Bangalore District Court
Central Bureau Of Investigation vs Dharmendra Acharya on 3 October, 2017
IN THE COURT OF THE XLVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI
CASES (CCH-47) AT BENGALURU
Dated this the 3rd October, 2017.
PRESENT:
Smt. S.H.PUSHPANJALI DEVI, B.A. LL.B.,
XLVI Additional City Civil and Sessions Judge
and Special Judge for C.B.I. Cases,
Bengaluru.
SPECIAL CRIMINAL CASE No.204/2015
COMPLAINANT : Central Bureau of Investigation,
A.C.B., Bengaluru.
(By Public Prosecutor)
-VERSUS-
ACCUSED 1 Dharmendra Acharya,
S/o.Dr.A.K.Acharya,
Asst.General Manager (Personnel),
National Mineral Development
Corporation,
Donimalai, Sandur Taluk,
Bellary District.
R/o.D-11, M/s.National Mineral
Development Corporation Township,
Donimalai, Sandur Taluk,
Bellary Dist.
2 Appanna Boine Ramanjaneyulu,
S/o.A.Nagappa,
JO,
2 Spl.C.C. No.204/2015
M/s.National Mineral Development
Corporation Ltd.,
Donimalai Iron Ore Mines,
Donimalai.
R/o.Quarter No.59, Type-II,
South Block, Donimalai Township,
Donimali, Sandur Taluk.
3 Khajababu Sheik,
S/o.Anwar Pasha,
JO, M/s.National Mineral
Development Corporation Ltd.,
Donimalai Iron Ore Mines,
Donimalai.
R/o.Quarter No.29, Type-2,
South Block, Donimalai Township,
Sandur Taluk,
Bellary Dist.
1. Date of Commission of : During the year 2013
Offence
2. Date of Report of Offence : 23.12.2013
3. Date of Arrest of accused : A-2 on 12.11.2014
4. Date of release of accused : A-1 & A-3 enlarged on bail
on bail
on 7.8.2015
A-2 enlarged on bail on
19.12.2014
5. Period of undergone in : A-2 undergone Police
custody
Custody for three days
3 Spl.C.C. No.204/2015
from 12.11.2014 till
15.11.2014.
A-2 remanded to J.C.
from 15.11.2014 to
19.12.2014 for a period of
44 days.
6. Name of the complainant : Source Information
7. Date of commencement of : 12.7.2016
Evidence
8. Date of closing of Evidence : 1.6.2017
9. Offences complained of : 120-B r/w.420 IPC and
Sec.13(2) r/w.13 (1)(d) of
Prevention of Corruption
Act, 1988.
Charges framed : 120-B r/w.420 of Indian
Penal Code, 420 of Indian
Penal Code and Section 8
and 13(2) read with
r/w.13(1)(c) of Prevention
of Corruption Act, 1988.
10. Opinion of the Judge : As per final order
4 Spl.C.C. No.204/2015
11. State represented by : Public Prosecutor
12. Accused defended by A-1 by Sri S.S.S., Adv.
A-2 by Sri K.V.S.R., Adv.
A-3 by Sri C.B.A., Adv.
(S.H.PUSHPANJALI DEVI)
XLVI Additional City Civil and Sessions Judge
and Special Judge for CBI Cases,
Bengaluru.
5 Spl.C.C. No.204/2015
JUDGMENT
The Inspector of Police, CBI/ACB/Bengaluru has filed charge sheet against the accused Nos.1 to 3, on the basis of Source Information for the offences punishable under Sections 120-B r/w.420 IPC and Sec.13(2) r/w.13 (1)(d) of Prevention of Corruption Act, 1988.
2. The brief facts of the case of prosecution are as under:-
The specific allegation made against accused No.1 Dharmendra Acharya that, he being public servant as Assistant General Manager (Personnel), NMDC Limited, Donimalai Iron Ore Mines, Donimalai, entered into criminal conspiracy with accused No.2 - A.B.Ramanjaneyalu and accused No.3 - Khaja Babu Sheik, in connection with the selection of candidates for the post of Junior Officers (Mining), (hereinafter referred as 'JO') at National Mineral Development Corporation, (hereinafter referred as 'N.M.D.C.'), Donimalai by collecting illegal gratification and showed undue favour and dis-favour to the candidates. Further alleged that in view of criminal conspiracy, 6 Spl.C.C. No.204/2015 accused No.1 dishonestly and fraudulently in order to favour and accommodate candidates of his choice, did not accept the OBC certificates of eligible candidates, consider them as general category. Further accused No.1 as Head of Personnel Department, had not taken any steps to put up proposal before the competent authority for constituting a committee to prepare question papers. Further, he being Assistant General Manager, Head of Personnel Department, with malafide intention instructed NMDC officials who performed duties as invigilators to sign on the question-cum-answer sheet and instructed the teachers of Kendriya Vidyalaya, who were acted as invigilators, not to put their signatures. Further he gave reasons with regard to the same as only the officials of NMDC were authorized to sign on the answer sheet. It is the case of Prosecution that, accused No.1 with V.Mehaboob Basha, AGM (M&S) a member of the Overseeing Committee visited only 12 rooms with ulterior motive and instructed the NMDC invigilators to obtain mobile numbers of the candidates on the attendance sheet. Thereafter, accused No.1 with an ulterior motive, changed the category of six candidates namely Standly Kanikra, Gungi Ankamma Rao, A.Ramanjineyalu, Sharada Prasad Sahoo, Gunde Boyina 7 Spl.C.C. No.204/2015 Yadagiri and M.Joseph Raj from OBC to General without any justification. Further, though Scrutiny Committee placed them in OBC category in accordance with their certificates, accused No.1 showed them in General category only to accommodate his candidates in the selection list and cheated NMDC Ltd., by way of depriving the eligible candidates.
3. Prosecution further alleged that, accused No.1 with dishonest intention, placed one of the candidate Gungi Ankamma Rao of OBC category as General category, even though he had produced original OBC certificate in the Central Format, for the reasons that the said candidate refused to pay bribe demanded by accused No.1. Further, accused No.1 as public servant abused his official position and with dishonest intention shown favour to his candidate T.Venkatasudarshan, who had not produced SC certificate along with application. Inspite of that he was given the benefit of reserved category and had selected for the post of JO. Accused No.1 further abused his official position to do undue favour to candidate of his choice given more marks despite not having any mining degree or knowledge on the subject and given more marks than marks given by S.K.Verma, 8 Spl.C.C. No.204/2015 GM (Production) and Vipin Kumar, Senior Manager (Mining). He had benefited some of the candidates by qualifying in the interview and getting selected for the post of JO, in spite of better candidates were attended interview. He had shown favour to the candidates namely Asit Kumar Behera, Avijit Roy, Anadi Mahapatra, T.Venkatasudarshan, Khajababu Sheik and P.Thanesh Kumar.
4. Further, accused No.1 manipulated the work experience of above said Gungi Ankamma Rao only to cause disadvantage by showing less experience of 5 years 9 months, though, he had actual experience of 6 year 2 months. He was eligible candidate deprived of selection by fraudulent and dishonest acts of accused No.1, who had abused his official position intentionally and changed his category from OBC to General. Further, accused No.1 during the interview initially gave Zero marks to the experience of Gungi Ankamma Rao though he had more than 5 years experience. Later it was objected by one of the interview board members V.B.Vipin Kumar, therefore, accused No.1 gave two marks to the said candidate. However, Gungi Ankamma Rao had scored 66 marks in written examination and 14.42 marks in 9 Spl.C.C. No.204/2015 personal interview, which was highest among the OBC candidates. But accused No.1 shown him as General candidate and disqualified from being appointed as JO.
5. Further alleged that, accused No.1 being member of interview committee, with dishonest and fraudulent intention did not compile the interview marks on 21.7.2013 on the date of interview itself and it was done after one week, on 29.7.2013 only for the purpose of manipulating marks and he did not keep the assessment sheets of the six members interview committee in a sealed cover and not obtained the signatures of all of them on the said cover. Further accused No.1 in view of criminal conspiracy with accused Nos.2 and 3 has not complied with some of the important guidelines and violated recruitment policy and procedure of NMDC while recruiting JO by showing undue favour to candidate of his choice.
6. Further accused No.2 with dishonest and fraudulent intention collected the mobile numbers of candidates who have appeared for the written examination contacted them over phone and also met them personally stating that he would get 10 Spl.C.C. No.204/2015 them selected for the post of JO, if they pay amount of Rs.3-5 lakhs to the NMDC Management. Further made allegation against accused No.2 that he being one of the candidates said to be acted as a conduit between the candidates and the Management for collecting bribe from many aspirant candidates to get selected them by influencing the officials of NMDC Limited. Accused No.2 from his Mobile phone called Gungi Ankamma Rao and informed that Management had asked him to arrange five candidates, who will pay a sum of Rs.3 to 4 lakhs to get select for the post of JO by showing undue favour for gratification. Further he had contacted Gungi Ankamma Rao for 87 times during the period from 1.6.2013 to 26.12.2013, from the date of written examination till final selection to the post of JO. He had demanded money to get selected for the said post and since Gungi Ankamma Rao did not pay money he was not selected. Accused No.2 in furtherance of Criminal Conspiracy had with accused Nos.1 and 3, contacted from his mobile phone to another candidate Sengamsetti Ramakrishna and asked him to pay Rs.5 lakhs for his selection for the post of JO. Since both Gungi Ankamma Rao and Sengamsetti Ramakrishna were refused to pay bribe, accused No.1 awarded lesser marks in the 11 Spl.C.C. No.204/2015 interview and both of them have not been selected for the post of JO. Apart from that, accused No.2 had also contacted other candidates from his mobile phone to collect the bribe and get them selected to the post of JO.
7. It is further alleged that accused No.2 had collected Rs.3,00,400/- from accused No.3 Khaja Babu Sheik on 15.7.2013 and got selected by dishonest and fraudulent means by depriving genuine and eligible candidates in the selection process. Accused No.3 had fraudulently and dishonestly paid the above said amount to accused No.2 to get select for the post of JO and instructed one Sheik Samraj Ahmed, brother-in-law of his brother Khader Sharief to deposit amount of Rs.1.00 lakh. In turn, he had deposited an amount of Rs.1 lakh to his S.B. account maintained with State Bank of India, Nododavale Branch on 15.7.2013. Subsequently the said amount transferred to the S.B. account held in the name of accused No.2 at SBI, Sandur Branch, on different dates.
8. Further alleged that accused No.3, visited State Bank of India, Eluru Bazaar Branch, West Godavari District, Andhra 12 Spl.C.C. No.204/2015 Pradesh and deposited an amount of Rs.49,900/- into the SB account No.31553895853 held in the name of Anwar Pasha got transferred the same to the S.B. account of accused No.2 No.31147478026 held with SBI, Sandur Branch on 15.7.2013. On the same day, accused No.3 visited Axis Bank, Eluru Branch, Andhra Pradesh and deposited an amount of Rs.49,000/-, Rs.48,000/-, Rs.44,000/-, Rs.7,600/- and Rs.1,500/- respectively through BNA machine installed in the Branch transferred the said amount to the SB account No.911010035645348 of accused No.2 maintained with Axis Bank, Sandur Branch. Accused No.3 had dishonestly and fraudulently got selected as JO by paying Rs.3,00,400/- to accused-No.2 as bribe.
9. The Investigating Officer on the basis of source information of the above alleged facts registered the case in R.C.19(A)/2013 on 23.12.2013 for the offence punishable under Section 120(B) read with 420 Indian Penal Code Section and Section 8, 13(2) read with 13(1) (d) of Prevention of Corruption Act, 1988 for criminal conspiracy, cheating, taking illegal gratification by corrupt or illegal means to influence public servant and criminal misconduct.
13 Spl.C.C. No.204/2015
10. On 2.1.2014, the Investigating Officer filed application under Section 93 Cr.P.C. and prayed for search warrant against accused No.1 to 3. After considering the said application, a search warrant issued against accused persons. On 12.7.2014, the Investigating Officer has produced the accused No.2 with remand application and prayed for police custody for three days. After going through the reasons made out in the application, the Court has given accused No.2 for police custody for three days as prayed by the Investigating Officer. After three days, on 15.11.2014, accused No.2 produced from police custody and he was remanded to J.C. Subsequently, accused No.2 was granted bail on 19.12.2014.
11. The Investigating Officer on 29.12.2014, filed a sealed cover containing certified copies of the statements of Gungi Ankamma Rao and Singamasetty Ramakrishna recorded under Section.164 (5) of Cr.P.C. by 17th ACMM, Bengaluru and the same ordered to be kept in safe custody. Thereafter, the concerned Sheristedar of copying Branch was directed to open 14 Spl.C.C. No.204/2015 the sealed cover and certified copies of the above statements provided to Investigating Officer as prayed for.
12. Subsequently, the Investigating Officer, during the investigation has collected documents from the Bank Officials, independent witnesses and recorded their statements. After completion of investigation, since the materials collected against accused Nos.1 to 3 are sufficient to prosecute them, had filed the charge sheet for the offences punishable under Sections 120-B r/w.420 IPC and Sec.13(2) r/w.13 (1)(d) of Prevention of Corruption Act, 1988.
13. After filing charge sheet, the then learned Presiding Officer took cognizance of the offences punishable under Sections 120-B r/w. Section 420 of Indian Penal Code 1860 and Section 420 of Indian Penal Code, against accused Nos.1 to 3, for the offence under Section 8 of the Prevention of Corruption Act, took cognizance against accused No.2 and cognizance of offences under Sections 13(2) read with 13(1) (c) of Prevention of Corruption Act, 1988 took against accused No.1. After taking 15 Spl.C.C. No.204/2015 cognizance of the offences, Special Criminal Case ordered to be registered against the accused Nos.1 to 3.
