Delhi District Court
State (Cbi) vs Suresh Nanda S/O Retd. Admiral S. M. ... on 27 January, 2017
-1-
IN THE COURT OF SH. GURDEEP SINGH, SPECIAL JUDGE (PC
ACT) CBI-05, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS, NEW DELHI
Closure Report No.: 04/16
RC No.: ACI 2006 A 0004
P.S.: CBI/AC-I/New Delhi.
U/s: 120-B IPC, and S. 9 & 13 (2) r/w 13 (1)(d) PC Act
CNR No.: DLND01-000880-2014
TITLE:
1.State (CBI) VERSUS
1. Suresh Nanda s/o Retd. Admiral S. M. Nanda R/o : House No. 4, Prithvi Raj Road New Delhi.
2. Smt. Jaya Laxmi Jaitely D/o Late Shri K.K. Chettur R/o C-30, Sujan Singh Park New Delhi.
3. Rakesh Kumar Jain s/o Sh. J. R. Jain The then Treasurer, Samata Party R/o 26, Friends Colony (West) New Delhi
4. Admiral (Retd.) Sushil Kumar s/o Late Denial Gunamani Issacs The then Chief of Naval Staff R/o E-3. Jalvayu Vihar, Sector-21 Noida (U.P.).
5. George Fernandes S/o Late Shri John Fernandes The then Defence Minister, Govt. of India Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 1 of 19 -2- R/o 3, Krishna Menon Marg New Delhi.
6. Unknown official of M/s Israel Aircraft Industries Ltd. (IAI), Israel Ben Gurion International Airport, 70100, Israel.
Date of Institution : 24.12.2013 Arguments concluded on : 26.12.2016 Date of pronouncement : 27.01.2017 ORDER ON CLOSURE REPORT
1. Vide this order I shall disposed off the present closure report filed by CBI with respect to FIR RC ACI 2006 A 0004 for the offences punishable under Section 9 and 13(2) read with S. 13(1)(d) Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act') and under S. 120-B Indian Penal Code, (hereinafter referred to as 'IPC') registered against A-1 Suresh Nanda, a private person and a middleman; A-2 Smt. Jaya Laxmi Jaitely, the then President, Samata Party; A-3 Rakesh Kumar Jain, the then Treasurer, Samata Party; A-4 Admiral (Retd.) Sushil Kumar, the then Chief of Naval Staff (CNS); A-5 George Fernandes, the then Defence Minister, Govt. of India and unknown officials of M/s Israel Aircraft Industries Ltd. (hereinafter referred to as IAI), Israel.
2. The relevant facts for the consideration of this closure report are that it was alleged in the FIR that Ministry of Defence (in short Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 2 of 19 -3- referred to as 'MoD' hereinafter) placed supply order for procurement of seven Barak Anti Missile Defence System (in short referred to as "AMD" hereinafter) and 200 missiles for total cost of Rs. 268.63 million USD on 23.10.2000 for induction in Indian Navy to M/s IAI, Israel & its sister concern M/s RAFAEL, Israel. It is alleged that Shri Suresh Nanda paid an illegal gratification of Rs.1 crore to Mrs. Jaya Jaitley through Sh. R K Jain for exercising personal influence on the then Defence Minister Shri George Fernandes to finalize the deal. Shri George Fernandes the then Defence Minister and Sh. Sushil Kumar, the then Chief of Naval Staff had shown undue official favour to M/s IAI, Israel & M/s RAFAEL, Israel in finalising the Barak deal.
3. It is mentioned in the closure report that investigation revealed that Naval Headquarter and DRDO was taking up study of Barak Missile Systems with the representative of M/s IAI, Israel since 1992. The Barak Missile system consists of (a) Automatic Missile Detection Radar (AMDR), (b) Fire Control Radar (FCR), (c) Fire Control System (FCS), (d) Vertical Launch Units (VLU), and (e) Cannisterised Missile (CM). Barak Anti Missile Defence System provided security to Navy warships against any missiles attack. It's Automatic Missile Detection Radar (AMDR) detected missiles of enemies and destroyed Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 3 of 19 -4- them en route by firing canniterised missile installed in the warship. It also provided protection to warships against any internal and external fire.
