(1)(e) of Prevention of Corruption Act 1947 which was marked to him for investigation.
He further stated that on 18.03.1986, he obtained search warrants for conducting search at the house of the accused and on 19.03.1986 he conducted the house search of accused A.K. Sinha situated at 722, Mahavir Singh Block, Milkha Singh Marg, Asian Games Village, New Delhi in the presence of two independent witnesses namely Shri M.R. Chopra, Enforcement Officer and Shri Suraj Bhan Sharma, Assistant, Office of Enforcement Directorate, Lok Nayak Bhawan, Khan Market, New Delhi.
He further proved search list dated 19.03.1986 (Ex.PW21/A) running into four pages and identified his signatures along with signatures of independent witnesses Shri M.R. Chopra and Shri Suraj Bhan Sharma at respective places.
He further stated that rough calculation sheet (Ex.PW20/A) (running into seven sheets) were recovered from the house of the accused along with other seized documents and also identified signatures of Shri M.R. Chopra and Shri Suraj Bhan Sharma at point A and B. He further proved the seizure memo bearing his signatures and signatures of two witnesses along with accused A.K. Sinha RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
23(Ex.PW21/B) in respect of recovery of documents seized from the office almirah of accused A.K. Sinha.
He further stated that documents Ex.PW21/C and Ex.PW21/D were recovered from the office of accused A.K. Sinha besides other seized documents and identified signatures of witness Shri M.R. Chopra on Ex.PW 21/C and D. He further deposed that investigation of this case was transferred to Shri P.C. Sharma, the then Inspector CBI as he had to proceed abroad on official visit.
n) PW22: Shri S.L. Misra stated that on 30.11.1988, he was posted as senior Deputy Manager in Tolstoy Marg Branch of Indian Overseas Bank, New Delhi and vide seizure memo Ex.PW22/A bearing his signature at point-A, he had handed over statement of current account no. 290 of Farmaids India, B-3/32, Safdarjang Enclave for the period 03.12.1980 to 22.12.1981 which was being maintained in the said branch (Ex.PW22/B) bearing his signatures at point-A on all the pages.
o) PW23: Shri K.S. Rao stated that on 28.11.1988, he was posted as Branch Manager, Central Accounts Office, Syndicate Bank, Bahadurshah Zafar Marg, New Delhi and vide seizure memo Ex. PW23/A bearing his signature at point-A, he had handed over demand draft no. 717771 dated 24.04.1981 favouring Farmaids India Ltd. for Rs.35,000/- (Ex.PW23/B) to CBI.
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
24He further identified signatures of Shri P.N. Hegde (since deceased) on seizure memo dated 05.07.1988 (Ex.PW23/C) at point A whereby two demand drafts no. 717770 dated 24.04.1981 for Rs. 13,000/- and DD no. 042055 dated 04.02.1981 for Rs.50,000/- favouring Agro Chem Sales (Ex. PW19/1 & Ex.PW19/2 respectively) were handed over to CBI.
p) PW24 : Shri A.P. Raman stated that on 04.11.1986, he was working as Accountant in State Bank of India, Siwan Branch. Vide receipt memo dated 04.11.1987 (Ex.PW24/B), he had handed over to CBI the documents mentioned in the memo {i.e. original account opening form and specimen signature card of SB account no. C8771 in the name of Balmiki Prasad (Ex.PW7/A); original pay in slip dated 31.08.1981 for deposit of Rs.18,000/- in the aforesaid account (Ex. PW7/B); original pay in slip dated 07.08.1882 for deposit of Rs.5,000/- in the aforesaid account (Ex.PW24/A); pay in slip dated 20.01.1982 for Rs.6,000/- (Ex.PW7/C); withdrawal slip dated 02.09.1981 for Rs.17,000/- (Ex.PW7/D); withdrawal slip dated 21.01.1982 for Rs.6,000/- (Ex.PW7/G); cheque no. 438527 dated 09.08.1982 for Rs.2,000/- (Ex.PW7/E); cheque no. 438528 dated 11.08.1882 (Ex.PW7/F) and statement of account pertaining to aforesaid account of Shri Balmiki Prasad, account no. C8771 (Ex.PW7/H)}.
q) PW25: Shri K.D. Tripathi stated that on 04.11.1987, he was RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
25posted as Assistant Branch Manager, Central Bank of India, Siwan. He further stated that vide receipt memo dated 04.11.1987 (Ex.PW25/A), he had had handed over the documents mentioned therein to CBI (i.e. Ex.PW8/A to Ex.PW8/H).
r) PW26: Shri J.N. Prasad stated that during 1987, he was posted as DSP in ACU-II of CBI and Shri Yashwant Malhotra was the SP at that time. He further stated that case R/C 5/87 was registered on 23.12.1987 against A.K. Sinha (Former Director of Agriculture, Govt. of Haryana) & others and the case was marked to him for investigation.
He further identified signatures of the then SP at point A and B on the FIR (Ex.PW26/A) and stated that prior to this a preliminary inquiry no. 1/87 ACU-II was registered against A.K. Sinha on 17/11/1987 and the same was inquired by him. Further, the present case was registered on the basis of result of aforesaid preliminary inquiry. He stated that during preliminary inquiry and investigation of this case, he collected relevant documents and recorded the statement of witnesses.
He further stated that vide seizure memo dated 01.12.1987 (Ex.PW26/B) bearing his signatures at point-A, he had collected documents mentioned therein (i.e. Ex.PW26/C-1, C-2, Ex.PW13/C/1, Ex.PW13/C-2 and Ex.PW13/C3). Further, vide seizure memo dated 30.11.1987 (Ex.PW13/D), bearing his signatures at point A, he had collected the documents mentioned therein including the document RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
26mentioned at Sr. No. 5 (Ex.PW26/D-1) from S.S. Gill. He further identified his signatures on receipt memo Ex.PW1/A, Ex.PW25/A and Ex.PW24/B AND receipt memo dated 02.11.1987 (Ex.PW26/E).
He further stated that at the aforesaid time Shri H.P. Singh, Dy. SP was working with him and identified signatures of Shri H.P. Singh on receipt memo (Ex.PW26/F) pertaining to case R/C No. 2/86 CIU- II. Further, through aforesaid seizure memo (Ex.PW26/F), documents Ex.PW11/A, B, D and E were collected.
He further stated that at the aforesaid time, Shri B.R. Sharma, Inspector was working with him and identified signatures of Shri B.R. Sharma at point A on production memo dated 23.12.1986 pertaining to RC No. 2/86 (Ex.PW26/G) whereby the documents mentioned therein were collected (i.e. Ex.PW26/G-1, G-2, Ex.PW11/G-1 and Ex.PW11/G-2).
He further stated that during investigation he obtained specimen handwriting (Ex.PW26/H1 to 5) of Ravi Kumar (i.e. S-12 and S-13) and of Balmiki Prasad (i.e. S-14 to S-16) in presence of two independent witnesses which bears his signatures at point A. Further, on 23.05.1988 the case was transferred to Shri P. Lal, the then Dy. S.P., ACU for further investigation.
s) PW27: Shri S.K. Saxena (retired GEQD) stated that after careful and thorough examination of documents forwarded to GEQD Shimla, he came to conclusion which are embodied in his opinion No. RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
27CX-69/88 dated 30.11.1988 (Ex.PW27/A) bearing his signatures at point A to B. Further, the opinion also bears the signatures of Shri B. Lal, the then GEQD Shimla at point C to D who had also examined the case independently and came to the same conclusion.
t) PW28: Shri Jai Swadesh stated that in 1986 he was working as Dy. SP in ACU-I branch of CBI. Further, on seeing the search list D-12 dated 13.10.1986 in case RC 2(A)-86 ACU-II, he stated that he had conducted search on aforesaid date and identified his signatures on seizure memo (Ex.PW28/A) whereby two registers (D-13 and D-59) were seized. He further stated that search was conducted in presence of two independent witnesses and identified their signatures at point A and B on 1st and last page of the registers (Ex.PW28/B and Ex.PW28/C). He further stated that these registers contained entries pertaining to payment made to Shri Balmiki Prasad, father of accused A.K. Sinha from the firm M/s Agvet Chemicals, Mohali and Delhi at page 60 and 64 of register (Ex.PW28/B).
u) PW29: Shri Parshotam Lal (IO) stated that when he joined ACU-II branch, RC 5/87 ACU-II which was an offshot of RC 2/86 ACU-II was already registered on 23.12.1987 under the signatures of Shri Yashwant Malhotra, the then SP CBI and was entrusted to Shri J.N. Prasad, DSP. On his transfer, this case was handed over to him for further investigation. He seized the relevant documents and examined the witnesses.
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
28He further stated that vide seizure memo dated 06.06.1988 (Ex.PW29/A) bearing his signatures at point A, he had seized documents mentioned in the memo from Shri Baldev Singh whose signatures are at point B. Further, vide seizure memo (D-30) (Ex.PW29/B) bearing his signature at point A, he had seized the document mentioned in the memo from Shri Kamal Oswal whose signature he identified at point B. Further, document Ex.PW29/C running into 3 pages was seized through Ex.PW29/B bearing the signatures of Kamal Oswal at point A and that of Vimal Oswal at point B on all the pages.