14. Subsequent to registering Special Criminal Case against accused Nos.1 to 3, summons issued to them. Afterwards, accused Nos.1 to 3 appeared before the Court through different Counsel and accused Nos.1 and 3 were enlarged on bail, since the accused No.2 was already granted bail on 19.12.2014. The Copies of the charge sheet furnished to the accused Nos.1 to 3 as provided under Section 207 of Cr.P.C.
15. The then learned Presiding Officer of this Court has heard arguments of learned Counsels for accused Nos.1 to 3 and learned Public Prosecutor on Hearing Before Charge and also Interim Applications Nos.5 to 7 filed by the accused under Section 227 Criminal Procedure Code, 1988. Afterwards, dismissed the said applications and charges framed against accused Nos.1 to 3 for the offence punishable under Sections 120-B r/w.420 Indian Penal Code, Charge under Section 8 of Prevention of Corruption Act, 1988 framed only against accused No.2 and Charge for the offence punishable under 16 Spl.C.C. No.204/2015 Section 13(2) read with 13(c) of Prevention of Corruption Act, 1988 framed only against accused No.1. The charges read over and explained to the accused Nos.1 to 3 in language known to them, they pleaded not guilty and claimed to be tried.
16. The prosecution has examined 65 witnesses as PWs.1 to 65, out of CWs.1 to 95. CWs.15 to 19, 21 to 24, 28, 57 to 70, 72, 74, 80, 87 to 89, 91 and 93 were not examined by the prosecution. The documents in support of the prosecution case are marked as Exs.P1 to P255, the documents for the defence of the accused marked as Ex.D1 to D17. The Court witnesses being Advocate and Bench Clerk, who knew Telugu and Kannada language examined as CWs.1 and 2. Thereafter, the learned Public Prosecutor closed the evidence of prosecution.
17. The incriminating circumstances in the evidence of prosecution witnesses read over and explained to the accused Nos.1 to 3 under Section 313 Criminal Procedure Code,1988. They have denied the entire prosecution evidence and filed written statement 313 (5) of Cr.P.C., Accused No.2 in support of his defence has filed Xerox copies of the documents. All the 17 Spl.C.C. No.204/2015 accused have not chosen to lead any defence evidence on their behalf.
18. Heard arguments of learned Public Prosecutor and learned Counsel for accused Nos.1 to 3.
19. Perused the oral and documentary evidence placed by the prosecution.
20. The points that would arise for my consideration are:-
1) Whether the prosecution is able to
prove that Sanction Order obtained against
accused No.1 - Dharmendra Acharya is proper and in accordance with law?
2) Whether the prosecution is able to prove that the accused No.1, being a public servant as Assistant General Manager, in NMDC, Donimalai while entrusted the work of selection of candidates for the post of Junior Officers (Mining), entered into criminal conspiracy with 18 Spl.C.C. No.204/2015 accused No.2 Appanna Boine Ramanjaneyulu and accused No.3 Khajababu Sheik in the matter of selection of candidates for the post of JO (Mining) in the year 2013 and cheated the N.M.D.C. and also some of the eligible candidates applied for the post of Junior Officers (Mining)?
3) Whether the prosecution is able to prove that the accused No.2 along accused No.3 acted as conduit between the candidates and management for collecting bribe from many candidates with a promise them to get selected for the post of JO by influencing the officials of NMDC and induced accused No.1?
4) Whether the prosecution is able to prove that the accused No.2 dishonestly induced accused No.3 and received illegal gratification for himself and for accused No.1?
19 Spl.C.C. No.204/2015
5) Whether the prosecution is able to prove that the accused No.1 being a public servant as Assistant General Manager (Personnel) of N.M.D.C. Ltd., Donimalai,
dishonestly allowed accused Nos.2 and 3 and some other candidates by way of make use of the process of selection of candidates to the post of Junior Officers (Mining) and abused his position as a public servant and committed criminal misconduct?
6) Whether the prosecution is able to prove that the offences punishable under
Sections 120-B r/w.420 Indian Penal Code, 420 of Indian Penal Code committed by accused Nos.1 to 3 and accused No.1 being a public servant has also committed the offence punishable and Section 13(2) read with Section 13(1)(c) of Prevention of Corruption Act, 1988? 20 Spl.C.C. No.204/2015
7) Whether the prosecution is able to prove that the accused No.2 had agreed to accept or attempted to obtain any gratification from accused No.3 as a motive or reward for inducing by corrupt or illegal means to any public servant of NMDC to do or forbear to do any official act and committed the offence punishable under Section 8 of the Prevention of Corruption Act, 1988?
8) What Order?
21. My findings on the above points are as follows:-
Point-1: In the Negative Point-2: In the Negative Point-3: In the Partly affirmative Point-4: In the Negative Point-5: In the Negative Point-6: In the Negative Point-7: In the Partly affirmative Point-8: As per final order for the following:-21 Spl.C.C. No.204/2015
REASONS
22. Point No.1:- The prosecution made allegation against the accused No.1 - Dharmendra Acharya (hereinafter referred as accused No.1), working as Assistant General Manager, N.M.D.C. Limited, Donimalai is that, he entered into Criminal Conspiracy with accused Nos.2 and 3 in the recruitment process of selection of candidates for the post of JO at N.M.D.C., Donimalai. The Sanction Order obtained against accused No.1 is marked as Ex.P255. In support of the said document, the witness Mr.Narendra Kothari, the then Chairman and Managing Director of NMDC Limited is examined as P.W.64. According to his evidence, he was the competent authority for appointment and removal of employees, including AGM and DGM in N.M.D.C. Limited. He has deposed that information got about the alleged irregularities and illegalities taken place after going through the report filed through CBI. The Chief Vigilance Officer of NMDC, Hyderabad has placed the same report of CBI before him for according Sanction to prosecute accused No.1, the then AGM at NMDC, Donimalai. After receiving the report, he had gone through the entire records and discussed with Chief Vigilance Officer - Smt.Usha Chandrashekar, NMDC, 22 Spl.C.C. No.204/2015 Hyderabad and accorded the Sanction to prosecute against accused No.1. The said Sanction Order marked as Ex.P255 bears his signature on all the pages, his signature at the last page marked as Ex.P255(c).
23. In the cross-examination he has specifically stated that after going through all the records accorded the Sanction. However, he being responsible officer said to be gone through the documents before according Sanction order, do not remember to say the nature of all documents produced by CBI, except call data records and statements of account of accused, on the basis of which, accorded Sanction. But, the said call data records produced before the Court marked as Exs.P208, 210 and 212 relates to the conversation between accused No.2 and other candidates, which does not disclose the name and mobile number of accused No.1. Likewise, the statement of accounts of accused referred by PW64 also not relating to accused No.1, but they are related to accused No.2 marked as Exs.P82 and 84 . Though he has denied for the suggestion that put signature to the draft Sanction produced by CBI Officer and no materials to prosecute against accused No.1 and accorded Sanction at the instance of 23 Spl.C.C. No.204/2015 CBI, the entire Sanction Order reveals about only investigation conducted by the Investigating Officer and not opinion formed by him before Sanction accorded to prosecute accused No.1.
24. It is true, PW64 was retired officer of NMDC, aged about 61 years as on the date of his examination and he was not ready to look into the documents, in spite of permission given by the Court, which was noted in the deposition. Because, he might have forgot to say nature of all the documents which were perused by him before issuance of Sanction Order. But, he should have looked into the documents and deposed regarding Sanction Order, that too, when Court was permitted him to see into the documents. However, he has referred relevant pages of Sanction Order at Page No.15 of Ex.P255 related to monetary transaction between accused No.1 with other accused Nos.2 and
3. He has also admitted that pages 13 and 14 does not reveal call details of accused No.1 and pages 14 and 15 also does not reveal about monetary transaction between accused No.1 and other accused 2 and 3.
24 Spl.C.C. No.204/2015
25. I have perused the relevant pages 13 to 15 of Ex.P255 as pointed out by PW64. It is relevant to point out that at page No.13, the names of candidates, from whom mobile numbers said to be collected by the accused No.2 and contacted them from his mobile number 9449647614 and 9538877105 mentioned as follows:
1) Standly Kanikraj 779551256 2) Rahim Khan Pattan 7382072338 3) Khaja Babu Sheik 9550281223, 9449275760 4) M.Guruprasad Guptha 9688891752 5) Poli Naveen Kumar 9705907125 6) T.Venkatasudarshan 9000988029 7) N.Malleshi 9611786648 8) K.Bharathi Pandian 9448977430 9) Madhavaram. V 9900012637 10) Suresh Kumar 9916976520 11) Ramesh Basappa Vadar 9421248671 12) Gungi Ankamma Rao 9916256550 13) Sengamsetti Ramakrishna 9966555125
14) A.Diwakar,Dy.Manager(Personnel) 9449249258 25 Spl.C.C. No.204/2015
26. At page No.14 mentioned that accused No.3 being one of the candidate paid an amount of Rs.3,00,400/- to accused No.2 on 15.7.2013. The details of the said amount paid by him mentioned as Rs.1,00,000/- deposited by brother-in-law of accused No.3 namely Sheik Shamraj Ahmed to his SB Account No.10925010583 with State Bank of India and transferred to the SB account No.3114748026 of accused No.2 maintained at SBI Sandur Branch. The amount of Rs.49,900/- deposited by accused No.3 to the SB account of his father bearing No.31553895853 and the same amount transferred to the above-mentioned SB account of accused No.2. Again amount of Rs.49,000/- Rs.48,000/-, 44,000/-, 7,600/-, 1,500/- deposited by accused No.3 through BNA machine installed by Axis Bank, Eluru Branch and transferred to the account of accused No.2.
27. It is made out from page No.15 that, brother-in-law of accused No.3 Khadar Shariff deposited amount of Rs.1-lakh to the SB Account of father of accused No.3 and subsequently the same amount transferred to the SB Account of accused No.2. The amount of Rs.40,000/- each on two occasions, Rs.20,000/- deposited in cash to the account of accused No.2 through POS 26 Spl.C.C. No.204/2015 machine, and Rs.1-lakh shown as online transfer to the account of accused No.2 which was submitted by way of withdrawal form by the account holder Sheik Shamraj Ahmed. All the above mentioned different deposits made on 15.7.2013.
28. After perusal of above relevant pages, it is made out that there is no mention regarding monetary transaction took between accused No.1 with accused Nos.2 and 3. Further the call details of accused No.1 also not mentioned in the Sanction Order, though deposed by PW64. The above mentioned names and mobile numbers of different candidates do not include either the name or mobile number of accused No.1. The transaction referred at the relevant pages mentioned above related to only accused No.2 and 3 with others and not concerned to accused No.1. Therefore, the prosecution ought to have established on what basis, Sanction accorded by PW64 to prosecute against accused No.1. Because the materials said to be produced before the Sanctioning Authority, will not disclose anything against accused No.1 to prosecute relating to the alleged irregularities taken place during the recruitment process of JO at NMDC, Donimalai. PW64 though has stated that the documents were 27 Spl.C.C. No.204/2015 perused by him before according Sanction, the allegations made against the accused No.1 shown in the Sanction Order are nothing but replica of charge sheet without any supporting prima facie materials against accused No.1.
29. The learned Public Prosecutor has submitted that irregularity or non-application of mind by authority while granting Sanction will not vitiate the prosecution case and fatal to the case, if prosecution is able to produce the relevant proof of the case made out in the charge sheet. Therefore, according to the prosecution, Sanction is required under Section 196 Cr.P.C. and 19 of Prevention of Corruption Act, 1988 only to take cognizance of the offence. However, submitted that any irregularity in according sanction will not vitiate the proceedings under Section 19(4) of Prevention of Corruption Act, 1988 which reads as follows:
In determining under sub-Section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and 28 Spl.C.C. No.204/2015 should have been raised at any earlier stage in the proceedings.
30. Further, learned Public Prosecutor relied on the dictum of law rendered by the Hon'ble Supreme Court of India in AIR 2016 Supreme Court 4125 in the case of L.Narayana Swamy Vs. State of Karnataka and others.
In relevant para it is discussed as, Where the public servant had abused the office which he held in the check period but had ceased to hold "that office" or was holding a different office, then a sanction would not be necessary. Where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognizance, there will be no necessity to take the sanction.
31. The learned Counsel for accused No.1 has submitted that Ex.P255 Sanction Order accorded by competent authority does not say anything about allegations made against him in proof of the offences alleged in the charge sheet. The Sanction accorded by PW64 is without any application of mind, therefore, 29 Spl.C.C. No.204/2015 the case instituted without any proper sanction must fail. In support of the arguments relied on following citations:-
(i) (1979) 4 Supreme Court Cases 172 in the
case of - Mohd. Iqbal Ahmed Vs. State of Andhra
Pradesh.
The Hon'ble Supreme Court held that
"Sanctioning Authority must be shown to have applied its mind and no presumption regarding the satisfaction arising on facts. In absence of any valid sanction, the whole prosecution, held, invalid."
The ratio laid down in the relevant para that the Sanction Order must contain any ground on which the satisfaction of the Sanctioning Authority was based and its mind applied.
Further, it is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways : either 1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction, or 2) by adducing evidence aliunde to show the facts were placed before the Sanctioning Authority and the satisfaction arrived at by it.
30 Spl.C.C. No.204/2015It is further discussed that any case instituted without a proper sanction must fail because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio.
(ii) 1991 SCC Online Bom 416: (1994) 1 Bom CR 168 : 1992 Cri LJ 3064 Bombay High Court (Nagpur Bench) in the case of Anand S/o.Gopal Gurve Vs. State of Maharashtra.