4. To witness the live firing of Barak System and Missile and to analyse its effectiveness, an Indian team visited Israel from 13.12.1995 to 19.12.1995 and conducted trial of Barak Missile with the help of a live demonstration given by Israeli Navy. The head of this team was Sh. Samir Chakravorty, the then Capt. INS Dronacharya. Sh. A. K. Kapoor, Manager Trishul Project from DRDO and four other officials of Navy were also members of the team. The purpose of visit was to witness the firing by the Israeli Navy and analyze its effectiveness. As per this trial report submitted by Capt. Samir Chakravorty, during the trial of Barak Missile System, it was found to be the best AMD System available against sea skimmers world over in the year 1995, and there was no new system available as compared to Barak AMD system in the market. In his report, he recommended that the Indian Navy considered immediate induction of the Barak-I as an AMD system on its frontline ships. It also finds mentioned in the charge-sheet that during investigation of this case, the officer of Navy posted in DSR and related to acquisition, informed that the Barak System was best available to Indian Navy at that time and Navy has Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 4 of 19 -5- purchased it further after the contract of 2000. Sh. A. K. Kapoor, Manager Trishul Project from DRDO did not raise any question about the trial conducted in Israel before 24.08.2000 and it was for the first time after five years of trial, when Sh. A.K. Kapoor raised objection that the Israeli authorities did not disclose the information required by him regarding the Barak Anti Missile Defence System and that the visit of team to Israel was just for familiarization. The claim of Sh. A.K. Kapoor is contrary to trial directives of Navy. He was a member of Price Negotiation Committee (PNC) and he could have asked for any information during that time but there is nothing on record that during PNC, the information sought from Israeli delegation was not furnished to him. The basic purpose of holding PNC is only to fix the price and nothing else, however, while negotiating, the technical details of equipment to be purchased can be sought to arrive at a judgment whether the price of that equipment is compatible to its technicality. The order dated 10.03.2000 vide which the PNC was constituted is quite clear that the duty of the PNC was only to fix the price. According to Shri S. E. David, the other member of the team, IAI Israel had provided the technical details sought about Barak-I AMD system and AMDR, a fact which is also confirmed from concerned record.
5. In a meeting on 02.06.1999, being a caretaker government, Sh.
Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 5 of 19 -6- George Fernandes, the then Raksha Mantri (RM) stated that it was in his mind to have Barak Systems because it was against some back ground of what Pakistan had and what our own forces needed.
6. As per note dated 04.03.2000 of Sh. Subir Dutta, the then Addl.
Secretary, Department of Defence, in a meeting on 03.03.2000, RM had taken up the review of procurement cases of defence services and the Barak procurement was specifically listed as requiring very urgent processing.
7. The proposal to appoint VADM Arun Prakash as Head of PNC, was approved by Sh. George Fernandes on 07.03.2000. After negotiation in seven meetings starting from 31.05.2000 to 25.07.2000 held separately with M/s Rafael, the price of 200 missiles was firmed up to be USD 69.13 million, whereas the price of 7 Barak AMD systems and accessories as well as test equipment etc. was USD 199.5 million. Thus, the total procurement cost was USD 268.63 million. Sh. A. K. Kapoor was also a member of PNC as a DRDO representative and there is nothing on record that he or any other member of PNC did not agree or was not satisfied with the final price.