He further stated that vide seizure memo (Ex.PW12/A) bearing his signature at point A, he had seized Ex.PW12/B, Ex.PW12/C and Ex.PW12/D) from Shri J.S Jolly and vide seizure memo dated 14.06.1988 (Ex.PW29/D) (D34) bearing his signatures at point A, he had seized the documents from Shri Kishan Chand whose signatures are at point B. He also proved the file mentioned in memo (D-35) as Ex.PW29/E. He identified signatures of Shri A.S. Dighe at point B on seizure memo dated 16.06.1988 (D-36) (Ex.PW14/A) vide which he had seized the documents Ex.PW14/A1 to Ex.PW14/A4. He further stated that vide seizure memo (D-38) (Ex.PW23/C), he had seized documents Ex.PW19/1 & Ex.PW19/2 from Shri P.N. Hegde. Further, the statement recorded on 10.08.1988 u/s 164 Cr.P.C. of Shri Bhaskar Dass Saxena (D-42) (Ex.PW29/F) running into four pages was got RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
29recorded through him.
Further, vide seizure memo (D-49) (Ex.PW23/A), he had seized document Ex.PW23/B from Shri K.S. Rao whose signatures are at point A. He further stated that letter from State Bank of India, Chandigarh (D-53) (Ex.PW29G) was marked to him by S.P. Shri Yashwant Malhotra under his signatures at point A along with the document mentioned therein (Ex.PW29/H). Further, copy of judgment (D-54) was collected by him from Shri P.C. Sharma, the then Investigating Officer of R.C. 2/86 {Ex.PW29/J (running into 8 pages).
He further stated that he obtained specimen handwriting and signatures of Kamal Oswal on 14.06.1988 (Ex.PW27/B1) in presence of independent witnesses Shri Om Prakash Gupta and Shri Umesh Kumar Chawla. He further identified his signatures at point A and signatures of Shri Om Prakash Gupta and Shri Umesh Kumar Chawla at point B & C respectively on the specimen sheets.
He further stated that he obtained specimen handwriting and signature of Vimal Oswal on 31.05.1988 (Ex.PW4/A to F) in presence of independent witnesses Shri Y.R. Karnad and Shri Sanjay Chakraborty. He further identified his signatures at point C along with signatures of Shri Y.R. Karnad and Shri Sanjay Chakraborty at point A and B respectively.
He also stated that vide seizure memo (D-60) (Ex.PW22/A) bearing his signatures at point B, he had seized document Ex.PW22/B from Shri S.L. Mishra whose signatures are at point B. Further, RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
30seizure memo dated 14.09.1990 (D-62) (Ex.PW29/K) was prepared by Shri N.S. Negi who had conducted part investigation and had seized the document Ex.PW29/L through said memo. Cash book of M/s AGVET CHEMICALS (D-9) (Ex.PW29/M) was taken into possession by him from Shri J.N. Prasad who conducted the investigation prior to his joining and had taken into possession the said cash book through Ex.PW13/D (D-8).
He also stated that during investigation, he sent the questioned documents, handwriting and signature of Kamal Oswal and Vimal Oswal for expert opinion to GQED, Shimla and obtained the opinion Ex.PW27/A which was collected through the then SP.
He further stated that he obtained the sanction for prosecution of Dr. A.K. Sinha (Ex.PW5/A) from Shri C.P. Singh, the then Dy. Secretary, Government of India and also from Shri Kulwant Singh, the then Chief Secretary, Government of Haryana (Ex.PW6/A).
5. In his statement u/s 313 Cr.P.C., accused A.K. Sinha denied the case of prosecution.
In brief, in his detailed written statement accused A.K. Sinha further took a stand that no weedicide for "phalaris-minor" weed was being manufactured in India and weedicides for wheat were being manufactured only by four foreign multi national companies, namely, May & Baker, Sandoz, Hoechst and Bayer as proprietary items. The Govt. of India somewhere in 1977-78 asked these companies to hold field trials in India and decided the weedicides from firms which RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
31obtained licenses from Plant Protection Officer, Govt. of India. The Govt. of India then called for rates/terms from these licensed multi national companies and subsequently decided the rates, quantities etc. each of these products directly and issued import licenses. Further, for arriving at reasonable quantity, total requirement of weedicide based on field trial, reports/demands were obtained from State Departments of Agriculture including Haryana which were collected from districts, compiled and sent to Govt. of India. Thereafter, the Govt. of India directed the State Governments to place formal purchase orders, specifying the prices, quantity, packaging etc. as per the Govt. of India decision and the quantity allocated to each State. It was also submitted that there was no option or choice available with State Department of Agriculture to vary, modify, change or delineate from GOI fixed rates and quantities allocated to both States as a whole and on the supplier firms individually as GOI subsidies of 25% were involved which the State could not afford to loose. Reference in this regard was further placed upon the office record of the Directorate of Agriculture, Haryana and the concerned files seized by CBI. It was also submitted that Shri Sohan Singh Gill who was Incharge of the Cell in Haryana Department of Agriculture and acquainted with the facts had not been presented as prosecution witness. Reliance was also placed on the fact that based on meetings with Govt. of India and telegraph of 17.11.1980 and the confirmatory letter, the Haryana State Directorate of Agriculture placed purchase order on 25.11.80 for weedicides on GOI rates and quantities. Reliance was also placed on RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
32confirmatory letter dated 21.11.80 issued by Govt. of India whereby the quantity of Tolkan allocated to Haryana was specified as 36.8 tons. It was further submitted that M/s Agrochem Sales were appointed as agents by May & Baker vide letter dated 14.09.79 but the same was concealed by the Investigating Agency. It was also submitted that as per aforesaid letter, the agency was valid w.e.f. 01.12.79 to 30.11.80 (for 12 months) and the agency in favour of Formaids was valid as per letter dated 11.08.80 issued by May & Baker w.e.f. 01.12.80. The purchase order for weedicide was stated to have been placed on 17.11.80 during the period of agency covered by letter dated 14.09.79 in favour of Agrochem Sales which was legally and lawfully entitled to receive the commission. The sanction for prosecution was further challenged on behalf of the accused. Further submissions were also made denying the case of prosecution.
Accused A.K. Sinha also examined two witnesses in defence, namely, DW1 Shri Ajit Singh, Assistant Registration Clerk, Sub- Registrar Office, Ballabhgarh, Faridabad and DW2 Shri Madan Singh Mehra, Ahlmad in the Court of Shri Rajiv Mehra, Special Judge, CBI, Karkardooma Courts.
DW1 Shri Ajit Singh, Assistant Registration Clerk, Sub- Registrar Office, Ballabhgarh, Faridabad produced the record of registered sale deed dated 31.03.81 executed by Shri Ram Chand, Mehar Chand, Sri Chand and others in favour of Shri Balmiki Prasad s/o Shri Bhagwat Prasad r/o Kasera Tolli, Siwan, Bihar in respect of RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
3310 bighas of land (kachcha) i.e. 3.5 bighas (pucca), Shyamlat Deh, Khewat number 247, Rakba 7124 of village Anangpur for consideration of Rs.14,000/- as detailed in the registered sale deed bearing no. 13288 volume no.1 dated 31.03.1981 page no.77, photocopy of which is Ex.DW1/A. He also produced the record of registered sale deed dated 31.03.81 executed by Ram Chand, Mehar Chand, Sri Chand and Ganno in favour of Smt. Rama Sinha w/o Shri A.K. Sinha r/o House No.280, Sector-16, Chandigarh in respect of 4 bighas of land (kachcha) i.e. 1 bigha 7 biswa (pucca) Shyamlat Deh, Khewat Number 247, Rakba 7124 of village Anangpur for consideration of Rs.5,600/- as detailed in registered sale deed bearing no. 13285 volume no.1 dated 31.03.81 page no.73, photocopy of which is Ex.DW1/B. DW2 Shri Madan Singh Mehra, Ahlmad in the Court of Shri Rajiv Mehra, Special Judge, CBI, Karkardooma Courts produced the record pertaining to RC No.2/86 titled as CBI vs. A.K. Sinha pending in the court of Shri Rajiv Mehra, Spl. Judge, CBI, Karkardooma Courts, Delhi and further the following documents were taken on record:
1. Photocopy of annual consolidated receipt of income tax of Shri A.K. Sinha (Mark DW2/A) contained on page 51 of file D64;
2. Photocopy of page 51 of file numbered as D63 (Mark DW2/B) containing particulars of pay of Shri A.K. Sinha;
3. Photocopy of page 50, 51 & 53 of file numbered as D93 RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.34
pertaining to application for membership of Delhi Gymkhana Club.