The similar discussion made by Hon'ble
Supreme Court pointed out in the above
citation is made in this case regarding valid
sanction. In relevant para, the same
observation has been made regarding the
prosecution is to prove valid sanction granted by the Sanctioning Authority after it was satisfied for granting sanction has been made out constituting the offence.
32. After going through the dictum of law rendered by Hon'ble Supreme Court on valid Sanction, I am of the view that PW64 though said to be the Competent Authority, has not at all applied his mind while according Sanction under Ex.P255, as it will not contain any satisfactory reasons to prosecute against 31 Spl.C.C. No.204/2015 accused No.1. Therefore, it can be fairly said that without applying his mind accorded Sanction as per Ex.P255, in absence of any valid and satisfactory reasons to prosecute against accused No.1 for the alleged offences punishable under Sections 120-B read with 420 Indian Penal Code and Section 13(2) read with 13(1) (c) or (d) of the Prevention of Corruption Act. Hence, I am of the opinion that, the prosecution has failed to prove that Sanction obtained to prosecute against accused No.1 is in accordance with law and I answer this point in the 'Negative.'
33. Point Nos.2 to 7 :- All these points are interlinked with each other, therefore are taken together for common discussion and consideration, to avoid repetition of facts.
34. The case alleged against the accused No.1 who was AGM, Personnel, has abused his official position, dishonestly and got recruited accused Nos.2 and 3 for the post of JO at NMDC and shown undue advantage to both of them. In order to prove the allegation made against accused No.1, the prosecution has produced both oral and documentary evidence which requires to be discussed in detail.
32 Spl.C.C. No.204/2015
35. The prosecution made allegation against the accused Nos.1 to 3 that they conspired and entered into an illegal agreement to do an unlawful act, for which alleged the offence committed punishable under Section 120(B) Indian Penal Code. Therefore, when the Criminal Conspiracy alleged against all the accused, prosecution must prove the ingredients required under Section 120(A) of Indian Penal Code. The specific allegation made against accused No.1 that he being a public servant working as Assistant General Manager at N.M.D.C. along with accused Nos.2 and 3 made some irregularities while selecting candidates of JO for N.M.D.C. by receiving illegal gratification from them for selection of the said post and selected both accused Nos.2 and 3 for the said post and all the accused cheated N.M.D.C., Donimalai.
36. At the first instance, it is relevant to point out the recruitment process of JO, taken at N.M.D.C., Donimalai, during 2012-13. The files relating to recruitment process identified by P.W.1 - Bijaya Kumar Khamari, marked as Exs.P1 and 2. He was the Manager (Personnel) at N.M.D.C., Donimalai, Bellary 33 Spl.C.C. No.204/2015 District during 2012, was associated with the recruitment process for the post of JO, at the same time, accused No.1 Dharmendra Acharya was the HOD of Personnel Department. He has stated that Sanction Letter was received for recruitment of 31 posts of JO from the Head Office, Executive Director - Mr.L.N.Mathur and he had marked the said letter to accused No.1 for the purpose of processing recruitment procedure, which is not disputed by accused No.1.
37. The evidence deposed by PW1 that as instructed by accused No.1, he along with P.W.29-Diwakar were prepared note sheets, which was to be corrected by accused No.1 himself before its finalization. Further, he has stated about the question paper blank format sent through e-mail message by Mr.Amith Singh, the Deputy Manager of Mining who was said to be asked him to discuss with accused No.1 regarding provision of additional sheets in the answer booklet and the e-mail message received by him marked as Ex.P3. After getting e-mail message with attachments, he has handed over the same to accused No.1 for further needful action. Though he was not aware of further action taken in that regard, was present inside the hall during the 34 Spl.C.C. No.204/2015 interview as directed by asked by S.K.Verma, General Manager, (Production) and accused No.1. He has also deposed about the procedure followed by each committee member who were given individual assessment sheets for each candidate and they were required to give marks for each of them. P.W.1 used to collect the assessment sheets from each of the committee members and put them in six separate folders. After completing interview he had kept assessment sheets in envelopes and handed over to the custody of accused No.1. The envelope in which assessment sheets were put by him identified before the Court as Ex.P4 and assessment sheet marked as Ex.P5.
38. He further deposed about the original documents of the candidates verified by two of the Officers of NMDC prior to interview and they prepared check list of each candidate and forwarded with Photostat copies of documents to the interview committee. He has further deposed that in few cases, accused No.1 asked him to add experience in checklist as per documents after scrutiny of the documents by two of the Officers. The Office Memorandum marked as Ex.P6 and seizure memo under which the documents seized by CBI marked as Ex.P7. The letter 35 Spl.C.C. No.204/2015 addressed to Kendriya Vidyalaya, Donimalai identified by him and marked as Ex.P8.
39. PW1 has further stated that after written examination, the candidates who were passed called for interview which was fixed on 21.7.2013. He has identified 43 checklists shown to him marked as Exs.P9 to 51 and deposed that as per the instruction given by accused No.1, he has added experience in the checklists relating to the candidates, namely accused No.3 Khaja Babu Sheik, Asit Kumar Behra, Gungi Ankamma Rao, Bijay Kumar Munda, Ghanashyam Patel, Prabeen Kumar Das, P.Thanesh Kumar and Anadi Mahapatra. The check list relating to said candidates were marked as Exs.P15, 21 to 23, 33, 37, 39 and 40 respectively. However, in the experience column, common marks of two printed in the checklist, the same or lesser than that was to be given by each member of Interview Committee.
40. In the cross-examination he has identified the documents confronted to him are Office Order of NMDC dated 9.7.2009 and Recruitment Policy and Procedures(Revised) by NMDC are marked as Exs.D1 and D2. The said Office Order 36 Spl.C.C. No.204/2015 Ex.D1, in which, referred the Board Meeting held on 29.5.2009 approved the revised NMDC recruitment policy and procedure for direct recruitment in the Company signed by Executive Director (Personnel), copies of the same sent to different sections including General Manager, Donimalai. The document Ex.D2 reveals about Rules and Procedures with policy objectives of NMDC recruitment process contains the powers given to the appointing authorities for the recruitment of different posts classified under different category. It is also contained the details of classification of post, mode of recruitment and procedure.
41. The copy of Notification issued by N.M.D.C., Donimalai, called for the post of JO also identified by him marked as Ex.D3. Under the said Notification, the Educational Qualification and other requirements noted for the post of JO (Mining) are as follows:
(i) A degree in Mining Engineering from a recognized University/Institute with a minimum one year experience with relevant filed with 2nd class Mine Manager, Certificate of Competency restricted to open Cast metallieferrous mine 37 Spl.C.C. No.204/2015 OR A three years diploma in Mining engineering from a recognized Institute with 5 years experience in the relevant field with Foreman Certificate of Competency restricted to open Cast metallieferrous mines The candidates were given mandatory instructions to attach a self attested copy of valid 2nd class Mines Managers' certificate of Competency/Foreman Certificate of Competency restricted to open Cast metallieferrous mines, otherwise, applications will not be considered.
It is also further mentioned that no correspondence will be entertained in respect of the matter concerning selection/test/ interview/appointment. The clear instructions given to the candidates to send the applications along with self-attested copies of certificates and testimonials in support of age, qualification, experience and caste with passport size photographs.
The important general condition mentioned under Sl.No.4 that the reservation of posts for S.C./S.T./O.B.C. will be as per the Government of India directives. The OBC 38 Spl.C.C. No.204/2015 certificate submitted by the candidate should have been obtained within six months before the closing date of receiving of application.
The specific instructions given under Sl.No.13 that, the candidates must attach a self-attested copy of valid II class Mines Manager Certificate of Competency/Foreman Certificate of Competency restricted to Open Cast Metalliferrous Mines, otherwise applications will not be considered.
42. Further, the separate Committee constituted to prepare shortlist of the eligible candidates also admitted by him. However, the said Shortlist Committee constituted by Executive Director of N.M.D.C., along with Mr.C.P.Sinha, Vinaykumar and Mr.S.Chatterjee as its members. He has admitted no objections raised by any of the members of committee while correction effected in some of the above mentioned checklists. According to him, the checklists were put in the envelopes in the presence of committee members and he is not having any knowledge about entire process of recruitment was in accordance with the procedure of N.M.D.C., Donimalai. 39 Spl.C.C. No.204/2015 The important evidence deposed by him that the accused No.1 was only a part of the interview committee for recruitment of candidates and there were five other members in the committee along with him, out of them, some of them were seniors to accused No.1. The said evidence infers that no major part took by accused No.1 in the recruitment of Junior Officer (Mining) at N.M.D.C. Though he has admitted each member of the committee were to be given marks to each of the candidate, independently, he do not know anything about giving of marks by each of the member. However, his entire evidence will establish that the procedure as per Rules of the N.M.D.C. followed while recruiting JO.
43. The process of verification of documents after receiving the applications for the post of Junior Officer (Mining) made by officials PW2 and PW29 being members of Document Verification Committee. P.W.2 - G.Ramakrishnan who served as Manager (Personnel) Industrial Relations at N.M.D.C., Donimalai from 2008 to 2015 has deposed that accused No.1 was the H.O.D. of Personnel Department. This witness also associated with the recruitment process during 2013 for the post 40 Spl.C.C. No.204/2015 of JO. Though he was one of the invigilators during written test, also given work of comparing original documents with the copies enclosed with the applications during the interview process along with P.W.29 - A.Diwakar. He has deposed about the procedure followed while verifying original documents with the copies enclosed to the applications and afterwards they have to make entries in the checklists provided by PW.1. After verifying the documents and making entries they were handed over to one of the assistants of PW1. He had also gone through all the original documents furnished by the candidates and checklists identified as Exs.P9 to 51. He is not able to say who were all prepared those checklists, but some of the checklists were prepared by him and others were prepared by his colleague PW29. He has identified the checklists prepared by him under Ex.P22 in respect of candidates Sri Gungi Ankamma Rao and Ex.P32 relates to another candidate Sri Ramakrishna Singham Shetty. Further he has found some changes were effected with regard to experience in the checklists without his knowledge and the same are identified as Exs.P21, 22, 23, 37 and 40. Those checklists are relating to candidates Asif Kumar Behra, Gungi Ankamma Rao, 41 Spl.C.C. No.204/2015 Bijay Kumar Munda, Praveen Kumar Doss and Anadi Mahapatra, respectively.
44. PW29 - A.Diwakar, working as Deputy Manager (Personnel) NMDC, has given the work of comparing the documents along with PW2. He has deposed about Notification issued for recruitment of JO in the month of December-2012 and the applications received by the Manager (Personnel) of NMDC. According to him, the procedure followed after receiving 300 applications for the said post note drafted and instructed him to initiate the proposals. The files relating to above recruitment process identified as Exs.P1 and 2. Afterwards, the Scrutiny Committee has scrutinized applications and prepared short list of the candidates. The report submitted by Scrutiny Committee to the Executive Director - L.N.Mathur, who has forwarded the report to accused No.1 - the then AGM (Personnel), thereafter accused No.1 forwarded the report to PW1 Bijay Kumar Khamari, the Manager (Personnel). Afterwards draft proposal was prepared and given to this witness relating to the proposal to conduct written examination for the post of JO. After approval of report, the call letters were sent to the short listed candidates 42 Spl.C.C. No.204/2015 and written test was fixed on 23.6.2013 at Kendriya Vidyalaya, Donimalai. The written test was conducted by the Evaluation Committee and another short list of eligible candidates was prepared for the interview. He has further stated about interview fixed on 21.7.2013 and 25 candidates were selected for the interview.
45. He has further deposed about Interview Committee formed consisting of six members, out of them, accused No.1 was one of the members. He along with his colleague PW2 were entrusted the work of verifying documents of the candidates. Accordingly, both of them verified documents and handed over the checklist for verification of documents. After verifying original documents, put the tick mark, if find the particulars are genuine. They were also noted the remarks in the checklist of the candidates who have failed to furnish particulars prescribed by the Department. Both of them verified the documents and entered the period of experience in the relevant column of experience of candidates.
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46. PW29 has identified checklist relating to accused No.3
- Khaja Babu Shaik, marked as Ex.P15,in which, the remarks made as "Diploma year wise mark sheet and experience original certificate for the period from 5.11.2011 to 11.7.2002, 1.4.2003 to 1.12.2003 were not produced." The said remarks identified and marked as Ex.P15(a). The cross verification made by Personnel Manager in Ex.P15 as original experience certificate not produced for one year 9 months, experience of 8 years 8 months marked as Ex.P15(b). The checklist Ex.P23 contains the experience of one Bijay Kumar Munda shown as 5 years and it was verified by the Personnel Manager, who has shown the experience of the concerned candidate as 7 years 3 months 9 days in blue ink. The remarks entered by him in Ex.P39 checklist relating to P.Thanesh Kumar shown as "original experience certificate not produced, but shown in application for the period 7.2.2011 to 13.6.2013 on which produced true copy"
is marked as Ex.P39(a). He has identified checklist Ex.P44 pertains to candidate Venkatasalam and remarks was made as "original experience certificate not submitted only true copies of work experience from M/s.Dalmia Cements (Bharath) Ltd. for the period 1.7.2011 to 30.6.2013 and also pay slip (online of June-44 Spl.C.C. No.204/2015
2013 has been submitted as well as latest (valid on 19.1.2013) OBC certificate not produced" is marked as Ex.P44(a).