8. Investigation has revealed that laid down procedure in DPP, 1992 could not be followed in entirety due to the reason that the Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 6 of 19 -7- negotiation was from a single vendor and no comparative bid was available and comparison of prices with other contemporary systems could not be done. At that time, PNC had sought prices of some other systems through attaches abroad so as to assess and make approximation of Barak price to take help in fixing the prices, but none of such countries responded in absence of proper RFP. Thereafter, PNC recommended the procurement of Barak system on the above price. The administrative approval for procurement was given by Sh. George Fernandes on 23.09.2000 on the recommendation of Shri A.P. Sharma, Jt. Secretary and Sh. P. R. Subramanian, Financial Advisor. The deviations from DPP were considered not relevant because all procurement action had already been taken by that time and the selection of Barak System was done by Naval Headquarter after examining and evaluation of contemporary AMD Systems and Barak was found to be the only system meeting Navy's requirement. All the above procedures were required to be followed when the process of procurement was initiated. As per DPP 1992, the Defence Minister is authorized to grant approval of the deviations from the prescribed procurement procedure in certain acquisition cases, where it may become necessary, for given reasons, to resort to a specified deviation from the prescribed procedure, when such deviations were proposed by the technical Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 7 of 19 -8- committee/expert committee/price negotiation committee, in public interest. It also required endorsement from FA(DS) and the Administrative Secretary, when the amount involvement is more than Rs. 20 crores. There is no specific method as to how the negotiation will be done, however, there is provision to take the price of equipment similar/comparable to the item to be purchased. Although, PNC carried out this exercise and made some approximation by taking the price of Kasthan and the Trishul with the help of DRDO and BEL, but it was not a foolproof and proper process, because first of all the Navy and DRDO did not have much knowledge about the Barak system, and secondly, Barak was a propriety item; and no other equipment was suitable and comparable to this System. The final contracts with M/s IAI Israel and RAFAEL were executed by MoD on 23.10.2000.
9. Investigation disclosed that during the year 2000, representatives of Tehelka.com carried out a sting operation, in which they video recorded many politicians and bureaucrats, including Shri R K Jain, the then Treasurer Samata Party. Tape No. 80, of these tapes carries conversation of Shri R K Jain with the representatives of Tehelka.com, during which he discloses that Sh. Suresh Nanda paid an illegal gratification of Rs.1 crore to Smt. Jaya Jaitley through him for Barak deal, to cause Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 8 of 19 -9- personal influence on Sh. George Fernandes, the then RM (Raksha Mantri). When this amount was handed over to Smt. Jaya Jaitley by him, he had told her to accept the amount only when she felt that they could do something for the party (M/s IAI & M/s Rafael). At this, she kept the amount and asked for two days to revert back. After two days, she told Sh. R. K. Jain that she had spoken to Sh. George Fernandes in this regard, who has assured that he will make everything fine and the concerned file was called and he wrote on it that Barak would be installed on INS Viraat, the main ship of Indian Navy, because Pakistan had already acquired surface to surface missile. Sh. R K Jain is further heard stating that the Scientific Advisor to Raksha Mantri had written on the file that they were developing indigenous Trishul missile and it should be installed on our Naval ships and that there is no point of buying/importing Barak system and missiles.
10. Sh. Jain is further heard stating that Sh. George Fernandes told him that he had overruled the comments of the Scientific Advisor and passed an order to purchase one Barak for INS Viraat. As they had 7 Naval ships which were real fighters, he instructed Sh. Jain to tell the company that they should try and push from lower level in order to buy 07 missiles, explaining that they couldn't do with one. Then he (George) shall give Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 9 of 19 -10- them the permission to purchase the rest six. The same things happened after six months, the file went to Sh. George Fernandes again because Sh. Nanda managed to get a letter from the company M/s IAI, Israel issued in the name of Mr. George Fernandes for this purpose.
11. This Tehelka tape was got examined from Andhra Pradesh Forensic Science Laboratory and it has been found to be unedited and genuine. However, it is worthwhile to mention that Tehelka tapes were recorded during 2000-2001 and Barak AMD system was approved by Sh. George Fernandes on 23-09-2000. Sh. R. K. Jain's knowledge about this deal creates suspicion, as some of the disclosures of Shri R K Jain match with real events occurred in procurement of Barak AMD system by Indian Navy. For example, on 06.10.1997, CCS approved modernization of INS Viraat and procurement of 1 Barak AMD system. On 02.11.1998, Mr. M. Keret, President of M/s IAI, Israel wrote a letter to Sh. George Fernandes, the then RM, Govt. of India for his personal intervention for procurement of Barak AMD system. At the initial stage in 1997, only one Barak AMD System was to be purchased for fortifying INS Viraat, but in the end, on 23.10.2000, contract was signed for procurement of 07 Barak AMD at a total cost of 199.50 million USD from M/s IAI, Israel and 200 missiles at a total cost of 69.13 million USD.