7. Accused Kamal Oswal in his statement u/s 313 Cr.P.C. also denied the case of prosecution. Further, in the written statement filed by him, it was submitted that during 1977 on one of his regular visits to the Pilgrimage centre of Rajgir in Bihar, he met Balmiki Prasad. A couple of months later, Shri Balmiki Prasad happened to be in Delhi and visited residence of Kamal Oswal at Pratap Nagar, New Delhi and indicated his interest in having agency business of products of agricultural chemicals for Bihar and Eastern UP where he had close contacts. After a year or so and after discussions, it was mutually agreed that agencies of agrochemical products could be taken wherein Kamal Oswal will look after the business in Western UP, Punjab & Haryana, Rajasthan and Balmiki Prasad will take care of business in Eastern UP and Bihar. Further, it was decided that commission amounts received for agency work in their respective areas would be shared equally. It was further submitted that in 1979, after series of meetings with officers and Mr. Hosangady, Managing Director, Kamal Oswal was able to obtain agency from May & Baker since he was already an agent of Walters Ltd. and supplying agrochemical products to Govt. of J&K and Punjab. He further submitted that during one of the visits, Balmiki Prasad informed that his son A.K. Sinha happened to be posted at Chandigarh and he had met him in official meeting for weedicides called by Department of Agriculture at Chandigarh. He RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
35further took a stand that May & Baker arranged supplies of Tolkan to Department of Agriculture as per directions of Govt. of India and Kamal Oswal as duly appointed and authorized agent of May & Baker followed up with the department on behalf of the company and finally received the commission for the work done. Further, as per prior understanding between petitioner and Balmiki Prasad, a credit note of Rs.31,500/- (being 50% amount of commission) was issued in favour of Balmiki Prasad and payment made to him by cheque which was duly reflected in the books of the firm. Further, after the transaction in 1980, the Govt. of India's policy for import of weedicides through private agencies was abruptly changed in 1981 and the weedicides became a canalized item for import through Govt. undertakings and consequently arrangement with Balmiki Prasad for having business of agrochemicals came to an end. The present case was stated to have been fabricated on the basis of credit notes merely on the basis of a false statement of an employee of May & Baker. Reference was also made to letter dated 14.09.79 issued by May & Baker in favour of Agrochem Sales with respect to the grant of agency and another letter dated 11.08.80 issued by Shri Sengupta in favour of Farmaids for the year 1980-81. The commission was stated to have been paid by May & Baker only being the agents as per letter dated 14.09.79. He further took a stand that B.R. Saxena was sacked from the services of May & Baker in 1983 and had personal grudge against the management and Mr. Hosangady. It was further submitted that Shri Hosangady had not been examined as a witness by the Investigating Agency including RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
36Shri S.N. Iyer, General Manager, May & Baker. It was also claimed that in fact the actual commission was amounted to Rs.1,75,935/- @ Rs.5/- per kg on the total quantity of 35.187 MT of order placed on May & Baker but only the commission of Rs.63,000/- was paid. It was also submitted that company Farmaids Pvt. Ltd. was registered somewhere in July, 1980 and the bank account was opened by the firm only on 03.12.80 with cash amount of Rs.2,000/- paid by May & Baker to Shri B.S. Dhillon. It was further submitted that Dr. A.K. Sinha was transferred from the post of Director, Agriculture in January, 1981 whereas the agency commission of Rs.50,000/- was received vide draft dated 04.02.81 and Rs.13,000/- vide draft dated 24.04.81. The commission of Rs.31,500/- was admitted to have been paid to Balmiki Prasad as per business understanding (draft dated 17.03.81 for Rs.7,000/-, draft dated 29.06.81 for Rs.18,000/- and Rs. 6,500/- in cash) and recorded in books of accounts. Any involvement of A.K. Sinha in the grant of agency or for payment of commission was denied.
8. Accused Vimal Oswal in his statement u/s 313 Cr.P.C. also denied the case of prosecution. Further, in the written statement filed by him, it was submitted that during 1979-81, he was working as partner in the firm Agrochem Sales subsequently renamed Agvet Chemicals which was a partnership firm with his brother, mother and sister-in-law being the partners. Further, his brother Kamal Oswal was not a partner in the firm but used to assist in the business of Agvet RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
37Chemicals. He further stated that he was concerned with the maintenance of accounts books and was not involved in other aspects of business matters of the partnership firm. He further took a stand that he was asked to become a CBI witness against Dr. A.K. Sinha and on his refusal was implicated as a co-accused in the chargesheet by Shri P. Lal.
9. Counsels for accused assailed the case of prosecution on following grounds:
i)That M/s Agrochem Sales was appointed by May & Baker as commission agent on 14.09.79 w.e.f. 01.12.79 or from the first supply within one year till 30.11.80 as per Ex.PW17/Y. The said letter is stated to have been wrongly ignored by the IO on the ground that the same was unsigned though the same was seized in the file of M/s May & Baker and being an office copy, the same could have remained unsigned.
ii)That M/s Farmaid was made commission agent vide letter dated 11.08.80 w.e.f. 01.12.80 as per Ex.PW29/E. It is submitted that though this letter is unsigned but the same has been acted upon by the prosecution.
iii)It is next contended that the supply order was placed on 17.11.80 by the Government of India to Government of Haryana which was RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
38confirmed on 26.11.80 as per D15 (pages 159, 190 & 196). It is further clarified that letter dated 26.11.80 is the letter issued by J. Krishna, Under Secretary to Government of India, Ministry of Agriculture to the Director of Agriculture, Haryana thereby informing the allocation of various imported weedicides and the prices fixed for sale of weedicides and vide aforesaid letter, the price of Tolkan was fixed at Rs.124.07 per kg. which is relevant to the present case.
iv)Reliance was further placed upon letter dated 26.11.80 issued by Locus Control and Plant Protection Officer, Haryana, Chandigarh to M/s May & Baker Ltd. whereby reference was made to telegram dated 17.11.80 and further consignees were specified to whom the delivery had to be made AND endorsement dated 17.11.80 by which telegraphic order for supply of 45 MT Tolkan 50% WDP at Rs.124.07 per kg. was placed.
It was also contended that both the aforesaid letters were put to PW29 during cross-examination on behalf of accused A.K. Sinha and are part of documents seized by Investigating Agency.
v)That there is no evidence on record to show that Dr. A.K. Sinha had role in fixing of prices of Tolkan by the Government of India or the quantity could be influenced by him. It is contended that prosecution case is simply based upon the statement of IO without being corroborated by any official from the Government of India or from RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
39Directorate of Agriculture, Haryana to show that quantity had been projected at a higher level than could be consumed, by Dr. A.K. Sinha.
vi)It is next pointed out that quantity of Tolkan which was fixed by Government of India was 35.117 MT which was the lowest amongst other chemicals/weedicides which were to be supplied by different companies and M/s May & Baker had been selected by Government of India only for supply of Tolkan.
vii)It is further contended that M/s Agrochem Sales and M/s Farmaid were appointed as commission agent and were to be paid commission for the liason work without the weedicide being actually supplied as an stockist which is not disputed by the prosecution. It is submitted that for the supply of 35.117MT of Tolkan of which order was placed during subsistence of agency of M/s Agrochem Sales, commission of Rs.63000/- was correspondingly paid to M/s Agrochem Sales.
viii)It is pointed out that even the bank account of M/s Farmaid after its appointment as commission agent in terms of Ex.PW29/E was opened on 02.12.80 as admitted during cross- examination of PW29. It is also submitted that the agency of M/s Agrochem commenced for the period of one year from 01.12.79 and continued till 30.11.80 in terms of letter dated 14.09.79 and the supply order was placed on 17.11.80 making them entitled for the commission. It is also submitted that RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
40there is no evidence to the contrary which could reflect that M/s Farmaid had received commission for the orders which were placed upto the period of appointment of M/s Agrochem Sales. It is also contended that none of the officials from M/s Farmaid including their Executives has been examined on record to show if they had acted as commission agents for the period prior to 01.12.80.
ix)It is further submitted on behalf of accused that prosecution has relied upon only the statement of PW17 B.R. Saxena (ex employee of M/s May & Baker) to contend that the agency of M/s Agrochem Sales had only been procured at behest of Dr. A.K. Sinha and commission paid for which they were not entitled and none of the senior officials including Shri Hosangady and Shri Sengupta, AGM, M/s May & Baker or any other official has been examined. It is also contended that Shri B.R. Saxena had been sacked from the company in 1983 and the present transaction relates to the period of 1980 with respect to which the Preliminary Enquiry on a source information was conducted in 1986/87. It is also pointed out that there was no complaint from any quarter including M/s May & Baker or M/s Farmaid as to any misconduct by Dr. A.K. Sinha.
x)It is also contended that Kamal Oswal had never been a partner RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
41in M/s Agrochem Sales and Shri Vimal Oswal was the partner in M/s Agrochem Sales. It is also submitted that M/s Agrochem Sales was later on dissolved and the business was further taken over by M/s Agvet Chemicals which was a partnership concern consisting of Indra Oswal, Ritu Kamal Oswal, Vimal K. Oswal and Primal Oswal w.e.f. 07.01.81.
