Delhi High Court
State (Through) Cbi vs Sh. Someshwar And Ors. on 10 May, 2005
Equivalent citations: 120(2005)DLT324, 2005(82)DRJ246
Author: H.R. Malhotra
Bench: H.R. Malhotra
JUDGMENT H.R. Malhotra, J.
1. Feeling aggrieved by the orders of Special Judge dated 26th May,2004 discharging both the respondents-accused of offences under Section 7, 12, 13(2), 13 of the Prevention of Corruption Act(hereinafter referred to as the Act), read with Section 120B of IPC, the petitioner CBI has assailed that order by way of filing the revision petition.
2. Facts of the case leading to the registration of the case against the respondents-accused are that on 7th November,2001 a FIR was registered against the respondents on the basis of a tape recorded conversation between respondents No. 1 and respondent No. 2 indicating the demand of bribe of Rs. 10 lacs by respondent No. 1 from respondent No. 2 in connection with certain official favor. As per said conversation, a middle-man was to deliver a packet of Rs. 5 lacs in the office of the respondent No. 1 between 3.30 PM and 4 PM and rest of the 5 lacs was to be delivered to the wife of respondent No. 1 at their residence. On receiving said recorded conversation from the source, CBI swung into action and summoned two independent witnesses Atam Prakash and Narender Kumar. These witnesses were sent to the office of respondent No. 1 at Central Revenue Building, ITO, New Delhi. The team members and the independent witnesses took their respective positions as per strategy.
3. At about 3.30 PM, the middleman whose name turned out to be Navin John Francis was seen entering the room occupied by the respondent No. 1. He was carrying a polythene packet having a logo of blue chip. That person waited in front of the room of respondent No. 1 for about 10 minutes and then went inside the room carrying that packet and returned after about 5 minutes without that packet which he had taken to the room. Since CBI team was watching his activities therefore immediately he was followed by the CBI team and on the ground floor he was stopped and questioned about his identity and purpose of visit. He disclosed his name as Navin John Francis, Secretary to Mr. Ashok Chaturvedi, respondent No. 2. He further stated that he had to deliver a packet to respondent No. 1 as per instructions of respondent No. 2. He further confirmed that he had delivered that packet to respondent No. 1.
4. The Investigators then came to Room No. 121 where respondent No. 1 was present. Two independent witnesses referred to above also accompanied the CBI team. At that time one Sh. P.K. Jain, Additional Commissioner, was also present in the office of the respondent No. 1.
5. On being questioned the respondent No. 1 admitted that he had obtained a packet from John which was sent by Ashok Chaturvedi and further told that said packet has been kept in the side-shelf of his table. The investigators on this recovered the same polythene packet on the pointing out of respondent No. 1. This packet was wrapped in a piece of paper. Independent witnesses Atam Prakash and Narender Kumar witnessed the recovery.
6. After effecting recovery of money from the room of respondent Non.1, the Investigators searched the vehicle in which John Francis had come to the office of respondent No. 1. The search of the vehicle led to the recovery of another bundle containing Rs. 5 lacs which amount was also seized in the presence of independent witnesses. The log-book and registration certificate of the vehicle was also seized. Seized log-book indicated an entry on 7.11.2001 showing use of the vehicle by John Francis for visit to the ITO and Bapu Dham.
7. During investigation specimen voice of respondent No. 1 and respondent No. 2 was recorded in presence of independent witnesses and such cassettes were sent to CFSL Along with the two pre-recorded cassettes for expert opinion. The expert confirmed that the voice of Someshwar and Ashok Chaturvedi in the cassettes provided by the source was the same as the cassettes containing their specimen voices.