47. In the cross-examination he has admitted that the note sheets in Ex.P2 forwarded by him and reference made relating to note sheets were prepared by the Manager (Personnel). Admittedly, the said note sheets were placed before Executive Director and approved by him subsequently. It is also admitted that entire process of selection of candidates has been shown in the document Ex.P2 contains the notes of all the committees constituted in selection of candidates. He has further admitted that the verification of original documents with the documents furnished by the candidates along with application verified by him and PW2. Admittedly during verification of documents, if any discrepancy found, the same was to be noted in the checklist.
48. He has further admitted that the service certificate of one G.Ahil Rao S/o.Koteswar Rao annexed to Ex.P52 marked as Ex.D11 is not relating to PW3 Gungi Ankamma Rao. The correction made in the category column of Ex.P9 where word 45 Spl.C.C. No.204/2015 'OBC' removed and word 'General' inserted by one Ramakrishnan, is admitted and said remarks marked as Ex.D-12. Admittedly, checklist Ex.P9 pertains to the candidate Standly Kanikraj, who had furnished copy of income and caste certificate issued by Tahsildar, Sandur Taluk, which is confronted to this witness and marked as Ex.D.13. The remark noted by official Ramakrishnan in Ex.P37 in respect of experience for 1 year 8 months 7 days is marked as Ex.D-14. Likewise, the experience certificate issued by Government of India in favour of candidate Prabeen Kumar Das is admitted and marked as Ex.D-15, another certificate issued in favour of the same candidate marked as Ex.D-16. PW.29 has admitted that during the interview he did not enter into interview hall and no personal knowledge about interview process regarding selection of candidates. He has denied for the suggestion that no documents verified either by himself or by another official Ramakrishnan.
49. The evidence deposed by P.W.29 in chief-examination itself shows that after Notification accused No.2 Appanna Boine Ramanjaneyulu contacted him through his colleague Rajkumar Manda, in connection with submitting documents along with 46 Spl.C.C. No.204/2015 application for the post of Junior Officer (Mining). However, he has deposed the attempts made by accused No.2 to contact this witness later, for which, he had refused infers that accused No.2 tried to contact the officials to get job of JO at NMDC, Donimalai.
50. During the process for recruitment of Junior Officer (Mining), many different committees were formed and the work entrusted to him to look after various stages of the recruitment. One of the committees formed to scrutiny and short listing of the applications namely Scrutiny and Short Listing Committee consisting of three officers of NMDC worked in different capacity namely CBP Sinha, Vinaykumar and S.Chatterji, the officers of NMDC examined as PWs.13, 11 and 7 respectively. Their evidence is to be considered in order to make out whether the documents were properly scrutinized and short list of candidates made in accordance with the procedure. Therefore, the evidence of above witnesses discussed in brief.
51. One of the member of above said Committee Subhasihis Chatterjee, Assistant General Manager (Personnel), Donimalai Complex, NMDC, examined as PW7. He has 47 Spl.C.C. No.204/2015 deposed that the Scrutiny Committee was approved by Executive Director and the accused No.1 was heading the Personnel Department. The Report of Scrutiny Committee identified by him marked as Ex.P1(a) and his signature marked as Ex.P1(b). He has stated that some discrepancies found when the file was shown by CBI and deposed about the nature of the answer sheets, the first page of which contains two parts, the first part filled with name and roll number and in the second part only the number. The first part was to be torn out after completion of written examination and remaining answer script will be given to the evaluator to avoid any biasness. According to him, the said procedure was not followed by Personnel Department and one of the answer scripts shown to him marked as Ex.P53. It is further deposed about no separate committee was formulated for setting up the question papers and Selection Committee did not disclose about the place where the question papers kept before examination. He has produced documents relating to recruitment process seized under seizure memo marked as Ex.P64.
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52. In the cross-examination he has admitted that same designation as to that of accused No.1 held by him during the relevant point of time. He has referred the name of Gungi Ankamma Rao at Sl.No.95, who did not produce OBC Certificate in Central Format and he was short listed, in the relevant column, his age also mentioned below 35 years. According to him, the recruitment rules provided to produce OBC certificate, at later stage only for the candidates comes under OBC category, when the copy of the same is not enclosed along with the application. He is aware of the said procedure as frequently working in connection with recruitment process. He has admitted that the candidates shown at Sl.Nos.62, 112, 174, 211, 269, 292 and 329 are not short listed as they did not furnish OBC certificates in Central Format and also crossed the age of 35 years.
53. However, he had no personal knowledge about what was happened in recruitment process and his signature identified in Ex.P1 marked as Ex.D6. He has denied for the suggestion that his involvement in bribery case in collusion with PW3 and favour shown to him and other candidates. The noting found on the 49 Spl.C.C. No.204/2015 application form of PW3 Ex.P52 confronted to him and marked as Ex.D7. He had no knowledge about what was transpired in recruitment process and also not received any instructions from Executive Director with regard to written examination.
54. Another member of Scrutiny Committee is PW.11 - Vinay Kumar worked in different capacity at NMDC, Donimalai from 2002 to 2016 served as Assistant General Manager till December-2013. He was associated with recruitment process for the post of JO and deposed that he being Mining Engineer had seen the technical part relating to Degree, Diploma and Statutory experience in the applications. He has identified the document Ex.P1(a) list of candidates prepared by the Scrutiny Committee and his signature marked as Ex.P1(c). The documents which are not in the Statutory Format found in Ex.P52, confronted to him in the cross-examination and marked as Ex.D-8, D-8(a) and D-8(b). Ex.D8 is Xerox copy of the Service Certificate issued by the Managing Director of S.A.P. Granites and Stones Crushers, Raichur, in the name of PW3 - Gungi Ankamma Rao, who worked as Site in-charge in the said Company from 3.12.2009 till 30.1.2012. Ex.D8(a) the Xerox copy of the Service 50 Spl.C.C. No.204/2015 Certificate issued to him by the Personnel Manager for Hindustan Construction Company Ltd., Udupi District, Karnataka and mentioned the total period of employment as Senior Supervisor(Mining) from 22.2.2012 to 25.6.2012. Ex.D8(b) is the appointment letter issued to G.A.Rao for the post of Sales Engineer in Keltech Energies Ltd., Bengaluru. The said documents proves the experience of PW3 in Mining and as Sales Engineer who had lesser experience for the post of JO (Mining) at NMDC as per the requirement of Notification. Further he has denied undue favour shown to PW3 Gungi Ankamma Rao while scrutinizing the documents.
55. Another member of same committee is PW.13 - C.B.P.Sinha, worked as General Manager at NMDC, Donimalai Complex was associated with the recruitment process for the post of JO. He was also one of the member for both Overseeing Examination Committee consisting of three members and Evaluation Committee for evaluation of answer sheets, has identified the scrutiny report Ex.P1(a) and his signature marked as Ex.P1(d). He had scrutinized documents on technical aspect along with PW11 Mr.Vinay Kumar. In the cross-examination he 51 Spl.C.C. No.204/2015 has deposed about no specific instructions issued to the members of Scrutiny Committee to look after particular part in the applications and also no instructions for relaxation of the conditions of the notification. He has identified handwriting of PW11 marked as Ex.D7.
56. Apart from the Scrutiny and Short listing committee formed during the recruitment process for the post of Junior Officer (Mining), the important Interview Committee formed consisting of six members, including accused No.1. Vipin Kumar M.B. one of the members, examined as PW10 worked as Manager, Mining, at Donimalai during 2012 and subsequently worked as Senior Manager in HRD Department during 2013. He was also associated with the recruitment process for the post of JO, N.M.D.C, Donimalai as one of the Interview Committee members. He has deposed that accused No.1 used to tell members of interview committee consisting of six members to give marks to the candidates regarding their experience, accordingly, the committee members used to give marks to the candidates towards their experience. However, it is already pointed out in the column of experience the fixed marks 'two' 52 Spl.C.C. No.204/2015 printed, therefore, the alleged instructions given by accused No.1 to give marks towards experience is not acceptable.
57. Further he has identified 41 assessment sheets marked as Ex.P67. The assessment sheet of the candidate PW3
- Gungi Ankamma Rao, marked as Ex.P67(a). He has deposed that accused No.1 has particularly instructed him not to give any marks to PW.3 towards his experience as lack of sufficient experience in the field. The lesser experience rather than required under Notification noted on the application of PW3 implies that he had no experience of five years in Mining field, which was also admitted by PW3 in the evidence. The Compilation found in the file Ex.P2 marked as Ex.P2(a).
58. He has further deposed about the interview process, in which, initially assessment sheets were given to them by one of the officials of Personnel Department and they were asked to give marks only after asking maximum questions to the candidates. PW.10 being Mining Engineer, was asked to put maximum questions to candidates. He along with one S.K.Verma used to ask few questions to the candidates regarding subject 53 Spl.C.C. No.204/2015 and all the interview committee members to give equal marks with regard to experience of the candidates. He has clearly stated that since they were not access to the documents pertaining to the qualification and experience of the candidates, accused No.1 used to tell them marks to be given about experience of the candidates. Therefore, the committee members used to give marks to the experience of the candidates on the information given by accused No.1, who was head of Personnel Department.
59. In the cross-examination he has stated about no knowledge about contents of Notification for the post of JO and required experience was Open Cost Metalliferrous Mining. Though he did not go through the documents of Gungi Ankamma Rao to make out his experience, has clearly stated that he did not show undue favour to him and treated all the candidates equally, while giving marks to their experience. He is aware of the fact that assessment made by each of the committee members during the interview should be kept in secret till the declaration of results. The undue favour shown to Gungi Ankamma Rao, who was known to him since both of 54 Spl.C.C. No.204/2015 them working as Sales Representative of a Explosive Company by this witness is denied. However, he knew him since he was working in the Plastic section of the said company. He being one of the members of interview committee deposed about procedure followed in the interview.
60. PW.12 - Laxmi Narayan Mathur, who was served as Executive Director at NMDC, Donimalai being head of project has deposed about the files processed for recruitment of JO entrusted to HOD, Personnel Department headed by accused No.1 during the relevant period in the year 2013. Admittedly, the files Exs.P1 and P2 are pertains to said recruitment process and the written test was fixed on 23.6.2013. He has deposed that he, along with his personal assistant Veeranna were prepared question paper one day prior to written test. Admittedly, accused No.1 was one of the members of Overseeing Committee along with one C.B.P.Sinha and others.
61. He has clearly stated did not approve any proposal for obtaining the mobile phone numbers of candidates on the answer sheets. But the document Ex.P1 at page 13/N - N-59 55 Spl.C.C. No.204/2015 reveals that it was proposed to intimate the selected candidates for interview by SMS through the website with the mobile number 9481161595 of PW1 D.K.Khamari, Manager Personnel, and it was approved by him on 25.6.2013. He has identified his signature put after approval of the proposal marked as Ex.D9, in the file Ex.P1 which clearly implies that he himself had approved the proposal placed before him as follows:
(i) intimation to the candidates who were passed in written examination and called for interview by SMS through the website,
(ii) to issue call letters for the interview through the Speed Post,
(iii) display the result of written test through roll numbers only on the NMDC website and Notice boards.
Therefore he cannot show ignorance of the said proposal approved by him and also intimation to the passed candidates to attend oral interview sent through SMS, for which the names and mobile numbers of candidates required. Therefore, accused No.1 being head of Personnel Department might have informed to get 56 Spl.C.C. No.204/2015 the mobile numbers of each candidate who were attended written examination.
62. In the cross-examination he has admitted that the entire process for the post of JO was conducted in accordance with the recruitment policy and procedure. Though he has denied the recruitment process not entrusted to any of the particular officer, the different Committees formed to look after different stages of recruitment, proves that no official of NMDC, was entrusted with recruitment process. He has clearly stated that no complaint against any of the members of the committee received by him, which implies that the work entrusted to them has been done properly and they have followed the procedure of NMDC. Therefore, he might not have interfere in the recruitment process headed by different committees.
63. He has also identified the file Ex.P2 relating to recruitment process of JO which was entrusted to HOD, Personnel Department. The said file contains the details of the 25 candidates who were called for pre-employment medical examination for consideration for appointment as JO (Mining). 57 Spl.C.C. No.204/2015 The names of 19 candidates mentioned in unreserved category consisting of General, OBC and SC category. The names of two persons shown in SC category and one of the persons shown under ST category, three candidates mentioned under OBC category. The said proposal put up before him on 5.9.2013 by accused No.1 as Manager Personnel and it was approved on the same day. The file Ex.P2 contains the correspondence letters sent to the selected candidates with terms and conditions, which is not disputed in any manner.
64. PW.15 - Rajkumar, Assistant General Manager (Mechanic) NMDC, has deposed about recruitment process for the post of JO took during 2013 at Donimalai Complex. He was one of the interview committee members containing six members along with Accused No.1 was present on 21.7.2013 with other members in the interview hall. At that time, accused No.1 was briefed them as to the method of giving marks to each of the candidates. The assessment sheets were given to all the members, afterwards committee members awarded marks individually based on the performance of each candidate. He has 58 Spl.C.C. No.204/2015 identified assessment sheets Exs.P5 and 67. He has specifically deposed that as per the instructions given by accused No.1, he along with other committee members awarded marks towards experience of each candidate and afterwards handed over the assessment sheets to Personnel Department. But after one week, as informed by the Personnel Department, they gathered at VTC Hall, where the assessment sheets were taken out from the envelope and instructions were given to each members for Compilation. One of the committee members Vipin Kumar, objected as to why the assessment sheets were not sealed soon after interview. However, he has stated about the Compilation was done without any objections and all the members put their signatures on the Compilation sheet marked as Ex.P2(a).
65. In the cross-examination has admitted all the committee members given guidelines as to awarding of marks towards experience of each candidate. He has also admitted that the Compilation was done after all the committee members confirmed about marks awarded towards experience of the candidates. Therefore, it infers that all the members were 59 Spl.C.C. No.204/2015 consented and signed for the Compilation in presence of each other without raising any objection.