xi)It is next submitted that the commission was received in February, 1981 towards the legal dues for supply of Tolkan to Directorate of Agriculture, Haryana and Dr. A.K. Sinha had been already transferred on 04.01.81. It is contended that conspiracy could not be established since no influence could be exercised by Dr. A.K. Sinha for deciding the price or quantity for supply of Tolkan and there is no evidence to show if the quantity had been wrongly projected in any manner.
xii) It is further contended that if the price or quantity could not have been influenced, there appears to be little possibility of illegally influencing M/s May & Baker for procuring an agency in favour of M/s Agrochem Sales and also there is no complaint by M/s May & Baker in this regard or any other person.
xiii)It is also submitted that there was no loss to the Department or Government of India and even no wrongful gain by M/s RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
42Agrochem Sales has been proved since the payment was only against the commission for which they were appointed as authorized commission agent in terms of Ex.PW17/Y.
xiv)With reference to draft of Rs.15,000/- dated 02.09.81 (Ex.PW29/2) drawn on State Bank of India, Siwan issued in the name of Mrs. Rama Sinha, wife of Dr. A.K. Sinha which is claimed to have been paid by Balmiki Prasad, it is submitted by counsel for accused A.K. Sinha that amount of Rs.15,000/- in fact was the reimbursement of Rs.15,000/- which Balmiki Prasad had obtained for purchase of 10 bighas of land in Village Anangpur, Faridabad for Rs.14,000/- and the payment had been initially made by Mrs. Rama Sinha alongwith payment of her own land purchased together vide registered sale deeds both dated 31.03.81. Copies of the aforesaid sale deeds are stated to be further proved in evidence which were seized during investigation. As such, it is submitted that aforesaid payment cannot be linked towards payment of any commission.
xv)It is further contended by counsel for accused that nowhere it has come on record that the commission which had been paid to M/s Agrochem Sales was contrary to the terms of agency or excessive. It is also submitted that in fact the commission which has been released by M/s May & Baker in favour of M/s RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
43Agrochem Sales is less than what was legally due though the same has not been disputed by M/s Agrochem Sales keeping in view the letter appointing M/s Agrochem Sales as commission agent.
xvi)It is also submitted on behalf of accused that no evidence of conspiracy could be read against Kamal Oswal merely on the basis of entries signed in the cash books.
xvii)It is further contended that prosecution has withheld the evidence of S.K. Tandon whose testimony would have revealed that orders of Tolkan were placed in accordance with law and no malafides could be attributed in assessing the quantity. It is further submitted that material notings and policies had to be proved at the level of higher officers and Ministers and the assessment of weedicide was made in consultation with the concerned officers and competent authority.
xviii)Counsel for accused Dr. A.K. Sinha has also challenged the sanction order u/s 19 of PC Act and it is submitted that same has not been accorded by the competent authority in accordance with law.
xix)In support of the contentions, counsels for accused have further relied upon the following judgements:
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.44
•52 (1993) Delhi Law Times 508 Ram Avtar vs. State; •2010 IV AD (S.C.) 305 Banarsi Dass vs. State of Haryana •2011 VI AD (DELHI) 692 P.K. Gupta vs. CBI •58 (1995) Delhi Law Times 672 Raghbir Singh vs. State.
10. On the other hand, ld. PP for CBI relied upon the documents and evidence collected during the course of investigation as detailed in chargesheet and testimony of witnesses.
Ld. PP for CBI relied upon State of Bihar & Ors. vs. Rajmangal Ram, Criminal Appeal No.708 of 2014 passed by the Hon'ble Supreme Court of India on 31 March, 2014 and Dhaneshwar v. Delhi Administration AIR 1962 Supreme Court 195 (V 49 C 36) in support of the contentions.
11. I have heard Shri Usman Chaudhary, Advocate for accused Dr. A.K. Sinha, Shri Rajesh Bhatia, Advocate for accused Kamal Oswal & Vimal Oswal, ld. PP for CBI and perused the record.
Before adverting to the evidence led on record, it may be observed that under Section 5(1)(d) of the Prevention of Corruption Act, 1947, if a Public Servant by corrupt or illegal means or by otherwise abusing his position as a Public Servant obtains for himself or for any other person valuable thing or pecuniary advantage, he will be guilty of criminal misconduct punishable under Section 5(2) of the Act with imprisonment for a term which shall not be less than RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
45one year and which may extend to seven years and shall also be liable to fine.
The gist of the offence under this clause is that a public officer using his position as a Public Servant obtains for himself or any other person any valuable thing or pecuniary advantage. Further, "abuse" means "misuse" i.e using position for something not intended and may be by corrupt or illegal means or otherwise than those means. Whether accused abused his position or not would depend on facts and circumstances of each case. The fact whether accused A.K. Sinha had any influence in awarding the contract of supply of "Tolkan" to M/s May & Baker and also if any influence was exercised for increase in quantity for supply of "Tolkan" by M/s May & Baker shall be some of the crucial factors which need a scrutiny and assessment to conclude if Dr. A.K. Sinha had abused his position to secure agency for M/s Agrochem Sales in favour of the co-accused.
In the aforesaid context since the accused Kamal Oswal and Vimal Oswal have only been substantively charged under Section 120B IPC for the offence of conspiracy and Dr. A.K. Sinha has been charged u/s 5(1)(d) r/w Section 5(2) of the Prevention of Corruption Act, 1947 with aid of Section 120B IPC, it shall be beneficial to advert to the ingredients of the offence of conspiracy. Section 120-A provides for the definition of criminal conspiracy and it speaks of that when two or more persons agree to do or RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
46cause to be done an act which is an illegal act and Section 120-B provides for the punishment for a criminal conspiracy. To prove the charge of criminal conspiracy, the prosecution is required to establish that two or more persons had agreed to do or caused to be done, an illegal act or an act which is not illegal, by illegal means. It is immaterial whether the illegal act is the ultimate object of such crime or is merely incidental to that object. To attract the applicability of Section 120-B it has to be proved that all the accused had the intention and they had agreed to commit the crime and it is not necessary that each member to a conspiracy must know all the details of the conspiracy.
It is thus to be established that the accused charged with criminal conspiracy had agreed to pursue a course of conduct which he knew leading to the commission of a crime by one or more persons to the agreement, of that offence. Besides the fact of agreement the necessary mens rea of the crime is also required to be established. It may also be noticed that Section 43 of the Indian Penal Code provides that an act would be illegal if it is an offence or if it is prohibited by law.
12. In nutshell, the case of the prosecution is that a Preliminary Enquiry was registered in this case on 17.11.1987 as it was suspected that A.K. Sinha while working as Director of Agriculture during 1980-81 arranged an agency in favour of M/s Agrochem Sales from M/s May & Baker (India) Ltd. Bombay/New Delhi for sale of their RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
47product "Tolkan" - a weedicide used for agricultural purpose and arranged its sale in substantial quantity to Department of Agriculture, Govt. of Haryana. Further, M/s Agrochem Sales, New Delhi (subsequently renamed as Agvet Chemicals, New Delhi) got its agency for the sale of "Tolkan" through A.K. Sinha on the ground that 50% amount of the total commission earned by Agrochem Sales from M/s May & Baker (India) Ltd. would be paid to accused A.K. Sinha. It is alleged that a total commission of Rs.63,000/- was received by M/s Agrochem Sales from M/s May & Baker (India) Ltd. for sale of their product to Govt. of Haryana and out of the said commission M/s Agrochem Sales, New Delhi paid 50% of the commission to A.K. Sinha or his relatives.
The prosecution as such is required to prove that:
i) Dr. A.K. Sinha while working as Director of Agriculture during 1980-81 in conspiracy with co-accused and abusing his position arranged for sale of "Tolkan" a weedicide used for agricultural purpose in substantial quantity from M/s May & Baker to Department of Agriculture, Govt. of Haryana;
ii) Further, in pursuance to conspiracy, Dr. A.K. Sinha arranged agency in favour of M/s Agrochem Sales managed by co-accused from M/s May & Baker India Ltd. and the commission of Rs.63,000/- was received by M/s Agrochem Sales from M/s May & Baker India Ltd.
without being assigned any work;
iii) That amount of Rs.31,500/-out of commission of Rs.63,000/-
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
48was obtained by Dr. A.K. Sinha by corrupt or illegal means or by otherwise abusing his position pursuant to conspiracy with co- accused.
13. The evidence on record may now be analysed to assess if the prosecution has been able to establish the conspiracy between the accused and if Dr. A.K. Sinha by corrupt or illegal means or by otherwise abusing his position as Public Servant obtained for himself or any other person valuable thing or pecuniary advantage as envisaged under Section 5(1)(d) r/w Section 5(2) of the Prevention of Corruption Act, 1947. In a criminal case the onus lies on the prosecution to prove affirmatively that the accused was directly and personally connected with the acts or omissions attributable to the crime committed by him.
i) The prosecution in the chargesheet has firstly alleged that Dr. A.K. Sinha while working as Director of Agriculture during 1980-81arranged an agency in favour of M/s Agrochem Sales from M/s May & Baker (India) Ltd. for sale of their product "Tolkan" (a weedicide) used for agricultural purpose and arranged its sale in substantial quantity to the Department of Agriculture, Govt. of Haryana which was to be supplied by M/s May & Baker.