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12. It is also mentioned in the charge-sheet that Sh. R.K. Jain has, however, denied the disclosures made by him in Tehelka tapes. He has accepted that he arranged only a meeting between Smt. Jaya Jaitely and Sh. Suresh Nanda, but denies transaction of bribe between Sh. Suresh Nanda and Smt. Jaya Jaitely. Similarly, all the accused persons, viz. Sh. Suresh Nanda, Smt. Jaya Jaitely and Sh. George Fernandes have also denied any transaction of bribe amount. Analysis of mobile call details does not bring out any connection of Sh. Suresh Nanda with either Smt. Jaya Jaitley or Sh. George Fernandes. Moreover, the amount of Rs. 1 Crore being referred in the Tapes could not be identified/traced/recovered during the course of investigation.
13. Mobile call analysis shows that 4 telephone calls have been exchanged between Sh. Suresh Nanda and Sh. R.K. Jain during the material period of 1998-1999 and reflects their acquaintance with each other. Sh. Suresh Nanda was using mobile no. 9810035001 and Sh. R.K. Jain was using mobile No. 9810018536 and 9810016177. Shri Sobhan Singh (since expired), driver of R K Jain confirmed that he took Sh. R. K. Jain to the residence of Sh. Suresh Nanda 5-6 times during the relevant period. Mobile call analysis further revealed that about 50 calls were exchanged by Sh. Suresh Nanda with Mr. Abraham Bahar and Mr. Dayan, the two representatives of Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 11 of 19 -12- M/s IAI, India, reflecting connection between Sh. Suresh Nanda and representatives of M/s IAI, Israel. Mr. Abraham Bahar and Mr. Haim Dayan the officials of M/s IAI, Israel in India during the years 1998 to 2001 were using mobile No. 9810030422 and 9810033733 respectively and Sh. Suresh Nanda was using mobile no. 9810035001. Sh. Suresh Nanda has clarified that these officials of Israeli Consular and Security Incharge contacted him for exploring the possibility of safe exit from their Embassy, if they were attacked by terrorists through their house. Israeli Embassy was situated nearby his house at house no.4, Prithviraj Road, New Delhi. He has also clarified that these officials met him in some party. They were interested to have meetings of President of their company Mr. M. Keret with Sh. George Fernandes, the then RM to pursue a number of their defence projects, including Barak AMD system pending with Ministry of Defence. Mr. Abraham Bahar and Mr. Haim Dayan could not be examined during investigation, being Israeli nationals.
14. Investigation has also revealed that as many as 27 (11 outgoing and 16 incoming) calls were exchanged between the mobile No. 9810030422 of M/s IAI, Liaison office in India and Mobile No. 9810053161 of M/s Crown Corporation Pvt. Ltd., a company of Sh. Suresh Nanda during April, May, June & August, 1999. M/s Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 12 of 19 -13- Crown Corporation, however, did not furnish name of the user of Mobile No. 9811052161 and informed that since most of the old employees have left the company, therefore, it is not possible to pinpoint which officer of the company was using this mobile during the said period. Sh. Murari Acharya and Arvinder Singh Sahni, both employees of M/s IAI in India during 1998-2001 were examined, but they have denied having seen Sh. Suresh Nanda visiting liaison office of M/s IAI at New Delhi or any Director of their company to Sh. Suresh Nanda. Sh. Shiv Kumar who was permanent driver of Sh. Suresh Nanda has denied having taken Suresh Nanda to the residence of George Fernandes, R. K. Jain, Jaya Jaitley or any official of MoD, Navy, IAI, Rafael in New Delhi or elsewhere.
