Delhi District Court
Cbi vs Abhishek Verma Ors. (2) on 12 November, 2024
DLCT110014452019
IN THE COURT OF MS. KAVERI BAWEJA
SPECIAL JUDGE (PC ACT), CBI-09 (MPs/MLAs Cases)
ROUSE AVENUE DISTRICT COURT,
NEW DELHI
CC No. 362/2019 (Old CC No.02/15)
In the matter of:-
Central Bureau of Investigation (CBI)
Versus
1. Abhishek Verma
S/o Late Sh. Shrikant Verma
R/o 2, Church Road, Vasant Kunj,
New Delhi. ... Accused No.1 (A-1)
2. Jagdish Tytler
S/o Late Sh. G.D. Tytler
R/o 3, Gurudwara Rakabganj Road,
New Delhi.
Presently At:-
R/o F-8, Pushpanjali Farms,
New Delhi ... Accused No.2 (A-2)
FIR No. : RC AC1/2012/A0011/SPE/CBI/New Delhi
U/S : 120B r/w Section 420/511 IPC & Section
8 of the PC Act, 1988 & Section 66A(b)(c)
of the IT Act, 2000
RC AC1/2012/A0011/SPE/CBI/New Delhi
(CBI vs. Abhishek Verma & Anr.) Page 1 of 131
Date of institution of case : 31.08.2013
Date of pronouncement of judgment : 12.11.2024
JUDGMENT
CASE OF THE PROSECUTION
1. Instant case was registered on 08.08.2012 vide FIR No. RC AC1 2012 A 0011, PS AC1, CBI, New Delhi, on the basis of a complaint dated 20.07.2012 made by Sh. Ajay Maken, the then State Minister (Independent Charge), Youth Affairs & Sports, Government of India (GoI) referring to an unsigned letter in his name, which appeared in the newspaper Indian Express dated 15.07.2012 under the title "Among Verma Papers An Unsigned Maken Letter to PM".
2. The FIR was registered against accused Abhishek Verma (A-1), unknown officials of ZTE Telecom India Pvt. Ltd. (hereinafter ZTE Telecom), unknown officials of Ganton Ltd. USA (hereinafter referred to as Ganton USA) and its subsidiary company Ganton India Pvt. Ltd. (hereinafter Ganton India) and other unknown persons, for commission of offences U/S 469 IPC r/w Section 8 of the Prevention of Corruption Act (PC Act) and Section 66A(b)(c) of the Information & Technology Act, 2000 (IT Act).
3. After completion of investigation, chargesheet was filed in the case against the above named two accused. As per the RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 2 of 131 chargesheet, it was revealed during investigation that Ministry of Home Affairs (Foreigner Division) [hereinafter MHA (FD)] issued certain guidelines vide notification No. 25022/52/2009 dated 10.08.2009 with regard to grant of extension of Visas to foreign nationals and these guidelines were communicated to the Home Secretaries of all the States, Administrators of Union Territories (UTs) and also to the offices of FRROs for compliance. In terms of the said guidelines, a letter no. 15544/Sec dated 27.10.2009 is stated to have been issued by the office of Dy. Commissioner of Police, HQ-cum-Foreigner Registration Officer, Gurgaon, Haryana to ZTE Telecom, which was a Chinese company, directing it on behalf of the MHA (FD) that all foreign nationals on business Visas and engaged in executing projects/contracts of the said company should leave the country on expiry of their existing Visas or by 31.10.2009, whichever is earlier.
4. It is alleged that since the said directions contained in above letter were adversely affecting the company viz., ZTE Telecom, Mr. Huang Da-Bin, the then CEO of the company, approached Sh. D. K. Ghosh (Sh. Daleep Kumar Ghosh), the then CMD of company, for help in the above matter related to the issuance of Visas to employees of the company. It is further alleged that as Sh. D.K. Ghosh was known to A-1, who was having good liaison with GoI, and hence, he contacted A-1 on 28.10.2009 and asked for his help in the matter.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 3 of 131
5. A meeting is then alleged to have taken place on 29.10.2009 between A-1 and Sh. D.K. Ghosh at Hotel Radisson, Near Mahipalpur, NH-8, Delhi, which is also stated to have been attended by one Sh. Sanjiv Kapur, an employee of A-1. During the said meeting, a copy of the above order dated 27.10.2009 issued by the office of DCP, FRRO, Gurgaon, was given to A-1 and A-1 then talked with someone over telephone about the Visa problem of said company. Thereafter, he asked Sh. D. K. Ghosh to come to the residence of accused Sh.Jagdish Tytler (A-2) on the next day and he also told Sh. D. K. Ghosh that there would be some 'cost' implication for sorting out the above problem. He further allegedly told Sh. D. K. Ghosh to write a formal request letter to Sh. P. Chidambaram, the then Union Home Minister and Sh. Ajay Maken, the then State Home Minister, and to send a copy thereof to him. Sh. D. K. Ghosh is then stated to have briefed Mr. Huang Da- Bin about the above developments.
6. It is further alleged in the charge-sheet that on 30.10.2009, A-1 and Sh. D. K. Ghosh both reached at the residence of A-2 located at 3, Gurudwara Rakabganj Road, New Delhi in the afternoon. During this meeting, Sh. D. K. Ghosh explained the above Visa related problem for the employees of ZTE Telecom to A-2 and he also handed over a copy of the above order dated 27.10.2009 to A-2.
7. It is further alleged that A-2 then made a telephonic call to RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 4 of 131 someone and assured Sh. D. K. Ghosh of his full cooperation in the matter. It is also alleged in charge-sheet that on the same day, A-1 again told Sh. D. K. Ghosh about the 'cost' factor for getting the above work done, but Sh. D. K. Ghosh informed him that he was not in a position to commit anything with regard to same on behalf of the company as such type of issues were being handled by his Chinese counterparts. He was then told by A-1 to call the concerned person for meeting in the evening of that day at Hotel Oberoi, New Delhi.
8. Another meeting is stated to have taken place in Hotel Oberoi, New Delhi at about 5 PM on that day between A-1, Sh. D.K. Ghosh and one Mr. Gan Yong and during this meeting, A-1 allegedly demanded Rs. 50 lacs for getting the above Visa problem solved through his contact in GoI and also proposed that an agreement to this effect would be required to be signed by ZTE Telecom. On this, Mr. Gan Yong informed him that he would have to talk to his seniors on this issue and only then he could do the same. At that point of time, A-1 is stated to have obtained e-mail ID of Mr. Gan Yong i.e. [email protected] and on being asked, A-1 was also informed that there were about 350 employees of the above said company facing Visa problems. A-1 further allegedly informed Mr. Gan Yong that the agreement required to be signed by them will be provided through e-mail by his business associate in USA.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 5 of 131
9. During the course of Investigation it was further revealed that A-1 was having various e-mail IDs during the relevant time and one of these IDs was [email protected] and he used this e- mail ID for making correspondence with his business associate in USA, namely Mr. C. Edmonds Allen, in the matter pertaining to Visa issue of employees of ZTE Telecom. Mr. C. Edmonds Allen is alleged to have been looking after the work of Ganton USA on behalf of A-1.
10. It has also been alleged in chargesheet that in pursuance of the decision taken in above meeting at Hotel Oberoi, A-1 sent an e- mail from his above e-mail ID [email protected] to Mr. C. Edmonds Allen, at around 20:47:02 on the same night, i.e. 30.10.2009, at his e-mail ID '[email protected]'. In the said e-mail, A-1 referred to some previous dealings made with ZTE, China and also mentioned about the Visa problems being faced by employees of ZTE Telecom as being on business Visa and not on employment Visa, they were not permitted to stay in India and were to report back to China. He further mentioned therein about the developments, which took place in relation to the said issue. Further, vide this e-mail, A-1 also sent an attachment i.e. a draft agreement to be executed on the letterhead of ZTE Telecom and requested Mr. C. Edmonds Allen to send this e-mail immediately to Mr. Gan Yong, on his above e-mail ID [email protected], who would confirm the arrangement/ dealing and would e-mail back to him. A-1 also mentioned in the said e-mail that the total deal was RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 6 of 131 worth $ 1,00,000 first step and $ 3,50,000 second step when Visa was converted.
11. Further, it is also alleged in chargesheet that vide the above e- mail dated 30.10.2009, A-1 sent to Mr. C. Edmonds Allen, a draft agreement to be executed by ZTE Telecom on its letterhead in favour of Ganton Ltd. and in the said draft agreement, A-1 further mentioned about mode of the payment to be made by ZTE Telecom. As per the said draft agreement, fees for the aforesaid work by ZTE Telecom were to be transferred into the account no. 746.098.276 (stated to have been wrongly typed as 646.098.276 in para no. 16.10 of the chargesheet), JP Morgan Chase Bank, Swift Code : CHASUS33XX within 48 hours of public announcement and along with the above said e-mail, A-1 is also stated to have sent some attachments viz-a-viz the above order dated 27.10.2009 issued by DCP, FRO, Gurgaon to ZTE Telecom, letters dated 29.10.2009 written by Sh. D.K. Ghosh to Sh. P. Chidambaram and Sh. Ajay Maken, letter from one Sh. Piyush Sharma of ZTE Telecom and photos of mobile handset etc.
12. On receipt of the above e-mail, along with its attachments from A-1, Mr. C. Edmonds Allen prepared the agreement to be executed by ZTE Telecom on its letterhead and sent the same to Mr. Gan Yong on his e-mail ID [email protected] on 31.10.2009 from his e-mail ID [email protected]. As per this agreement to be signed on behalf of ZTE Telecom, the payment of RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 7 of 131 Rs. 50,00,000/- equivalent to US$ 1,10,000 was to be made by ZTE Telecom within 48 hours from the time when public announcement regarding receipt of permission for extension of stay of their employees in India was made and further fee of USD 1,000 per person was to be paid within 48 hours of the conversion of business Visa into work Visa for approximately 350 persons or more. The said amount was to be transferred into above said account bearing no. 746.098.276, JP Morgan Chase Bank, Swift Code :
CHASUS33XX within 48 hours of public announcement.
13. As per charge-sheet, investigation of the case also revealed that Ganton USA, having the above account no. 746.098.276 in JP Morgan Chase Bank, was a company launched by A-1 in the year 2000 and Mr. C. Edmonds Allen was appointed as its Managing Director and he was also holding 90% shares in the said company.
It is alleged that this company was actually formed for the purpose of investment of funds and though the company was actually owned by A-1, but it was being operated through Mr. C. Edmonds Allen. It is also alleged that on direction of A-1, a subsidiary of Ganton USA in the name of Ganton India was also formed and 99.99% shares of this Indian company were issued to Ganton USA and 0.01% shares to Ms. Anca Neacsu Maria (stated to be wife of A-1) and funds were transferred in the account of this subsidiary company from the account of above parent company to meet the monthly expenses.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 8 of 131
14. During investigation of the case, full header of the above e-
mail dated 30.10.2009 sent from e-mail ID [email protected] was obtained from Mr. C. Edmonds Allen through Enforcement Directorate (ED). As per this header, the IP address of sender of aforesaid mail was found as 122.161.171.246 and this IP address was of Airtel company and user ID of the said address was found allotted to telephone no. 01146597476, which was installed at the address of Tulip House, E-295, Greater Kailash-I, New Delhi and was allotted on 23.01.2008 and terminated on 17.03.2010. Investigation also revealed that A-1 was residing as a tenant in the above said premises by virtue of a lease agreement dated 01.01.2009 executed between him and one Sh. Sandeep Jaggi, who was the owner/landlord of the said house, and A-1 was exclusively using the above telephone at the relevant time of sending of the e-mail dated 30.10.2009.
15. Investigation of the case is also stated to have revealed that A-1 remained in contact with Mr. Gan Yong through e-mail and phone to pursue the above matter and he sent mails on 02.11.2009 from his e-mail ID [email protected] to the above email ID [email protected] of Mr. Gan Yong at 1.25.56 and vide these e-mails, he gave an impression to Mr. Gan Yong that he had spoken to someone, who was ready to welcome him, Mr. Huang Da-Bin as well as Sh. D. K. Ghosh at his residence to discuss the strategy for the above said work. It is also alleged that RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 9 of 131 the above said e-mail further mentioned about a meeting with the Hon'ble Prime Minister on next day morning and he needed to know a few things. It is stated that in response to the above e-mail sent by A-1, Mr. Gan Yong replied that he was engaged in some issues on that day and he will meet A-1 later. It is further alleged that prior to the above e-mail also, A-1 had sent one other mail to Mr. Gan Yong at 13:51:31+0530.
16. During investigation of the case, Mr. C. Edmonds Allen is also stated to have provided some pen drives to Sh. Pankaj Khanna, an Assistant Director of Enforcement (ED), who got transferred the data of pen drives into a hard disk from CFSL, CBI, New Delhi and the said hard disk was obtained from ED by the CBI and the above e-mail sent by A-1 to Mr. C. Edmonds Allen through his e-mail ID [email protected] as well as e-mail sent by A-1 to Mr. Gan Yong from his e-mail ID [email protected] were retrieved.
17. Further, it is also alleged to have been revealed during investigation that the IP address 122.161.171.246 of above e-mail ID mr.abhishekverma @gmail.com was the same which was used by A-1 while sending message to Mr. C. Edmonds Allen from his e-mail ID [email protected]. It was further revealed during investigation that in the message/e-mail sent to Mr. C. Edmonds Allen, A-1 even mentioned about the discussion held on phone at 1.45 PM on that day and again asked for confirmation about deal RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 10 of 131 through e-mail to his lawyer in New York.
18. During investigation of the case, Call Detail Records (CDRs) of mobile no. 9811432277, used by A-1 were obtained. It was revealed that he had talked to Mr. Gan Yong and Sh. D.K. Ghosh on their mobile nos. 9818367825 and 9810164819 respectively for different durations on 02.11.2009 and he also sent a text message to Mr. Gan Yong to come to the residence of A-2 in afternoon of that day. It is alleged that they all met again at the residence of A-2 on that day and in the said meeting, A-2 had shown to Mr. Gan Yong, in presence of A-1, a forged letter purportedly written by Sh. Ajay Maken and addressed to the Hon'ble Prime Minister to make him believe that their Visa problem was being sorted out through them. A-1 is again alleged to have impressed upon Mr. Gan Yong for signing of the above agreement sent by Mr. C. Edmonds Allen on behalf of Ganton USA. It is also alleged that in evening of that day, Sh. D.K. Ghosh and A-1 again visited the residence of A-2 and there, the above letter purportedly written by Sh. Ajay Maken was shown by A-1 to Sh. D.K. Ghosh and A-1 had also collected the said letter for showing it to Chinese officials of ZTE Telecom to make them believe that their issue was being sorted out by A-1 through his contacts in GoI. It is claimed that a copy of the said letter was later on given by A-1 to Sh. D.K. Ghosh in Hotel Taj Man Singh on 03.11.2009 itself in the evening so that Chinese could enter into an agreement.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 11 of 131
19. Investigation of case also revealed that when the above said agreement was not signed by ZTE Telecom, A-1 sent an e-mail from his e-mail ID [email protected] to Mr. C. Edmonds Allen on 03.11.2009 at 21:48 hours and with this e-mail, A-1 also attached the above purported letter of Sh. Ajay Maken and tried to give an impression through the said e-mail that he had exercised his influence with the Minister of Home Affairs and got him to write to the Hon'ble Prime Minister of India for sorting out the above Visa problem. It was also mentioned in the said e-mail that ZTE Telecom was backing out of the deal and saying that they had used their own influence to get the Visa conversion policy changed from the Hon'ble Prime Minister. It was further mentioned in the said e- mail that they were supposed to make $ 2,50,000 out of $ 4,50,000 and the balance was for his Home Minister friend.
20. As per the chargesheet, Investigation was conducted to find out whether the aforesaid purported letter of Sh. Ajay Maken was genuine or fake/forged and if it was forged, then who had forged the same and also as to where it was forged. It was concluded on investigation conducted on this aspect that since the above letter did not bear signatures of Sh. Ajay Maken or the dispatch number and also as no acknowledgment of the above said DO letter was received from or issued by the office of Hon'ble Prime Minister as per procedure, the said letter was a forged letter. The statements of Sh. Ajay Maken and his private secretary Dr. Amiya Chandra to this effect were recorded during investigation.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 12 of 131
21. It further came to be revealed during investigation that the letter, which was retrieved from the data handed over by Mr. C. Edmonds Allen, was the same which was shown to Mr. Gan Yong and Sh. D.K. Ghosh by the accused persons. The photocopies of DO letter formats of Sh. Ajay Maken in his capacity of Minister and the copy of letter purportedly written by him to the Hon'ble Prime Minister on the above issue, which were seized during the course of investigation, were sent to CFSL for comparison and as per the report of CFSL, the above purported letter of Sh. Ajay Maken was a fake letter. However, it could not be determined during investigation as to where and by whom the said forgery had been committed.
22. Investigation is also alleged to have revealed that both A-1 Abhishek Verma & A-2 Jagdish Tytler, who already knew each other, had entered into a criminal conspiracy to cheat the officials of ZTE Telecom by forging the above purported letter in name of Sh. Ajay Maken and in pursuance of the said conspiracy, they had demanded payment of above amount(s) of bribe from the officials of ZTE Telecom for getting their Visa related problems sorted out by exercising personal influence of A-1 with officers of GoI and payment of bribe to them and they had thereby also attempted to cheat the officials of ZTE Telecom and accordingly, a charge-sheet for commission of offences punishable U/S 120 IPC r/w Section 8 of the PC Act, Section 420 r/w 511 IPC by both the accused RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 13 of 131 persons and also for commission of the offence U/S 66 A (b) (c) of the IT Act, 2000 by A-1 was filed before the court.
ORDER ON COGNIZANCE
23. The charge-sheet was filed before this court on 31.08.2013, against A-1 and A-2. The name of Ms. Anca Neacsu Maria was kept in Column No. 12 of the charge-sheet as the CBI did not find enough material to show her involvement in the case and to prosecute her for the alleged offences.
24. Vide order dated 06.09.2013, cognizance of the alleged offences was taken by the court, while observing that there was sufficient evidence on record to proceed against A-1 & A-2.
25. It is pertinent to mention here that charge-sheet against A-2 was filed without arrest, whereas A-1 as well as his wife Ms. Anca Neacsu Maria @ Anushka Verma were arrested in the case, though they were subsequently enlarged on Bail.
CHARGES
26. On the basis of material on record, this court found prima facie evidence against both the above charge-sheeted accused and charges for commission of the offence of criminal conspiracy punishable U/S 120B IPC r/w Section 8 of the PC Act and Sections 420 and 471 IPC against both the Accused persons and also RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 14 of 131 charges for commission of the substantive offences punishable U/S 8 of the PC Act and Sections 420 r/w 511 IPC and 471 IPC against A-1 and for the substantive offence U/S 471 IPC against A-2 were directed to be framed vide order dated 09.12.2015. Charges against both the accused were accordingly framed by the court on the same date, to which both the Accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
27. In support of its case, the Prosecution examined as many as twenty seven (27) witnesses. Their deposition is summarized as follows:-
Nodal Officers:-
(i) PW1 Sh. Chander Shekhar, posted as Nodal Officer, Bharti Airtel Ltd. in the year 2013. He had provided the CDRs, Customer Application Forms (CAFs) and other related documents in respect of two mobile phone nos. 9818367825 and 9810164819 belonging to Mr. Gan Yong and PW13 Sh.
D.K. Ghosh respectively vide letter Ex.PW1/A (D-57).
It is pertinent to mention that mobile no. 9810164819 was originally subscribed in the name of ZTE Telecom and then transferred to PW13.