It may be noticed that the Preliminary Enquiry in the case was commenced somewhere in 1986-87 with reference to the alleged RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
49offence committed in 1980-81 on the basis of some source information by CBI. To prove the allegations, the prosecution at the outset is required to prove that Dr. A.K. Sinha in some manner had influenced the award of contract for supply of "Tolkan" in favour of M/s May & Baker or the quantity of "Tolkan" to be supplied was manipulated by him. However, for aforesaid purpose only two witnesses have been examined from the Department of Agriculture, namely, PW1 Shri Ratan Pal Singh and PW18 Shri Ziledar Singh. PW1 Shri Ratan Pal Singh had merely handed over the five files of the Department of Agricultural to Shri J.N. Prasad, DSP, CBI. PW18 Shri Ziledar Singh merely proved letter dated 27.11.79 issued by the Department of Agriculture to M/s Sandoz India Ltd. from the file Ex.P1 (page 5) regarding supply of 25 MT of Dosanex 80% WDP along with another letter dated 28.09.79 issued by the Department to M/s Bayer India Ltd. regarding supply of 50 MT of Tribunil 70% WDP which are not material for the case of prosecution. No material or evidence has been proved on record whereby the inference has been drawn by the Investigating Agency that Dr. A.K. Sinha had influenced the quantity of "Tolkan" to be procured for supply to the Govt. of Haryana or its price. Even the Preliminary Enquiry report has not been placed on record. There is absolutely no evidence led on record to show that Dr. A.K. Sinha had any role in fixing of prices of Tolkan by the Government of India or in case the quantity of "Tolkan" was excessively projected for supply to Govt. of Haryana.
It may further be noticed that the order to M/s May & Baker RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
50(India) Ltd. for supply of "Tolkan" weedicide was entrusted by the competent authority i.e. Govt. of India over which accused A.K. Sinha had no control or influence and further the quantity to be supplied was also fixed by the competent authority itself. As such, the extent to which Dr. A.K. Sinha could have influenced the procurement of agency in favour of M/s Agrochem Sales from M/s May & Baker for oblique reasons appears to be doubtful.
It is also pointed out on behalf of accused that prosecution has withheld the evidence of S.K. Tandon whose testimony would have revealed that orders of Tolkan were placed in accordance with law and no malafides could be attributed in assessing the quantity.
Further, it appears that material notings and policies had to be approved at the level of competent officers and no evidence has been led to reach the conclusion that the assessment or order of weedicide (Tolkan) had been excessively projected by Dr. A.K. Sinha.
ii) It may next be observed that as per documents and evidence led on record, the supply order was placed on 17.11.80 by the Government of India to Government of Haryana which was confirmed on 26.11.80 as per D15 (pages 159, 190 & 196). Letter dated 26.11.80 is the letter issued by J. Krishna, Under Secretary to Government of India, Ministry of Agriculture to the Director of Agriculture, Haryana thereby informing the allocation of various imported weedicides and the prices fixed for sale of weedicides and further vide RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
51aforesaid letter, the price of Tolkan was fixed at Rs.124.07 per kg.
In the aforesaid context, counsels for accused have also pointed out that a letter dated 26.11.80 was also issued by Locust Control and Plant Protection Officer, Haryana, Chandigarh to M/s May & Baker Ltd. whereby reference was made to telegram dated 17.11.80 and further consignees were specified to whom the delivery had to be made and endorsement dated 17.11.80 by which telegraphic order for supply of 45 MT Tolkan 50% WDP at Rs.124.07 per kg. was placed. The aforesaid both the letters were put to PW29 during cross- examination on behalf of accused A.K. Sinha and have not been denied.
It has also been pointed out on behalf of accused that quantity of Tolkan which was fixed by Government of India was 35.117 MT which was the lowest amongst other chemicals/weedicides which were to be supplied by different companies and M/s May & Baker had been selected by Government of India only for supply of Tolkan. In the facts and circumstances, no adverse inference can be drawn if Dr. A.K. Sinha had excessively projected the quantity of Tolkan to be supplied to Govt. of Haryana or had wrongly exercised his influence in this regard.
iii) The prosecution has also doubted the appointment of agency in RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
52favour of M/s Agrochem Sales and it is alleged that the commission of Rs.63,000/- was provided as agreed with Dr. A.K. Sinha without any work being executed by the agency and M/s Farmaid was the exclusive agency appointed by M/s May & Baker.
However, the evidence on record from the files seized by CBI reflects that M/s Agrochem Sales was appointed by M/s May & Baker as commission agent on 14.09.79 w.e.f. 01.12.79 for the supplies to be made within one year i.e. till 30.11.80 as per Ex.PW17/Y. The said letter has been ignored by the Investigating Agency though the same exists on the file seized by CBI and no evidence to the contrary has been brought on record by examining any responsible officer from M/s May & Baker to contradict the appointment of agency in favour of M/s Agrochem Sales as per letter dated 14.09.79.
It may also be noticed that M/s Farmaid was also made commission agent vide letter dated 11.08.80 w.e.f. 01.12.80 as per Ex.PW29/E which has not been contradicted by the prosecution. No other letter has been brought on record to show if M/s Farmaid had been appointed as commission agent for the period for which M/s Agrochem Sales had been appointed as agents and the agency in favour of M/s Farmaid is admitted by the prosecution.
iv) It may further be observed that it is admitted by prosecution RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
53that even M/s Farmaid appointed as commission agent was to be paid commission for the liason work without the weedicide being actually supplied as an stockist. In view of above, it cannot be held that for similar work the agency agreement in favour of M/s Agrochem Sales may be disbelieved. Even PW17 Shri B.R. Saxena examined by prosecution admitted that Managing Director of May & Baker appointed the firm Agrochem Sales at Delhi as the agent for supply of Tolkan for Haryana state and the commission per Kg. was to be paid. The payment of commission of Rs.63,000/- to M/s Agrochem Sales has been contended by accused to be against supply of 35.117MT of Tolkan during subsistence of agency period in favour of M/s Agrochem Sales and there is no evidence to contrary to disbelieve the same.
It is pointed out on behalf of the accused in the evidence appearing on record that even the bank account of M/s Farmaid after its appointment as commission agent in terms of Ex.PW29/E was opened on 02.12.80 as admitted during cross- examination of PW29 and as such the commission for the period prior to agency in favour of M/s Farmaid was legally due in favour of M/s Agrochem Sales. It has already been pointed out above that the agency of M/s Agrochem commenced for the period of one year from 01.12.79 and continued till 30.11.80 in terms of letter dated 14.09.79 and the supply order was placed on 17.11.80 making them entitled for the commission. There is no evidence pointed out on record to RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
54reflect that M/s Farmaid had also received the commission for the orders which were placed upto the agency period of M/s Agrochem Sales and if the commission was wrongfully paid to M/s Agrochem Sales. It may further be noticed that none of the officials from M/s Farmaid including their Executives have been examined on record to show if they had acted as commission agents for the period prior to 01.12.80. Thus, the prosecution has failed to prove beyond reasonable doubt if the commission was paid to M/s Agrochem Sales contrary to the terms of agency as per letter dated 14.09.79.
v) In the aforesaid background, it may further be relevant to examine the testimony of PW17 Shri B.R. Saxena who was employed during 1980-81 with M/s May & Baker and is the only examined witness relied by the prosecution to prove that Dr. A.K. Sinha was instrumental in securing the appointment of M/s Agrochem Sales as commission agent and demanded commission @ Rs.5/- per Kg. for placing orders for supply of Tolkan on M/s May & Baker.
At the outset, it is pertinent to note that none of the senior officials including Shri Hosangady (Managing Director, M/s May & Baker) who was concerned with the appointment of commission agents and Shri Sengupta, AGM, M/s May & Baker or any other official have been examined by the Investigating Agency though PW17 Shri B.R. Saxena admitted RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
55during cross-examination that the appointment of the stockist was decided by the Managing Director. In the aforesaid background, Shri Hosangady would have been the most relevant witness to prove if M/s Agrochem Sales had been appointed under some pressure, influence or for extraneous reasons at behest of accused Dr. A.K. Sinha since the commission agents had been appointed by him and was the overall Incharge for the said purpose. It is well established that witnesses essential to the unfolding of the narrative on which the prosecution is based must be examined and in case they are kept back without giving any suitable explanation, the non examination of these witnesses acquires a significance.