15. Sh. M V Rao, a close associate of Sh. Suresh Nanda, who was arrested by Delhi Police with documents relating to different defence deals, including Barak Missile, has stated that Sh. Arun Saigal, an Ex-Navy Officer and a relative of Sh. Suresh Nanda had told him that Sh. Suresh Nanda was an agent of M/s IAI, Israel from 1998-2001 for its defence deals in India and an agreement to this effect was also executed by them. However, due to some dispute, this agreement was discontinued after 2000-2001 and Sh. Vipin Khanna was appointed as its agent in his place.
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16. Investigation disclosed that letter dated 02.11.1998 written by Sh. M. Keret, the then President of M/s IAI, Israel was directly received by hand by Sh. George Fernandes. President of M/s IAI requested the then RM for his personal intervention for Barak procurement, since PNC was pending to be held for last two years. Sh. Rajiv Gauba, the then Personal Secretary to RM had stated that this letter was given to him by Sh. George Fernandes who sought the status of Barak procurement. Thereafter, he wrote a letter dated 05.11.1998 to MoD, seeking status of Barak procurement. However, investigation revealed that no immediate action was taken on this letter and many events took place, before Raksha Mantri (RM) granted administrative approval to the procurement of Barak AMD system on 23.09.2000.
17. Sh. Vipin B. Shah, a Chartered Accountant during investigation confirmed that foreign direct investment of about Rs. 400 crore was remitted to India by M/s Infotech Services Ltd., Channel Island Jersey, M/s Universal Business Solution, Mauritius and M/s Palm Technologies, Mauritius for the purchase of Hotel Claridges, New Delhi; Hotel Sea Rock, Mumbai and land for Special Economic Zone, Near Mumbai by Sh. Suresh Nanda, but he denied knowing the source of these remittance. Investigation also revealed that Mr. Suresh Nanda has owned Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 14 of 19 -15- up/interest/investment in a number of companies abroad, namely M/s Universal Business Solution Ltd. and Palm Technologies Ltd., all at 210, St. James Court, RU St. Denis, Port Louis, Mauritius. Therefore, suspecting that such remittances may include the commission paid in Barak deal by M/s IAI, Israel to Suresh Nanda, Letters Rogatory (LR) were got issued to Israel, Mauritius, U.K., UAE and Germany.
18. A comprehensive LR request was sent to Israel on 15.01.2009.
After much pursuance, a three page communication was received from Israel on 16.03.2010. They did not furnish any document/information. They only clarified that due to time factor, it was not possible on their part to provide information of the events that occurred 10 years ago, and Israeli Authorities usually destroyed their record after 7 years. They only stated that no commission, gift or reward had been paid against the deals in question. Subsequent to receipt of this reply, the matter was again taken up with the concerned authorities in Israel to execute the LR in a proper, comprehensive and point-wise manner. This request has, however, been replied vide reply dated 15.03.2012 from Mr. Gal Levertov, Director, Department of International Affairs, Office of the State Attorney, Ministry of Justice, State of Israel stating that the required documents are voluminous and sensitive and concerned with commercial Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 15 of 19 -16- secrets, national security and sovereignty and defence matters of State of Israel. It has been stated that Directorate of Security, Israel obtained the certification from both IAI and RAFAEL Armament that no gifts, reward, commission of fees were paid in violation of criminal laws with respect to transaction at issue in the Letter of Rogatory.
19. Letter Rogatory was got issued to Mauritius on 19.07.2007 and supplementary LR request was sent on 03.11.2009. This LR was got issued to establish money trail that passed on to the accounts of main accused Sh. Suresh Nanda, Sh. Vipin Khanna and Sh. Aditya Khanna and their various companies and business establishments at Mauritius, from the two companies of Israel M/s IAI, Israel and M/s RAFAEL, Israel. First LR Execution Report was received from Mauritius on 27.05.2011 and second execution report received on 20.01.2012. Most parts of LR have been completed by Mauritius Authorities. However, the execution report does not prove that any remittance was received by companies of accused Sh. Suresh Nanda or Sh. Vipin Khanna or Sh. Aditya Khanna from Israel or had any link with M/s IAI, Israel or Mr. Rafael, Israel.