8. The Investigators also recorded the statement of Mr. C.K. Jain, Additional Commissioner, Central Excise, in whose presence the recovery of Rs. 5 lacs had been effected from the office of respondent No. 1. Also the statement of the Private Assistant to respondent No. 1 was recorded to confirm that Navin Francis John had visited the office of Shri Someshwar on 7th November,2001 at about 3.30 PM. During investigation, mobile telephone of accused Ashok Chaturvedi was also seized which confirmed that there was a telephonic call made on this mobile from telephone No. 3370407 which was the official telephone number of respondent No. 1 and the duration of call was 1.27 seconds which matched with the conversation between Ashok Chaturvedi and Someshwar recorded in cassette No. 1. Similarly another call on same mobile number from the same telephone number was recorded on 7th November,2001 duration of which was 28 seconds ands this also matched with the duration of conversation between Someshwar and Ashok Chaturvedi recorded in cassette No. 2.
9. Respondent No. 1 when interrogated by CBI team stated that he had obtained the amount of Rs. 10 lacs from Ashok Chaturvedi with interest at the rate of 2% for one of his friends Sanjiv Asopa and that he made telephone call to Sanjiv Asopa on 7th November,2001 asking him to come to his office at 3.30 PM to collect the amount.
10. Similarly respondent Ashok Chaturvedi was also subjected to interrogation and he told the team that respondent Someshwar had asked for money to establish his son in some business. Initially he kept avoiding but ultimately agreed to pay the money when he came to know that respondent No. 1 was due to become Chairman of the Central Board of Excise and Customs which fact was told to him by respondent No. 1 himself and since all the products of his company were excisable and Someshwar would have been in a position to help in his business activities and therefore he acceded to such demand of respondent No. 1.
11. This , in brief, is the case of the prosecution as set out in the charge-sheet.
12. This Court while exercising powers of revision as provided under Section 397 of the Code of Criminal Procedure has to examine the record and the proceedings conducted before the inferior criminal court for the purpose of satisfying itself as to the correctness, legality or propriety in finding.
13. The Special Judge having dealt with the matter in great detail on the strength of the existing facts and circumstances of the case and also on the basis of judicial pronouncements found that the prosecution had not been able to bring on record any evidence which could be treated as a legal evidence against the accused/respondents necessitating their trial as offenders neither the ingredients of gratification mentioned in Section 7 of the Act as reward for showing favor could be brought on the investigators file nor any material was available to indicate if the amount passed on by Respondent No. 2 to Respondent No. 1 was in any manner connected with any .... and therefore no presumption as provided under Section 13 of the Act could be raised against them as prosecution had miserably failed that the amount so passed to respondent No. 1 by respondent No. 2 was by way of gratification.
14. I heard learned Additional Solicitor General of India at length assisted by Mr. S.K. Saxena, Special Public Prosecutor and Sh. R.K. Handoo, learned counsel for the respondents/accused Someshwar and Sh. I.U. Khan, learned counsel appearing for respondent/accused Ashok Chaturvedi. I have perused the impugned order dated 26th May,2004 besides judicial record and the Investigators record containing the statements of various witnesses recorded during the course of investigation and also the transcript of tape-recorded conversation said to be made between respondent No. 1 and respondent No 2, one on 6th November,2001 and another on 7th November,2001. I have also gone through the authorities cited by the prosecution and also by the accused/respondents. The case law so cited is substantially the same as cited before Special Judge.
15. Let us first examine as to what is the authority and the duty of the trial court to look into at the time of framing of charge and under what circumstances, the Court has power to discharge the accused. Section 227 of the Code deals with discharge whereas Section 228 speaks of framing of charge. The term discharge is defined as under:-
"If upon consideration of the record of the case and the documents submitted there under and after hearing the statements of the accused and the prosecution in this behalf the Judge considered that there is no sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing."
16. Framing of charge is described as under in the Code:
"If after such consideration and hearing as aforesaid, the Judge is of the opinion that there is ground for presuming that the accused had committed an offence .... .... he may frame a charge against the accused.
The authorities on the subject are Century Spinning and Manufacturing Co. Ltd. v. State of Maharashra 1972-Crl. Law Journal 329, State of Bihar v. Ramesh Singh, 1977 SCC (Crl.) 533; Union of India v. Prafful Kumar Salmal AIR 1979 SC 366; L.K. Advani and Ors. v. CBI 1997 JCC 294; Dilaver Babu Khurana v. State of Maharashtra 2002 SCC (Crl.) 311.