66. PW16 - S.K.Verma, General Manager (Production) NMDC was aware of the recruitment process of JO as he was with the Chairman of interview committee. He has deposed about procedure followed while giving marks to the candidates in the interview based on their performance. He took help of accused No.1 while giving marks for experience. He has identified assessment sheets Exs.P5 and 67. He has also deposed that after completion of the interview, he along with accused No.1 put all the assessment sheets in an envelope and sealed and signed it. He has identified envelope Ex.P4 bears his signature and signature of accused No.1 marked as Ex.P4(a) and 4(b) respectively. In the cross-examination he has admitted that statement given before CBI, in which stated that experience certificate should be in the format of DGMS and same format approved, but he is not aware whether experience certificate of DGMS format alone was considered by competent authority prior to interview.
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67. P.W.39 - D.C.S.Murthy, worked as DGM (Finance) MNDC, Donimalai is also one of the members of the Interview Committee has deposed that accused No.1 explained all of them about the procedure of the interview and awarding of marks based on the earlier experience of each candidate. Therefore, as per his direction, this witness along with other committee members awarded marks in respect of experience of the candidates. The assessment sheets given to the committee members on which they awarded marks to each candidate marked as Ex.P67 were handed over to accused No.1 and PW1 - Bijay Khamari. He has also stated that after one week from the date of interview, all the members including accused No.1 gathered in the VTC Conference hall for the purpose of compilation of marks of each candidate. Though he has deposed that at the same time, one of the members, Vipin Kumar has raised objection regarding no knowledge about sealed envelope and signatures put by accused No.1 and S.K.Verma, subsequently the Compilation was made with the consent of all the members. In the cross-examination he has denied that statement given before CBI that accused No.1 alone has awarded marks for the category of earlier experience of each candidate. 61 Spl.C.C. No.204/2015 However, the assessment sheets marked as EX.P67 discloses each member of the Interview Committee had given separate marks towards separate skills of candidates attended for interview. He has admitted the procedure of giving marks towards previous relevant experience shown at Sl.No.4 of the assessment sheets of each candidate. However, this witness has deposed that after applying mind he gave marks to candidates relating to their experience infers that no marks given by him on the information of accused No.1.
68. The name of Mark Lobo, Sr. Manager (Mechanic) also shown as another member of Interview Committee, but he is not made as witness in the charge sheet. Therefore, the evidence deposed by other members of interview committee, apart from accused No.1, whose evidence discussed above has clearly establish the procedure followed by all of them as per rules of N.M.D.C. during interview of the candidates, who were called for interview after passed the written examination.
69. PW.14 - C.Veeranna, Personal Assistant to the Executive Director, has deposed about typed the matter given in 62 Spl.C.C. No.204/2015 manuscript and handed over the same to Executive Director, thereafter took out printout and handed over pen drive to C.B.P.Sinha.
70. PW.33 - B.K.Madhav, Assistant General Manager, NMDC Limited, Bacheli District, Dantewada has deposed that as per the direction of General Manager, Chief Vigilance Officer, Hyderabad and General Manager, NMDC Ltd., Bacheli, he had visited CBI office at Bengaluru and produced the documents:
1) True copy of recruitment of Jr.Officer (Mining) Trainee of Bailadila Iron Ore Mines, Bacheli Complex, NMDC file captioned as File No.57 D5/Per/R&P/JO(Min)Tr/2013, containing 289 sheets and note sheets 1 to 11.
2) True copy of written test marks dated 15.9.2013, interview marks and merit list containing 22 sheets.
71. He has identified the said documents marked as Ex.P111 and his signature marked as Ex.P111(a). The written 63 Spl.C.C. No.204/2015 test marks shown at Sl.No.2 in seizure memo marked as Ex.P112. He has deposed about the procedure of Employment Notification published as per approval of Head Office, Hyderabad in official website NMDC Ltd. After receiving applications in prescribed format they were scrutinized, thereafter written test conducted by the concerned committee constituted by Appointing Authority. The said Authority itself decided the cut off marks of written test, thereafter eligible candidates were called for interview. The merit list prepared on the basis of written test marks and interview marks, roaster system also followed while preparing merit list. Thereafter, pre-employment letter issued to the concerned candidates. In the cross-examination he has admitted the appointing authority shall have the power to control and module the entire process of recruitment under relevant provisions of recruitment and promotion rules.
72. The witness Sudhanshu Verma, examined as PW.34 was working as Deputy Manager (Personnel) NMDC Ltd., Kirandul deputed to attend CBI Office at Bengaluru. Accordingly, he has visited the said office on 19.9.2014, and produced the file 64 Spl.C.C. No.204/2015 containing documents marked as Ex.P113, his signature marked as Ex.P113(a). He is aware of the procedure adopted in appointment of JO in NMDC Ltd., Kirandul, Dantewada District. He has also deposed about Notification issued as per procedure and process followed to scrutiny the applications received from eligible candidates and thereafter written test was fixed. He has further stated that the first sheet of question-cum-answer sheet contains two parts, upper portion contains roll number of the candidate, question booklet number, signature of invigilator and code number box. The lower portion contains instructions to the candidates, invigilators signature and code number box. After written examination, the answer sheets were identified on the basis of code numbers. And upper portion of each question-cum- answer booklet were to be separated and placed in a sealed cover. After valuation of the written test papers, coded marks given to the evaluators, thereafter obtained their signatures on answer sheets. However, according to him, no such procedure of taking signature of NMDC Officials in answer sheets followed in any of the recruitment for the appointment of JO. He has admitted the Appointing Authority has control over the recruitment process and further admitted that the question 65 Spl.C.C. No.204/2015 papers for written test prepared by the competent authority and independent committees will discharge their duties as per the rules and regulations.
73. The question papers for the written test conducted on 23.6.2013 were prepared by Amit Kumar Singh, Manager, NMDC, Donimalai, as directed by Executive Director and General Manager (Production) NMDC Limited, Donimalai is examined as PW38. According to his evidence, he has prepared draft questions and handed over to Executive Director, thereafter, he was called by him and instructed to prepare draft layout format of question papers in the presence of accused No.1. Accordingly, he prepared draft question paper and e- mailed to the Manager - Bijay Khamari. He was again called in the office of Executive Director prior to one day of examination, asked to prepare two sets of question paper. Therefore, he had prepared two sets of question paper in his own handwriting and handed over to Executive Director, Mr.L.N.Mathur. Afterwards, the question paper got typed with the assistance of one Veeranna and he had checked the final question paper in computer system. At the same time, accused No.1 came with Mr.Patnayak and 66 Spl.C.C. No.204/2015 Mr.C.B.P.Sinha and took question paper from computer system in pen drive.
74. He has further deposed that on the next day of examination, he was called by Executive Director and when he went to his office Sri M.N.Singh and Sourabh Chandra were also present. They asked him to evaluate question papers in the conference hall of the Executive Director, NMDC Ltd., Donimalai in the presence of officers of Personnel Department. The accused No.1 and Bijay Khamari were handed over the sealed box containing question cum answer sheets. Thereafter, this witness along with others evaluated all the papers and they were asked to fill the marks in the list given by him, accordingly they filled the marks of each candidate and signed on the list. The members were called in the office of Executive Director and box taken out of locker of Finance Department and it was handed over to accused No.1. The key answer sheets containing 10 pages identified by him marked as Ex.P.117. The documents handed over by him under the seizure memo dated 8.12.2014 marked as Ex.P118. The certificate issued under Section 65(B) of Indian Evidence Act is marked as Ex.P119 and his signature 67 Spl.C.C. No.204/2015 marked as Ex.P119(a). He has denied for the suggestion that no statement given to CBI stating that accused No.1 and C.B.P.Sinha have taken question papers from computer to the pen drive.
75. It is admitted fact that candidates who were applied for the post of JO called for written test on 23.6.2013, thereafter, the eligible candidates were called for interview. The checklist also prepared as per Exs.P9 to 51 reveal about the category under which each of candidates appeared for written examination. Admittedly, prior to the written examination, Notification was issued calling for the eligible candidates for the post of Junior Officer (Mining), which is already mentioned above.
76. Further, it is made out from the evidence of prosecution witnesses that the teachers of Kendriya Vidyalaya also deputed as invigilators during the written examination on 23.6.2013 took for the post of Junior Officer (Mining) at NMDC. Prior to that the NMDC authority requested the Principal of Kendriya Vidyalaya, Donimalai through letter, to provide 68 Spl.C.C. No.204/2015 accommodation and to depute invigilators for conducting examination at Kendriya Vidyalaya building. The said letter is marked as Ex.P63. It is made out from the evidence of PW6 Nirmala Kumari M., the Principal of Kendriya Vidyalaya that as per the request of NMDC, Donimalai, in total, 12 invigilators and two staff were deputed by her under Ex.P8. She has deposed that they were in-charge of the said examination and instructions given to NMDC officials to act as invigilators to sign on the covers and question-cum-answer sheets. She has further deposed about instructions given to them to obtain names and mobile numbers of the candidates. In the cross-examination she has admitted that she was not part of the examination conducted and said that there were two invigilators in each room, one from NMDC and another from Kendriya Vidyalaya.
77. The NMDC officials acted as invigilators were asked to put their signatures on all the question-cum-answer sheets and they were examined as PWs.36, 37, 49 and 50 respectively. PW.36 - Mohammed Nijas, who was promoted as Dy.Manager (Finance) at NMDC, Donimalai, acted as invigilator on 23.6.2013 for written examination conducted for the post of JO at Kendriya 69 Spl.C.C. No.204/2015 Vidyalaya. He had deposed that received sealed covers containing question papers-cum-answer sheets from Overseeing Committee. After distributed the question papers to the candidates, he had noticed in the answer sheet there is space for roll number, name of the candidate, father's name and also signature of the candidate as well as invigilators. He has specifically deposed, out of both invigilators from NMDC Ltd. and school teacher of Kendriya Vidyalaya, the invigilators of NMDC only were instructed to put signature on the answer sheet. He has further stated that accused No.1 had explained the procedure and to put signature in the answer sheet only by the NMDC invigilators. According to him, during examination, Mr.V.M.Basha, one of the members of Overseeing Examination Committee came to room No.7, where this witness was invigilator and instructed to get the signatures and mobile numbers of candidates on the attendance sheet who were present in the said room. Accordingly, he had taken mobile number and signatures of candidates on the attendance sheet, which is marked as Ex.P56 his signature marked as Ex.P56(c). In the cross-examination he has admitted that among three members of Overseeing Examination Committee, Mr.C.B.P.Sinha 70 Spl.C.C. No.204/2015 was the senior member. Further deposed that all the members of said committee given instructions to follow the procedure of written examination and admitted that accused No.1 alone did not instruct to take signature of NMDC invigilator only on the answer sheet.
78. P.W.37 - Rahul Kundurthi, Manager (Electrical) NMDC, is another invigilator appointed from NMDC for the written test conducted on 23.6.2013 for the post of JO. He has deposed that all the committee members, C.B.P.Sinha, accused No.1 and one Mehboob Basha explained about procedure to be followed in the examination hall and as per the instructions given by said Mehboob Basha, while he was invigilator at room No.10, took signature and mobile number of the candidates in the attendance sheet in the file Ex.P56, and his signature marked as Ex.P56(d). He has also deposed about two invigilators in the examination hall are, one is from NMDC and another from Kendriya Vidyalaya. However, he has identified written examination paper relating to Roll No.158 of one Dasharatha R., which is marked as Ex.P116 and his signature is marked as Ex.P116(a).
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79. PW49 - Koteshwara Rao, Deputy Manager (Finance) NMDC Ltd., was acted as invigilator in the written examination of JO, held on 23.6.2013. He has deposed that in the examination hall, the accused No.1 instructed all the invigilators to follow procedure of conducting examination and also instructed the invigilators of NMDC only to put their signatures on question-cum-answer sheet and admit card of the candidates. This witness as invigilator present in room No.6 along with one Rajashekar who was from Kendriya Vidyalaya. During the examination, one of the Overseeing Committee member Basha came and instructed them to take mobile number of each of candidate on attendance sheet. Therefore, as per his instructions, he had taken the mobile number of the candidates on the answer sheet. The attendance sheet of room No.6 along with other rooms identified as Ex.P56, which contain his signature marked as Ex.P56(f). The attendance sheet of NMDC invigilators marked as Ex.P206 bears his signature marked as Ex.P206(b). In the cross-examination he has admitted that not seen any document to show that accused No.1 was head of the Overseeing Committee and only on assumption stated that he was head of the said Committee.
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80. PW50 - Ranjit Dhiware, Assistant Manager, was instructed by Mr.Diwakar of Personnel Department to act as invigilator in written examination conducted on 23.6.2013. Accordingly, as per the instructions he was reported and accused No.1 explained the procedure of examination. However, this witness has stated that during the examination, both accused No.1 and Basha came to his room No.12 and said Basha instructed to take signature of each candidate along with their mobile numbers on the answer sheets. His signature in attendance sheet Ex.P56 marked as Ex.P56(g). The attendance sheet Ex.P206 bears his signature marked Ex.P206(c). In the cross-examination he has admitted, no statement given before CBI stating that instructions given by accused No.1 to take signatures of invigilators of Kendriya Vidyalaya on question-cum- answer sheet and admit card.