He exhibited the said CDRs as Ex.PW1/B (colly) (D-59) and Ex.PW1/C (colly) (D-60), the CAFs with identity documents of subscribers Ex.PW1/E (colly) (D-62) and Ex.PW1/F (colly) (D-66) respectively, the Cell ID location RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 15 of 131 chart of both these mobile numbers as Ex.PW1/D (D-61) and a certificate U/S 65B of the Indian Evidence Act (hereinafter 'IEA') in respect authenticity of the above records as Ex.PW1/G (D-58).
PW-1 also furnished to the IO the CAF and other related documents of the land line no. 46597476, which was allegedly installed at the rented residential premises of A-1, and exhibited the said documents as Ex.PW1/J (colly), along with other computerized records pertaining to the same as Ex.PW1/J1 and Ex.PW1/J2 (all parts of D-27).
(ii) Sh. Pawan Singh, Nodal Officer of Idea Cellular Ltd. stepped into the witness box as PW-6 and deposed that he had provided the records pertaining to mobile no. 9990432277 of A-1 Abhishek Verma to CBI in the year 2013. He further stated that since CDR of the above mobile phone being asked for by CBI was beyond one year, the same could not be provided and in this regard he had issued a certificate Ex.PW6/A (part of D-35). He also identified his signatures on the attested copies of CAF and other related documents in respect to the said mobile number and exhibited the same as Ex.PW6/B (part of D-35).
(iii) PW9 Sh. Anuj Bhatia is the Nodal Officer of Vodafone and he deposed that he had provided CDRs and certified copies of CAFs of different mobile numbers related to his RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 16 of 131 company to the CBI vide his letter Ex.PW9/A (D-7). He also produced in court during his statement the original CAFs of mobile nos. 9811432277 & 9811955566 and exhibited certified copies of the same on record as Ex.PW9/H (D-11) & Ex.PW9/J (D-12) respectively. He further identified his signatures on attested copies of CDR of one of above mobile no. 9811432277 & CDR of one other mobile no. 9711238446 and exhibited the same as Ex.PW9/B (part of D-8) & Ex.PW9/D (part of D-9) respectively and certificates U/S 65B of the IEA given by him regarding authenticity of CDRs of these two mobile numbers as Ex.PW9/C (part of D-8) & Ex.PW9/E (part of D-9) respectively.
Further, he deposed that he had also supplied the Cell ID chart of Vodafone Delhi network, including areas of Ghaziabad, Faridabad, Noida and Gurgaon, and identified his signatures and stamp appearing on different pages of the said document and exhibited it as Ex.PW9/K (D-13). He also deposed that mobile no. 9811955566 was in name of one Ms. Menaxi Kapur and the other mobile no. 9811432277 was in the name of A-1 Abhishek Verma and the mobile no. 9811955566 issued on 31.01.2003 was subsequently changed on request of subscriber to mobile no. 9899485136 and he further provided the CDR and certificate U/S 65B of the IEA in respect to this changed mobile number, which were exhibited as Ex.PW9/F & Ex.PW9/G (part of D-10) respectively.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 17 of 131 Public Witnesses:-
(iv) Sh. Ajay Maken, who was the then State Minister (Independent Charge), Youth Affairs & Sports, GoI was examined as PW-2. He deposed that he came to know about the above fake letter purportedly written by him through a journalist of newspaper Indian Express and thereafter he had made a complaint Ex.PW2/A (colly) (D-1) to the Director, CBI. On being shown a copy of the above letter on record (D-21), he deposed that it was fake for the reasons stated by him and the letter was marked as Mark PW2/B. He also exhibited some other documents in respect to Visa affairs and Parliament Questions as Ex.PW2/C (colly) and further stated that one Mr. Mullapalli Ramachandran was another Minister of State for Home Affairs at the relevant time and Visa related work was being looked after by him. He also identified his signatures on some of the genuine letters issued during his tenure and exhibited the same as Ex.PW2/D (colly) (D-43 to D-51, D-53 and D-54) and further identified the original genuine letterhead of his above office as Ex.PW2/E (D-52).
(v) Sh. Binesh Poswal and Sh. Suryakant who were working as Stenographer and Personal Assistant (PA) in the above office of PW2 Sh. Ajay Maken at the relevant time of commission of alleged offences were examined as PW-3 and PW-4 respectively. They both deposed that the above RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 18 of 131 unsigned signed letter Mark PW2/B (D-21) purportedly written by PW2 was a fake letter and it was not issued on genuine letterhead of the Minister. PW4 has also stated that copies of above genuine letters Ex.PW2/D (colly) (D-43 to D-51, D-53 and D-54) were furnished to the CBI by him vide his letter Ex.PW4/A (D-29) and the same were seized vide seizure memo Ex.PW4/B (D-30) and these letters Ex.PW2/D (colly) were identified by PW3 during his statement as genuine copies of the letters issued from their office. They both also identified the blank letterhead of the Minister Ex.PW2/E (D-52) as a genuine letterhead.
(vi) PW5 is Dr. Amiya Chandra who was working as Personal Secretary to PW2 Sh. Ajay Maken in the year 2012, when the Minister was holding independent charge of the State Ministry for Youth Affairs & Sports, GoI.
He deposed that in response to information sought by OSD to the Minister of State (Home), GoI about the above fake letter Mark PW2/B (D-21) purportedly written by PW2, he had provided the requisite information vide his letter Ex.PW5/A dated 14.09.2012 (D-25) and he further enclosed a sample letter of the Minister Ex.PW2/E (D-52) with his above said letter. He also identified the signatures of Sh. Sanjiv Gautam, the then OSD to MoS (Home) on letter Ex.PW5/B (D-24).
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 19 of 131
(vii) PW11 is Sh. Vikki Choudhary who deposed that he came to know A-1 Abhishek Verma through meetings in social circle parties and in the year 2009. He further deposed that A-1 floated a company named G.T. Telecom Pvt. Ltd. (hereinafter referred to as G.T. Telecom), which was a joint venture of T.C.M. Mobile, and inducted him as additional director in the said company. He stated that alphabets 'G' & 'T' were taken from names of the companies Ganton India and T.C.M. Mobile, USA respectively. He also stated that Ms. Anca Maria was the girlfriend of A-1 and she was the face and also one of the directors of G.T. Telecom with other persons, including Sh. Arjun Arora, Sh. D.K. Ghosh etc. He further stated that accounts and financial affairs of the said company were handled by A-1 through Ms. Anca Maria & one Sh. Ram Prakash and Sh. Sanjeev Kapoor was CEO of that company. He further stated that Ganton India was a subsidiary of Ganton USA and these companies also belonged to A-1 and Ganton India was being operated through Ms. Anca Maria.
PW11 further deposed in his statement that A-1, Ms. Anca Maria and Sh. Ram Prakash were using debit cards of Ganton USA in India. He also deposed that initially Ms. Anca Maria and Sh. Arjun Arora were the directors of Ganton India, but thereafter, PW27 Mr. C. Edmonds Allen was also made a director. He deposed that Sh. Arjun Arora remained as director till 2011 and thereafter, he had replaced Sh. Arjun RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 20 of 131 Arora and joined the said company as additional director on request of A-1 as he was told by A-1 that he had some dispute with Sh. Arjun Arora. He also stated that all fundings of Ganton India were made by Ganton USA.
It has also been deposed by PW11 in his statement before the court that in August, 2012, he furnished some documents to the CBI, which were in nature of e-mail printouts of web pages and other documents and the above printouts were taken by him from a computer installed in CBI office and after having access of his own gmail account and these printouts were of the documents which PW27 Mr. C. Edmonds Allen had sent to him and it was A-1 who had sent the said documents to PW27. He identified his signatures on seizure memo Ex.PW11/A (part of D-5) vide which the above documents were supplied to CBI and also his initials appearing on pages 2-22 thereof. He further stated that he had issued a certificate U/S 65B of the IEA Ex.PW11/B (D-6) regarding authenticity of these documents. He also stated that various e-mail IDs mentioned in these documents Ex.PW11/C (part of D-5), including e-mail ID [email protected], were owned, managed and controlled by A-1. He also identified signatures of PW27 on documents D-15 to D-21 and stated that the e-mail dated 30.10.2009 (D-18) was sent from India at 20:47:02+0530 and +05.30 denotes the Indian Standard Time. He also deposed that he had been told by A-1 that the company named Ganton RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 21 of 131 USA was his company and his entire investment was in the said company and it was being run by PW27 on his instructions charging some percentage for providing the services of running of his company and Ganton India was not doing straight business.
(viii) PW13 Sh. Dilip Kumar Ghosh is one of the material witnesses of the prosecution. He was Chairman-cum- Managing Director of ZTE Telecom at the relevant time and he either individually or along with Mr. Gan Yong, attended different meetings with the accused persons for sorting out the Visa problem of employees of their company and was told about the cost implication or bribe amount to be paid by the company for the said job and also the manner thereof. He identified his signatures on letters Ex. PW13/A & Ex. PW13/B [D-14 (b) and (c)] and also on his statement U/S 164 Cr.P.C. Ex.PW13/C (colly) recorded before a Magistrate during the course of investigation. He also stated that he voluntarily gave in writing his consent Ex. PW13/D for recording of the said statement. Since his testimony is of much relevance, it would be discussed in detail in the later part of the judgment.
(ix) Sh. Sanjeev Kapoor, PW-14 was an alleged witness of a meeting between A-1 Abhishek Verma and PW13 which is stated to have taken place in Hotel Radisson, Near Mahipal RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 22 of 131 Pur, NH-8, Delhi on 29.10.2009. He deposed that he knew A-1 and he joined him as a consultant in his upcoming telecom venture and he (PW14) used to look after the said work from his home. He also deposed that he knew the above company Ganton India, which was having business of Ultra Low Cost Handset and its business was being carried out with ZTE Telecom. He further stated that he also knew Sh. Arjun Arora and Sh. Vikki Choudhary, who were employees of Ganton India and asked for some help from him and also some other persons. He further deposed that he even knew Ms. Anca Maria, who was handling the above said Handset business.
However, he deposed that he did not know anything else about the case and hence, he was got declared hostile by Ld. Sr. PP for CBI and cross examined and confronted with some portions of statement Mark PW14/X, recorded U/S 161 Cr.P.C. during investigation of the case. On being asked about the above said meeting during his cross examination by Ld. Sr. PP, he specifically denied organizing or attending the said meeting, besides certain other facts.
(x) PW15 Sh. Nabarun Sur, the then Manager of ZTE Telecom deposed that Sh. D.K. Ghosh was their Managing Director, Mr. Huang Da Bin was their CEO and Mr. Hu Jian Bang was their operation head at the relevant time. He stated that vide letter dated 05.07.2013 Ex.PW15/A (D-56), he RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 23 of 131 provided some information to CBI about one mobile no. 9810445940. He also identified signatures of Mr. Hu Jian Bang on another letter dated 13.09.2012 Ex.PW15/B (D-42) providing some information about Chinese employees of their company mentioned in Annexures I & II thereof.
(xi) PW16 Sh. Deepak Thakur is the then Assistant Legal Manager of ZTE Telecom and he furnished bills Mark PW16/X (running into 11 pages) of two mobile nos. 9811264819 & 9810164819 and of one telephone no. 29214451 of his company to the CBI vide his letter dated 14.12.2012 Ex.PW16/A and identified his signatures and initials thereon (all documents are parts of D-26). He also stated that Sh. D.K. Ghosh was their Managing Director at that time.
(xii) PW17 Sh. Ravinder Chauhan deposed that in the year 2009, he was doing his own business in the name and style of Spread Infotech at Gurgaon and he knew A-1 Abhishek Verma socially and he even knew Sh. D.K. Ghosh, who was a known telecom figure at that time. However, he denied that he knew Sh. Sanjiv Malhotra or had any acquaintance with Sh. Ajay Maken.
PW17 was got declared hostile by Ld. Sr. PP for CBI and was confronted with certain portions of his previous statement Mark PW17/X allegedly recorded U/S 161 Cr.P.C.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 24 of 131 during investigation of case.
(xiii) PW18 Sh. Sandeep Jaggi is joint owner of the above property bearing no. E-295, Upper Ground Floor, Greater Kailash-I, New Delhi, along with his mother and he is the landlord of A-1 Abhishek Verma in respect to the said property. He deposed that the above property was rented out to A-1 in November, 2008 at a monthly rent of Rs. 1,60,000/- through a rent agreement. He also stated that an Airtel landline number having last four digits as '7476' was installed in the said premises, though he did not know the complete number now. He also deposed that the said premises was in possession of A-1 from November, 2008 to March, 2010 and he handed over some documents in respect to the above tenancy to CBI and he also identified his signatures on seizure memo dated 06.03.2013 of the said documents Ex.PW18/A (D-31), on a copy of the above rent agreement Ex.PW18/B (D-32), on self attested copy of vacation letter given by A-1 in respect to the said premises Mark PW18/X (D-33) and also on self attested copy of an e-mail with attachments Mark PW18/Y (colly) (D-34).
(xiv) PW20 Sh. A. S. Iyengar is the then PA of A-2 Jagdish Tytler and he deposed that he never heard about A-1 Abhishek Verma nor A-1 ever visited A-2 during his 15 years tenure as such. Though he stated that he can identify RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 25 of 131 signatures of A-2 and further though he also stated that the letter dated 23.08.2012 Mark PW20/X (D-55) was on the letterhead of A-2, but he deposed that he could not identify signatures of A-2 appearing on the said letter. He was also got declared hostile by Ld. Sr. PP for CBI and was confronted with different portions of his previous statement Mark PW20/Y recorded U/S 161 Cr.P.C. He also denied that A-2 ever resided at the address of 3, Gurudwara Rakabganj Road, New Delhi in the year 2009 or around that time.
(xv) PW25 Sh. Ravi Varma deposed that he knew A-2 Jagdish Tytler as he had been a Congress Party worker between the period from 2010-12. He also stated that though he had seen letters written by A-2 during the period of his association with A-2, but on being shown the letter Mark PW20/X (D-55), he was neither able to say that it was on letterhead of A-2 nor he was able to identify signatures of A-2 appearing thereon. He was also got declared hostile by Ld. Sr. PP for CBI, but still he denied the contents of alleged previous statement Mark PW25/X recorded on the above aspects.
(xvi) PW27 Mr. C. Edmonds Allen is stated to be the business associate of A-1 Abhishek Verma residing in USA to whom A-1 had allegedly sent the above e-mail and draft agreement etc. to be executed by ZTE Telecom and who was RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 26 of 131 asked by A-1 to follow up the matter of payment of above amount of bribe by ZTE Telecom for solving out Visa problem of its employees. He is also the person who provided the documents contained in D-22 to PW10 Sh. Pankaj Khanna, the then Assistant Director of ED who visited USA, collected the documents from him and then handed over copies thereof to CBI for investigation of the present case. He identified his signatures and seal etc. appearing on different pages of above documents contained in D-22, including the documents already Ex.PW10/A to Ex. PW10/J and those exhibited during his testimony as Ex.PW27/A to Ex.PW27/M. He is one of the material witnesses of prosecution case. His testimony will be later appreciated in detail.
Official Witnesses:-
(xvii) Sh. Subhash Chand the Incharge, FRO, Gurgaon, Haryana deposed as PW-8. He stated that he had prepared the office order dated 27.10.2009, which was issued under signatures of the then FRO-cum-DCP HQ, Gurgaon Sh. S.K. Gupta, whose signatures he also identified. He exhibited the said letter as Ex.PW8/A (D-15).
(xviii) PW19 Sh. P. V. Sivaraman was posted as Director (Foreigners), MHA, GoI at the relevant time and he also provided some information/documents to CBI about the RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 27 of 131 above Visa problem through his letter dated 09.11.2012, which he exhibited along with the said documents, as Ex.PW19/A (colly) (D-41).
(xix) PW23 Sh. Gaurav Katara was working as an Assistant Programmer in the office of CBI, ACB, HQ at the relevant time and he deposed that he seized some e-mails in the present case and extracted the data thereof. He exhibited the extracted e-mails with the said data as Ex.PW23/A to Ex.PW23/D (all part of D-36) and also exhibited a list of e-
mails with hash value thereof as Ex.PW23/E (D-37) and an analysis of the e-mails as Ex.PW23/ F (D-38). He stated that the said e-mails and documents were extracted from a hard disk with the help of his official laptop and he even gave a certificate U/S 65B of the IEA in respect to authenticity of these documents.
(xx) PW21 Sh. Ashok Kumar is the then Ld. Metropolitan Magistrate (Ld. MM), who recorded statements U/S 164 Cr.P.C. of Mr. Gan Yong @ Rocky Ex.PW21/A and of PW13 Sh. D.K. Ghosh, which was already Ex.PW13/C. (xxi) PW12 Sh. Alkesh Rao, the then Assistant Director of ED deposed that through his letter dated 21.11.2012 Ex.PW12/A (part of D-39), he had forwarded the data of four pen drives in a hard disk and five copies of CDs to Sh.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 28 of 131 Rajesh Singh Solanki of CBI, along with one letter of Sh. Gautam Roy of even date, which he exhibited as Ex.PW12/B (part of D-39). He stated that the data contained in above pen drives and CDs was received from Mr. C. Edmonds Allen by Sh. Pankaj Khanna and sent to CFSL for preparing copies and it was received back vide letter Ex.PW12/B. He also identified signatures of Sh. Pankaj Khanna on one other letter dated 16.11.2012 Ex.PW12/C (part of D-39).
(xxii) Sh. Pankaj Khanna, PW-10, the then Assistant Director of ED deposed that he was investigating a case of ED against A-1 Abhishek Verma and in connection therewith he had visited USA during the period 14.10.2012 to 19.10.2012.
He deposed that he examined PW27 Mr. C. Edmonds Allen in the office of Consulate General of India at New York under the provisions of PMLA and recorded the written statement of the said witness under his signatures. He further deposed that PW27 also provided data in pen drives and CDs with some documents to him and in November, 2012, he had furnished/shared copies of the said data/documents with the CBI, after certifying the same under his signatures.
As regards the documents contained in D-22, (consisting of 85 pages), on seeing the same, he deposed that they were photocopies of the documents which were prepared by him from the originals received from PW27 and these were RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 29 of 131 provided to the CBI under attestation by him. He identified his signatures as well as seal, the signatures and seal of PW27 and also the signatures of one Sh.Subhasis Sinha, the then Vice Consul, Consulate General of India at New York, USA, as appearing on different pages of the said document.
Further, on being shown the originals of some of these pages/documents in court, he also exhibited different pages/parts of the said document as Ex.PW10/A to Ex.PW10/N. He deposed that soft copies of the said documents provided to him by PW27 were in pen drives & CDs and he got prepared working copies thereof from the office of CFSL and he also identified signatures appearing on certain letters/correspondence with regard to the same, which were already exhibited as Ex.PW12/A to Ex.PW12/C (D-39) by the time further examination-in-chief of this witness with regard to these documents was recorded in the court.
Expert Witnesses:-
(xxiii) PW7 Dr. Reeta Rani Gupta is the then Expert of Handwriting Division of CFSL, CBI, New Delhi. She deposed that she had examined the questioned document i.e. the above unsigned purported letter of Sh. Ajay Maken Mark PW2/B (D-21) with reference to the admitted documents Ex.PW2/D (colly) and Ex.PW2/E (colly) (D-43 to D-54), which were sent by the CBI for forensic analysis. She proved her report regarding the above examination as Ex.PW7/A RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 30 of 131 (part of D-28) and also identified signatures of the then Director, CFSL Sh. C.N. Bhattacharya on forwarding letter Ex.PW7/B (part of D-28) of the said report. She further exhibited the copies of letters dated 13.02.2013 and 21.02.2013 of CBI sending the above documents to them as Ex.PW7/C (on page 2793) and Ex.PW7/D (on page 2783) respectively.