It may further be observed that the Investigating Agency for the best reasons only examined Shri B.R. Saxena who is alleged by accused to have been removed from the company (M/s May & Baker) in 1983. It may also be pointed out that as per chargesheet, there was no complaint from any quarter including M/s May & Baker or M/s Farmaid as to any misconduct, malpractice, demand or arm twisting by Dr. A.K. Sinha for appointment of M/s Agrochem Sales as stockist and it is only on source information that the Preliminary Enquiry appears to have been taken up in 1986/87. It may further be observed that if the price or quantity of Tolkan to be supplied could not have been influenced by A.K. Sinha, there appears to be little possibility of compelling M/s May & Baker for RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
56procuring an agency in favour of M/s Agrochem Sales and more so since there is no complaint by M/s May & Baker or any other person in this regard. It was also admitted by PW17 during cross-examination that the total quantity of Tolkan products was recommended by the State Government and the Central Insecticides Board finally approved the price and quantity and further, on the recommendations of the Insecticides Board, the quantity and price of Tolkan product was fixed by Government of India. It was also deposed by PW17 during cross-examination that the rates could not be changed by the Haryana Govt. but Haryana Govt. could only change the quantity of Tolkan if other suppliers did not supply. It has already been pointed out that the Government of India vide its letter dated 21.11.80 had communicated all the four firms about allocation of imported weedicides including Tolkan along with the rates, quantities fixed by Government of India as per evidence led on record. Also, no loss to the Government of Haryana was caused in any manner. It may also be observed that no wrongful gain by M/s Agrochem Sales has been established by prosecution since the payment was received as authorized commission agent in terms of Ex.PW17/Y against the supply orders relating to their period of agency. Also, it has not been proved on record that the commission was paid to M/s Agrochem Sales contrary to the terms of agency or excessive. It has been pointed out by counsel for accused that commission RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
57which has been released by M/s May & Baker in favour of M/s Agrochem Sales is less than what was due and further commission for the supply of orders for the period after 01.12.80 was made to M/s Farmaid.
It is also pertinent to note that the appointment letter to Agrochem Sales had already been made on 14.09.79 by May & Baker though the supply orders were placed only in November 1980 on receiving the communication from Government of India and there is no evidence that the quantity had been excessively projected by Dr. A.K. Sinha. In this regard, PW17 appears to be evasive and during cross-examination only responded that he did not recollect if Dr. Sinha increased the quantity from what was approved by the Government of India.
In the facts and circumstances, it may not be safe to hold on the testimony of PW17 B.R. Saxena that the accused had conspired for procuring the agency in favour of M/s Agrochem Sales and the commission had been made to M/s Agrochem Sales only on paper.
In view of aforesaid reasons, I am of the considered view that the prosecution has failed to establish beyond reasonable doubt if the agency was dishonestly obtained in conspiracy in favour of M/s Agrochem by Dr. A.K. Sinha or if the quantity of Tolkan (weedicide) had been excessively or wrongly projected or RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
58placed under influence of Dr. A.K. Sinha or if commission of Rs. 63,000/- was paid to M/s Agrochem Sales without being entitled for the same. The root of the prosecution case as such is dented.
13. The prosecution has next relied upon the circumstance that out of the said commission of Rs.63,000/- received by M/s Agrochem Sales, 50% of the commission was paid to Dr. A.K. Sinha or his relatives. In specific the amount of Rs.31,500/- is stated to have been paid to Shri Balmiki Prasad, father of Dr. A.K. Sinha partly by means of bank drafts of Rs.7,000/- & Rs.18,000/- and a cash amount of Rs. 6,500/- by M/s Agrochem Sales. It is further the case of prosecution that the credit notes were executed on behalf of Agrochem Sales in favour of Balmiki Prasad for ensuring the payment of Rs.31,500/-. It is also the case of prosecution that out of the aforesaid commission, an amount of Rs.15,000/- was paid by draft dated 02.09.81 in the name of Rama Sinha (wife of Dr. A.K. Sinha) by Shri Balmiki Prasad (father of Dr. A.K. Sinha). The accused admitted the aforesaid payment of Rs. 31,500/- made to Balmiki Prasad by M/s Agrochem Sales but have taken a stand that the same was paid in view of business venture with Balmiki Prasad. The payment of Rs.15,000/- by draft dated 02.09.81 by Balmiki Prasad to Rama Sinha is further explained to be a part of different transaction by accused A.K. Sinha. In view of above, the evidence as such needs to be further scrutinized and seen, if only on the basis of the aforesaid evidence, the conspiracy is established between the accused and if the case falls within the ambit of Section RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
595(1)(d) r/w Section 5(2) of the Prevention of Corruption Act, 1947.
14. So far as the payment of the commission of Rs.63,000/- by M/s May & Baker to M/s Agrochem Sales is concerned, the same is admitted even by accused Kamal Oswal and Vimal Oswal and the substantive part of the evidence led on behalf of prosecution to prove the same has remained undisputed. The case of the prosecution is that M/s May and Baker paid a sum of Rs.63,000/- as commission for alleged supply of Tolkan to Haryana Government to Kamal Oswal of M/s Agrochem Sales now Agvet Chemicals vide draft no. 042055/14 dated 04.02.81 of Rs.50,000/- (Ex.PW19/B) and no. 717770/51 dated 24.04.81 of Rs.13,000/- (Ex.PW19/1) of Syndicate Bank, Prabha Devi Branch, Bombay. For the aforesaid purpose, the prosecution examined PW14 Shri A.S. Dighe who worked as Junior Accountant in M/s May & Baker along with witnesses from the concerned banks, namely, PW12 Shri Jatinder Singh Jolly, PW15 Shri Ashok Kumar Rajpal and PW23 Shri K.S. Rao.
PW14 Shri A.S. Dighe deposed that he had worked as Junior Accountant in the May & Baker House Bombay from 1967 to 1994. He proved the seizure memo dated 16.06.88 (Ex.PW14/A) whereby documents were handed over to CBI and further proved the copy of ledger account of the firm (Ex.PW14/A1) and letter dated 24.04.81 signed by R.L. Desai, Accountant of the company addressed to Manager, Syndicate Bank (Ex.PW14/A2) requesting for issuance of RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
60draft of Rs.13,000/- payable to Agrochem Sales and draft of Rs. 35,000/- to Farmaids along with bank debit advice (Ex.PW14/A3) in respect of issue of bank draft in favour of Agrochem Sales dated 04.02.81 for Rs.50,000/-. As per letter dated 04.02.81 (Ex.PW14/A4) addressed to Manager, Syndicate Bank, Bombay by May & Baker a demand draft was requested to be issued for Rs.50,000/- in favour of Agrochem Sales.
It may also be noticed that Ex.PW14/A1 is a single page certified copy of general ledger of account which refers to as advance to suppliers and reflects debit of Rs.13,000/- and Rs.50,000/- total amounting to Rs.63,000/- which is claimed by the prosecution to be the commission paid to M/s Agrochem Sales. Thus, the issuance of the drafts by M/s May & Baker for Rs.50,000/- and Rs.13,000/- stands proved on record.
In the aforesaid context, prosecution also examined the concerned witnesses from the bank, namely, PW23 Shri K.S. Rao who was posted as Branch Manager, Central Accounts Officer, Syndicate Bank on 28.11.88 and proved the seizure memo Ex.PW23/C vide which demand drafts for Rs.13,000/- and Rs.50,000/- favouring Agrochem Sales (Ex.PW19/1 & 19/2) respectively were handed over to CBI. Also, in the same context PW19 D. Prakash Shetty who was working as Branch Manager in Syndicate Bank, Mumbai was examined who stated that the aforesaid drafts Ex.PW19/1 & 19/2 were issued by Prabha Devi Branch in favour of Agrochem Sales payable at RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
61Syndicate Bank, Central Accounts Officer, New Delhi. PW19 also deposed that draft Ex.PW19/1 was paid to Punjab & Sindh Bank, Janpath Branch, New Delhi through Central Accounts Office, New Delhi of Syndicate Bank and draft Ex.PW19/2 was paid on 13.02.81 to Punjab & Sindh Bank, Janpath Branch, New Delhi through Syndicate Bank, Central Accounts Office, New Delhi.
The prosecution also examined PW15 Ashok Kumar Rajpal, Sub Manager in Punjab & Sindh Bank, Janpath Branch posted during relevant period to prove the encashment of said drafts on behalf of M/s Agrochem Sales and proved the statement of account of Agrochem Sales whereby the credit entry of Rs.50,000/- dated 13.02.81 and Rs.13,000/- dated 18.06.81 were proved as per statement Ex.PW15/B. In respect of receipt of draft of Rs.50,000/- favouring M/s Agrochem Sales which was credited in account of M/s Agvet Chemicals, prosecution further examined PW12 Shri Jatinder Singh Jolly. PW12 Shri Jatinder Singh Jolly posted as Manager in Punjab & Sindh Bank, Janpath from 1985 to 1991 proved his signatures on seizure memo Ex.PW12/A along with statement of account no.888 (Ex.PW12/B) in respect of M/s Agvet Chemicals along with account opening form in respect of M/s Agvet Chemicals (Ex.PW12/C) and the photocopy of partnership deed which was taken for the opening of the account (Ex.PW12/D). He further stated that in statement of RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
62account in respect of account no.888 (M/s Agvet Chemicals) (Ex.PW12/B), an entry for crediting Rs.50,000/- on 22.06.81 had been made. Also, the credit entry dated 22.06.81 for Rs.50,000/- was proved by PW15 Shri Ashok Kumar Rajpal, Manager, Punjab & Sindh Bank along with credit entry for Rs.13,000/- dated 18.06.81 in the account no.834 of M/s Agrochem Sales.