17. These authorities were also referred to by the Special Judge while dealing with the aspect of framing of charge or discharge and wholly discussed in the judgment. The legal position as emerges on this aspect is quite clear that the " charges can be framed against accused persons only in those discerning cases where Courts came to the conclusion that the prosecution has shown a prima facie case against the accused and there is evidence before the Court which is capable of being converted into legal evidence later on during the subsequent proceedings after the framing of the charge. Prosecution must show a prima facie case against the accused in order to enable the Court to frame a charge against him. If the evidence before the Court is of such type which being unrebutted and unchallenged by way of cross-examination would not be sufficient enough to convict the accused ultimately then the Court should not be justified in framing the charge against the accused. The Court at that stage is under no obligation to make an elaborate inquiry by shifting and weighing the material to find out a case against the accused beyond a reasonable doubt which is required at the time of final hearing.
"In exercising powers under Section 227 of the Code of Criminal Procedure the Court has to find whether the material placed before the Court discloses grave suspicion against the accused which has not been properly explained. The Court will be fully justified in framing a charge and proceeding that the trial; by and large if two views are equally ....... and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but no grave suspicion against the accused, he will fully justified to discharge the case and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a Post Office or a mouth piece of the prosecution but has to consider the broad probabilities of case, the total effect of the evidence and the documents produced before the Court but should not make a roaming inquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trial."
18. These are the guidelines as laid down by the Appex Court to be applied to the cases at the stage of either framing a charge or discharge. The Special Judge also applied the same yardstick while dealing with the aspect if it was a case of framing a charge or otherwise.
19. As noted above, the respondent No. 1 and 2 " accused persons were charged for commission of offence under Sections 7, 11, 12, 13(i)(d) read with Section 13(2) of the Act, 1988. They were also charged for offence under Section 120B IPC. I may state that these two respondents were charged for this offence primarily on the strength of telephonic conversation which was tape-recorded by the source one on 6th November,2001 and another on 7th November,2001. That is the only basis of the respondents being charge-sheeted. It has been urged before me by learned Additional Solicitor General that it was not amongst those cases where charge could not be framed as there was ample material available with the prosecution to prima facie establish that the public servant i.e. Respondent No. 1 had accepted gratification other than legal remuneration as reward for doing any official act with a view to favor the respondent No. 2 the bribe giver and therefore the case of the prosecution clearly fit in with the provisions of Section 7 which deals with gratification by the public servant. It was further addressed before me that by way of tape-recorded conversation between respondent No. 1 and respondent No. 2 it was clearly established that respondent No. 1 had accepted gratification and as such there was a presumption against the accused - respondent No. 1 having accepted such gratification unless the accused-respondents were able to prove to the contrary.
20. To support such arguments he referred to an authority reported in AIR 1960 SC 548 where their Lordships while dealing with the import of Section 20 observed that "gratification mentioned in Section 41 cannot be confined only to payment of money. What the prosecution has to prove before asking the Court to raise a presumption against an accused person is that the accused person has received a gratification other than legal remuneration and if it shown that the accused received stated amount and the said amount was not legal remuneration then the conditions prescribed by the Section is satisfied.
21. Though the prosecution has placed reliance on these authorities, the prosecution is forgetting that initial burden is always on the prosecution to prove that the accused has accepted any gratification and only then presumption shall come into play against the accused person. Plain reading of Section 20 itself makes it very clear that initially onus is on the prosecution and if prosecution has succeeded in establishing the element of gratification then alone presumption can arise against the accused person and only then responsibility will lie on his shoulder to prove it to the contrary. In the case in hand conversation said to have taken place between respondent No. 1 and respondent No. 2 does not at all indicate if such demand was in the nature of gratification. Conversation so recorded on 6th November,2001 and 7th November,2001 does not contain even a word or slightest indication either expressly or impliedly that such amount was being passed as gratification as a motive or reward for doing any official act or for showing in the exercise of his official functions favor to respondent No. 2. On the contrary reading of the transcript of such conversation clearly indicates that there have been friendship between the two. This is so much evident and manifest from the nature of conversation, one recorded on 6th November,2001 and another on 7th November,2001. This aspect was thoroughly discussed by the Special Judge and the conclusion arrived at by the Special Judge in that regard is quite logical and no need no interference, there being no illegality, impropriety noticed in that part.