She was re-examined by Ld. Sr. PP for CBI on certain aspects.
(xxiv) PW24 Sh. Gautam Roy was the concerned Expert of Photo & Scientific Division of CFSL, CBI at the relevant time and he deposed that vide letter dated 06.11.2012 Ex.PW12/C (part of D-39), ED had sent some articles for providing copies/images thereof and the said articles were received in sealed parcels in four pen drives and six CDs. He stated that one of these CDs was found not working properly and he prepared copies thereof and informed the ED about this vide his letter dated 21.11.2012 Ex.PW12/B (part of D-39).
Investigation witnesses:-
(xxv) PW22 Sh.Rajesh Singh Solanki is the part Investigating Officer (IO) of this case and he made a request to the Director, ED to share the data collected from Mr. C. Edmonds Allen and received letters Ex.PW12/A to Ex.PW12/C (all parts of D-39) subsequently from ED in RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 31 of 131 respect to the said data. He identified an endorsement made by him on letter Ex.PW12/A. (xxvi) PW26 Sh. Vipin Kumar Verma is the main IO of the case and he has deposed regarding the investigation conducted by him. Besides exhibiting the FIR of this case as Ex.PW26/A, he stated that he arrested A-1 Abhishek Verma and Ms. Anca Maria vide arrest memos Ex.PW26/B (D-3) & Ex.PW26/C (D-4) respectively, searched the premises of ZTE Telecom vide search list dated 14.08.2012 Ex.PW26/D (D-14), recorded and recorded or got recorded statements of various witnesses U/Ss 161 & 164 Cr.P.C., seized documents or material from different authorities and further got examined some documents from CFSL, CBI, New Delhi and collected their reports etc. His depositions will be considered and appreciated in detail in the course of this judgment and is not been discussed here in order to avoid repetition.
28. It is pertinent to mention here that though PW27 Mr. C. Edmonds Allen was a listed witness of CBI in the present case, but his presence, as well as the presence of one other material witness Mr. Gan Yong, could not be secured despite issuance of summons and making repeated attempts. Accordingly, the evidence of prosecution was closed by the court vide order dated 10.01.2019. Thereafter, the statements of accused were recorded U/S 313 Cr.P.C. and even defence evidence of the accused was led and when RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 32 of 131 the matter was at the stage of final arguments, Mr. C. Edmonds Allen sent a request for his examination as a witness through Video Conferencing (VC) via e-mail. CBI also moved an application praying that he be examined as a witness in the case. However, both these requests were declined by the court vide order dated 23.10.2020.
29. The above order dated 23.10.2020 was challenged by CBI before the Hon'ble High Court in Crl. M.C. No. 10/2021, which was subsequently allowed vide order dated 08.02.2023, and Mr. C. Edmonds Allen was permitted to be examined as a witness through Video Conferencing facility.
30. His statement was then recorded by this court through VC from the designated VC room located in this court complex, which was declared as 'Court Point' vide order dated 21.03.2023 of this court as per VC Rules framed by the Hon'ble High Court, and he was made to present himself in the office of Consulate General of India situated in New York, USA, which was declared as 'Remote Point' vide the above said order dated 21.03.2023 for recording of the said statement and in terms of the above said Rules. After recording of statement of PW27, the supplementary statements of both the accused persons U/S 313 Cr.P.C. were also recorded by the court with regard to the fresh incriminating evidence, which came on record against them through the testimony of PW27.
RC AC1/2012/A0011/SPE/CBI/New Delhi
(CBI vs. Abhishek Verma & Anr.) Page 33 of 131
STATEMENTS/SUPPLEMENTARY STATEMENTS OF
ACCUSED U/S 313 CR.P.C.
31. All incriminating evidence brought on record by the prosecution was put to both the accused persons in their statements/supplementary statements recorded U/S 313 Cr.P.C. They denied the said evidence as either being not incriminating against them or for want of knowledge. It is their defence that they have been falsely implicated in this case for some vested and political reasons on the basis of inadmissible documents and even the alleged forged or purported unsigned letter Mark PW2/B (D-21) in the name of PW2 Sh. Ajay Maken is inadmissible in evidence being a copy as original thereof could not be seized during investigation and has not been brought on record. It is also their submission that the evidence led before the court even fails to connect them with the said document.
32. Further, they both in their statements under Section 313 Cr.PC have also claimed that the above news item and other e- copies of documents brought before the court are inadmissible in evidence for want of originals thereof or production of valid and admissible certificates U/S 65B of the IEA regarding the authenticity and genuineness thereof. It was also submitted that the concerned journalist of the above news item has not been made a witness and examined on record during the course of trial and the prosecution has even failed to produce Mr. Gan Yong before the court as a witness.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 34 of 131
33. A-1 Abhishek Verma in his above statement claimed that PW27 Mr. C. Edmonds Allen was not even made to join investigation of the case by CBI officials, though evidence on record suggests that they visited USA and met him. It has further been submitted by him that though PW27 had subsequently made a statement before the court as a witness, but his statement and the documents brought on record during his testimony are not incriminating qua him. It is also his submission that the pen drives and CDs allegedly handed over by him to PW10 Sh. Pankaj Khanna of ED were not sealed at the time of their handing over and hence, the same were susceptible of being tampered with and even appropriate certificates U/S 65B of the IEA regarding authenticity thereof have not been produced on record. It is also submitted by this accused that he had no connection or relation with the companies named Ganton USA, Ganton India or G.T. Telecom as he was neither a shareholder nor a director in these companies and he never asked PW11 Sh. Vikki Choudhary to become a director of Ganton India and further, even his wife Ms. Anca Maria had never been a director of G.T. Telecom. It is also the submission of this accused that infact PW27 Mr. C. Edmonds Allen is the sole owner, director, shareholder, president, chairman, secretary as well as treasurer of Ganton USA and he was, thus, solely running and controlling the affairs of Ganton USA and also of its subsidiary company named Ganton India.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 35 of 131
34. It has also been claimed by A-1 Abhishek Verma in his above statement that he had not sent the alleged e-mail dated 30.10.2009 from the e-mail ID '[email protected]' to PW27 Mr. C. Edmonds Allen on his e-mail ID '[email protected]' and with its alleged attachment containing the above letter Mark PW2/B in name of PW2 Sh. Ajay Maken and he was not associated with the e-mail or domain name of [email protected] as well as the other domain names mentioned in Ex.PW11/C (D-5). It is also his submission that the evidence led on record clearly shows that PW27 was admin of both the above e-mail IDs and all domain names mentioned in Ex.PW11/C and USA address of PW27 is also mentioned in Ex. PW11/C. It has further been submitted by him that even the above bank account of USA i.e. JP Morgan Chase Bank was got opened by PW27 and PW27 was the sole signatory and authorized person to use and operate the said account. It is also his submission that even otherwise, the above documents were seized and statement of PW27 Mr. C. Edmonds Allen recorded by Sh. Pankaj Khanna in one other case of ED registered vide No. ECIR/12/DZ/2012/AD (PK) and veracity of contents of his above statement is seriously under clouds as the accused already stands discharged in the said case by the court of Ld. Special Judge, Patiala House Courts (PHC), New Delhi vide order dated 26.04.2017. He has also submitted that the depositions of PW27 regarding the document D-20 being a doctored document are false as the said document is a part of the documents, which have been filed by CBI with charge-sheet of the case.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 36 of 131
35. Further, A-1 Abhishek Verma also denied the depositions of PW18 Sh. Sandeep Jaggi regarding his residence in the above tenanted accommodation E-295, Greater Kailash-I, New Delhi belonging to the said witness and it is his submission that the alleged lease agreement Ex.PW18/B in respect to the said premises is a forged and fabricated document. It is also his submission that the CFSL report regarding examination of exhibits of this case are manufactured documents and the same are inadmissible in evidence as the concerned experts did not follow the prescribed procedure in relation to examination of the said documents/exhibits.
36. He further stated that his arrest in this case was illegal and without any incriminating material and his wife Ms. Anca Maria was also arrested by the IO illegally and hence, she was discharged subsequently by the court. He has also submitted that investigation of the case was biased, unfair and malicious and even the letter stated 27.10.2009 Ex.PW8/A containing guidelines issued by the office of FRO, Gurgaon, Haryana is inadmissible in evidence as the original thereof has not been brought on record. It is further his submission that the alleged guidelines contained in the said letter were never issued on the above said date and rather, the same were issued by the concerned Ministry of GoI to all MNCs in July, 2009. The prosecution witnesses examined on record have also been claimed to be false and interested witnesses.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 37 of 131
37. Besides the above, it has also been submitted by A-1 Abhishek Verma in his above statement that he was a politically exposed person with two generations of his family in politics as his grandmother was a Member of Parliament (MP) (Lok Sabha) from 1952 to 1974, his father was a MP (Rajya Sabha) from 1976 to 1986 and he was also General Secretary of the Congress Party till he died in New York. Further, it is also his submission that after death of his father, even his mother was elected to Rajya Sabha as a MP for three terms during the period from 1986 to 2000 and he himself has also been the General Secretary of Indian Youth Congress and Incharge of the State of Madhya Pradesh. He claims that he was cheated and duped by PW27 Mr. C. Edmonds Allen, PW11 Sh. Vikki Choudhary and Sh. Arjun Arora etc. for crores of rupees and he had also filed a criminal complaint for the offences of cheating, forgery and defamation etc. against PW27 and his associates and the same was pending at PHC, New Delhi that the CBI had falsely implicated him in the present case on the basis of false and forged documents, though he did not commit offences alleged in the case.
38. A-2 Jagdish Tytler also submitted in his above statement made U/S 313 Cr.P.C. that most of the prosecution witnesses and documents produced during the trial do not pertain to him and he does not even know PW27 Mr. C. Edmonds Allen, PW11 Sh. Vikki Choudhary or the other witnesses deposing against his co-accused Abhishek Verma. He has also specifically denied any such meeting between him, the co-accused Abhishek Verma or PW13 Sh. D.K. RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 38 of 131 Ghosh at his residence, while claiming that since 1987-88 he had 'Z+' or 'Z' category security covers provided by the GoI and entry of visitors to his residence was regulated by the security personnel of Delhi Police and details of every visitor at his residence were recorded by them and there is no such oral or other documentary evidence seized during investigation of the case to show the alleged visit of PW13 at his residence on 30.10.2009. He has also submitted that had the IO verified the call details of his telephone number from MTNL, it would have falsified the claim being made by PW13 regarding making of a call by him to someone in any such meeting or on the above date. He has also specifically denied showing of the above fabricated and purported letter of PW2 Sh. Ajay Maken to PW13 during the said meeting. He even denied the meeting, which allegedly took place at his residence between him, the co-accused Abhishek Verma, PW13 or any Mr. Gan Yong on 03.11.2009 for the aforesaid reasons and in absence of any admissible evidence to this effect. However, he did not deny that the letter dated 23.08.2012 (D-55) Mark PW20/X was on his letterhead and was containing his telephone numbers.
39. Further, it has also been submitted by A-2 Jagdish Tytler in his above statement that he was not named in FIR of this case and the investigation carried out by CBI was unfair and tainted and not in accordance with the CBI Manual and he has been implicated falsely in the case without any material, though he was not aware of the reasons therefor. It is also his submission that the evidence on RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 39 of 131 record does not reveal his involvement in commission of the alleged offences and the IO had even failed to explain the said fact and IO did not conduct any investigation on the issues raised by him in his letter dated 23.08.2012 Mark PW20/X. He also submitted that he never met or even heard about PW13 Sh. D.K. Ghosh and Mr. Gan Yong in his life. He further submitted that the witnesses were planted by the CBI to falsely depose against him, though there was absolutely no material to even remotely connect him with the crime.
40. Further, it is also the submission of A-2 that he had an unblemished record in public life and had been in active politics since the year 1975 and he had worked in different capacities in the Congress party, like the President of Delhi Youth Congress, General Secretary of Delhi Pradesh Congress Committee as well as of All India Congress Committee (AICC), Treasurer of All India Congress Sewa Dal and Member of Central Working Committee of AICC. Besides the above, he also claimed that he had been a MP (Lok Sabha) for four times and he had even held various other responsible positions in the GoI and the portfolios of different Ministries, like he had been the Minister of State, Transport (Department of Civil Aviation) from September, 1985 to October, 1986; Minister of State for Civil Aviation (Independent Charge) from October, 1986 to July 1987; Minister of State Tourism & Civil Aviation from July, 1987 to February, 1988; Minister of State, Labour from February, 1988 to June, 1988; Minister of State, Labour and Food Processing Industries from June, 1988 to RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 40 of 131 December, 1989; Minister of State, Surface Transport (Independent Charge) from 23.10.1991 to 15.09.1995 and thereafter, the Union Minister of State, Coal (Independent Charge) and also holding independent charge of Minister of State, Non Resident Indian Affairs.
41. A-2 in his above statement has further submitted that he has been implicated in this case by the CBI in connivance with and under influence of his political rivals holding important and influential positions with the GoI at the relevant time, which fact is further substantiated and corroborated by the news article dated 31.08.2013 Ex.S1 published in the on-line edition of the Times of India referring the statement made by the co-accused Abhishek Verma himself. He also claimed that a similar news article of even date was also published in the on-line portals of the Rediff.com and IndiaTV.com and he exhibited the copies thereof as Ex.S3 & Ex.S5. He further exhibited on record the certificates U/S 65B of the IEA in respect to the above three new articles as Ex.S2, Ex.S4 & Ex.S6 respectively.
DEFENCE EVIDENCE
42. Both the accused in their statements recorded U/S 313 Cr.P.C. chose to lead evidence in their defence. A-1 examined 05 defence witnesses and A-2 examined 02 defence witnesses respectively to counter the evidence led against them by the prosecution.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 41 of 131
43. However, it is necessary to mention here that these witnesses were examined in their defence by both the accused after their initial or main statements U/S 313 Cr.P.C. were recorded prior to summoning of PW27 Mr. C. Edmonds Allen as a witness in this case. No further defence evidence was led by them subsequent to examination of PW27 as during the course of recording of their supplementary statements U/S 313 Cr.P.C., the Accused chose not to lead any further evidence in their defence.
44. A-1 Abhishek Verma examined the following witnesses in his defence:-
(i) DW1 Ms. Shilpi Jain is the then official of Record Room (Sessions), PHC, New Delhi and she had produced in evidence the summoned record of CBI case bearing RC No. AC-1/2012/A0009/AC-1/ND.
(ii) DW2 Sh. Rahul is the then Ahlmad of the court of Ld. MM-09, PHC, New Delhi and he had produced the summoned record of two criminal complaint cases i.e. one being CC No. 25945/16 titled as 'Abhishek Verma Vs. C. Edmonds Allen Etc.' and the other being CC No. 21302/16 titled as 'Abhishek Verma Vs. C. Edmonds Allen'. He exhibited copies of the above complaints as Ex.DW2/A and Ex.DW2/B respectively.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 42 of 131
(iii) DW3 Ms. Veena Verma and DW4 Ms. Manju Alok Raizada are the mother and aunt (mausi) respectively of A-1 Abhishek Verma. They both have claimed that at around the relevant time of commission of alleged offences, DW3 was residing at the house of DW4 situated near RML Hospital, New Delhi, since DW3 had some heart problem and other medical issues and was under treatment and on medication for the same. They claimed that during the period between 31.10.2009, i.e. when DW3 suddenly felt unwell due to heart problem, from 07.11.2009, A-1 used to remain at the house of DW4 to take care of his mother, i.e. DW3 as no other person was available to take care of her. DW3 also claimed that A-1 used to reside with her at the relevant time at her address of 4, Safdarjung Lane, New Delhi.
(iv) DW5 Ms. Venna Satewal is the then Incharge, Record Room (Sessions), PHC, New Delhi and she produced in evidence a file containing the original order dated 26.04.2017 and on being shown a copy thereof, she stated that it was a copy of the above original order of said date, as available in the file brought by her, and she exhibited the above copy of order as Ex.DW5/A.
45. Two witnesses were examined by A-2 Jagdish Tytler in his defence. They are as follows:-
(i) DW1/A-2 Sh. Pradeep Sagar claims to have been the PA RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 43 of 131 of said accused since 2010 and he stated that he had downloaded the above news articles dated 31.08.2013 (which were earlier marked as Ex.S1, S3 and S5) from the news portals of concerned news papers and he exhibited the copies of said news articles as Mark DW1/A-2/DX (colly) and certificates U/S 65B of the IEA given by him regarding authenticity thereof as Mark DW1/A-2/DA (colly).
(ii) DW2/A-2 Sh Surender Kumar was a Sub Inspector (SI) of Delhi Police and posted as Liaisoning Officer at the residence of A-2 at 3, Rakabganj Road, New Delhi at the relevant time on orders of the DCP Security. He stated that the accused was under 'Z+' security at that time and he was looking into the security schedule of accused and as a part thereof, the entry of all visitors at residence of the said accused was being made in a register and all the visitors were also being physically frisked by the security staff and further that no vehicle of the visitors was allowed to enter the residence of accused.
ARGUMENTS, ANALYSIS & FINDINGS:-
46. I have heard the extensive arguments advanced by Sh. Pankaj Gupta, Ld. Senior PP for CBI followed by Sh.Ashutosh Tripathi, Ld. Sr. PP for CBI (after transfer of Sh.Pankaj Gupta, Ld. Sr. PP) and Sh. Maninder Singh, Ld. Senior Advocate representing A-1 Abhishek Verma, assisted by Sh. Dinhar Takiar, Advocate & Sh.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 44 of 131 Arunabh Chowdhury, Ld. Senior Advocate representing A-2 Jagdish Tytler, assisted by Sh. Vaibhav Tomar, Advocate. The case record containing documentary and oral evidence has also been perused and considered. The detailed written submissions filed on behalf of both Accused have also been considered in addition to the case law cited in the course of arguments.
Arguments of Prosecution:-
47. Ld. Senior PP for CBI vehemently argued that from the evidence led on record, the prosecution has successfully proved its case against both the accused for the alleged offence of criminal conspiracy entered into between them to cheat the officials of ZTE Telecom and to fraudulently induce them to pay $ 4,50,000 as bribe for some public servants, by using and showing an unsigned and forged letter purported to have been written by PW2 Sh. Ajay Maken, to solve the Visa related problems of the officials of ZTE Telecom in terms of the directions/guidelines contained in the office order Ex.PW8/A dated 27.10.2009 issued by the office of FRRO, Gurgaon and also for the commission of substantive offences under the IPC and PC Act. It was further argued that even if the offence of cheating as punishable under Section 420 IPC could not be completed as the accused persons failed to convince the officials of ZTE Telecom to deposit the above amount of bribe in account of M/S Ganton USA in New York being maintained in JP Morgan Chase Bank, still the evidence on record duly proves an attempt on the part of accused persons to commit the said offence of cheating.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 45 of 131
48. It is also argued by Ld. Senior PP for CBI that though the prosecution failed to secure the presence of Mr. Gan Yong and to examine him as a witness during the trial of this case, but from the depositions of other material witness, particularly PW13 Sh. D. K. Ghosh, and the oral and documentary evidence led on record, the prosecution has been able to prove the charges against the accused persons beyond reasonable doubt. It is submitted that the deposition of PW13 as well as the other witnesses are duly corroborated by the documentary evidence on record and nothing material could be extracted by Ld. Defence Counsels during the course of cross examination of these witnesses to challenge their testimonies and the other evidence.