In view of aforesaid discussion and evidence led on record the evidence as to the payment of commission of Rs.63,000/- by M/s May & Baker to M/s Agrochem Sales as such stands established on record.
15. It is further the case of prosecution that out of Rs.63,000/- received as commission from M/s May & Baker, Vimal Oswal gave Rs.31,500/- to Balmiki Prasad, father of A.K. Sinha (now deceased) vide draft no. 909626/7/81 dated 26.07.81 for Rs.7,000/- (Ex.PW11/C), draft no. 165147/4/81 dated 29.06.81 for Rs.18,000/- (Ex.PW11/F) of Punjab & Sindh Bank which were encashed by him and an amount of Rs.6,500/- was paid in cash.
To prove the aforesaid facts, prosecution examined PW11 Shri Baldev Singh, Officer, Punjab & Sindh Bank, Janptah Branch, New Delhi, PW12 Shri Jitender Singh Jolly, Manager, Punjab & Sindh Bank, Janpath Branch, New Delhi and PW15 Shri Ashok Kumar Rajpal, Sub Manager, Punjab & Sindh Bank, Janpath, New Delhi.
PW15 Shri Ashok Kumar Rajpal posted as Sub Manager in Punjab & Sindh Bank from September 16, 1976 to 31.12.81 deposed RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
63that he knew Kamal Oswal, Vimal Oswal and Ritu Oswal of M/s Agrochem Sales along with M/s Agvet Chemicals which were maintaining account no.834 & 888 at the bank. He further proved cheque dated 17.03.81 (Ex.PW11/A) issued in favour of "Self" from account no.834 (M/s Agrochem Sales) by Ritu Kamal and Vimal Oswal, Authorized Signatories for preparation of draft in favour of Balmiki Prasad encashable at Patna. He also proved the credit voucher (Ex.PW11/B) dated 17.03.81 along with draft (Ex.PW2/A) prepared for sum of Rs.7,000/- issued in favour of Balmiki Prasad drawn on Punjab & Sindh Bank dated 17.03.81 from account no.834 of M/s Agrochem Sales. PW15 also proved the cheque dated 29.06.81 issued in favour of "Self" for purpose of issue of draft of Rs.18,000/- in favour of Balmiki Prasad encashable at Patna. The credit voucher (Ex.PW11/E) for aforesaid purpose was proved by PW11 Baldev Singh. The aforesaid cheque bears the signatures of Vimal Oswal, Partner and was issued from the account no.888 (M/s Agvet Chemicals). In the aforesaid context, the debit entry for Rs.18,009/- dated 29.06.81 in statement of account of M/s Agvet Chemicals (account no.888) Ex.PW12/B has been further pointed out by ld. PP for CBI.
For the aforesaid purpose of the issuance of the said draft of Rs. 18,000/- and Rs.7,000/- in favour of Balmiki Prasad, the certificate issued on behalf of Punjab & Sindh Bank, Janpath Branch was further proved by PW11 as Ex.PW11/G1 & Ex.PW11/G2.
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
64To prove the encashment of aforesaid drafts of Rs.7,000/- & Rs.18,000/- issued by M/s Agrochem Sales by Balmiki Prasad, prosecution examined PW2 Shri Ashok Kumar Sinha, Officer, Punjab & Sindh Bank, PW3 Sardar Charan Singh, PW7 Shri N.K. Sharma, Assistant Manager, State Bank of India, Bihar and PW8 Shri Prabhu Nath Tewari, Cashier, Central Bank of India, Siwan, Bihar and the testimony of the witnesses has substantially remained uncontroverted on record to aforesaid extent.
PW2 Shri Ashok Kumar Sinha stated that payment of bank draft Ex.PW2/A dated 17.03.81 in favour of Balmiki Prasad for Rs. 7,000/- issued by Punjab & Sindh Bank, Janpath, New Delhi branch was made by him to Balmiki Prasad after obtaining his signatures at the back of the draft. Further, the draft bears his initials on the stamp of the bank as cashier and one Charan Singh, partner of Surjit Cycle Store having account in our branch, verified the signatures of Balmiki Prasad. He also deposed that the signatures of said Charan Singh were identified by an officer of the bank namely Shri Surjit Singh Chawla and the signatures of Balmiki Prasad were verified before passing the draft and sending it to his counter for payment. Further, while making payment, another signatures were obtained at the back of the draft. In the aforesaid context PW3 Sardar Charan Singh identified his signatures on draft Ex.PW2/A in token of verification of signatures of Shri Balmiki Prasad.
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
65PW7 Shri N.K. Sharma, Assistant Manager, State Bank of India proved the transfer pay slip dated 31.08.81 for Rs.18,000/- deposited by Balmiki Prasad in account no. C8771 in respect of deposit of draft for Rs.18,000/-. He also proved the withdrawal of Rs. 17,000/- as per withdrawal form dated 02.09.81 (Ex.PW7/D) by Balmiki Prasad and withdrawal of other amount from his aforesaid account. He also proved the statement of account no. C8771 (Ex.PW7/H) in the name of Balmiki Prasad which contains entry dated 31.08.81 crediting amount of Rs.18,000/-.
The evidence on record as such clearly establishes the encashment of drafts by Balmiki Prasad which is also not disputed by the accused.
In the aforesaid context, prosecution has also examined PW13 Shri Om Prakash Gupta, Accountant with M/s Agrochem Sales and his testimony is relevant as the entries in the books of accounts maintained in respect of M/s Agrochem Sales corroborate the payment of commission of Rs.31,500/-.
PW13 Shri Om Prakash Gupta who worked as part time Accountant with M/s Agrochem Sales proved the entries in the cash book of the said firm from 01.08.80 to 30.06.81 relating to payment of commission in favour of Balmiki Prasad along with credit notes dated 11.02.81 (Ex.PW13/C1) relating to payment of commission of Rs. 31,500/-executed in favour of Balmiki Prasad by Vimal Oswal along with letter dated 29.06.81 addressed to Balmiki Prasad (Ex.PW13/C3) RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
66forwarding draft of Rs.18,000/- as part commission against credit note dated 11.02.81 and letter dated 17.03.81 (Ex.PW13/C2) relating to forwarding of draft of Rs.7,000/- against credit note dated 11.02.81.
The evidence on record, as such, clearly establishes that the commission of Rs.31,500/- was also paid to Shri Balmiki Prasad by M/s Agrochem Sales through co-accused Kamal Oswal and Vimal Oswal.
16. However, the explanation of the accused in respect of the aforesaid transaction needs to be considered to assess if the aforesaid payment is sufficient to infer the conspiracy between the accused and if the same establishes the misconduct on the part of A.K. Sinha under Section 5(1)(d) r/w Section 5(2) of Prevention of Corruption Act, 1947.
It may be noticed that accused Kamal Oswal in his written statement filed during recording of statement under Section 313 Cr.P.C. has taken a categorical stand that during 1977 he happened to meet Balmiki Prasad and after series of meetings it was mutually agreed for taking agencies of agrochemical products and the commission received for agency work in their respective areas would be shared equally. It was further submitted that in 1979 after series of meetings with officers and Mr. Hosangady, Managing Director, they (i.e. M/s Agrochem Sales) were appointed as agents of M/s May & Baker as he was already an agent of Walters Ltd. and supplying agrochemical products to Govt. of J&K and Punjab. Further, on RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
67receiving commission in respect of supply of Tolkan as per prior understanding between Kamal Oswal and Balmiki Prasad, a credit note was issued in favour of Balmiki Prasad and even the payment was duly reflected in the books of account of firm. He further stated that the case was fabricated by prosecution and adverse inference drawn relying on the statement of B.R. Saxena who was an ex- employee of M/s May & Baker and had been sacked from the services in 1983 and had grudge against the management and Mr. Hosangady. It was further contended on behalf of accused that a wrongful adverse inference has been drawn by the Investigating Agency of payment of commission as reward or motive for placement of orders on M/s May & Baker and appointment of M/s Agrochem Sales as authorized commission agents.