22. Even otherwise as is itself appearing from Investigators file, no confidentiality was maintained either in parting with the sum or while talking on the phone. Pursuant to the telephonic conversation transcript which was quite open as is manifest from its reading, the money was brought in the office of respondent No. 1 by John. The vehicle in which he came to handover the money to respondent No. 1 had a log-book and even the log-book was duly filled in indicating the movement of the vehicle from the office of respondent No. 2 to the office of the respondent No. 1. Importance is being given to this aspect for the reason that no secrecy was maintained by the respondent No. 2 while forwarding the sum to respondent No. 1. If it was really a gratification at least secrecy would have been maintained about the movement of the vehicle. Further Mr. John firstly came to the office of the P.A. of the respondent No. 1 and he had to wait for more than 10 minutes as P.A. did not permit him to go to the room of respondent No. 1 as respondent No. 1 at that time was taking rest. This is yet another circumstance which indicates that this sum was not in consideration of some reward or in lieu of some favor showing to the respondent No. 2 by respondent No. 1 or was to be shown in due course of time. All these circumstances clearly goes to show that it was not by way of a gratification but a friendly request by respondent No. 1 to respondent No. 2 for that sum. The Special Judge also dealt with this part of the matter in great length and with correct approach.
23. The claim of the Investigators that since the respondent No. 1 was likely to be made as Chairman, Central Excise, and in that case, by virtue of such position he would have been quite beneficial to respondent No. 2 as on his promotion, he might have been able to show favor to respondent No. 2 in his business, his goods being excisable and therefore the respondent No. 2 was lured to reward him in advance so that respondent No. 1 could favor respondent No. 2 in case need arise is hypothetical and imaginery and also being too remotely connected between the cause and its effect and thus devoid of any substance. It is manifest from the Investigators file that there was absolutely no move of respondent No. 1 being appointed in that position on 7.11.2001. Even otherwise his name figured at serial number 4 in the seniority list. CBI raid had taken place on 7th November,2001 whereas according to the prosecution case itself the names of 13 senior most Chief Commissioners of Central Excise including Sh. S.K. Chaudhary were sent for filling up the post of CBEC to the Cabinet Secretary on 19.12.2001 thus indicating that there was no move to fill up the vacancy of CBEC on 7th November,2001. It is further highlighted from the material filed by the prosecution that the existing vacancy had arisen on 27th November,2001. Therefore the plea of the prosecution that a sum of Rs. 10 lacs passed on to respondent No. 1by respondent No. 2 with the hope that respondent No. 2 if become the Member, CBEC, would be able to show favor to him is too remote to connect such payment as reward in anticipation.
24. The Special Judge rightly dealt with this aspect with the help of the documents of the prosecution itself and gave rational reasonings while dealing with this part of the matter.
25. The Special Judge also dealt with the explanation of respondent N.2 where respondent No. 2 had stated that this amout was received from respondent No. 2 with a view to help one of his friends Sanjiv Asopa. Sanjiv Asopa had initially denied any such talks with respondent No. 1, but when he was examined by CBI on 4th March,2002 and he was confronted with the details of telephone calls made on his mobile phone from the office number of Sh. Someshwar i.e. 3370407, it was found that there were three incomings and one outgoing calls from and to the same number. On asking the reason for calls, he had stated that either Sh. Someshwar or he himself used to call him without any specific reason. This indicates that there was a friendship between respondent No. 1 and Sanjiv Asopa. There is also a reference in the impugned order about the CBI record which speaks that on 7th November,2001, accused Someshwar had given call to Sanjiv Asopa and asked him to come at 4.00 or 4.30 PM to his office. Not only this, respondent No. 1 even had inquired about Sanjiv Asopa from his P.A. in the presence of CBI officers and on being asked by CBI officers as to who was this Sanjiv Asopa to which the respondent No. 1 had told that Sanjiv was expected to come to collect that packet.