49. It is further the contention of Ld. Senior PP that even though the original of above forged and purported letter of PW2 Sh. Ajay Maken could not be traced and produced before this court during trial, but a copy of the above letter did came on record as Mark PW2/B. It is vehemently urged that the same is very much admissible in evidence as said letter was a part of the documents received by PW10 Sh. Pankaj Khanna of ED and copies of these documents were duly handed over by PW10 to CBI and filed on record with the chargesheet of this case. It is also his submission that hard copies of all these documents also bear the signatures/initials, along with seals, of PW27 Mr. C. Edmonds Allen as attestation of the said documents by him and the said RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 46 of 131 documents are further supported by valid certificates U/S 65B of the IEA given by PW27.
50. It is also the submission of Ld. Senior PP that the e-copies of all these documents given by PW27 to PW10 in four pen drives and six CDs were sent to CFSL and copies thereof were prepared by an expert of CFSL for the purposes of investigation and filing in the present case and a set of these copies was subsequently handed over to the CBI by the ED officials and were brought on record of this case during evidence led against the accused. It is thus submitted that the possibility of any tampering with the above documents at any stage is thus completely ruled out.
51. Ld. Senior PP for CBI also argued that a copy of the above forged letter purportedly written by PW2 Sh. Ajay Maken, as well as the copy of one draft agreement to be executed by ZTE Telecom with the above company of accused namely M/S Ganton USA, were part of attachments of the e-mail sent by A-1 to PW27, who was his business associate in USA, on 30.10.2009. It is submitted that though on paper, A-1 had no connection with the companies named M/S Ganton USA, M/S Ganton India and G.T. Telecom, but the oral and documentary evidence on record duly establishes that he was the controller of all these companies and the e-mail IDs and e-mail domains of various companies, including the above companies and the e-mail ID [email protected], were being maintained, controlled and used by him. It is further submitted that A-1 had RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 47 of 131 used his above e-mail ID [email protected] for sending the incriminating e-mail dated 30.10.2009 along with its attachments, as well as some other e-mails and documents, to PW27 on his e- mail ID [email protected]. It is argued that the IP address used in sending the above e-mail dated 30.10.2009 and containing a copy of the above forged letter as an attachment thereto was of a landline telephone number installed at the rented residential premises of A-1. It is further submitted that the fact that above letter purportedly written by PW2 Sh. Ajay Maken was a false and forged letter is duly established from the depositions made by PW2, the other witness(s) from his office and also the CFSL reports.
52. It was also argued by Ld. Senior PP for CBI that PW27 is a material witness of the prosecution as he deposed about the modus operandi of accused persons in commission of alleged offences and he also substantiated his oral testimony with the documents provided by him to PW10 Sh. Pankaj Khanna in hard as well in soft form, along with certificates U/S 65B of the IEA given by him regarding the authenticity thereof. It is further submitted that PW27 was the person to whom A-1 had sent the above e-mail dated 30.10.2009 containing the purported fake letter of PW2 Sh. Ajay Maken and he was asked by A-1 to pursue the matter with the officials of ZTE Telecom for execution of an agreement and for deposit of the above amount of bribe in the given account number of Ganton USA for helping them out of the above Visa related problems of their officials. The testimony of this witness and the RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 48 of 131 documents brought in evidence by him are thus stated to have duly corroborated the testimony of PW13 Sh. D. K. Ghosh and the other oral and documentary evidence on record. It is further submitted that the reports given by CFSL experts are reasoned reports and the same were given after a scientific analysis of the documents sent to them and the prescribed procedure governing the examination of documents was duly followed by the said experts.
53. Ld. Senior PP for CBI also urged that the evidence led by accused persons in their defence fails to challenge or contradict the evidence of prosecution on record and thus, the prosecution has been successful in establishing its case for the alleged above offences against both the accused as well as their guilt in respect to commission of the said offences beyond reasonable doubts and hence, both the accused persons are liable to be convicted for the charged offences and their defence evidence is liable to be discarded.
Arguments on behalf of A-1, Abhishek Verma:-
54. Per contra, Ld. Senior Counsel representing A-1 Abhishek Verma argued that A-1 has been falsely implicated in this case by CBI at the behest of PW27 Mr. C. Edmonds Allen, PW11 Sh. Vikki Choudhary and Sh. Arjun Arora etc., in furtherance of a well hatched criminal conspiracy, though no evidence or material was available with the CBI to justify his arrest and his implication in the present case.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 49 of 131
55. It is submitted that the FIR of this case was registered by CBI on 08.08.2012 and A-1 as well as his wife Ms. Anca Neacsu Maria were both arrested in the case on the same day when they got bail in one other false case registered against them by the CBI vide RC AC-1/2012/A0009/CBI/ND, in which they both were earlier arrested and were running in judicial custody. It is stated that since they both got default bail U/S 167(2) Cr.P.C. in the said case, they were hastily arrested by the CBI in this case to frustrate their release from custody and to secure their further detention in jail on the basis of false and concocted allegations leading to registration of FIR of this case.
56. It is also the contention of Ld. Senior Counsel for A-1 that the manner of arrest and investigation of this case is sufficient to show that investigation was not conducted by the CBI in a fair and proper manner and rather, the same was biased and sole objective of the investigating agency was to put A-1 and his wife behind bar. This intent is stated to be clearly reflected from the fact that Ms. Anca Neacsu Maria was not even subsequently chargesheeted in the present case for want of evidence and was, thus, discharged by the court. It is also submitted that the IO of this case did not even care to verify the contents of complaint Ex.PW2/A (D-1) dated 20.07.2012 made by PW2 Sh. Ajay Maken or to collect any incriminating evidence against A-1 before registration of FIR of this case against the said accused. It is, thus, argued that the IO had RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 50 of 131 misconducted the investigation for ulterior reasons and objects and possibly under political pressure.
57. It is further the contention of Ld. Senior Counsel that the alleged forged and purported letter was even not attached by PW2 Sh. Ajay Maken with his complaint made to the CBI. Further, it merely being a piece of secondary evidence is not admissible in evidence and the contents thereof cannot be considered by this court for any purposes. It is also submitted that the copy of the said letter i.e. Mark PW2/B is admittedly an e-copy of the above said document provided by PW27 Mr. C. Edmonds Allen to PW10 Sh. Pankaj Khanna of ED, as a part of the documents handed over by him to PW10 in USA, and since the certificate U/S 65B of the IEA allegedly furnished by PW27 regarding authenticity of the said document is not in conformity with the statutory provisions, the said e-copy of document cannot be held to be an admissible piece of evidence and is liable to be discarded. Thus, the very root of prosecution story stands demolished.
58. It is also the contention of Ld. Senior Counsel for A-1 that there is a delay of around three years in registration of the case from the date of commission of alleged offences It is further submitted that the FIR was admittedly registered on the basis of a news item allegedly published in Indian Express newspaper, Delhi Edition dated 15.07.2012. It is contended that Prosecution has even failed to prove on record the above publication and the news item as per law RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 51 of 131 inasmuch as neither the original publication brought on record, nor the author thereof i.e. the concerned journalist was examined as a witness during trial. It is argued that the contents thereof thus cannot be considered and relied upon for proving the case of prosecution.
59. It was further argued that neither Mr. Gan Yong nor PW13 Sh. D. K. Ghosh approached CBI or any other investigating agency or authority with their grievances or complaint regarding for the above attempt on part of the accused persons to cheat them or their company by fraudulently inducing them to pay any amount and hence, their alleged statements U/S 161 Cr.P.C. dated 30.07.2013 recorded during investigation cannot be given any weightage. Moreover, the same were made after a huge delay of around four years from the date of commission of alleged offences. It is argued that the said statements could not have even formed the basis of chargesheet of the present case.
60. Ld. Senior Counsel for A-1 further submitted that the case and charges of prosecution against the accused are not substantiated by evidence led on record as the star witnesses of prosecution, namely Mr. Gan Yong, could not be produced before this court during the course of trial. Further, though the other witness, namely Sh. D. K. Ghosh was examined as PW13, but even his testimony does not inspire any confidence and the same lacks corroboration on material particulars. It is argued that the oral depositions made RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 52 of 131 by PW13 regarding the alleged meetings held between him or Mr. Gan Yong and the accused persons have not been substantiated by any other piece of admissible evidence and even no record regarding the alleged meetings held between them at the residence of A-2 or in the hotel Radisson in Mahipalpur, NH-8, New Delhi was seized by the IO from the above said places or was brought on record during the course of trial. It is also argued that rather the deposition of one of the prosecution witnesses i.e. PW14 Sanjeev Kapoor go against their own case regarding holding of such meetings between PW13 and A-1 in the above said hotel.
61. It is further the contention of Ld. Senior Counsel for A-1 that the evidence brought on record by prosecution fails to establish that any e-mail having copies of the above forged letter of PW2 Sh. Ajay Maken and the draft agreement to be executed by ZTE Telecom on their letterhead in favour of Ganton USA as attachments thereof, was ever sent by A-1 to PW27 Mr. C. Edmonds Allen on 30.10.2009. It is argued that the e-mail ID [email protected], from which the said e-mail is stated to have been sent, was not the e-mail ID of A-1. It is also his submission that the evidence on record rather shows that it was PW27 who was using the above e-mail ID as well as various other e-mail IDs and e-mail domain names of different companies as mentioned in the documents Ex.PW11/C (colly) (D-5).
62. Extending his arguments further, Ld. Senior Counsel RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 53 of 131 submitted that even Ex.PW11/C (colly) furnished by PW11 Sh. Vikki Choudhary to the IO and seized vide seizure memo Ex.PW11/A (part of D-5) are not admissible in evidence for want of proper certificate U/S 65B of the IEA. It is also argued that the IP address from which the above e-mail is alleged to have been sent by A-1 does not belong to the said accused and the other e-mails also allegedly sent subsequently by A-1 from the above said e-mail ID [email protected] cannot, thus, be linked to this accused.
63. Further, it is also the contention of Ld. Senior Counsel for A-1 that the company namely Ganton USA and its subsidiary namely Ganton India, and the other company named G. T. Telecom, are not related to or connected with A-1 Abhishek Verma as he had neither been a Director or shareholder etc. in any of these companies and hence, even the account of Ganton USA in New York, in which the alleged amount of bribe was to be deposited by ZTE Telecom as per prosecution case, cannot be linked to this accused.
64. It is also urged that the evidence brought on record during trial rather establishes that it was PW27 Mr. C. Edmonds Allen who was running the affairs of Ganton USA and he was also the sole owner, sole director as well as shareholder, president, chairman, secretary and treasurer of Ganton USA and was thus entitled to operate the above account of the said company solely in JP Morgan Chase Bank and the sole signatory of documents in respect thereto.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 54 of 131 Thus, it has been argued that it was in fact PW27 who was to be benefited by deposit of the above bribe amount in the account of Ganton USA and he should have been made an accused in the present case instead of A-1, if the allegations and case of prosecution is taken as true. It is stated that since PW27 was on enemical terms with A-1 and further since A-1 had already filed criminal complaints for the offences of cheating forgery and defamation etc. against him and the same were pending in the court of Ld.MM at PHC, New Delhi, he had a motive to get A-1 falsely implicated in the present case to settle his personal scores and there is sufficient evidence on record to establish this fact.
65. It is also the contention of Ld. Senior Counsel that no statement of PW27 was recorded by CBI in this case during the course of investigation. It was submitted that despite the fact that the evidence on record suggests that CBI officials visited New York, USA in connection with investigation of the present case, still no efforts were made to record the statement of PW27 during investigation. It is stated that admittedly the statement of PW27 brought in evidence as Ex.PW10/N (part of D-22) was recorded by PW10 Sh. Pankaj Khanna of ED in some other case of ED and simply a copy of the said statement was procured from ED officials by the CBI and was made a part of chargesheet of this case. Hence, in absence of there being any authenticated statement of this witness on record, the deposition made by PW-27 before this court cannot be believed and should be discarded outrightly.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 55 of 131
66. It is also argued that even the hard and soft copies of the said statement and other documents provided by PW27 to PW10 are inadmissible in evidence. The pen drives and CDs containing soft copies thereof were prone to tampering by the CBI officials as the same were admittedly not sealed by PW10 Sh. Pankaj Khanna at the time of examination of PW27 by him in the above said case of ED and at the time of handing over of the above pen drives and CDs. It is further argued that the copies of these documents provided by the ED officials to CBI were in open or unsealed condition and the same were brought on record in the same condition and hence, the possibility that the same were tampered with, cannot be ruled out. It is also argued that certificates U/S 65B of the IEA given by PW27 regarding authenticity of contents of the above soft copies are not as per requirements contained U/S 65B of the IEA.
67. The next contention of Ld. Senior Counsel for A-1 is that though the prosecution case from very beginning is that the guidelines were issued by the office of FRRO, Gurgaon for the first time vide letter dated 27.10.2009 i.e. Ex. PW8/A (D-15). However, the said guidelines were already in existence since August, 2009 in terms of the letter dated 10.08.2009 of GoI, MHA (Foreigner Division), which is a part of the documents produced by PW19 and exhibited as Ex.PW19/A (colly) (D-41).
68. It has also been established during trial that not even a single RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 56 of 131 employee of the above company left India and returned to China in compliance of the guidelines allegedly issued vide letter dated 27.10.2009 Ex. PW8/A (D-15).
69. Ld. Senior Counsel for A-1 further highlighted that the CFSL reports regarding examination of documents are manipulated reports, given at the instance of CBI since CFSL is working under the CBI. This is stated to be apparent from the record as the report Ex.PW7/A (D-28) was given by PW7 Dr. Reeta Rani Gupta on 14.02.2013, though the documents for examination were received in the office of CFSL on 13.02.2013 i.e. just one day prior to the said report. It is submitted that in such a short span of time, she could not have possibly examined and apparently she simply signed a report as per instructions of IO and/or other CBI officials. Hence, the report Ex.PW-7/A cannot be said to be probably an authenticated report and is thus inadmissible in evidence. Even otherwise, the reports given by CFSL experts are not stated to be backed by any sound reasoning and do not corroborate the other evidence on record.
70. Further, the case of prosecution is stated to be based on false and planted witnesses. It is argued that some of the material witnesses i.e. PW11 Sh. Vikki Choudhary and PW27 Mr. C. Edmonds Allen had reasons to depose against A-1 as they both were doing business together and were on enemical terms at some or other point of time with A-1. A-1 had also already filed criminal RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 57 of 131 complaints for the offences of cheating, forgery and defamation etc. against PW27 and his associates. It has, thus, been argued that both the above witnesses were in conspiracy with each other they apparently got A-1 falsely implicated in this case as they want A-1 to be behind bars and this fact is also established from the documentary evidence on record.
71. Ld. Senior Counsel for A-1 argued that investigation of the present case is biased as the sole motive of investigation appears to be the false implication of A-1 for some vested interest and political reasons and though FIR of this case was also registered against some unknown officials of ZTE Telecom, Ganton USA and Ganton India, but the IO did not chargesheet or arrest any official of the above companies or any other person in the present case, despite the fact that there was evidence to show that it was PW27 Mr. C. Edmonds Allen who was controlling and running affairs of the company Ganton USA and Ganton India and even the bribe money was meant to be deposited in USA account of Ganton USA, which was being operated exclusively by PW27. During the course of arguments, learned Sr. Counsel for A-1 also drew the attention of this court to cross-examination of PW27 recorded on 12.07.2023, where PW27 admitted having sent one letter to A-1 when he was confined in Tihar Jail. The said letter was showing address of sender as Eva Herzigova and contained some photographs and printouts. Learned Counsel for A-1 argued that it is apparent that A-1 was being falsely implicated in this case. Learned Sr. Counsel for A-1 RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 58 of 131 thus concluded his arguments by submitting that Prosecution has not been able to prove any of the charges against A-1 and that he be acquitted.
Arguments on behalf of A-2 Jagdish Tytler:-
72. Ld. Senior Advocate representing A-2 Jagdish Tytler argued that A-2 had been four times MP and also held portfolios of different Ministries during his long political career. He even worked with three Prime Ministers of this country and maintained an unblemished record, except being implicated in this false case due to political reasons.
73. It is highlighted that A-2 was even not named as an accused in FIR of this case and even admitted by IO PW26, as the FIR was registered only against A-1 Abhishek Verma and some unknown officials of companies namely ZTE Telecom, Ganton USA and Ganton India. No role was either attributed to A-2 as per allegations made in the FIR and his name allegedly surfaced during the course of interrogation of A-1 in judicial custody, as deposed by IO/PW26 Sh. Vipin Kumar Verma during his cross examination. There is also no document or material on record to show genuineness or truthfulness of the said claim made by the IO.
74. Ld. Senior Advocate for A-2 further contended that though PW13 Sh. D.K. Ghosh and Sh. Gan Yong, in their statements recorded U/S 161 Cr.P.C., implicated A-2 for commission of the RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 59 of 131 alleged offences of this case, but the said statements were made on 30.07.2013 i.e. after around one year from the date of registration of this case and around four years after alleged dates of commission of the above offences. It is, thus, submitted that the above witnesses falsely implicated A-2 in the present case for political reasons or on account of other pressure. It is submitted that the matter was not reported either to police or to CBI in the year 2009 itself. It is argued that due to above delay on the part of PW13 in approaching the investigating agency about the alleged offences, even the statement made by him before this court cannot be believed and is liable to be discarded.
75. It is further the submission of Ld. Senior Advocate for A-2 that factum of false implication of A-2 in the present case at behest of A-1 or for political reasons also stands duly established from the testimony of DW1/A-2 Sh. Pradeep Sagar, who was working as PA to him and had downloaded the printouts of news articles dated 31.08.2013 published in different newspapers/news portals, marked as Mark DW1/A-2/DX (colly) on record. These documents also show motive on the part of A-1 in implicating A-2 in this case to settle some other scores. It is also his submission that the above document Mark DW1/A-2/DX (colly) creates serious doubts and make dent in veracity of the prosecution story and it is clear from the above that charges framed against A-2 are false and he has been implicated in this case for some extraneous reasons and considerations.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 60 of 131
76. Ld. Senior Advocate for A-2 further submitted that the very basis of prosecution case i.e. the original of alleged forged and purported letter of PW2 Sh. Ajay Maken was not brought on record during trial and though a copy of the said document was brought in evidence, but the same is not admissible in evidence and hence, cannot be considered by this court. Accordingly, for want of original of the said document, the charges framed against both the accused cannot be said to be proved beyond reasonable doubt and they are entitled to be acquitted in this case.
77. It is also his submission that even e-copy of the above letter and news item/article dated 15.07.2012, which formed the basis for registration of FIR of this case by PW2 Sh. Ajay Maken, are not admissible in evidence as the same fail to meet out requirements of Section 65B of the IEA.
78. It is further the submission of Ld. Senior Advocate for A-2 that even e-mails dated 30.10.2009 and 03.11.2009 Ex.PW27/A & Ex.PW27/H (colly) respectively, allegedly sent by A-1 Abhishek Verma through his alleged email ID [email protected] to PW27 Mr. C. Edmonds Allen do not implicate A-2 in the present case and do not prove his association with or involvement in or in conspiracy with A-1 in the alleged attempt made by A-1 to cheat the officials of ZTE Telecom. In fact, A-2 had nothing to do with the conversation which allegedly took place between A-1, PW27 or any RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 61 of 131 official of ZTE Telecom either through telephones or through emails.
79. He further contended that the oral and documentary evidence led on record fails to corroborate the case of prosecution regarding the above criminal conspiracy and other substantive offences allegedly committed by the accused persons as hard copies of the documents, which were allegedly collected by PW10 Sh. Pankaj Khanna and then handed over by the ED officials to CBI (i.e. D-22) are not admissible in evidence they being photocopies. Further, even the e-copies of these documents are also inadmissible as all the above hard and soft copies of these documents do not meet requirements of Section 65B of the IEA.