20. Letter Rogatory to Germany was issued on 19 th July, 2007.
Execution Report of LR was received from Germany in December, 2010. No document received establishes any kind of Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 16 of 19 -17- agreement of M/s MTU with aforesaid companies of Sh. Suresh Nanda. There is no evidence which shows that two companies of Israel viz. M/s IAI, Israel and M/s Rafael, Israel remitted any money to M/s MTU, Germany. Most of the invoices and details of remittance relevant to the period of alleged offence were not traceable as per the execution report.
21. Letter Rogatory was issued to United Arab Emirates on 19 th July, 2007, mainly to ascertain, whether Sh. Suresh Nanda received any commission from M/s IAI, Israel and M/s Rafael, Israel through his bank accounts and account of his companies located at UAE. The Execution report was received from UAE in August, 2008. The UAE Authorities have informed that no bank in UAE or any company stationed at UAE is allowed to have any link or dealing with Israel, meaning thereby that companies of Sh. Suresh Nanda at UAE didn't have any link with M/s IAI, Israel and M/s Rafael, Israel or their subsidiaries and no remittance has been credited in the account of Sh. Suresh Nanda from any Israeli company.
22. Letter Rogatory was issued to United Kingdom on 19.07.2007, However, U K Central Authorities have not executed LR request. Moreover, with the crucial reply now received from Israel, denying any commission paid in the Barak deal, the result of execution of LR by UK Authorities will have no Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 17 of 19 -18- bearing on the instant case.
23. It is further stated that allegations are not substantiated against the accused persons and therefore, it is prayed that the closure report may please be accepted.
24. I have heard the submissions of Ld. PP for CBI and Investigating Officer and have gone through the record.
25. I have perused reports upon Letter Rogatory of Mauritius, UAE, UK, Germany and Israel, which were got issued to establish money trail that passed on to the accounts of main accused Sh. Suresh Nanda, Sh. Vipin Khanna and Sh. Aditya Khanna and their various companies and business establishments at these countries from the two companies of Israel M/s IAI, Israel and M/s RAFAEL, Israel. As per report on LR of Mauritius, in the Affidavit of Barclays Bank PLC (Mauritius Branch), it is very categorically mentioned that there is 'NIL' inward remittance received from M/s IAI and M/s Rafael, Israel. Further, as per statements in respect of details of debits and credit above USD 5000, there is no transaction/ debits/ credit received from M/s IAI Israel and M/s Rafael, Israel. Similarly no link could be established between accused Suresh Nanda and his companies and M/s IAI Israel and M/s Rafael Israel, Israel from other countries such as United Kingdom, Israel, Germany and United Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 18 of 19 -19- Arab of Emirates that accused Suresh Nanda and his any of the companies received commission/ fee from M/s IAI Israel and M/s Rafael Israel, Israel. Therefore, I do not find any reason to disagree with the conclusion arrived at by CBI.
26. Therefore, after going through the closure report, statement of witnesses and documents placed before me, I do not find any reason to differ with the conclusion of the Investigating Officer. Therefore, I am satisfy with the conclusion arrived at by CBI. Accordingly, closure report is accepted. The documents seized from the concerned department during the investigation be returned.
27. Original documents filed on record be returned to the IO so that the same may be handed over to the parties/ quarters from whose possession the same had been recovered.
28. File be consigned to Record Room after due compliance. Announced in open court today i.e. on 27.01.2017 (GURDEEP SINGH) SPECIAL JUDGE (PC ACT)/CBI-05 NEW DELHI/27.01.2017 Closure Report No.:04/16, RC 4(A)/2006 CBI v. Suresh Nand & Ors. Page No. 19 of 19