81. One G.Rajashekar who was deputed as invigilator from Kendriya Vidyalaya is examined as PW47 and he is the only invigilator from the said institution examined before the Court as other invigilators are not examined by prosecution as their 73 Spl.C.C. No.204/2015 evidence will be repetition of the similar aspect. He has deposed that on 23.6.2013, as per the instructions of their Principal, worked as invigilator for written examination of JO in room No.6 along with another invigilator from NMDC, Donimalai. He has further deposed that instructions given to him not to put signature on the admit card and answer sheets of each candidate. However, the invigilator from NMDC instructed to put signature on the admit card and answer sheet. When he along with one Koteswara Rao, as invigilators in room No.6, some of the NMDC officials came and instructed said Koeteswara Rao to take mobile number of each candidate on attendance sheet. Accordingly he had instructed the candidates in the room to write their mobile numbers on attendance sheet and received the answer book of the candidates. He has identified his signature in Ex.P56 marked as Ex.P56(g). The attendance sheet of Kendriya Vidyalaya employees who worked as invigilators marked as Ex.P206 and his signature at Sl.No.9 identified and marked as Ex.P206(a).
82. In the cross-examination he has admitted that not personally acquainted with any of the officials of NMDC, except 74 Spl.C.C. No.204/2015 accused No.1, who used to visit the Kendriya Vidyalaya as his children were studying in the High School. He do not know whether accused No.1 was head of the team of NMDC officials.
83. The prosecution has alleged that the accused No.1 in furtherance of criminal conspiracy with accused No.2 and accused No.3 has shown favour to some candidates and disfavour to others, particularly PW3, who was not selected for the post of Junior Officer (Mining) though he was the top scorer in the written examination. Therefore, it is necessary to point out the evidence of candidates who were not selected and selected for the post of JO, Donimalai. All the candidates deposed about the submission of their applications with the necessary documents as enclosures. The important candidate is one Gungi Ankamma Rao, against whom accused No.1 shown disfavour is examined as PW3. He has deposed complaint given to the Vigilance Officer through e-mail as per Ex.P54 alleged about irregularities said to be taken during the recruitment of post of JO at Donimalai. Admittedly, he has also applied for the post JO in the month of December-2012 and said that produced all the requisite certificates including OBC certificate along with 75 Spl.C.C. No.204/2015 application. His application with annexure in 17 pages including envelope identified and marked as Ex.P52. He has deposed that after receiving call letter from NMDC, he attended for written test on 23.6.2013. The question and answer sheet pertaining to him identified and marked as Ex.P53. According to him, the results were announced within three days from the date of written test which was sent through SMS to his mobile. On the same day of receiving results, accused No.2, being his friend called over his mobile No.9916256550 and informed about bribe amount demanded by the NMDC officials. Though he is not able to say mobile number of accused No.2, remember to say his mobile number ends with numbers 614. He has disclosed about the information given by accused No.2 regarding demand of bribe by some of the officials of NMDC to get the post of JO. However, after three days from the said date, accused No.2 again called him and repeatedly asked about giving of bribe amount to the NMDC officials. However, PW3 was not intended to give bribe for getting appointment for the post of JO and has attended interview on 21.7.2013. Prior to attending interview his OBC certificate in Central Format and original documents were verified by two of the officers of the NMDC. After verifying documents, 76 Spl.C.C. No.204/2015 the OBC certificates, in both formats were taken by them along with xerox copy.
84. Further he has deposed about procedure of interview conducted in the hall, where six committee members were present, among them, three were questioned regarding his personal matters and others on the subjects. Accused No.1 was also one of the members of the interview committee checked his OBC certificate and clarified with the matter since it was in Telugu and English language. All the committee members asked about his experience and later discussed the same in his presence. According to him, he had experience of 2½ years in mining field and three years in construction field. The committee members after getting clarifying about his experience completed the interview process by asking 9 questions, out of which, he had answered 8 questions.
85. PW3 has further deposed that after one week from the date of interview, accused No.2 again called him over phone and asked about giving bribe for getting appointment. He had also 77 Spl.C.C. No.204/2015 informed that the bribe has to be given to the department officials at NMDC and not disclosed the names of the officials when he had particularly asked names of the persons who demanded bribe. However, PW3 has decided not to give any bribe on the ground having confidence of getting selected as he was one among the top 10 candidates passed in the written examination.
86. The important aspect deposed by him that subsequent to the interview, he had received a phone call from DGM's S.K.Jain's chamber, NMDC and asked him to meet Vigilance officer - Srinivas at administration office, Donimalai. When he met vigilance officer, made known about the letter received as to he had paid Rs.12-lakhs to the officials of NMDC for getting appointment for the post of Junior Officer (Mining) and he has denied the said allegation. Thereafter, results were announced and information sent through SMS in the month of September- 2013. After enquiring with the Vigilance Officer, he was made known not selected in view of said bribery allegation. Therefore, he gave complaint to CEO, NMDC denying bribery allegations leveled against him and the said complaint is marked as Ex.P54 78 Spl.C.C. No.204/2015 and his signature as Ex.P54(a). The OBC certificate seized under seizure memo identified by him marked as Ex.P55 and signature as Ex.P55(a). His statement also recorded by the 17th ACMM, marked as Ex.P58 and his signature found at the last page marked as Ex.P58(a). He has further stated that at the time of written test, he has put his signature and furnished his e-mail ID and phone number. Likewise, each candidate were also asked to furnish e-mail ID and phone number, the same procedure was adopted at the time of interview also. The attendance sheet pertaining to all the candidates and the attendance sheet obtained by NMDC officials marked as Exs.P56 and 57 respectively bears his signature marked as Ex.P56(a) and 57(a). He has further stated that after attending interview, he met one of the Interview Committee members namely Vipin Kumar and disclosed about irregularities taken place during selection of JO.
87. In the cross-examination he has admitted that his experience shown in the certificate annexed to the application was about 5 ½ years, but in the checklist, his experience shown as 6 years 2 months, later it was changed as 5 years 11 months, as could be seen from Ex.P22. He has admitted that the OBC 79 Spl.C.C. No.204/2015 certificate in the Central Format found in the file Ex.P52 has not been annexed along with his application, which is marked as Ex.D4. However, subsequently he had admitted that said Ex.D4 handed over to the person who had prepared checklist at the time of interview. Admittedly the OBC certificate enclosed along with application was in the State Format, which is found in the file Ex.P52 marked as Ex.D5. He was aware that OBC certificate in Central Format was to be produced along with application, but not produced the same. However, he gave explanation that he was not in possession of OBC certificate in Central Format at the time of submitting application, subsequently after obtaining the same produced at the time of interview. However, non production of OBC Certificate in the Central Format along with application is violation of one of the conditions of Notification.
88. PW3 has further admitted that the first complaint given by him before Vigilance Officer as per Ex.P54, in which he did not mention the names of any of the accused and also details of phone calls received from them. However, he knew one Pradeep working in Blasting Section since he was supplying raw materials to NMDC and admitted the allegation made against him 80 Spl.C.C. No.204/2015 that in collusion with said Pradeep he has paid Rs.12-lakhs for getting appointment of JO, but clearly stated that false allegation made against him. However, he is aware of the reason for not selected as JO, made known from the Vigilance Officer - Srinivas on allegation of bribe paid to the NMDC officials. He has admitted the enquiry initiated by the Vigilance Officer in connection with the same matter against him and above said Pradeep.
89. In further cross-examination he has admitted that accused No.2 and he was working in same company, therefore knew each other since 2005 and talking to each other on several occasions. He has clearly stated that accused No.2 did not disclose either the quantum of amount to be paid as bribe to the NMDC officials, or name of the person whom to be paid. However, the entire evidence of PW3 infers that attempt made by accused No.2 who gave assurance of selection of post of Junior Officer (Mining) on the payment of bribe amount to the NMDC officials.
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90. Another candidate who was not selected for the post of JO - Ramakrishna Singamsetti is examined as PW4. He has identified the application submitted by him with necessary documents marked as Ex.P59. The attendance sheets of the candidates appeared for the written test identified as Ex.P56 and his signature with mobile number and other details found on the same document marked as Ex.P56(b). He has clearly stated that the invigilator told him to write mobile number, name and put signature on the attendance sheet. He has mentioned his mobile No.9704095043 and said the mobile number of the accused No.2 as 9449647614.
91. He has further deposed that message received after one week from the date of written examination that he would have called for interview of the post of JO. After receiving the said message, accused No.2 called him over phone and disclosed about he was also qualified for the interview and asked him to pay Rs.5-lakhs to NMDC people for selection to the post of JO. However, PW4 was confident about getting the post of JO, informed accused No.2 that he is not interested to pay the money to NMDC people. Afterwards, when he was attended the 82 Spl.C.C. No.204/2015 interview in the month of July-2013, his documents were verified by the NMDC officials. He has further deposed about 6-7 members were present in the interview hall, out of them, 3 to 4 members asked 5 to 6 questions. He had answered all the questions correctly, therefore confident that he will be selected for the post called for interview. He has identified signature and other particulars found on the attendance sheet Ex.P57 and his signature marked as Ex.P57(b). According to him, accused No.2 again called over phone and asked him whether he had received message from NMDC for medical test. However, he did not receive any message for medical test, therefore asked other friends whether they have received any intimation from the NMDC. Later, he was made known from accused No.2 that he was called for medical test. Subsequently, PW3 called him over phone informed that he is going to meet Chief Vigilance Officer, Hyderabad for enquiring about non-selection for the post of JO and asked him to join, if he is interested.
92. Afterwards, in the month of November-2013, PW4 also approached Chief Vigilance Officer and gave complaint as per Ex.P61. After one year from the date of giving complaint, he 83 Spl.C.C. No.204/2015 was called by CBI, Bangalore and gave his statement. Apart from that, he had also given statement before 17th ACMM at Bangalore, which is identified as Ex.P62 and his signature as Ex.P62(a). In the cross-examination he has admitted that he knew accused No.2 since 2006 as both of them working at Bellary and Hospet, but denied that frequently calling accused No.2 during the said period. Further he has specifically stated about the demand for money made by accused No.2 for getting selection to the post of JO through phone calls, but not able to say the exact date of demand made by him for bribe, though has stated the phone calls received from accused No.2 on 26.6.2013. He has denied for the suggestion that accused No.2 never demanded for any money from him to get selection for the post of JO at NMDC, Donimalai.
93. The candidate K.Bharathi Pandian, also not selected for the post of JO, though attended written test at Kendriya Vidyalaya held on 23.6.2013 is examined as PW35. He has identified the application given by him with his signature marked as Ex.P114 and P.114(a). He had also stated that necessary documents produced along with the application, the question 84 Spl.C.C. No.204/2015 paper with answer sheet relates to him marked as Ex.P.115. He has stated about oral interview attended by him, in which, said to be answered all the questions. But after announcing of result, accused No.2 contacted him over mobile phone and verified about whether he was selected or not for the post of JO.
94. The candidates selected for the post of JO are examined as PWs.32, 53, 54, 58 and 65.
PW32 Poli Naveen Kumar has deposed that after seeing Notification issued by NMDC for the post of JO, he had applied for the said post and his application marked as Ex.P103. He had attended the written test at Kendriya Vidyalaya at Donimalai and identified the attendance sheet Ex.P56 stated his roll number was JM-083. The question paper with answer sheet relating to him marked as Exs.P104 and P105. He was also college mate of accused No.2 and known each other while they were studying together in Polytechnic course at Gudur. However, he has stated that prior to the written test on 23.6.2013, he had no contact with accused No.2, after written test both of them made known each other and exchanged their mobile numbers. 85 Spl.C.C. No.204/2015 He was called for oral interview on 21.7.2013 and attended the same. Further, accused No.2 made known him during first week of July-2013, he was called for interview and asked him whether interested to join the post of JO, if he is ready to pay Rs.3-4 lakhs for officials of NMDC, he will facilitate for the said job. However, at that time since he was working in Birla Group Company and getting good salary, told accused No.2 that not interested to pay bribe to the officials of NMDC. The list of documents produced by him before CBI identified as Exs.P106 to
110. In the cross-examination he has denied that accused No.2 never informed over mobile phone to pay Rs.3 to 4 lakhs to facilitate job of JO on payment of Rs.3 to 4 lakhs and has admitted that accused No.2 was also selected for the post of Junior Officer (Mining).
95. PW53 - Asif Sardar Khan, also applied for the post of JO and attended written test on 23.6.2013 at Kendriya Vidyalaya, Donimalai. Thereafter, he had received message on 27.6.2013 and called for interview on 21.7.2013. He was selected for the post of JO and received message on 2.8.2013 to 86 Spl.C.C. No.204/2015 attend medical test. After medical test, on 5.9.2013, he had received e-mail to join service of JO on or before 4.10.2013.
96. PW54 - Venkatasudarshan, also applied for the post of JO and his application marked as Ex.P146. The attendance sheet relating to him marked as Ex.P56 and his signature marked as Ex.P56(h). The question-cum-answer sheet relating to him marked as Ex.P186. According to him, he did not write his mobile number on Ex.P56 and admitted mobile phone number shown in Ex.P56 bearing No.9000988029 belongs to him. He was passed in the written examination and is called for oral interview, after interview he was selected for the post and joined the service of post of JO in the month of October-2013. The Xerox copy of the caste certificate produced along with application marked as Ex.P218. The attested copy of the caste and birth certificate produced at the time of interview marked as Ex.P219. Therefore, the allegation made against accused No.1 that in absence of caste certificate he was selected for the post of Junior Officer (Mining) is false. Further, he has also produced the Xerox copies of the experience certificate along with application marked as Exs.P220 to 222. The online caste 87 Spl.C.C. No.204/2015 certificate produced under Ex.P219 proves his selection was under the reserved category.
97. Another candidate selected for the post of JO is PW.58 - M.Joseph Raj also attended for written test and his application marked as Ex.P150. He has also deposed about OBC Certificate in State Format and other supporting documents produced by him along with application. The question-cum- answer sheet marked as Ex.P190 and he was qualified for the post of JO after attending interview. He has stated that selected in GM category, though he had produced OBC certificate in State Format, which was not considered by the concerned officials.