80. It is argued that though some certificates U/S 65B of the IEA given by PW27 have been exhibited on record, but the same are not in conformity with the legal requirements. It is also his contention that even otherwise the said documents falsify the claim of prosecution that a copy of above fake or purported unsigned letter of PW2 Sh. Ajay Maken was forwarded by A-1 to PW27 Mr. C. Edmonds Allen for the first time through email dated 03.11.2009, which is a part of documents Ex.PW27/H (colly) (on page 38 of D-22), whereas according to document Ex.PW11/DA (D-20) PW27 had already forwarded a copy of the said letter to Mr. Gan Yong on 31.10.2009. This clearly shows that the above letter was in existence even before it was shown to PW13 on 03.11.2009 allegedly at the RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 62 of 131 residence of A-2. It is argued that authenticity of document Ex.PW11/DA also stands established from the depositions made by PW11 Sh. Vikki Chaudhary, PW23 Sh. Gaurav Katara and IO PW26 Sh. Vipin Kumar Verma.
81. It is further the submission of Ld. Senior Advocate for A-2 that a bare perusal of Ex.PW27/H (colly) or the email exchanged between A-1, PW27 and officials of ZTE Telecom shows that it was the then Minister of Home Affairs, who could have been privy to the above designs of A-1 in extracting the above amount of bribe from the officials of ZTE Telecom on the pretext of offering them help on the issue of Visa related problem of its employees and it is also his contention that the above reference to Minister of Home Affairs was apparently to PW2 Sh. Ajay Maken and instead of investigating facts stated in the said documents, the IO of this case had implicated A-2 under some pressure and for some political reasons. It is his submission that investigation of this case has not been conducted properly by the IO and it has been conducted in a biased manner and with a pre-designed motive to chargesheet A-2 in the present case, though he had no role to play in the alleged offences.
82. Ld. Senior Advocate representing A-2 further contended that even on the basis of statement made by PW13 Sh. D.K. Ghosh and by other witnesses of prosecution and the documentary evidence led on record, no case of criminal conspiracy between A-1 & A-2 as RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 63 of 131 punishable U/S 120B IPC read with Sections 420 & 471 IPC and U/S 8 of the PC Act and for substantive offence punishable U/S 471 IPC can be said to be proved against A-2.
83. It is contended that the evidence on record fails to show any meeting of minds between two accused for commission of any offence.
84. It is submitted that deposition of PW13 Sh. D.K. Ghosh nowhere shows that the alleged and forged or fake unsigned letter in name of PW2 Sh. Ajay Maken was shown to him by this accused and the said letter does not fall in the category of false or fake document as it was an unsigned letter and it was not sufficient even otherwise to induce PW13 or officials of ZTE Telecom to pay such a huge amount. It is further submitted that no money or bribe was paid by ZTE Telecom in the above account or by any other mode to A-1 or his any associate, the ingredients of Section 464 IPC which defines making of false document are not fulfilled and hence, charge of Section 471 IPC framed against this accused regarding use of a fake document is not sustainable. In this regard, Ld. Defence Counsel further referred to the definition of terms 'dishonestly' and 'fradulently' as contained in Section 24 IPC and Section 25 IPC and submitted that no offence as alleged has been proved to have been committed by the Accused as no wrongful loss or wrongful gain was admittedly cause to anyone.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 64 of 131
85. Next, Ld. Senior Advocate representing A-2 contended that the oral testimony of PW13 Sh. D.K. Ghosh regarding his alleged visits at the residence of A-2 on 30.10.2009 and 03.11.2009 are not substantiated by any documentary evidence, in the form of entries of any visitors register maintained at the residence of A-2 or the movement register of office of PW13. It is submitted that A-2 was under 'Z+' security cover given by the GoI in the year 1987-88 and officials of Delhi Police were deputed for his security round the clock. They also regulated the entry of visitors at his residence, but the IO PW26 did not collect any such record or register showing the alleged visits of PW13 at the residence of A-2. Further, IO even did not collect any documentary evidence from the office of ZTE Telecom to corroborate the claim of PW13 regarding the said visits. Testimony of DW2/A-2 Sh Surender Kumar, the then Security Incharge at the residence of A-2, has also been referred to on this aspect during the course of arguments.
Arguments on behalf of Prosecution in rebuttal:-
86. In rebuttal, learned Sr. PP for CBI contended that though much emphasis has been placed by learned Defence Counsels on the fact that the Prosecution could not examine Mr.Gan Yong and the sole testimony of PW13 D.K.Ghosh could not conclusively prove the factum of meetings alleged to have taken place at the residence of A-2, however, the testimony of PW-13, coupled with the statement of Mr. Gan Yong recorded under Section 164 Cr.PC is sufficient to prove that the said meetings did in fact take place at the RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 65 of 131 residence of A-2. It is submitted that the statement of Mr.Gan Yong recorded under Section 164 Cr.PC was duly proved by PW-21 Sh.Ashok Kumar, then Ld. MM, Delhi and thus there is a presumption under Section 80 of the Indian Evidence Act, 1872 which has not been rebutted by the defence. Moreover, there is no reason as to why the Accused did not summon Mr.Gan Yong as their witness to prove their defence that no such meeting took place at the residence of A-2.
87. Learned Sr. PP for CBI also contended that though it was brought on record during the course of evidence that the order issued by FRRO was recalled prior to 31.10.2009, however, it is apparent that the Accused Abhishek Verma still pursued his effort to cheat D.K.Ghosh and other officials of ZTE and thus the meeting dated 03.11.2009 also took place in furtherance of the conspiracy to cheat them.
88. Learned Sr. PP for CBI placed reliance on Section 106 of Indian Evidence Act and argued that once it was established from the deposition of PW-13 that the meetings took place at the residence of A-2 on 30.10.2009 and 03.11.2009, the burden shifted upon the Accused to show that no such meeting took place. In this regard, he relied upon the judgment of Anees vs. State of NCT of Delhi, AIR2024SC2297.
89. As regards Accused No.2, it was argued by learned Sr. PP for RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 66 of 131 CBI that since it is not the case of CBI that any demand of illegal gratification was made by A-2, no charge for offence under Section 7 of PC Act was framed against him and he is only facing trial under Section 120-B r/w Section 8 of PC Act.
90. Similarly, admittedly the maker of the alleged forged letter was not identified during the course of investigation, the case of the CBI confined only to Section 120B r/w Section 471 IPC and the arguments of the defence that the original letter itself was not produced during the trial, cannot be said to affect the case of the Prosecution adversely.
91. In support of this argument, learned Sr. PP for CBI relied upon the case of A.S.Krishnan vs. State of Kerela, 2004(2)ACR1478 (SC). He submitted that for proving offence under Section 471 IPC the only requirement is to establish a fraudulent or dishonest use of document as genuine and knowledge or reasonable belief on the part of the person using the document that it is forged one. He further added that the Hon'ble Apex Court held that in the case of A.S.Krishnan (Supra), that to attract Section 471 IPC, it is not necessary that the Accused must have forged the document himself or the person independently charged for forgery of documents must necessarily be convicted before the person using the forged documents knowing it to be forged one can be convicted as long as the fact that the document used stood established or proved to be a forged one.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 67 of 131
92. Relying on the aforesaid judgment, he further argued that the Prosecution has been able to establish that the Accused were aware that the letter which was shown to PW-13 was a forged document and the Accused persons acted in conspiracy and are thus guilty of the alleged offences.
93. As regards the argument of the defence that the Prosecution did not bring on record the visitors' register of the residence of A-2 to prove the factum of the meetings held at his residence, learned Sr. PP for CBI submitted that the possibility cannot be ruled out that A-2 himself asked the Accused persons to not make any entry in the visitors' register.
94. Lastly, it was contended that the Call Detail Records (CDRs) of the mobile number of A-1 bearing No.9811432277 (i.e. D-8/Ex.PW9/B) and that of the mobile No.9899485136 (i.e. D-10/ Ex.PW9/F) (which was used by A-2 though registered in the name of one Menaxi Kapur) clearly establish that there was exchange of some text messages and calls between the Accused persons on 02.11.2009, thus establishing the existence of a criminal conspiracy between the Accused persons.
95. Learned Sr. PP for CBI further argued that the submission of the defence that the Prosecution has not been able to connect the mobile no.9899485136 with A-2 is also devoid of merit in view of RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 68 of 131 the fact that the admitted letter of A-2 i.e. D-55 (Mark PW20/X) itself mentions the same mobile number as the mobile no. of A-2. It is submitted that D-55 is admittedly the letter head of A-2 and the mobile number of A-2 which though registered in the name of Ms.Menaxi Kapur is mentioned on the said letter head of A-2 thus implying that it was infact being used by A-2 himself. In this regard, reliance has been placed on the judgment titled as State of NCT of Delhi vs. Shiv Charan Bansal, Manu/SC/1678/2019.
96. As regards the witnesses examined by the defence, it is the contention of the learned Sr. PP that they are not reliable, they being interested witnesses.
97. Learned Sr. PP for CBI thus contended that Prosecution has been able to prove the guilt of the Accused persons beyond reasonable doubt and that they be convicted for the alleged offences.
98. The arguments of the Prosecution and the Defence have been considered in the light of the evidence on record and the relevant law on the subject. The same may now be analyzed as follows:-
Charge of Criminal Conspiracy against A-1 and A-2
99. As already discussed, both Accused, besides other charges, are facing trial for having committed the offence of criminal conspiracy, punishable U/S 120B IPC r/w Section 8 of the PC Act RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 69 of 131 1988 and Sections 471 and 420 IPC.
Law of Criminal Conspiracy
100. It is settled law that conspiracies are hatched mostly behind the closed doors and very rarely any direct evidence showing the existence of such a conspiracy or meeting of minds of the conspirators is available and more or less the existence of a criminal conspiracy has to be drawn or inferred from the facts of a particular case. It is thus a question of fact in each case as to whether the acts done by accused have been done or performed in furtherance of any such criminal conspiracy or the objects thereof or the same are separate or individual acts of the accused persons, without sharing of any such common intent or object. Section 120A IPC defines criminal conspiracy in the following words :-
"S. 120A. Definition of criminal conspiracy.
--When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.--It is immaterial whether the RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 70 of 131 illegal act is the ultimate object of such agreement, or is merely incidental to that object."
101. It is apparent from a bare perusal of Section 120A IPC that the offence of criminal conspiracy is complete by two or more persons agree doing, agreeing to do or causing to be done of illegal act, or an act which is not illegal in itself by illegal means. Thus, though an agreement to do or cause to be done an act which is per se illegal shall constitute a criminal conspiracy, but it will not amount to criminal conspiracy if the accused agree to do an act which is not illegal by itself unless it is agreed to be done by some illegal means.
102. An agreement between the accused persons to do an illegal act or a legal act by illegal means is gist of the offence of criminal conspiracy. Once the evidence establishes the existence of a meeting of minds or an agreement between the accused persons for doing of an offence or an illegal act or a legal act by illegal means, then even the acts done individually by the accused persons have to be taken with reference to their common intent or design of the said criminal conspiracy. However, it is possible to draw such an inference regarding the prima facie existence of such a criminal conspiracy only when the facts and circumstances of a particular case reasonably permit to do so.
103. In the Full Bench decision of the Hon'ble Supreme Court in RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 71 of 131 the celebrated case of P. K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142, their lordships had observed as under:-
"10. The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. Therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation."
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 72 of 131
104. In the case of State of Maharashtra & Ors. Vs. Som Nath Thapa & Ors., Manu/SC/0451/1996, the following observations have been made by the Full Bench of Hon'ble Supreme Court :-
"24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use. When can charge be framed ?"
105. In case Vijayan @ Rajan Vs. State of Kerala, 1999 Crl.L.J. 4164, their Lordships observed as follows:-
"It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 73 of 131 pursuant to the said conspiracy."
106. Further, in Yogesh @ Sachine Jagdish Joshi Vs. State of Maharashtra, 2008 Cr.L.J. 3872, the following observations have been made by their lordships of the Hon'ble Supreme Court:-
"22. More recently, in State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru, making exhaustive reference to several decisions on the point, including in State Through Superintendent of Police, CBI/SIT Vs. Nalini & Ors., Venkatarama Reddi, J. observed thus:
"Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused (per Wadhwa, J. in Nalini's case at page 516).
The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible."
(Tanviben Pankajkumar case , SCC page 185, para 45). G.N. Ray, J. in Tanibeert Pankajkumar observed that this Court should not allow the suspicion to take the place of legal proof."
23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 74 of 131 or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement."
107. The evidence led on record by the prosecution must now be appreciated in order to find out if the above charge of criminal conspiracy as framed against both the accused stands proved beyond reasonable doubt or not.
108. Learned Sr. PP for CBI, as aforesaid, argued that though mobile No.9899485136 is registered in name of one Menaxi Kapur, but the same was in fact used by A-2, as is apparent from his own letter head i.e. D-55 (Mark PW-20/X). Further, it was argued that the CDR of mobile numbers of A-1 and A-2 being D-8 (Ex.PW9/B) & D-10 (Ex.PW9/F) establishes that the Accused persons were communicating through text messages and even through calls during the relevant period, and this proves the meeting of minds and existence of a criminal conspiracy, between the Accused, as alleged. However, I find myself unable to accept this submission.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 75 of 131
109. To my mind, this piece of evidence has not been conclusively proved by the Prosecution. It is noteworthy that the CDR of mobile phone of A-1 (mobile no.9811432277) D-8 (Ex.PW9/B) and CDR of mobile no.9899485136 D-10 (Ex.PW9/F), despite being supported by certificates under Section 65B Indian Evidence Act (Ex.PW9/C and Ex.PW9/G respectively) of PW9 Sh.Anuj Bhatia, Nodal Officer from Vodafone, do not stand proved as per law. The aforesaid certificates under Section 65B of Indian Evidence Act are apparently not in accordance with the statutory requirement. At the outset, it was pointed out during arguments that the said certificates are undated. PW9 further admitted in his cross-examination that the said certificates do not mention the particulars of the device used. He further admitted that the server where the CDRs are maintained are not in his control and can be accessed by other persons also with the unique password. He further admitted that the call detail records are available online only for one year as per the relevant guidelines and that the information sought by the CBI with regard to the aforesaid mobile number was apparently sought after a period of one year.
110. It is thus apparent that the testimony of PW9, as well as the above mentioned documentary evidence produced by him does not inspire confidence and accordingly the CDRs Ex.PW9/B and Ex.PW9/D, not being duly supported by the requisite certificates under Section 65B of Indian Evidence Act, cannot be read in RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 76 of 131 evidence.
111. More importantly, the aforesaid evidence indicating an exchange of communication between A-1 and A-2, as stated to be revealed from the above noted Call Detail Records (CDRs), cannot in my considered opinion, be said to be an incriminating piece of evidence. This is because it is the own case of the Prosecution (as per Para 16.25 of the chargesheet) that A-2 was well acquainted with A-1 and thus the fact that the CDRs of the Accused persons indicate that there were some exchange of text messages or even calls between them, does not prove that they entered into any criminal conspiracy, as alleged by the Prosecution.
112. Next, as stated above, only A-1 was named in FIR of this case besides some unknown officials of ZTE Telecom and Ganton USA and Ganton India, but A-2 was not named in FIR of this case. This was apparently due to the reason that the FIR case was not registered on the basis of any complaint or statement made either by PW13 Sh. D. K. Ghosh or by Mr. Gan Yong or even any other official of ZTE Telecom. Rather, it came to be registered on the basis of a complaint given by PW2 Sh. Ajay Maken, when through a news item, he came to know about existence and use of the above fake letter in his name. Again, though the offences of this case were allegedly committed in the year 2009 by the accused persons, but the FIR came to be registered only in the year 2012, i.e. on 08.08.2012.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 77 of 131
113. No explanation has been furnished on record either by PW13 or by any other witness as to why no complaint about the above allegations or offences allegedly committed by the accused persons was made by PW13 or any other official of ZTE Telecom and PW13 was completely silent in this regard even in his statement made before this court. There is also nothing on record to indicate that they made any complaint to the police or any other investigating agency, or even brought the above facts to the notice of any other authority. Hence, the delay in reporting the matter to police by the officials of ZTE Telecom remained unexplained and the deposition of PW13 is required to be considered in light of above delay and his conduct reflected from record.
114. As specifically deposed by PW13 Sh. D. K. Ghosh before court, he did not even know A-2 Jagdish Tytler during the relevant year i.e. 2009, when the alleged offences were committed. Though, PW13 he deposed that a meeting took place between him and A-1 in Hotel Radisson on 29.10.2009, after he contacted A-1 for help in the above Visa related issue of employees of his company but admittedly, A-2 was not present in the said meeting. Further, though, PW13 also deposed in court that A-1 talked to some one over phone in the said meeting, but he nowhere deposed or indicated that the above talk of A-1 was with A-2. Hence, as per PW13, A-2 was not present when A-1 told or indicated to PW13 that some cost or payment factor would be involved for getting RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 78 of 131 sorted out the Visa related problems of employees of ZTE Telecom, nor this demand or statement was made in agreement with or with the consent/concurrence of A-2.
115. Further, PW13 Sh. D. K. Ghosh deposed about the meeting held in the afternoon of 30.10.2009 at the house of A-2, when he was called there telephonically by A-1. He stated that when he reached at the residence of A-2, A-1 was already present there. PW13 also deposed that he handed over the originals of fax letters to A-1 and then A-2 entered the room and he was shown the notification and those faxed letters. Then he stated that A-2 softly spoke to somebody on telephone and stated after the said conversation that the job would be done.
116. Thus, as per deposition of PW13, he did not state anything about the conversation which took place between A-2 and the person to whom he had made the above telephonic call. He also did not depose anything about any demand of any bribe or money by A-2 from him for getting the above Visa related job to be done and even otherwise, it is apparent from deposition of PW13 that it was only after he and A-1 came out of the residence of A-2 that A-1 had indicated to him that payment would be required for the said job.
117. Thus, as per the deposition of this witness, A-2 had not made or raised any demand of bribe from him for getting the above work done in the above meeting dated 30.10.2009, and further A-1 had RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 79 of 131 not made the said demand from him during this meeting in the presence of A-2.
118. The next incriminating evidence pointed out about the existence of above criminal conspiracy is the meeting which is stated to have taken place between PW13, A-1 and A-2, again at the residence of A-2 on 03.11.2009. As per deposition of PW13, he received a call from A-1 on that day to come to house of A-2 in the late afternoon and accordingly he reached there and found A-1 present there along with A-2. As per his statement, the room was poorly lit and visibility was low and he was shown the above purported and unsigned letter written in name and on the letterhead of Sh. Ajay Maken and the letter was addressed to Hon'ble Prime Minister, asking for relaxation for the Visa related notification. PW13 also deposed that when he asked for a copy of the said letter, he was told that the same would be given to him by A-1.
119. It is thus apparent from a bare perusal of deposition of PW13, D.K.Ghosh that his deposition does not establish that A-2 was privy to the demand or bribe or payments or costs etc. allegedly demanded from PW13 or the other officials of ZTE Telecom, nor does his testimony show that he himself had made any such demand in the meeting dated 03.11.2009.
120. Further, though, PW13 deposed that he was shown the above fake letter, but it is even not clear from his deposition that as to by RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 80 of 131 which of two accused he was shown the said letter. A copy of the said letter was also admittedly provided to him by A-1 only after he and A-1 both had came out from the residence of A-2 and had gone to Hotel Taj Man Singh.