26. Trial Court examined this fact as well threadbare. There being no infirmity with such finding I am in complete agreement with such findings.
27. These are glaring facts which created suspicion in the mind of the trial Court if really it was gratification or just a financial assistance in the form of loan. Circumstances about payment of such sum tilted more towards the theory of loan than gratification.
28. As a matter of fact while going through the impugned order rendered by Special Judge. I find myself unable to differ with such findings as the learned Special Judge has comprehensively dealt with import of Sections 7, 8, 11 and 20 of the Act and also dealt with the provisions of Sections 227 and 228 of the Code of Criminal Procedure in such detail that I find no infirmity, impropriety or illegality in the impugned order. The Special Judge also dealt with the statements of all persons who were examined by CBI during investigation including the statement of two recovery witnesses. The Special Judge dealt with each aspect of the matter in terms of the facts of the case and also rightly applied law thereof. The Trial Judge firstly analysed the evidence collected by the Investigators and then weighed the same in the scale of judicial pronouncements and then discussed the evidentiary value of such evidence. Correctly and in terms of the law on the subject. As is seen, the Special Judge broadly viewed the case of the prosecution from three major points. One by perusing the tape-recorded conversation between respondent No. 1 and respondent No. 2 which was the basis of launching prosecution and judging the said conversation while applying the provisions of Sections 7, 8, 11 and 20 of the Act supported by legal authorities on the subject. Two, viewing the circumstances and the manner under which the money was paid by respondent No. 2 to respondent No. 1 and also judging that it could not be treated as gratification or reward but a simplicitor loan because of friendly relationship between respondent No. 1 and respondent No. 2. And thirdly by making judicial scrutiny of the investigation carried out by the Investigators threadbare for the purpose of ascertaining if prima facie there was enough material available on record warranting framing of charge against the accused person. I cannot desist from saying that the Special Judge took pains to go through the Investigators file minutely and then dealt with each aspect of the matter that is relevant provisions of the Section 20 which deal with the presumption point and also having carefully dealt with the provisions of Sections 227 and 228 of the Code of Criminal Procedure and the relevant authorities as cited on the subject by both sides as referred to in the judgment of the trial Court and also scrutinised by this Court and further discussing in detail the telephonic conversation between respondent No. 1 and respondent No. 2 and its effects, I have all my appreciation for the Special Judge for rendering a detailed order without, slightest infirmity, illegality or impropriety. Since the trial Judge while rendering the impugned order covered almost each aspect of the matter , therefore this Court find no reasons to differ from what was discussed by the trial Court. The Trial Judge proceeded in the matter strictly in terms of the law on the subject.
29. Taking the case of the prosecution from all legal points and factual as well and also after reading the transcript of the cassette recorded conversation allegedly held between respondent No. 1 and 2 and also taking into consideration that the element of gratification was not found in the matter, either in the conversation or elsewhere in the Investigators file and the benefit of presumption as provided under Section 20 of the Prevention of Corruption Act, being not available to the prosecution in this case, and also viewing the conversation so taken place between the two being more of friendly nature as well, coupled with the aspect to part with certain sum to respondent No. 1 cannot be taken as a gratification, there being not an iota of material available on the Investigators file indicating this as gratification I am of the view that Special Judge rightly took stock of the entire material for the purpose of coming to the conclusion if it was a case falling under the provisions of Section 227 of the Code of Criminal Procedure or under Section 228 of the Code and rightly came to the conclusion after appreciating the law on the subject that it was not a fit case for framing a charge. There is thus no illegality, infirmity or impropriety noticed in the impugned order and this being so, same deserves to be maintained. In the result, criminal revision petition has no merit. Dismissed as such thus maintaining the impugned order dated 26th May, 2004.