98. PW65 - Anadhi Mahapatra, selected for the post of JO, after attending written test examination. The application submitted by him along with documents marked as Ex.P144 and his signature is Ex.P144(a). He has identified question-cum- answer sheet marked as Ex.P185. He was also passed in written examination attended interview on 21.7.2013 and the interview committee contained 6-8 members. Before interview, the documents produced were verified by one Krishna Dutt and the 88 Spl.C.C. No.204/2015 checklist prepared as per Ex.P40. Though the caste certificate produced by him was expired, since there was one month validity, he was qualified for medical examination and joined as JO on 13.10.2013. The seizure memo under which documents seized by CBI marked as Ex.P236 and his signature is marked as Ex.P236(a). He has also identified the documents produced before CBI marked as Ex.P237.
99. The selected candidates did not say anything regarding bribe amount demanded either by accused no.1 or accused No.2 or accused No.3 before interview. Further, the evidence of witnesses who were not selected were also deposed about the bribe demanded by accused No.2 for selection for Junior Officer (Mining). PWs.3 and 4 who were not selected for the said post, challenged the selection process as it was not proper on the ground that some irregularities had taken place during recruitment process. However, the documents reveal that both of them have not complied the conditions of Notification while applied for the post of Junior Officer (Mining). The note made by the Scrutiny Committee on their checklist reveal about grounds for rejection of their applications at the initial stage 89 Spl.C.C. No.204/2015 itself. However, both of them were given opportunity to attend the written examination showing some leniency by the NMDC.
100. It is admitted that different committees formed were comprising of members to look after the process of appointing JO in NMDC. The Scrutiny and Short listing of the applications committee was headed by three officials, namely C.B.P.Sinha, Vinay Kumar and Subhasihis Chatterjee, they were examined as PWs.13, 11 and 7 and their evidence is already discussed above infers that no participation of accused No.1 while the work entrusted to different committees from initial stage till the end of interview.
101. The witnesses who had stated about the statement of accounts maintained in the name of father of accused No.3 Sheik Anwar Pasha, brother-in-law of one Khadar Shariff Sheik namely Sheik Samraj Ahmed who knew accused No.3 and different accounts opened by accused No.2 in banks examined as PWs.17, 18, 20 and 46 respectively.
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102. PW17 - K.V.Ramana Rao, the Manager, SBI, Eluru Bazar Branch in A.P. has submitted documents to CBI marked as Exs.P69 to 72. Original account opening form of S.B. Account No.31553895853 in the name of Sheik Anwar Pasha, the father of accused No.3, along with enclosures marked as Ex.P68. The statement of account in respect of said account number for the period from 25.4.2011 to 31.12.2013 marked as Ex.P69. Six original SBI credit vouchers for an amount of Rs.4,500/- dated 5.2.2013, withdrawal slip for Rs.49,900/- dated 15.7.2013, pay- in-slip for Rs.11,807/- dated 15.2.2013, credit voucher for Rs.2,25,200/- and SBI withdrawal slip for Rs.3,00,000/- dated 7.1.2013 identified before the Court. Out of which, credit voucher for Rs.4,900/-, pay-in-slip for Rs.11,807/-, credit voucher for Rs.2,25,200/- and withdrawal slip for Rs.3,00,000/- are not available on record. However, list of documents produced before the IO marked as Ex.P72 and his signature as Ex.P72(a).
103. PW18 - G.Durga Prasad, Chief Manager in SBI, Nidadavole Branch, West Godavari District, Andhra Pradesh also produced documents relating to Sheik Samraj Ahmed, brother- 91 Spl.C.C. No.204/2015 in-law of one Khadar Shariff Sheik who knew accused No.3. The original account opening form and statement of account No.10925010583 stood in the name of said Sheik Samraj Ahmed along with other documents marked as Ex.P73 and 74. The original SBI withdrawal form dated 15.7.2013 for Rs.1,00,000/- marked as Ex.P76. The letter received to produce the documents before I.O. is marked as Ex.P77.
104. PW.20 - Veeranna Gowda, Manager in Axis Bank, Sandur Branch, has produced the statement of account of S.B. Account No.911010035645348 of accused No.2 for the period from 14.7.2011 to 20.1.2014. The original account opening form in respect of said account given by accused No.2 along with annexure marked as Ex.P80. Another original account opening form in respect of S.B. Account No.912010061406376 in the name of accused No.2 along with true copies of PAN card, Driving Licence etc. marked as Ex.P81. The statement of accounts in respect of said both S.B. accounts maintained by accused No.2 marked as Exs.P82 to 84. The original Axis Bank cheque for Rs.2,00,000/- dated 6.2.2013 though referred in his 92 Spl.C.C. No.204/2015 evidence is not available on record. However, the original Axis Bank cheque dated 28.6.2013 for Rs.4,65,000/- drawn in favour of self marked as Ex.P85. Further he has deposed about other original cash credit voucher for Rs.1,500/- and Rs.54,620/- which are not available before the Court. The self cheque said to be drawn on 28.6.2012 for Rs.1,00,000/- also not available before the Court. The Original Axis Bank cheques drawn for self each for Rs.60,000/- and in favour of N.Srinivas, the cheques drawn for Rs.1,30,000/- and Rs.30,000/- in favour of Srinivas and cheque drawn for self for Rs.55,000/- are not produced before the Court. However, original demand draft voucher dated 1.10.2013 for Rs.50,000/- in favour of Max Life Insurance Company Limited is marked as Ex.P86. The important 5 relevant entries in proof of deposit of amount in cash deposit machine CBM dated 15.7.2013 in Ex.P82 marked as Ex.P82(a). However, the evidence of this witness proves two different S.B. accounts opened by accused No.2 in different banks and receipt of cheques for different amount on different dates.
105. PW46 - Nandan Kumar, Branch Manager in State Bank of India, Sandur Branch has furnished details of SB 93 Spl.C.C. No.204/2015 A/c.No.31147478026. The account opening form of accused No.2 and statement of his account marked as Ex.P202 and 203.
106. The Service particulars of accused Nos.1 to 3 produced by Joint General Manger (Personnel) NMDC, T.Raja examined as PW.24 has identified the same marked as Exs.P88 to 90. He was instructed by Assistant General Manager Mr.Chatterji to furnish 112 original admit cards out of which, he has furnished 45 original admit cards of the candidates appeared for written examination marked as Ex.P-91. He has deposed about procedure of selection of OBC candidates as to produce relevant caste certificate in the format prescribed by the Government of India. According to him the candidates who were not produced the said certificate along with their applications, time was provided them to produce the caste certificate at later stage. Even afterwards if any candidate failed to comply the same, then also sufficient time granted to them. Even otherwise, if any candidate failed to produce the prescribed format issued by Government of India, the Selection Committee ought to have rejected the claim of candidates of OBC category. However, they were authorized to consider the caste certificate issued by 94 Spl.C.C. No.204/2015 Revenue Authorities of concerned State Government. After considering those candidates under OBC category, they were selected for the post of JO as per rules.
107. Admittedly, though PW24 was not present at the time of recruitment process of JO at NMDC, he has gone through the Notification issued for the selection of said post and the same identified in the cross-examination, which is marked as Ex.D3. He has denied for the suggestion that no such Notification/Circular issued as to selection of candidates on the basis of the caste certificates issued by the Revenue Authorities of concerned state.
108. The preliminary investigation conducted by one of the officials of NMDC, Donimalai, namely Murali Krishna is examined as P.W.8. He was working as Assistant General Manager, Vigilance Department, NMDC and deposed about complaint made with regard to recruitment of JO, received by the Chief Vigilance Officer in the month of August or September- 2013. He along with two others have conducted preliminary investigation as per the instructions given by Chief Vigilance 95 Spl.C.C. No.204/2015 Officer - Smt.Usha Chandrashekar, and the Preliminary Investigation Report was submitted marked as Ex.P65.
109. PW8 has deposed the allegation made by the Complainant - PW3, Gungi Ankamma Rao who was said to be belongs to OBC category, not selected for the post of JO. However, after verification of the records he found that some of the candidates of OBC were treated in General category. He is particular about only after going through the records the preliminary investigation report was prepared as per Ex.P65 and submitted to Chief Vigilance Officer.
110. In the cross-examination admitted that the entire process of recruitment was handled by separate committees at different stages. He has also admitted that only after approval from Executive Director - L.N.Mathur, admission tickets were issued to the eligible candidates, thereafter, who have passed the written examination, called for interview as per their category. He does not know anything about specific instructions given by any member of the committee to give marks to the candidates 96 Spl.C.C. No.204/2015 on particular subject and also towards their experience. He has further admitted that according to the Notification Ex.D3, no scope for furnishing additional documents at later stage. However, his evidence is contrary as the certificate of date of birth which was not produced by PW4 at the time of submitting application was collected and attached at the time of scrutiny of documents as could be seen from the note made in the check list Ex.P32. Likewise, the check list of candidate Venugopal D.G. marked at Ex.P48 also it was noted that SC certificate dated 21.8.2012 submitted with application original not shown, another SC certificate dtd.11.7.2013 produced and submitted. Therefore, when the specific direction given to candidates applied for JO to produce the copies of certificates along with applications, prescribed under the above-mentioned Notification Ex.D3, the certificates from PW4 and another candidate Venugopal, received at later stage during interview is against the rules prescribed under Notification.
111. PW9 - Mohammed Vahidoddin, working as Senior Manager, NMDC, Hyderabad has deposed the documents seized by CBI as per seizure memo dated 14.2.2014 is marked 97 Spl.C.C. No.204/2015 as Ex.P66. Admittedly, the said documents are relating to recruitment process of JO were in the custody of Vigilance Department.
112. PW40 - K.Dhananjayan, Assistant General Manager, (Vigilance) NMDC, Hyderabad has deposed about original documents collected from the General Manager, NMDC Limited, Donimalai and the same identified before the Court marked as Exs.P120 to 195. They are the original applications with enclosures submitted by different candidates which were said to be handed over by accused No.1.
113. The prosecution has relied on the evidence of PW41 and PW42 in proof of conversation between accused No.2 and other candidates from whom bribe amount demanded to give to the officials of NMDC. PW41 - P.Ratnakar Nayak, the then Divisional Engineer, BSNL has produced the call details pertaining to Mobile No.9449647614 alleged to be belonging to accused No.2 for the period from 1.6.2013 to 31.12.2013 marked as Ex.P196 and his signature as Ex.P196(a). The details of calls 98 Spl.C.C. No.204/2015 outgoing and incoming are mentioned from mobile number 9449647614 to different mobile numbers (9482812750, 9449703371, 9448146246, 9449871003, 9449871008, 9449871010, 9552517110, 9822043317, 9552517101, 9552517102, 9552517106, 9449871003, 9480694343, 9448754989, 94481715552, 9480932338, 9481717741, 9449201377, 9480135209, 9482145412, 9449173371, 9480694343, 9986118121, 9448146246). The outgoing calls mentioned through Sandur Exchange from 1.6.2013 at different timings.
114. PW42 - H.S.C.Rao, Assistant General Manager (Customer Application Form) in BSNL has furnished particulars of mobile No.9449647614 standing in the name of customer Prabha W/o.Gangadhar. The certified copy of the customer application with covering letter marked as Ex.P197. The call detail produced by PW41 also reveals the number 9449647614 from which outgoing calls to many different mobile numbers mentioned in Ex.P196. The said mobile number admittedly belongs to accused No.2 who made calls to PWs.3 and 4 in connection with alleged bribe amount to be paid to NMDC officials. However, as per 99 Spl.C.C. No.204/2015 Ex.P197, the letter of BSNL, enclosed with application given by one Prabha and the SIM card 8991712100411558611 was activated on 28.10.2005. But the above-said mobile number of accused No.2 mentioned on the application will not give scope for any doubts as the same number might have changed and taken by accused No.2 subsequently.
115. However, the above-said K.L.Prabha, examined as PW43 has deposed that no application given by her to BSNL to get SIM card in the year 2005. She has denied the signature in the customer application form enclosed to covering letter Ex.P197 and has clearly stated not furnished copy of election ID card to BSNL along with the said application. She has further stated that never used the mobile No.9449647614 at any point of time. Though in the cross-examination she has admitted that the photo annexed to the customer application form enclosed to Ex.P197 belongs to her, her specific denial regarding customer application filed by her with ID card annexed to it proves the above mobile number not used by her. 100 Spl.C.C. No.204/2015
116. The prosecution in proof of arrest of accused No.2 by the CBI, examined PW44 - Krishna K., the Assistant Manager, Vijaya Bank, who has deposed that when he went to the office of CBI, Bangalore, accused No.2 was arrested and he has put signature to the arrest memo Ex.P198 and it is marked as Ex.P198(a). The Personal search memo marked as Ex.P.199, under which, police have seized mobile with SIM card and other things from accused No.2. Though he do not know the contents of Ex.P199, admitted his signature marked as Ex.P199(a). The suggestion put in the cross-examination that CBI officer has written the contents and particulars of Ex.P199, is however proves personal search of accused No.2 while he was arrested in the presence of this witness.
117. PW45 - N.Balasingh, Sub-Divisional Engineer, BSNL, Hyderabad has deposed about certified copy of CDRs and CAF pertaining to mobile No.7382072338 furnished by him with covering letter, the same marked as Ex.P200 and signature as Ex.P200(a). The customer application with ID card marked as Ex.P201.