121. It also stands proved from the deposition of PW13 that by that time, the above Visa related job was already done as he stated on record specifically that in the above hotel A-1 also asked him to prepare an agreement confirming the payment for the job done. Thus, even in this meeting neither A-2 had demanded any money from PW13 for the above job or work nor he was present when the demand for payment was again conveyed to him by A-1 in Hotel Taj Man Singh.
122. Further, though as per allegations made in the chargesheet and the testimony of PW13, other meeting took place at the residence of A-2 in the evening of 30.10.2009 itself and it was between Mr. Gan Yong, A-1 and A-2. However, there is no admissible evidence on record to show that the said meeting actually took place or as to what transpired in the said meeting. This is so because Mr. Gan Yong, a material witness of the Prosecution, could not be examined on record despite the fact that number of opportunities were given to the Prosecution.
123. Moreover, the deposition of PW13 on this aspect, is only a piece of hearsay evidence. In this regard, PW13 deposed that after RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 81 of 131 the above meeting dated 03.11.2009 held at the residence of A-2, he met Mr. Gan Yong on 04.11.2009 and informed him about the developments of said meeting and thereupon he was told by Mr.Gan Yong that he had also been to the house of A-2 on 03.11.2009 in forenoon and had also seen the same letter and was reminded about payment issue as the agreement was still pending. PW13 further deposed that he was also told by Mr. Gan Yong that since no authorization from ZTE Telecom Headquarter or Mr. Huan-da-Bin was received, the agreement was yet not prepared and further that the job did not seem to have happened as a result of Mr. Maken's letter. Mr. Gan Yong also told PW13 in the said meeting that somebody in USA was asking about the agreement and it should be signed by somebody in authority in ZTE Telecom, however, due to non examination of Mr. Gan Yong before this court, the deposition of PW13 to this effect i.e. about what he was told or conveyed by Mr. Gan Yong regarding the said meeting cannot be read in evidence, it being hearsay.
124. Further, PW-13 Sh.D.K.Ghosh admitted in his cross- examination recorded on 04.09.2018 as under:-
"I have no evidence to show that I have ever met Mr.Jagdish Tytler on 30.10.09. I do not have any evidence or material or communication to informing my senior and subordinates showing my meeting with Sh. Jagdish Tytler on 30.10.09.
......There is also nothing on record to show RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 82 of 131 that as to at what time I left my office for meeting Mr.Tytler on 30.10.09. I did not make any entry in any entry gate register or security register with regard to my meeting with Mr.Tytler on 30.10.09."
125. Reliance may also be placed on the testimony of IO/PW26, who deposed during his cross-examination recorded on 10.01.2019 as under:-
"It is correct that there is no material evidence on record to show/prove the meeting of A1, D.K.Ghosh, Gan Yong and A2 at the residence of A2 on 30.10.2009 and 03.11.2009."
126. Testimony of DW-2/A-2 Sh.Surender Kumar, SI, Delhi Police is also relevant in this regard. He deposed regarding the security drill which was conducted at the residence of A-2, who was having Z+ security at the relevant time. DW-2/A-2 deposed as under:-
"Apart from this there was also a constable assigned with the duty to frisk all the visitors coming at the residence of A-2 and also to note the details of such visitor i.e. name, address or any other particular including the purpose of visit. The said register was normally termed as 'visitors register'. The said details were maintained in a register by the concerned staff at the house of A-2. The same was scrutinized by me as part of my duty whether its being properly disclosing the complete facts of the persons visiting A-2. Whenever the register were complete they were deposited with the office of DCP (SG), E Block, near Sena Bhawan, New Delhi and RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 83 of 131 a new register is issued."
127. The other prosecution witnesses whose testimonies are relevant in respect to A-2 Jagdish Tytler are PW20 Sh. A. S. Iyengar, PW25 Sh. Ravi Varma and PW-26 Sh. Vipin Kumar Verma i.e. the IO of this case. However, none of these witnesses deposed anything about the above alleged transaction or meetings held between the accused persons and the officials of ZTE Telecom on the issue of Visa related problems of ZTE Telecome. Rather, the testimonies of PW20 and PW25 pertain to other aspects and only the IO/PW26 deposed about the investigation conducted qua this accused.
128. As already discussed, PW20 Sh. A. S. Iyengar had worked as PA of A-2 for a period of around 15 years and he was working in the above capacity in the year 2007. During his cross examination and on being shown one letter dated 23.08.2012 Mark PW20/X (D-55) written on a letterhead in the name of A-2 and also bearing his signatures and having the address of said accused as 3, Gurudwara Rakabganj Road, New Delhi printed thereon, the witness though stated that the letterhead was of A-2 and even the telephone numbers mentioned thereon were correct but he could not identity the signatures appearing at point A on the said letter. He also specifically stated in his examination-in-chief itself that he never heard the name of A-1 while working with A-2 and though he told some other addresses of A-2 in his chief examination itself but did not depose anything about the address of 3, Gurudwara RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 84 of 131 Rakabganj Road, New Delhi belonging to A-2 or that A-2 ever resided at the said address.
129. Further, Since, he resiled from his earlier statement recorded U/S 161 Cr.P.C., PW20 was cross examined on above aspect by Ld. Senior PP for CBI. However, even during his cross examination, he denied having ever stated to the CBI that he knew A-1 Abhishek Verma or that he used to visit the residence of A-2 Jagdish Tytler at 3, Gurudwara Rakabganj Road, New Delhi in the year 2009 in connection with some Panasonic telephone EPBX arranged by A-1 at the said house. He also denied having stated to CBI that the above letter Mark PW20/X (D-55) was bearing the signatures of A-2 or he had identified the said signatures. He further denied the suggestions given to him by Ld. Senior PP for CBI that he was concealing or intentionally not deposing about the said facts having being influenced or won over by the said accused.
130. During his cross examination conducted by Ld. Counsel for A-2, PW20 admitted that he remained in touch with A-2 till the year 2007 and thereafter, because of his ill-health and for kidney transplantation, he had permanently shifted to Chennai and did not remain in touch with the said accused. He also stated that A-2 was a public/political figure being senior leader of Congress party and 100 and 1000s of persons used to visit him everyday for the personal work. He further admitted that the letterhead Mark PW20/X (D-55) pertained to the year 2012 and at that time he was RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 85 of 131 not associated with A-2 in any manner.
131. PW25 Sh. Ravi Varma deposed that he has been a Congress party worker around the years 2010-2012. He was shown the letter Mark PW20/X (D-55), but he also failed to identify the signatures of A-2 appearing on the said letter or even to state that the letterhead was of A-2. However, he deposed that during the above time, A-2 was residing at the above said address.
132. This witness was also permitted to be cross examined by the court on request of Ld. Senior PP for CBI on the ground that he was resiling from his previous statement U/S 161 Cr.P.C. During his cross examination, he expressed his inability to remember if he had ever told the IO that he joined the office of A-2 as a political adviser or that he used to type letters and other matters given by A-2. He also denied having stated to the CBI that he knew A-1 Abhishek Verma who used to visit the residence of A-2 or that he was shown the letter Mark PW20/X (D-55) by CBI during examination and he identified the letterhead thereof as well as signatures appearing thereon to be of A-2. He was also confronted with his contrary depositions contained in his previous statement Mark PW25/X recorded by the IO during investigation of the case and further denied the suggestion that he was deliberately deposing falsely having been a worker of Congress party and being associated with A-2 or that he was deliberately not deposing about the fact that he knew A-1 also.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 86 of 131
133. Thus it appears that both PW20 and PW25 were cited as witnesses to prove that at the relevant time i.e. at the time of commission of alleged offences A-2 was residing at his above address of 3, Gurudwara Rakabganj Road, New Delhi and for that purpose they both were even shown the above letter dated 23.08.2012 Ex.PW20/X (D-55) typed or written on a letterhead in the name of A-2 Jagdish Tytler and bearing his signatures at point A thereon. However, as discussed hereinabove, PW20 turned hostile on both these aspects, though PW25 admitted the above address of A-2 to be correct. Be that as it may. It is a matter of record that the existence and authenticity of letter Mark PW20/X is not disputed by A-2 since during the course of cross examination of the IO/PW26, Ld. Counsel representing the said accused had himself put the above letter to the IO/PW26 and he was asked as to whether he had received it or not and whether he conducted any investigation on the aspects highlighted in the said letter.
134. IO/PW26 was further questioned by Ld. Senior Counsel for A-2 about call detail records of the given land line numbers enclosed with the said letter and the investigation conducted about the same. Further, even during cross examination of DW1 Sh. Pradeep Sagar examined by A-2 in his defence also, the above letter was put to him by Ld. Senior PP for CBI and he stated that the same was on letterhead of A-2 and was also signed by him.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 87 of 131
135. Hence, it stands established on record that letter dated 23.08.2012 Mark PW20/X (D-55) is letterhead of A-2 Jagdish Tytler and it is also bearing his signatures at point A and further that on 23.08.2012 A-2 was residing at the given address i.e. 3, Gurudwara Rakabganj Road, New Delhi. However, it must be added that this letter or the depositions made by above two witnesses still fail to establish that as on the date of commission of alleged offences also, i.e. around October/November 2009, A-2 was residing at the above said address. Further, the prosecution also failed to prove on record through the testimonies of PW20 and PW25 that A-1 Abhishek Verma often used to visit the residence of A-2.
136. Now coming back to the testimony of PW-13. As stated above, he was not known to A-2 prior to his alleged first visit on 30.10.2009 at the residence of A-2, along with A-1. He has even not deposed about the address of A-2 at the relevant time of his above visit or even at the second or subsequent visit dated 03.11.2009.
137. As per record, PW13 is the only witness examined by Prosecution on these aspects, as the other witness who could have corroborated his testimony i.e. Mr. Gan Yong, failed to appear and depose before this court despite repeated summons. The testimony of PW13 regarding his above visits also does not stand corroborated from any other oral or documentary evidence on record as has already been discussed and hence, his sole testimony about the RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 88 of 131 above visits or as to what transpired in the above two meetings at the residence of A-2 cannot be said to establish beyond doubt that any such meetings between him, A-1 and A-2 or between A-1, A-2 and Mr. Gan Yong took place at the above residence of A-2 on the above said dates.
138. It cannot also thus be held that PW13 was shown any such fake or purported letter of PW2 addressed to the Hon'ble Prime Minister in the above meeting dated 03.11.2009 at the residence of A-2 in connection with the Visa related problems of employees of his company. It may be reiterated, even at the cost of repetition, that PW13 did not specifically depose as to which of the two accused had shown him the above said letter during the meeting dated 03.11.2009, nor he was able to tell as to with whom A-2 had talked softly on telephone during the said meeting. This is also coupled with the fact that A-2 had not personally made any demand or bribe or money from PW13 during the said visits for getting the above job done, nor it was even made by A-1 in his presence in any of such meetings.
139. Hence, on the basis of the evidence led on record and in the light of the above discussion, I am of the considered opinion that the Prosecution has not been able to bring home the charge of offence of criminal conspiracy against the Accused persons.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 89 of 131 Charges for offence under Section 471 IPC against A-1 and A-2 and offence under Section 420 IPC r/w Section 511 IPC and Section 8 PC Act against A-1
140. The next allegation is that both the Accused used a forged letter allegedly written by PW2, as genuine, and thus committed offence punishable under Section 471 IPC.
141. Further, allegations against Accused No.1 are that he attempted to cheat M/s ZTE Telecom India Private Limited by dishonestly inducing its officials to deliver the amount of Rs.50,00,000/- on the basis of fake and forged letter purported to be issued by Sh.Ajay Maken, the then Chief Minister of State (Home Affairs) to the Hon'ble Prime Minister, by getting the agreement forwarded through Mr. C. Edmonds Allen of M/s Ganton USA and thereby committed offence punishable under Section 420 IPC r/w Section 511 IPC.
142. In order to establish the aforesaid allegations, Prosecution placed reliance on the deposition of certain material witnesses including PW-13 Sh. Dilip Kumar Ghosh, PW-7 Dr. Reeta Rani Gupta, the official from CFSL and other witnesses.
143. Learned Defence Counsels, on the other hand, argued that the prosecution witnesses have failed to bring home the aforesaid charges against Accused.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 90 of 131
144. Before analyzing the evidence on record, it would be relevant to re-visit the relevant statutory provision i.e. Section 471 IPC, which provides as under:-
"471. Using as genuine a forged [document or electronic record].
Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]."
145. It has been argued by the Defence that the offence of Section 471 IPC would stand proved only if the ingredients of Section 463 r/w Section 464 IPC are proved on record. It is submitted that as per the own case of CBI (as mentioned in para 16.24 of the charge sheet), it could not be proved conclusively during investigation as to who manufactured the above mentioned fake letter nor could the computer in which it was typed be recovered.
146. Thus, admittedly it is the own case of the CBI that the person who allegedly forged the letter in question could not be traced and the means of preparing the said forged letter i.e. the computer through which it was typed, was also not recovered and therefore, the offence punishable under Section 471 IPC also does not stand proved.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 91 of 131
147. On the other hand, Prosecution vehemently argued that in order to prove the offence under Section 471 IPC, the production of the original forged document is not necessary and to support this statement, reliance has been placed on the following judgments:-
(i) Budhu Ram vs. State of Rajasthan in Crl. Appeal No.229/1960 decided on 24.07.1962 passed by Hon'ble Supreme Court.
(ii) State of Bihar vs. Kailash Prasad Sinha & Ors., AIR 1961 PAT 451.
(iii) Bank of India vs. Yeturi Maredi Shanker Rao & Anr., 1987 AIR 821,
(iv) Galla Nageswara Rao vs. State of Andhra Pradesh, 1992 CrlLJ 2601,
(v) Jagdish vs. The State of Rajasthan, 2002 CriLJ 2171.
148. It is further submitted that the scope of Section 471 IPC is very wide and in order to prove the said charge, copy of the said document is sufficient. Ld. Sr. PP for CBI relied upon the judgment of A.S. Krishanan & Ors. vs. State of Kerala, MANU/SC/02333/2004, wherein it is held as under:-
"...For an offence under Section 471, one of the necessary ingredients is fraudulent and dishonest use of the document as genuine. The act need not be both dishonest and fraudulent. The use of document as contemplated by Section 471 must be voluntary one. For sustaining conviction under Section 471 it is necessary for the prosecution to prove that accused knew or had reason to believe that the document to be RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 92 of 131 a forged one. Whether the accused knew or had reason to believe the document in question to be a forged has to be adjudicated on the basis of materials and the finding recorded in that regard is essentially factual."
149. From the case law as relied upon by the prosecution, it thus appears that in order to bring home charge of Section 471 IPC, the only requirement is to establish that a forged document was used by the Accused. The statue does not make it mandatory that the original document must be produced before the court. The only legal requirement for the prosecution is to establish that a forged document was fraudulently or dishonestly used as genuine by an accused who knowing or by reasons to believe the said document to be a forged one.
150. However, it cannot be lost sight of that in the present case, even the copy of the letter which was allegedly used by Accused No.1 as genuine was never seized by the Investigating Agency, despite the fact that as per the Prosecution case the same was handed over by A-1 to PW-13 Sh.D.K.Ghosh at Hotel Taj Man Singh in the evening of 03.11.2009.
151. It is relevant to note that as per PW-13, Sh. D.K.Ghosh, on 03.11.2009, he went to the house of A-2 upon receiving a call from A-1, where he was shown the unsigned letter written by Sh.Ajay Maken addressed to Hon'ble Prime Minister asking for relaxation RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 93 of 131 of the visa notification. He further deposed that he asked for a copy of the said letter and was told that the same would be given to him by A-1. Thereafter, he along with A-1 left from the house of A-2 together and went to hotel Taj Man Singh, where A-1 took photocopies and gave him a copy of the letter.
152. Hence, as per the prosecution's own case, the copy of the alleged forged letter was handed over by A-1 to PW-13 on 03.11.2009 at Hotel Taj Man Singh. Despite this, the Investigating Officer admittedly did not take any steps to recover the said copy from PW-13, nor issued any notice for production of the same either to PW-13 or to Mr. Gan Yong during investigation.
153. Thus, the best evidence which could have been produced by the Prosecution in this regard, i.e. the letter allegedly handed over by A-1 to PW-13, did not see the light of the day during the entire length of trial. Moreover, there is no explanation as to why no efforts were even made by the IO to seize the said letter, which as per the Prosecution was handed over by A-1 to PW13 D.K.Ghosh. Additionally, there is also no evidence to prove that any photocopies of the said letter were got made by A-1 at Hotel Taj Man Singh. There is no evidence of any employee of the Hotel to prove that A-1 got the letter photocopied or any payment receipt of making photocopies was produced before the court.
154. In this regard, the attention of the court was also drawn to the RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 94 of 131 cross-examination of IO PW-26 Sh. Vipin Kumar Verma. In his cross-examination dated 08.01.2019, the IO was questioned by learned Defence Counsel with regard to issuance of notice under Section 91 Cr.PC to PW-13 Sh. Dilip Kumar Ghosh. The relevant portion of his cross-examination is reproduced as under:-
"Q. Did you give any notice u/s 91 Cr.PC to D.K.Ghosh or Gang Yong to produce the alleged letter of Ajay Maken to have been given by Abhishek Verma to D.K.Ghosh in Taj Man Singh Hotel as alleged by him or did you seize any such letter from them?
Ans. I did not issue any notice to D.K.Ghosh to produce any such letter as alleged by him."
155. IO/PW26 further deposed in his cross-examination recorded on 08.01.2019 that:-
"It is correct that I have never seen or have come across the original of the alleged letter on the letter head of Sh.Ajay Makan till date. It is also correct that the same has never been produced before me till date by Sh.D.K.Ghosh, Gang Yong, Sh.Ajay Makan or Mr.Edmond Allen."
156. Thus apparently, the best possible evidence was not collected during investigation and the IO did not make any effort to bring the same before the court as is revealed from his above cross- examination.
157. Further, although, it is a matter of record that a copy of the RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 95 of 131 said letter marked as Mark PW-2/B was recovered in the course of investigation and was also identified by PW-13, however, it is not in dispute that the same was not recovered from possession of A-1 i.e. either from any of his computers or from the documents seized by CBI from his residence.
158. Rather, it is the case of the CBI that the copy of the said letter viz., Mark PW-2/B was handed over by PW-27 to PW-10, during investigation of another case being conducted by PW-10 Sh.Pankaj Khanna, who was posted as Assistant Director in ED. But, no statement of PW27 Mr.C.Edmonds Allen was recorded under Section 161 Cr.PC regarding handing over of such letter Mark PW2/B to PW10.
159. Moreover, admittedly no seizure memo was prepared when the letter Mark PW-2/B and other documents (i.e. D-21) were received from PW-10 Sh.Pankaj Khanna by the IO PW-26. It is even more startling that the letter Mark PW2/B was not even handed over to IO/PW26 by PW10. In his cross-examination deposed that the hard copy of the said letter was given to him by a CBI officer, whose name also he was unable to state.
160. At this juncture, it would be necessary to highlight the relevant portion of cross-examination of IO PW26 Sh.Vipin Kumar Verma dated 08.01.2019, which is as follows:-
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 96 of 131 "It is correct that no such seizure memo is on record or made by me showing the seizure of such letter of Sh.Ajay Maken from Sh.Pankaj Khanna. Vol. Copy of such letter was handed over to me by Sh.Pankaj Khanna.
It is correct that no such proceeding was recorded by me or is part of the charge- sheet where such copy of letter is being shown to be handed over to me by Sh.Pankaj Khanna."
.....