The probability of defence of the accused has to be considered in the background that the appointment letter to Agrochem Sales had already been made on 14.09.79 by May & Baker though the supply orders were placed only in November 1980 on receiving the communication from Government of India and there is no evidence that the quantity of Tolkan had been excessively placed/projected by Dr. A.K. Sinha. Further, it has not been established that any influence had been exercised by him in the selection of M/s May & Baker for supply of aforesaid product or excessively projected the quantity of Tolkan required. It has not been proved beyond reasonable doubt that the accused had conspired for purpose of procuring the agency in favour of M/s Agrochem Sales and the commission had been made to RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
68M/s Agrochem Sales only on paper as already pointed out in preceding paragraphs. Shri Balmiki Prasad (father of Dr. A.K. Sinha) expired in 1988 and even his statement was not recorded by Investigating Agency during investigation. It does not appear probable that the amount of commission would be reflected in the books of account and credit note executed and paid by draft if the same had not been the business transactions between Balmiki Prasad and M/s Agrochem Sales which was independent of any role played by A.K. Sinha. The case of the prosecution that the commission was paid without execution of work by M/s Agrochem Sales has not been proved on record. In the facts and circumstances, I am of the considered view that it shall not be safe to draw the inference of conspiracy when there is no evidence to reflect misconduct in placement of orders of Tolkan on M/s May & Baker or appointment of M/s Agrochem Sales as authorized agents by M/s May & Baker. More so, when no loss to the Government or any wrongful gain by M/s Agrochem Sales has been proved on record. It has not been established beyond reasonable doubt if Dr. A.K. Sinha had used any corrupt or illegal means or by otherwise abusing his position got M/s Agrochem Sales appointed as commission agents. As such, the sharing of commission between Balmiki Prasad AND Kamal Oswal & Vimal Oswal appears to be independent business transaction which appears to be duly plausible as the same is even reflected in the books of account. The evidence of Balmiki Prasad could not be led on behalf of accused since he is stated to have expired in 1988 during the course of trial. In the facts and RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
69circumstances, inference drawn by the Investigating Agency that the commission was illegally received from M/s May & Baker and shared between the accused is not proved beyond reasonable doubt and the defence of the accused appears to be probable. More so for the reason that there is no complaint by M/s May & Baker in case agency in favour of M/s Agrochem Sales had been procured under influence of Dr. A.K. Sinha for oblique reasons, nor the same has been proved on record.
17. Prosecution has next relied upon draft of Rs.15,000/- dated 02.09.81 (Ex.PW29/2) drawn on State Bank of India, Siwan issued in the name of Mrs. Rama Sinha, wife of Dr. A.K. Sinha which is claimed to have been paid from the aforesaid amount of Rs.25,000/-. It is further the case of prosecution that Dr. A.K. Sinha has shown this amount of Rs.15,000/- as loan from his father in a handwritten statement (D44) in the expenditure of year 1981-82 & 1982-83.
It is submitted by counsel for accused that no specific evidence has been led by the prosecution to prove the relevant entry on record of the present case on the basis of which the aforesaid inference has been drawn in the chargesheet and merely on the basis of aforesaid draft issued in favour of Mrs. Rama Sinha, it cannot be said that the same was proceeds of the commission. It has been further submitted by counsel for accused that amount of Rs.15,000/- in fact was the reimbursement of Rs.15,000/- which Balmiki Prasad had obtained for purchase of 10 bighas of land in Village Anangpur, Faridabad for Rs.
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
7014,000/- and the payment had been initially made by Mrs. Rama Sinha alongwith payment of her own land purchased together vide registered sale deeds both dated 31.03.81. To support the same, copies of the aforesaid sale deeds have been proved on record. I am of the considered view that the inference of payment of Rs.15,000/- by draft dated 02.09.81 has been substantially explained by Balmiki Prasad and is probable. It cannot be conclusively inferred that the same was the return of part commission received by Balmiki Prasad to accused A.K. Sinha.
18. The prosecution has further alleged that Dr. A.K. Sinha took Rs.25,000/- from M/s Agvet Chemicals on 12.06.84 in the name of his wife's firm M/s Sinhtron Electronics showing as interest free loan which is stated to have been obtained in conspiracy with Kamal Oswal and Vimal Oswal.
Ld. PP submits that the aforesaid payment is not related to the payment of commission of Rs.31,500/- but is associated with RC 2/86 which is relating to case of possession of disproportionate assets by accused and is separately pending in another court. However, it is submitted that the same has been referred to show that M/s Agvet Chemicals ad accused had monetary transactions.
On the other hand, the aforesaid payment is disputed by counsel for accused and it is explained that the aforesaid transaction has not been proved on record of this case and is in no manner relevant to the present case. It is further submitted that IO has RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
71wrongly referred to the aforesaid transaction as relating to the aforesaid amount to have been obtained from M/s Agvet Chemicals on 12.06.84 as no document has been filed to support the aforesaid transaction. It is further pointed out that even in the cross-examination dated 28.09.10 IO evaded the aforesaid question and simply mentioned that it must have been mentioned on the basis of documents but no such document has been pointed out on record. It is also submitted that during cross-examination, IO admitted that name of Rakesh Jain with address of Lajpat Nagar had been recorded in the year 1984-85 against amount of Rs.25,000/- received by Mrs. Rama Sinha and a similar statement of Rakesh Jain (Ex.PW29/XY1) was recorded in RC 2/86 pertaining to the case of disproportionate assets in which Shri Rakesh Jain was examined as PW52.
I am of the considered view that the aforesaid transaction is not relevant to prove the payment of commission involved in the present case.
19. It shall be also relevant to point out that during course of arguments ld. PP for CBI also submitted that Shri Balmiki Prasad (father of Dr. A.K. Sinha) was declared unsound and inactive man by his sons and wife in a pending Suit No.104 of 1985 in the Court of Sub-Judge, Siwan, Bihar.
However, the aforesaid contention was disputed on behalf of accused and it was pointed out by counsel for accused that PW29 Shri Parshottam Lal (IO) during his cross-examination admitted that during RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
72the 28 months of investigation he never met Shri Balmiki Prasad or visited Siwan and as such there was no sound basis of information collected by the IO and same was based only on oral information. Counsel for accused also relied upon letters Ex.PW29/D2 and Ex.PW29/D3 given by Janardan Tiwari, MP and Shri Bhrigunath Prasad,Upadhyaksh, Nagar Palika to the effect that Shri Balmiki Prasad was mentally fit and alert almost till the 2-3 months of his death in early October, 1988.
I am of the considered view that there is no reliable evidence on record to reach an inference that during 1979-81 (i.e. for the period relating to the proceedings in question) Shri Balmiki Prasad was of unsound mind or indisposed, as even the encashment of drafts relied by the prosecution and payment of drafts to Rama Sinha could not have been made by a person who was indisposed, inactive or of unsound mind.
20. Counsel for accused A.K. Sinha has also last contended that the prosecution for sanction had not been accorded by the competent authority.
In my considered view the contention does not deserve any merit since the aforesaid issue was dealt in detail vide order dated 27.08.02 passed by the then Special Judge, Delhi. It is therein reflected that the validity of sanction for prosecution was raised in course of hearing of revision petition directed against order dated 02.07.99 before the Hon'ble High Court and pursuant to liberty given RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
73as per order dated 07.11.2000 accused A.K. Sinha filed a detailed application on 23.01.01 on the subject seeking proceedings to be dropped. The criminal revision referred against order dated 27.08.02 was dismissed by the Hon'ble High Court vide order dated 11.09.06. The relevant para in order dated 11.09.06 may be beneficially reproduced:
".........The short point raised by the learned counsel for the petitioner is that the sanction ought to have been granted by the Chief Minister of Haryana or the Governor. Whereas the sanction has been accorded by the Department of Personnel and Training. The other sanction has been granted by the Chief Secretary of the State of Haryana. Even if one sanction is legal and valid that is sufficient for continuing the prosecution. In this context, Mr. Tiwari, who appears for the CBI, has placed before me, the Government of India (Allocation of Business) Rules, 1961. These rules have been made by the President of India in exercise of powers conferred under Article 77(3) of the Constitution. Rule 3(3) indicates that the sanction for prosecution of any person, who is a government servant, can be accorded by the Department which is the Cadre Controlling authority for the service of which he is a member. The petitioner is a member of the Indian Administrative Services and, therefore, the Cadre Controlling authority, insofar as the present petition is concerned, would be the Ministry of Public Grievance and Pension, Department of Personnel & Training, Government of India. He submits that the sanction that is granted by virtue of the order dated 27.07.1990, has been accorded by the said Department. He submitted that Rule 3(4) prescribes that notwithstanding anything contained in sub rule RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.74
(3), the President may, by general or special order, direct that in any case or class of cases the sanction shall be accorded by the Department of Personnel and Training. In this context, he submitted that the sanction order has been accorded by the Department of Personnel and Training. Therefore, the sanction for prosecution has been accorded in terms with the Allocation of Business Rules and is clearly in order.
I have heard the counsel for counsel for the parties and I am of the view that the submissions made by Mr. Tiwari, are to be accepted because they clearly indicate that the sanction order has been made in terms of the Allocation of Business Rules."
I am of the considered view that the order for sanction of prosecution has been accorded by the competent authority and the authorities cited by counsels for accused are distinguishable. The said contention has been referred since the same was vehemently raised on behalf of accused though the same does not change the fate of the proceedings.
21. In view of my foregoing discussion, I am of the considered view that the prosecution has not been able to prove its case beyond reasonable doubt. As such, the accused are acquitted for the offences charged.
Announced in open court on 11th September, 2014 (Anoop Kumar Mendiratta) RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.
75Special Judge (PC Act) CBI-08 (Central), THC, Delhi.
RC 5(A)/87, CC No.82/11 - CBI vs. A.K. Sinha & Ors.