I was handed over the copy of the letter in hard form by an official of CBI. I do not remember the date and the name of the officer from whom I received such letter from my office. I do not remember if Allen had sent a hard copy or a soft copy to CBI but I received a hard copy. I did not verify if the said letter was part of any email sent by Allen or was a computer printout but I received a hard copy. I did not record any such proceeding in my charge-sheet or made any such statement before this court that the said letter was received in the form of hard copy from my office."
161. In these circumstances, I find myself in agreement with the submissions of the Defence that even the handing over of copy of the alleged forged letter marked as Mark PW-2/B to the IO by PW10 becomes doubtful.
162. As regards the data (D-22) stated to have been provided by PW27 to PW10, it is relevant to note that he had shared copies of RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 97 of 131 the said data (provided by PW27 to him in pen drives and CDs) with CBI by certifying the same under his signatures. On seeing the said documents i.e. D-22, the witness identified them as the same documents.
163. Learned Defence Counsel highlighted that in his cross- examination, PW-10 stated before the court that he was unable to recollect whether the CDs and pen drives obtained by him from Mr. C. Edmonds Allen were sealed by him or not, although, he later added that the said pen drives and CDs were sealed by him and were sent to CFSL under sealed covers. He also stated in the same breath that the CDs and pen drives remained under his custody throughout till they were sent to CFSL on 06.11.2012.
164. It has thus been urged that the possibility of tampering with the aforesaid CDs/pen drives which remained in unsealed condition with PW-10 till they were sent to CFSL, thus cannot be ruled out. Further, as regards the print outs of the documents, PW-10 also stated in his cross-examination that some of the print outs were taken in his presence although some were already brought by C. Edmonds Allen. He was also unable to pin point the documents whose print outs were taken in his presence.
165. It has further been argued that the certificate under Section 65B of Indian Evidence Act, 1872 produced by Mr. C. Edmonds Allen and exhibited as Ex.PW-10/B and Ex.PW-10/C in respect of RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 98 of 131 the aforesaid CDs and pen drives are also not as per the statutory requirements of Section 65B of Indian Evidence Act. In fact, PW-10 himself admitted in his cross-examination that "We had downloaded the draft of certificate under Section 65B of Indian Evidence Act from the internet and given the same to the C. Edmonds Allen."
166. In the course of arguments, it was further highlighted that as per document Ex.PW-12/C, PW-10 had only sent 04 pen drives to Director, CFSL on 06.11.2012 and as per the said documents, 03 of the said pen drives were of black colour and one was of white colour. It is argued that the document Ex.PW-12/C [D-39 (a)] does not mention any thing about there being any red colour pen drive, whereas, certificates under Section 65B of the Indian Evidence Act of C. Edmonds Allen on Ex.PW-10/C, Ex.PW-10/F & Ex.PW-10/G mention about the red colour pen drive mark 'Kingston'.
167. Further, PW-24 Sh.Gautam Roy of CFSL, CBI deposed in his cross-examination that he did not receive any pink or red colour pen drive from ED vide letter dated 06.11.2012 Ex.PW-12/C. Thus, as per his deposition, no red colour pen drive was handed over to CBI by the ED. Further, CFSL gave no certificate under Section 65B of Indian Evidence Act in respect of downloaded and transferred data from the pen drives and CDs to the hard drives, which were subsequently handed over to PW-22 Sh.Rajesh Solanki, Inspector CBI and thus it has been argued that no reliance can be placed on RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 99 of 131 the said data.
168. In the light of the above evidence on record, I find myself in agreement with the argument of the Defence that the genuineness of documents collected by PW10 during investigation of another case of ED is certainly doubtful.
169. Moreover, despite the fact that it came on record during the cross-examination of PW-27 that CBI officials had met him, there is no explanation as to why neither statement was recorded by CBI, nor they collected any material from PW27 themselves.
170. Be that as it may. It has come on record by way of deposition of prosecution witnesses that the copy of the letter Mark PW-2/B, which was allegedly used by the Accused persons as genuine in order to cheat the officials of ZTE is the only document available on record inasmuch as the copy of the said letter which was allegedly handed over by A-1 to PW-13 never saw the light of the day during the entire length of trial, as discussed in the preceding paragraphs.
171. The Prosecution, in order to prove that the document mark PW-2/B is a forged document, placed much reliance on the two reports of PW-7 Dr.Reeta Rani Gupta exhibited as Ex.PW-7/A and Ex.PW-7/E. The Defence has highlighted that as per the cross- examination of PW-7, the documents were received for analysis in CFSL on 13.02.2013. They were examined on the same day and RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 100 of 131 PW-7 submitted her first report Ex.PW-7/A on the very next day i.e. 14.02.2013. In the said report she admittedly gave opinion only about superimposition of contents of questioned documents with the specimens. However, even some of the said samples i.e. S-7 to S-10 were not superimposing over each other or with any other document, as per the deposition of PW-7.
172. It has thus been argued that in order to cover the said lapse in the first report, the second CFSL report Ex.PW-7/E was obtained. The same came to be exhibited during re-examination of PW-7 by learned PP for CBI. However, learned Defence Counsel argued that even the said report does not establish the case of the Prosecution or prove the alleged forgery inasmuch as the questioned document itself which was sent to CFSL for analysis was "scanned coloured photocopy".
173. A perusal of the cross-examination dated 31.03.2016 of PW-7 would show that the witness stated before the court that the questioned document i.e. Mark PW-2/B which was sent for analysis to the CFSL was "scanned coloured photocopy". She also stated in her cross-examination dated 31.03.2016 that "for giving expert opinion, the availability of original questioned document is always preferable but if the document is submitted in photocopy, the same is accepted and needful done."
174. From the aforesaid statement of PW-7, it is clear that an RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 101 of 131 expert opinion can be given preferably on the basis of original questioned document, which in the present case neither surfaced during the entire investigation nor was provided for expert analysis.
175. The expert opinion by way of reports Ex.PW-7/A and Ex.PW-7/E based on coloured scanned photocopy i.e. Mark PW-2/B does not inspire confidence. This is, more so, in view of the fact that some of the sample documents i.e. S-7 to S-10 even did not superimpose with each other or with any other documents made available to PW-7.
176. However, at the same time and despite the lack of credible 'expert' evidence, it came on record during trial that PW-2 Sh.Ajay Maken himself denied that letter Mark-PW-2/B was neither prepared nor issued from his office or by him. Thus the submission of the Defence that Prosecution has failed to prove that Mark PW-2/B is a copy of a forged document, must necessarily be rejected.
177. However, at the same time, it is obvious that in order to prove the charge for offence under Section 471 IPC, it is also incumbent upon the prosecution to establish that the accused "used" the said forged document as genuine which they knew or had reason to believe to be forged and also attempted to cheat the officials of ZTE.
178. For this purpose, it was thus necessary for the Prosecution to RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 102 of 131 prove that meetings as alleged took place between A-1, PW-13, Mr.Gan Yong and A-2 and during such meetings the aforesaid document mark PW-2/B was used as genuine as alleged and the offence under Section 471 IPC was thus committed, as alleged.
179. Insofar as the alleged meetings between A-1 and PW-13, Mr.Gan Yong and A-2 on the aforementioned dates are concerned, learned Defence Counsels have vehemently urged that the said meeting between them also do not stand proved on record and in fact the entire case of the prosecution is fabricated.
180. It is submitted that as per the prosecution case, the first meeting allegedly took place between A-1 and PW-13 on 29.10.2009 in hotel Radisson, located in Mahipalpur, NH-8, Delhi, in which PW-14 Sanjeev Kapoor, an employee of A-1 was also present.
181. Learned Defence Counsel for A-1 submitted that the prosecution has failed to prove that any such meeting ever took place on 29.10.2009. It is pointed out that PW-13 deposed that Abhishek Verma asked him to meet him at Hotel Radisson, Gurgaon, whereas the case of the prosecution is that the said meeting took place in Hotel Radisson at Mahipalpur, Delhi. It is pointed out that no cross-examination of PW-13 was conducted by the prosecution to clarify about the venue of the said alleged meeting.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 103 of 131
182. Further, PW-14 Mr. Sanjeev Kapoor did not support the case of the prosecution and denied having organized any meeting between D.K.Ghosh and A-1 in hotel Raddison in October, 2009. Despite being cross-examined at length by prosecution, PW-14 did not support its case.
183. As regards, the second alleged meeting dated 30.10.2009 between A-1, A-2 and PW-13 at the house of A-2, it has been argued by learned defence counsels that even the said meeting has not been proved by the prosecution.
184. The Investigating Officer admitted in his cross-examination that he did not visit the residence of A-2 during investigation. It is also not the case of the prosecution that any visitor's register was seized from the house of A-2 to establish as to who had visited him on the aforesaid date.
185. In this regard, as discussed earlier, my attention was also drawn to the testimony of DW-2/A-2 Surender Kumar, who deposed that in October-November, 2009 A-2 was under Z plus security and he was posted as Liaison Officer at his residence. He also deposed that a visitor's register used to be maintained at the house of A-2, where details of the visitors were duly recorded. He further deposed that whenever the registers were completed, they were deposited with the office of DCP (SG), E, Block, near Sena RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 104 of 131 Bhawan, New Delhi and a new register used to be issued. The said record was not even attempted to be brought on record.
186. Further, in the course of his cross-examination, the IO PW-26 was shown the copy of representation Mark PW-20/X made by A-2 to SP Ashwani Chand stating that he has been falsely implicated and raised few issues investigated regarding his innocence. IO/PW-26 admitted that the said representation Mark-PW-20/X was duly forwarded to him by SP on 23.08.2012 but he did not conduct any investigation with regard to the issues raised by A-2. Further, he admitted that the call details of landline numbers of A-2 enclosed with the said letter was also not got verified or investigated by him.
187. It is a matter of record that Mr. Gan Yong did not appear in the witness box to depose about the allegations against the Accused persons. Hence, the oral testimony of PW-13 is admittedly the only piece of evidence to establish the alleged meeting dated 30.10.2009 at the house of A-2, which as aforesaid, is not reliable for want of any supporting documents which the Investigating Officer failed to collect in the course of investigation.
188. As regards the alleged meeting dated 03.11.2009, it has been argued by the Defence that the Prosecution has failed to prove that any such meeting took place between both Accused and Mr.Gan Yong at the residence of A-2.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 105 of 131
189. It is submitted that the decision of Government of India for recalling of the notification dated 27.10.2009 came prior to 31.10.2009 and was in fact reported in the Ecomonic Times, which was even forwarded by A-1 to Mr.Gan Yong through e-mail on 02.11.2009 (Ex.PW-23/C). While sending the link of the aforesaid news item, A-1 by the said e-mail Ex.PW-23/C also informed Mr.Gan Yong that the said news item confirms that foreigners can now apply for their "Employment Visas" from the country of domicile and not necessarily from country of origin. In the said e- mail A-1 further stated that this effectively means that your ZTE executives who have been based in India for a long duration are eligible to receive their employment visas in Delhi itself.
190. It is thus argued that the factum of recalling of the aforesaid notification was also in public domain. Further, there is also evidence on record to prove that no official from ZTE Telecom India Pvt. Ltd. was deported pursuant to the said decision on 27.10.2009. In fact, PW-13 D.K.Ghosh admitted in his cross- examination that "None of the employee of ZTE went back to China after 31.10.2007 as the notification issued by the govt was withdrawn before 31.10.2007 (sic 2009)."
191. Further, PW-15 Sh.Nabarsun Sur, Dy. Director, ZTE Telecom India Ltd. also deposed that none of the Chinese employees on business visas repatriated by FRRO or had gone back to China due RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 106 of 131 to visas issues. Similarly, PW-19 Sh.P.V.Sivaraman also deposed that he can state on the basis of record that his office did not receive any information of deportation or any foreign nationals of the aforesaid companies.
192. In the light of the above evidence, I find myself in agreement with the submissions of defence that since the notification of 27.10.2009 already stood recalled as on 31.10.2009, there was no occasion or reason for the alleged meeting on 03.11.2009. The arguments of learned Sr. PP for CBI that despite the recalling of the said notification, the Accused were still attempting to cheat the officials of ZTE, cannot be accepted in the light of the overall circumstances and the evidence appreciated in its entirety which fails to establish taking place of the meeting dated 03.11.2009.
193. IO/PW26 also admitted in his cross-examination that "It is correct that there is no material evidence on record to show/prove the meeting of A-1, D.K.Ghosh, Gan Yong and A-2 at the residence of A-2 on 30.10.2009 and 03.11.2009. (Vol. I only relied on the statement of D.K.Ghosh and Gang Yong.)."
194. Thus, the alleged meeting dated 03.11.2009 at the house of A-2 also does not stand conclusively proved on record. It is in the said meeting when the alleged letter in question was allegedly shown to A-1. The Investigation Agency however did not collect any material whatsoever to prove any such meeting at the house of RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 107 of 131 A-2.
195. Further, PW-13 has deposed that from the house of A-2, they went to Hotel Taj Man Singh, where A-1 took photocopies and handed over the copy of purported forged letter to him, as aforesaid, was never recovered from the possession of PW-13 in the entire course of investigation.
196. Be that as it may. The question now is as to whether the alleged visit of PW-13 with A-1 to Hotel Taj Man Singh has been proved by the prosecution or not. In this regard, it would be relevant again to revert to the testimony of PW-13 Sh.D.K.Ghosh, who admitted that he did not point out the exact place of meeting in the Hotel Oberoi on 30.10.2009 and that he was never asked by the IO to show the place of meeting in the said hotel.
197. Learned Defence Counsel has vehemently argued, and rightly so, that the Investigating Officer has not prepared or proved any site plan showing the particular place where the said alleged meeting took place nor PW-13 was asked even to point out the place of the said alleged meeting during investigation. There is also no independent witness to corroborate the deposition of PW13 regarding any such meeting.
198. In the course of arguments, learned Defence Counsel also pointed out that PW-27 Mr. C. Edmonds Allen admittedly sent the RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 108 of 131 said alleged forged letter through email to Mr. Gan Yong on 31.10.2009.
199. IO PW-26, in his cross-examination dated 08.01.2019 was shown document Ex.PW-11/DA (D-20) and the letter marked as Mark PW-2/B (D-21) and was questioned as follows:-
"Q. Please go through Ex.PW-11/DA (D-20) and (D-21) Mark PW2/B, is it correct that email dated 31.10.2009 time 1:03 am from C. Edmond Allen to Gang Yong has an attachment of "letter from Ajay Makan, Home Minister to Prime Minister reg. Chinese Visa Matter October 31, 2009.pdf"
(690K size), which is mark PW2/B?
Ans. It is correct.
Q. Did you inquire from C.Edmond Allen (sender of the above email) and Gang Yong (recipient of this email) as to how and from where they have received the above said attachment?
Ans. I did not examine C. Edmond Allen nor did I inquire from Gang Yong regarding this email. I also did not inquire or recorded any such proceeding in my charge sheet pertaining to this attachment in email dated 31.10.2009."
200. Thus, it is an admitted case of the Investigating Agency that the letter Mark PW-2/B had been sent through email on 31.10.2009 by Mr. C. Edmonds Allen to Mr. Gan Yong, which is particularly relevant in view of the fact that it is the own case of the prosecution RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 109 of 131 as per Para-16.19 of the charge sheet, that the said letter of Sh.Ajay Maken was shown for the first time to Mr.Gan Yong on 03.11.2009 and also again to Sh. D.K. Ghosh for the first time on 03.11.2009.
201. The Investigating Officer has also admitted this fact in his further cross-examination recorded on the same date i.e. 08.01.2019 and from the above evidence on record, it thus stands proved that the alleged forged letter Mark PW-2/B had already been received by Mr.Gan Yong on 31.10.2009 i.e. much prior to 03.11.2009, when it was allegedly shown to him for the first time, as per the case of the prosecution.
202. Further, PW23 Sh.Gaurav Katara also deposed on 04.09.2018 that the e-mail dated 31.10.2009 sent by PW27 C.Edmodn Allen to Mr.Gan Yong at the letter from Sh.Ajay Makan, Home Minister to Prime Minister regarding Chinese visa matter October 31, 2009.pdf as an attachment. PW27 Mr.C. Edmonds Allen also admitted in his cross-examination dated 12.07.2023 that D-20 is not a doctored document and it is a condensed reproduction of original e-mail. This e-mail of 31.10.2009 was produced and exhibited by the Prosecution itself. Further PW-11 Vikki Choudhary also clarified in his deposition recorded on 07.09.2016 that D-20 i.e. e-mail sent by Mr.C.Edmond Allen dated 31.10.2009 at 01:03 AM to Mr.Gan Yong from the e-mail ID of Mr.C.Edmond Allen has an attachment letter from Sh.Ajay Maken, Home Minister to Prime Minister regrding Chinese Visa matter.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 110 of 131
203. In view of the aforesaid circumstances, the case of the Prosecution that the copy of the forged letter was for the first time handed over to PW-13 Sh. D.K.Ghosh and shown to Mr. Gan Yong on 03.11.2009 also stands demolished.
204. Insofar as the allegations of offence punishable under Section 420 r/w 511 IPC is concerned, it is the case of the prosecution that A-1 demanded money from the officials of M/s ZTE Telecom India Pvt. Ltd.
205. As per the charge sheet, it is during the meeting at Oberoi hotel that Accused No.1 Abhishek Verma demanded Rs.50 lacs for getting solve the visa problem through his contact in Government of India. Mr.Gan Yong, to whom the said demand was allegedly made, did not appear as a witness as already stated above.
206. PW-13 D.K.Ghosh admitted in his cross-examination dated 04.09.2018 that "It is correct that I did not hear Sh.Abhishek Verma demanding any money for any visa from Mr.Gang Yong in this meeting. I was told about such demand by Gang Yong and it is not in my personal knowledge."
207. It is thus argued that the testimony of PW-13 to the effect that on 30.10.2009 A-1 demanded Rs.50 lacs from the Mr.Gan Yong is nothing more than hearsay evidence, which is inadmissible in RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 111 of 131 evidence.
208. In this regard, reliance has been placed on the ruling of Hon'ble Delhi High Court in the case titled as Surender vs. State reported as 2009 SCC OnLine Del 1774, whereby the Hon'ble High Court has observed that the direct evidence with regard to hearsay evidence would not convert the hearsay evidence into direct evidence and would remain to be hearsay.
209. Reliance has also been placed on the case of Kalayan Kumar Gogoi vs. Ashutosh Agnihotri & Anr., reported as (2011) 2 SCC 532, wherein it has been observed as under:-
"Here comes the rule of appreciation of hearsay evidence. Hearsay evidence is excluded on the ground that it is always desirable, in the interest of justice, to get the person, whose statement is relied upon, into court for his examination in the regular way, in order that many possible sources of inaccuracy and untrustworthiness can be brought to light and exposed, if they exist, by the test of cross-examination. The phrase "hearsay evidence" is not used in the Evidence Act because it is inaccurate and vague. It is a fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible. A statement, oral or written, made otherwise than a witness in giving evidence and a statement contained or recorded in any book, document or record whatever, proof of which is not admitted on other grounds, are deemed to be irrelevant RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 112 of 131 for the purpose of proving the truth of the matter stated. An assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted. That this species of evidence cannot be tested by cross- examination and that, in many cases, it supposes some better testimony which ought to be offered in a particular case, are not the sole grounds for its exclusion. Its tendency to protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness, its incompetency to satisfy the mind of a judge about the existence of a fact, and the fraud which may be practiced with impunity, under its cover, combine to support the rule that hearsay evidence is inadmissible.
210. Moreover, the alleged meetings as claimed in the chargeshseet have also not been proved to have taken place, as already discussed in detail earlier.
211. Next, on the basis of the evidence on record, I am also of the considered opinion that the Prosecution has also failed to prove that the e-mail [email protected] was the e-mail ID of A-1.
212. Though, PW-9 Sh.Anuj Bhatia proved the fact that mobile No.9811432277 was registered in the name of Accused Abhishek Verma by way of CAF Ex.PW9/H. It is argued by Ld. Sr. PP for CBI that PW-18 Sh.Sandeep Jaggi had let out a part of his property RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 113 of 131 bearing No.E-295, Upper Ground Floor, G.K.-I, New Delhi-48 to Accused Abhishek Verma along with one Airtel landline connection with internet facility. Though, PW-18 did not remember the complete landline number, however, he was able to recall during his deposition that the last digits of the said landline number were 7476. He also deposed that in January, 2009 the lease deed agreement was executed between him and A-1 and the premises were let out to A-1 on a monthly rent of Rs.1,60,000/- per month and that A-1 remained in possession of the premises from November, 2008 to March, 2010. The lease agreement was executed by him as Ex.PW18/B.
213. It is further urged that in order to prove that the said landline connection bearing No.46597476 was registered in the name of Accused Abhishek Verma, the Prosecution examined PW-1 Sh.Chander Shekhar, Nodal Officer of Bharti Airtel Limited, who exhibited the CAF of the said landline number as D-27 along with its annexures, computerized details of landline number, IP details showing user ID, phone number, IP addres etc. and customer payment details. The same have been exhibited as Ex.PW1/J, Ex.PW1/J1 and Ex.PW1/J2.
214. Learned Sr. PP for CBI relying upon the aforesaid documentary evidence vehemently argued that the Prosecution has thus been able to establish that A-1 was residing at House No.E-295, Upper Ground Floor, GK-I, New Delhi-48 during the RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 114 of 131 relevant period it was taken on rent by him from PW18. It is further argued that it also stands established that the documents produced from PW1 that the above mentioned landline number 46597476 was installed in the said premises in the name of Accused Abhishek Verma, the IP address of the said landline number i.e. 122.161.171.246 also stands proved vide documents Ex.PW1/J1.
215. Learned Sr. PP for CBI further argued that the e-mails sent by A-1 from his two e-mail IDs i.e. [email protected] and [email protected] have been sent from the same IP address i.e. 122.161.171.246 and thus the Prosecution has been able to conclusively prove that the said e-mails were infact sent by A-1.
216. On the other hand, learned Defence Counsels argued that the Prosecution has failed to prove that the said IP address was of the landline number 46597476 or that the Accused Abhishek Verma was residing in the premises bearing No. E-295, Upper Ground Floor, GK-I, New Delhi-48.
217. I have considered the rival submissions and carefully perused the material on record.
218. At the outset, it is pertinent to note that though the Prosecution examined PW1 who exhibited the above mentioned documents Ex.PW1/J, Ex.PW1/J1 & Ex.PW1/J2 pertaining to the landline number 46597476, however, no supporting certificate RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 115 of 131 under Section 65B of IEA was produced by PW1 and thus the above document cannot be said to have been proved in accordance with law. The Prosecution, thus failed to establish that the IP address 122.161.171.246 was of the landline number 46597476 or that the said landline number was registered in the name of A-1 as neither CAF Ex.PW1/J (Colly) nor the document Ex.PW1/J1 (showing IP addres of the aforesaid landline number) stand proved in accordance with law.
219. In the light of the above evidence, it thus cannot be said to have been proved that the e-mail ID [email protected] was the e-mail ID of Accused Abhishek Verma. Consequently, the Proescution has also failed to prove that it was Accused Abhishek Verma who sent the e-mail dated 30.10.2009 to PW-27 C.Edmonds Allen at about 20:47:02 from e-mail ID [email protected].
220. It may be reiterated that the Prosecution has not been able to establish that the e-mail ID [email protected] was the e- mail ID of A-1 as there is no admissible evidence for want of requisite certificate under Section 65 of Indian Evidence Act, whatsoever on record to prove that the IP address used by sending the aforesaid e-mail i.e. 122.161.171.246 is the same IP address which A-1 was using for his e-mail ID i.e. [email protected]. Rather, it is the argument of the defence that the aforesaid e-mail ID i.e. [email protected] was the e-mail ID of PW-27 C.Edmonds Allen himself.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 116 of 131
221. It has been argued by learned Defence Counsel for A-1 that rather it is apparent from perusal of Ex.PW11/C that the admn of the said e-mail i.e. [email protected] is PW27 C.Edmonds Allen and the phone number mentioned under the said domain in the name of PW27 is also of USA. Learned Defence Counsel further argued that in fact PW27 is the exclusive user of the aforesaid e-mail ID. He drew attention of the court to the cross- examination of PW-11 dated 07.09.2016, wherein while referring to Ex.PW11/A, the above named witness deposed that admn name and phone number mentioned in the said documents is of USA and it is the same phone number which has been mentioned in other documents in Ex.PW11/C.
222. PW-23 Gaurav Katara, Assistant Programmer, CBI also admitted in his cross-examination recorded on 04.09.2018 that "It is correct that as per the document already Ex.PW11/C at page no.5 (part of D-5) the admn name for [email protected] is C Allen. Vol. The domain name is Ganton-limited.com.
223. Further, it is argued that even the IO PW26 Sh.Vipin Kumar Verma admitted in his cross-examination that "the domain name Ganton-limited.com has C Allen as the admin mentioned at page 4 of Ex.PW11/C (Colly) and his email is mentioned as [email protected] and the address is also of USA."
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 117 of 131
224. It is thus apparent that the Prosecution has been unable to prove that the e-mail ID [email protected] was the e-mail of A-1 or it is A-1 who had sent e-mail dated 30.10.2009 to PW27 asking him to forward the attachment sent with the said e-mail to Mr.Gan Yong.
225. In such a scenario and since the Prosecution has been unable to prove that it is A-1 who sent the draft agreement to be executed on the letter head of ZTE to PW27 on 30.10.2009, the entire case of the Prosecution against A-1 stands demolished. The further case of the Prosecution that pursuant to the same, PW27 prepared the agreement to be executed by M/s ZTE on its letter head and sent the same to Mr.Gan Yong on 31.10.2009 or that he sent the e-mail from the said e-mail ID to PW27 on 03.11.2009, also does not stand proved. In fact, the allegations that A-1 attached the purported letter of PW2 Ajay Maken addressed to Prime Minister of India regarding Visa problem of Chinese employees of ZTE in the said e- mail ID, becomes doubtful in view of the fact that the copy of the said purported letter was already received by Mr.Gan Yong on 31.10.2009. Hence, the case of the Prosecution that the said letter was shown for the first time to Mr.Gan Yong by A2 at his residence in presence of A1, cannot be accepted.
226. Further, in his cross-examination conducted on behalf of A-2, PW27 who is stated to have sent e-mail dated 30.10.2009 Ex.PW27/J to Mr.Gan Yong alleged on the asking of A-1, deposed RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 118 of 131 that "I did not receive any response from Mr.Gan Yong or anybody else from ZTE to my email dated 30.10.2009 Ex.PW27/J available on page 41 of D-22."
227. Thus, the offence under Section 471 IPC for which both the Accused are also facing trial in addition to the above noted offences also does not stand proved for the reason that the essential ingredients of offence under Section 471 IPC have not been proved by the Prosecution.
228. In this regard, reference may be made to the case of Jibrial Diwan vs. State of Maharastra, AIR 1997 SC 3424. The brief facts of the case are that two actors namely Raja Murad and Javed Khan, on the basis of two forged letters prepared on the letter head of a Minister, performed a cultural event and later it was revealed that the said letters were forged. One of the Accused who was facing trial on the allegation of having forged the said letter was acquitted by the concerned Hon'ble High Court. The role of the Appellant before the Hon'ble Supreme Court was that he had delivered those two forged letters to the recipients and for that act, even though he was acquitted by the trial court, the High Court convicted him for offence under Section 417, Section 471 read with Section 465 IPC.
The Appellant before the Hon'ble Apex Court was not the person who had forged the said letters. The Hon'ble Apex Court RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 119 of 131 observed as under:-
"Section 471 enjoins that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document."
229. It further observed that:-
"Now the words "dishonestly" and "fraudulently" have been defined respectively in Sections 24 and 25 of the Indian Penal Code. "Dishonestly" has been defined to mean that whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". The word "fraudulently" has been defined to mean that a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. This Court in S. Dutt (Dr) v. State of U.P. has explained the words "intent to defraud" as being not synonymous with the words "intent to deceive". It requires some action resulting in a disadvantage which but for the deception the person defrauded would have avoided."
230. The Hon'ble Apex Court thus held that by the delivery of forged letters, there is neither any wrongful gain to anyone nor any wrongful loss to another and the act of the Appellant before Hon'ble Apex Court in the said case, could not thus be termed to have been done dishonestly or with an intention to defraud because his action resulted in no disadvantage to any one. It was thus held RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 120 of 131 that the basic ingredients of the act done `dishonestly' or `fraudulently' being missing, the charge under Section 471 read with 465 IPC was totally misplaced.
231. This judgment was later followed by Hon'ble Supreme Court in another case titled as Kokilaben Devjibhai Makwana & Ors. vs. State of Gujarat & Ors., 2015GLH(1)536.
232. Applying the said aforesaid legal principles to the facts of the present case, it is apparent in this case also that it is not the case of the Prosecution that any wrongful gain or wrongful loss caused to anyone as a result of the alleged forged letter Mark PW20/X. In fact, in the present case, the evidence as regards the very existence of such forged letters and the alleged delivery thereof by A-1 to PW13, is also not very convincing, as observed in the preceding paragraphs of this judgment.
233. Further, in the absence of concrete proof with regard to even the alleged forged letter having been handed over to PW13 and the fact that from the Prosecution's own document, it is borne out that the factum of the notification with regard to Visa of foreign nationals working in the country having already been recalled and that no foreigner was proved to have been deported as a result of such notification, the commission of alleged offences, i.e. Section 471 IPC by A-1 & A-2 and Section 420 r/w Section 511 IPC by A-1 does not stand proved on record.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 121 of 131
234. Now, coming to the charge for the substantive offence under Section 8 of the PC Act,1988 for which A-1 is facing trial in this case. Section 8 of PC Act provides as under:-
"Taking gratification, in order, by corrupt or illegal means, to influence public servant. - Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause
(c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."
235. In this regard, on the basis of evidence on record, I find myself in agreement with the submissions made on behalf of A-1 that the Prosecution has failed to prove on record the allegations for the commission of offence under Section 8 of the PC Act by A-1.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 122 of 131
236. Admittedly, no gratification has been received and none of the Prosecution witnesses deposed that any gratification was even demanded by the Accused/A-1. Moreover, as highlighted above, there is not a shred of evidence on record to establish even any attempt to obtain any gratification for himself or for any other person.
237. The meeting dated 30.10.2009 alleged to have taken place at the house of A-2 between PW-13 Sh.D.K.Ghosh and the Accused persons has not been established on record, as already discussed hereinabove. In fact, the IO PW26 himself admitted in the course of his cross-examination that there is no evidence of the said meeting dated 30.10.2009. Further, there is no evidence of any demand proved on record during the course of trial.
238. It may be reiterated that it is the case of the CBI that a demand was allegedly made to Mr.Gan Yong, who was never produced in the witness box and the allegation that the Accused demanded money from Mr.Gan Yong was thus not proved by the Prosecution. The deposition of PW13 to this effect which falls in the category of a hearsay evidence is undoubtedly inadmissible in evidence.
239. Interestingly, PW-27 Mr.C.Edmonds Allen claimed in his cross-examination conducted by Ld. Senior Counsel for A-2 that the name of the Minister for Home Affairs/Home Minister referred to RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 123 of 131 in the email Ex.PW27/H, was Mr.Ajay Maken.
240. I also find myself unable to agree with the arguments of the Prosecution that as per Section 106 of Indian Evidence Act, since the Prosecution was able to prove the alleged meetings at the house of A-2, the burden shifted upon the Accused persons and it was incumbent upon the Accused to prove that the allegations against them are false.
241. It is the cardinal principle of Criminal Law that it is for the Prosecution to prove its case against the Accused beyond reasonable doubt. It is only when the Prosecution is able to discharge its burden and establish its case against the Accused is the Accused required to establish his defence.
242. In the present case, as already discussed, the Prosecution has miserably failed to prove that the meetings took place at the residence of A-2 on 30.10.2009 and 03.11.2009 and thus the question of applicability of Section 106 of Indian Evidence Act, in these circumstances, does not arise.
243. In this regard reference be also made to a landmark judgment of Rabindra Kumar Dey vs. State of Orissa, (1976) 4 SCC 233, wherein it has been observed as under:-
"In our opinion three cardinal principles of criminal jurisprudence are well-settled, RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 124 of 131 namely:
(1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
(2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and (3) that the onus of the prosecution never shifts.
244. Moreover, it was vital for the Prosecution to examine Mr.Gan Yong having regard to the facts and circumstances of the case and his non-examination certainly affects the case of the Prosecution adversely. The statement of Mr.Gan Yong recorded under Section 164 Cr.PC cannot be a substitute for his deposition in court, as argued by learned Sr. PP for CBI. It is settled law that a statement under Section 164 Cr.PC is not substantive evidence and it can be used only to corroborate and contradict the statement of a witness. Reference in this regard is made to the judgment titled as Ram Kishan Singh vs. Harmit Kaur & Anr., (1972) 3 SCC 280.
Lapses in Investigation:-
245. I further consider it necessary to point out various lapses in investigation of this case which came to be highlighted in the course of trial.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 125 of 131
246. There are various glaring aspects which must be highlighted as they clearly reflect that investigation of this case was not conducted properly and fairly.
247. IO/PW26 during his cross examination on behalf of A-2 admitted that A-2 was not named in FIR of the case and as per him, the name of A-2 figured during custodial interrogation of A-1. As already stated in preceding paragraphs, the FIR of this case was registered on 08.08.2012 and A-1 was arrested on the same day. However, the IO/PW26 admits in his cross examination that the above fact was nowhere mentioned by him in chargesheet nor does the chargesheet find any mention of any interrogation of A-1 conducted by him in the CBI office. He also admitted that this fact was not shared by him in writing even with his senior officers. IO further admitted that he did not even record any disclosure statement of A-1 to this effect. Though, he volunteered that some statement of A-1 was recorded by him, but he admitted that no such statement of A-1 was filed by him in court along with the chargesheet.
248. Further, the date of letter Mark PW20/X (D-55) is 23.08.2012 i.e. after 15 days from the date of registration of this case and arrest of the said accused. The above letter of accused is addressed to Sh. Ashwini Chand, the then SSP of CBI and it was written in reference to an inquiry conducted from the accused about RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 126 of 131 above fake letter floated by A-1 Abhishek Verma and also regarding claims which A-1 allegedly made regarding visiting his office and meeting his PSO Sh. Krishan Kumar and Sh. A. S. Iyengar (PW20) during the relevant period of commission of alleged offences.
249. In the above letter A-2 highlighted that the claim made by A-1 about the meeting his PSO Sh. Krishan Kumar on 28.10.2009 and 31.10.2009 in his house is incorrect as his PSO was not on duty on those days and the records of Delhi Police could be verified qua the same. Regarding the alleged meeting of A-1 with Sh. A. S. Iyengar, A-2 submitted in the said letter that Sh. A. S. Iyengar, who had just gone a kidney operation around the said time, was on leave from 25.10.2009 to 15.11.2009 and had gone to Chennai to attend marriage of his brother's son. It was further stated by A-2 in the said letter that he was enclosing the details of his both telephone numbers 23092507 and 23092508, along with the said letter and the call records thereof could be obtained and scrutinize to find out any truth behind the claim of A-1 regarding any call made by him to anybody concerning home minister or even to anybody else of any significance.
250. It is pertinent to note that during his cross examination IO/PW26 admitted that the letter Mark PW20/X (D-55) sent by A-2 was received by him, after being forwarded by his SP on 23.08.2012 itself. However, he further admitted that he did not conduct any investigation with regard to the issues raised by A-2 in the above RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 127 of 131 letter and he did not even get verified or investigated the call details of two land line numbers of A-2 provided through the said letter for checking out the veracity of claims being made by A-2.
251. Thus, the above deposition of IO clearly established that he did not conduct any inquiry with regard to the points highlighted in the above letter. It also establishes that though orally A-1 might have communicated the name of A-2 as an offender or participant in commission of alleged offences, but no statement or disclosure statement in writing of the said accused, was recorded or filed on record. Thus, it is not clear as to how the Investigating Officer reached at the residence of A-2 when his name was not in FIR and why he did not conduct any investigation on the aspects highlighted in the above letter.
252. Again, the IO during his above cross examination on behalf of A-2 also admitted that there is no material evidence on record to show or prove the meeting of A-1, PW13, Mr. Gan Yong and A-2 at the residence of A-2 on 30.10.2009 and 03.11.2009. Though he also volunteered that he only relied on statement of Sh. D. K. Ghosh and Sh. Gan Yong to this effect, however, it has also come on record during his cross examination that the statements of Sh. D. K. Ghosh and Mr. Gan Yong U/S 161 Cr.P.C. were recorded by him on 30.07.2013 and then their statements U/S 164 Cr.P.C. were got recorded on dates 29.08.2013 and 23.08.2013 respectively. He even admitted that till 30.07.2013, there was no substantial evidence RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 128 of 131 against A-2 Jagdish Tytler available with him during the course of investigation.
253. Next, it has already been discussed at length earlier that no effort was apparently made by the Investigating Agency to procure the copy of the alleged forged letter which as per its own case was handed over to PW13 Sh.D.K.Ghosh by Accused Abhishek Verma.
254. Lastly, though it is claimed that A-2 was using the mobile phone no. 9899485136, which as per the own case of the Prosecution was registered in the name of Ms. Menaxi Kapur, no material was collected during investigation to establish that A-2 was using the said mobile number. Ms.Menaxi Kapur is not the cited witness of Prosecution nor is there any other evidence (except letter D-55, which also does not aid the case of the Prosecution, as already discussed in the preceding paragraphs) to link this mobile number with A-2.
CONCLUSION
255. Before concluding, it would be relevant to cite the observation of Hon'ble Supreme Court in case titled as Sujit Biswas vs. State of Assam, (2013) 12 SCC 406, wherein it is observed as follows:-
"Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'.
RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 129 of 131 In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record."
256. In conclusion, in the light of the evidence, both oral and documentary, brought on record in the course of trial, the arguments advanced by the Prosecution and the Defence and the above discussion, I am of the considered opinion that the Prosecution has failed to prove the allegations made in the chargesheet against both the Accused persons.
257. The charges for offence punishable under Section U/S 120B IPC r/w Section 8 of the PC Act and Sections 420 and 471 IPC as RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 130 of 131 well as charges for commission of the substantive offences punishable U/S 8 of the PC Act, Sections 420 r/w 511 IPC and 471 IPC against A-1 and charges for offence punishable under Section U/S 120B IPC r/w Section 8 of the PC Act r/w Sections 420 and 471 IPC as well as for the substantive offence U/S 471 IPC against A-2, have not been proved beyond reasonable doubt.
258. Consequently, both the Accused persons are hereby acquitted. Their bail bonds stand cancelled and their sureties are accordingly discharged.
259. File be consigned to record room after due compliance.
Digitally signed by KAVERI KAVERI BAWEJA BAWEJA Date:
2024.11.12 17:32:19 +0530 Announced in open court (Kaveri Baweja) on this 12th day of November, 2024 Special Judge (PC Act) CBI-09 (MPs/MLAs Cases), RADC, New Delhi RC AC1/2012/A0011/SPE/CBI/New Delhi (CBI vs. Abhishek Verma & Anr.) Page 131 of 131