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118. PW48 - S.N.Murthy, Nodal Officer of Vodafone, furnished customer application form with documents and call data records relating to mobile Nos.9916976520, 9916256550 and 9966555125. Accordingly, he has produced the details of calls made through those numbers from 16.7.2013 to 31.12.2013 with covering letter Ex.P207. But he is not able to say the details of call records marked under Exs.P208, 210 and 212, from whose mobile numbers calls were made during the relevant period. Though the certificates issued under Section 65(B) of Indian Evidence Act marked as Exs.P213 to 215 along with the call details, the important fact relating to who were all used the said mobile numbers to make calls either to accused No.1 or accused No.2 is not produced before the Court. Moreover, he has admitted that not personally verified call data records and application form submitted by the customers. However, he is not able to say the call data record in respect of above-said three mobile numbers, though he has identified the customer application forms submitted by one Sudesh Kumar and Gungi Ankamma Rao. Therefore, the Court cannot make the names of customers in whose favour the above three numbers 102 Spl.C.C. No.204/2015 were given from which the calls were made in connection with alleged demand of illegal gratification.
119. Another Nodal Officer, Bharti Airtel Limited, Bengaluru Standly Angelo, examined as PW57 deposed about customer application form relating to one Veerabhadrappa furnished is marked as Ex.P224. The copy of the PAN card relating to him marked as Ex.P225. The list of mobile numbers allotted to said Veeradrappa, Sangappa and others in total 40 produced by him along with covering letter marked as Ex.P223. Likewise, the covering letter dtd.17.11.2014 sent to Investigating Officer CBI relating to mobile No. 7795571256 marked as Ex.P226 and his signature marked as Ex.P226(a). The xerox copy of the customer application of one James Anthony Raj produced by him along with copy of the ID card marked as Ex.P227. However, the call details with customer applications of different persons produced by above witnesses will not disclose anything the conversation between accused No.1 with accused No.2 and accused No.3.
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120. The prosecution has produced the evidence of Chief Vigilance Officer, Smt.Usha Chandrashekar examined as PW.52, has deposed in respect of irregularities alleged to be taken place in the recruitment process during selection of JO in NMDC, in the year 2013, which was brought to her notice by one of the candidates, PW3 - Gungi Ankamma Rao, who had applied for the said post. She had received the information over phone, when she was in training at Paris, in the month of July-August 2013. After receiving the said information, she asked him to give written complaint regarding irregularities through post or e-mail by providing her official e-mail ID. After receiving the complaint through e-mail sent by P.W.3, she gave direction to Vigilance Officer, NMDC to conduct internal investigation and submit the report. The complaint sent through e-mail by PW3 marked as Ex.P54 and his signature as Ex.P54(a).
121. She has further deposed about other 5-6 complaints received from different candidates regarding the same irregularities taken in the recruitment process of JO at NMDC. But, the details of those complaints given by different candidates are not produced before the Court. The complaint given by PW4 - 104 Spl.C.C. No.204/2015 S.Ramakrishna Singamsetty, has identified and marked as Ex.P61. Final investigation report submitted by Vigilance Department identified as Ex.P65. She has deposed about the internal investigation report submitted to Investigating Officer with covering letter is marked as Ex.P217 and her signature marked as Ex.P217(a).
122. In the cross-examination she has admitted that no personal knowledge about allegation made in the complaint, also the name of officer of NMDC not mentioned in the complaint and no allegation made against accused No.1. However, she has specifically pointed out page No.76 of internal investigation report Ex.P65, where the irregularities committed by all the officers of NMDC ,including accused No.1 are mentioned.
123. I have perused page No.76 of Ex.P65 and found that the recommendations made to take disciplinary action against the following officials under NMDC CDA Rules 1978 for the lapses mentioned as under Rule 5.5: Acting in a manner prejudicial to the interest of the company and Rule 5.9 : Neglect of work or negligence in the performance of the duty. 105 Spl.C.C. No.204/2015
1) A.Diwakar, Dy.Manager (Personnel) R&P
2) Ramakrishna Manager Personnel
3) Bijay Kumar Khamari, Manager (IR) and R & P
4) K.Srinivas, Manager, (Personnel)/Vigilance
5) D.Acharya, AGM, Personnel
6) L.N.Mathur, Executive Director However, the CBI made allegations against accused No.1 only, on the basis of Source Information, though it is alleged that other officials also involved in the lapses mentioned in the Investigation Report.
124. The Prosecution further alleged that accused No.1 not put proposal for preparing question papers for written examination. However, PW55 - G.K.Patnayak, Deputy Manger (Secretariat), NMDC, Donimalai has deposed about assistance given to accused No.1 and C.B.P.Sinha for doing xerox copies of question papers for the post of JO on the direction given by Executive Director. According to him, the xerox copies of question papers were collected by accused No.1, and he went along with C.B.P.Sinha to the Chamber of Executive Director. 106 Spl.C.C. No.204/2015 Thereafter the question papers were put in the envelope and kept in the sealed cartoon box as directed by Executive Direcotr, later it was taken by accused No.1 with C.B.P.Sinha to the house of Executive Director.
125. P.W.59 - Thippeswamy, working as Junior Assistant in NMDC, Donimalai has deposed that his duties are feeding/updating employees' details in the system, clerical job, opening service books of the employees and any other works entrusted by his supervisors. He along with one Sri Gururaja Rao, assisted PW1 - Assistant Manager (Personnel) in feeding the data, like name, father's name, date of birth, age, qualification, experience etc. The data entered by him relating to recruitment of JO in the year 2013 identified as Ex.P1(a) to 1(d).
126. PW63 - Priyadarshini G., DGM (Personnel) in NMDC, Donimalai has furnished documents sought by CBI officer, and Sanction Order identified as Ex.P255 and her signature as Ex.P255(b). The documents produced along with Sanction identified as Ex.P255(a).
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127. The prosecution has produced the evidence of other official and independent witnesses in proof of the seizure of documents by CBI. The witness for seizure mahazar Assistant Manager of Pragathi Krishna Grameena Bank, Hospet S.Siddappa examined as PW19. His evidence reveal about CBI officials summoned him and took him to Sandoor along with women constable of Sandoor Police Station, they proceeded towards Donimalai and went to the house of accused No.1 and seized the documents after making due search in the house. The search list prepared by the Inspector identified as Ex.P78 and his signatures marked as Exs.P78(a) and (b), under which, only one document mentioned in the column No.2, was seized, which is the copy of the acknowledgement of AGM, Vigilance, NMDC, Hyderabad dated 5.12.2013 for being collected 392 applications along with enclosures connected to the employment Notification No.1/12 is mentioned. The said document contains answer sheets of the written test for the Junior Officer (Mining).
128. PW19 has further deposed about the safe locker opened by Investigating Officer and materials were seized as per the list marked as Ex.P79 and his signatures marked as 108 Spl.C.C. No.204/2015 Exs.P79(a) to (c). The said document is Locker Operation Proceedings prepared by Investigating Officer in connection with the Locker No.88 operated by accused No.1 and his wife, operated on 3.1.2014 at 12.30 p.m. P.W.19 being independent witness of the both Exs.P78 and 79 stated about documents and materials seized in his presence under the said seizure memos.
129. The witness K.Mohan, who was aware of recruitment process examined as PW51. He was working as Deputy General Manager (Personnel), NMDC Limited, Hyderabad was looking after the recruitment and promotion matters and familiar those matter enquired by Inspector of Police, CBI on 22.10.2014. He has produced the documents seized under Ex.P216 and identified his signature as Ex.P216(a). He has also identified the copy of the Publication of Employment Notification No.1/12 dtd.4.12.2012 kept in Ex.P1 marked as Ex.P1(a).
130. According to PW51, the appointment was provisional and would be terminated in case, the caste or OBC certificates produced by the candidates found to be false. The appointing authority had given powers to consider OBC certificates issued by 109 Spl.C.C. No.204/2015 the concerned authorities not produced in prescribed format at the time of applications given by them though same produced at later stage. However, in the cross-examination he has admitted that if no prescribed format submitted by the OBC candidates that they will be given opportunity to produce the OBC certificate at later stage in proper format.
131. In the cross-examination he has admitted that not gone through all the applications given by the candidates and he had seen the documents pertaining to PW3. He has admitted that in Ex.D7 it is endorsed on the application of the said candidate that he belongs to General. He has admitted that file Ex.P1 consisting of report of committee constituted for the purpose of scrutiny and short listing of applications submitted by the candidates mentioned at Sl.Nos.62, 105, 112, 174, 199, 211, 269, 292, 322 and 329 who were not short listed on the ground that OBC certificate not in central format. However, no enquiry made by CBI officials in connection with those candidates who were not short listed but enquiry made only in respect of PW3, who is not admittedly failed to produce the OBC certificate along with the application. He being official witness working as Deputy 110 Spl.C.C. No.204/2015 General Manager (Personnel), NMDC Limited, Hyderabad has admitted that there was no uniform procedure while recruiting Junior Officer (Mining) at relevant point of time.
132. The independent witness Kona Durga Rajalakshmi examined as PW56 has deposed about vacant site purchased by her for Rs.4,00,000/-, thereafter sold the same property to accused No.3 and his brother Khader Basha. The certified copies of the sale deeds executed in their favour identified under Exs.P93 and 94, which are the Xerox copies of the sale deeds dtd.3.7.2013 in respect of two different portion of land bearing Sy.No.433/1 sold for Rs.2,19,000/- each.
133. The official witnesses are examined as CWs.60 to 62. PW60 - Vivekananda Swamy, Inspector of Police, CBI, ACB, Bengaluru has conducted part investigation at different places in Eluru, Vuyyur, Guntur and Nidadavole and collected the documents as well as recorded statements of different witnesses. He has identified the certified copies of the documents collected from Sub-Registrar Smt.R.Lakshmi, Proprietor of Shakthi Jewellery V.N.M.Shekar, P.Sharada, Sub-Registrar, Vatlur and 111 Spl.C.C. No.204/2015 recorded their statements. One Smt.Mohammed Ameeda Begum and Smt.S.Ramakrishna also enquired by him along with G.N.R.Sathish. The documents collected by him identified as Exs.P92, 94, 95, 97 and P-98. After collecting those documents and recording statements of above witnesses the file handed over to Investigating Officer, who is examined as PW62.
134. The Inspector of Police, CBI/ACB at Hyderabad - N.Raghavendra Kumar examined as PW61. He was also conducted part investigation as per the direction given by Deputy Inspector of General, CBI, Hyderabad. During his part investigation collected Customer Application Form and Call Data Records from BSNL, Hyderabad, forwarded the same to CBI/Bengaluru. He has identified letter addressed by Sub- Divisional Engineer, Hyderabad to IPS, CBI/ACB, Bengaluru under Ex.P200. The Customer Application Form identified as Ex.P201. Afterwards, he has examined Muralikrishna, AGM, Vigilance, NMDC and recorded his statement. The said Muralikrishna is examined before the court as PW8. 112 Spl.C.C. No.204/2015
135. The I.O. who has conducted further investigation is T.Rajashekara examined as PW62. He has deposed about FIR registered on 26.12.2013 by Dr.A.Subramanyeshwara Rao against accused Nos.1 and 2 and unknown persons for the offences mentioned in the charge sheet and entrusted the file for further investigation. The FIR registered is identified as Ex.P228. After receiving case file, he had filed application under Section 93 of Cr.P.C. and obtained search warrant, after due search in the residential premises of accused No.2, he had visited residence and office premises of accused No.1, search list prepared by him in the presence of witnesses marked as Ex.P229.
136. Further during his investigation he has obtained call details and Customer Application Form in respect of Mobile Nos.9966555125, 9916256550 and 9525438035. Statements of independent witnesses who were present at the time of search list also recorded. The documents relating to account opening form and statement of account held in the name of accused No.2 also received from SBI and Axis Bank of Sandur. He has identified the statements of witnesses recorded by him are 113 Spl.C.C. No.204/2015 Veeranna Gowda, Nandan Kumar and K.Ramana Rao who are examined as PWs.20, 46 and 17 respectively.
137. Further he has also visited the NMDC office, Hyderabad and collected documents as per Exs.P1, 4, 5, 52, 53, 59, 66, 67, 103, 104, 114 to 116, 120 to 195 under the seizure memo dated 14.2.2014 produced by the witness Mohammed Vahidoddin. PW3 also produced documents before him seized under the seizure memo dated 24.2.2014, marked as Ex.P55 and his statement also recorded. Further the documents collected from the witness Durgaprasad identified as Exs.P73 to 76. He has further seized documents from AGM, NMDC, relating to written test held for the post of Junior Officer (Mining). He has examined the witness Bharathi Pandian and recorded the statement after seizing the documents. He has deposed about other documents seized from the witnesses whose evidence already discussed above and recorded their statements on different dates.
138. He has identified the document Ex.P65 seized from PW52, apart from other documents seized from Jayanth Kumar 114 Spl.C.C. No.204/2015 Sahoo under seizure memo dated 21.5.2014. He has also collected documents from selected candidates under different seizure memos and recorded their statements. The officials of Kendriya Vidyalaya namely Rajashekar, Abdul Gafar, Mallikarjuna Dyama, G.Bharata Chandra Raju, Duggappa, M.Malik Saab and Y.T.Ramamurthy who were the invigilators for written examination for the post of Junior Officer (Mining) also examined and recorded their statements. The documents collected from PWs.6, 24, 33, 34 and 39 and others also identified before the Court. Further the documents produced by accused No.1 identified as Ex.P231. He has stated about documents collected from PW57 - Standly Agnelo, whose statement also recorded along with PW14 - Veeranna and PW55 - G.K.Patnayak. The documents seized from PW7 under seizure memo dated 4.12.2014 marked as Exs.P64, 91, 193 to 237. Further, he has examined other witnesses namely Amit Kumar Singh, Vipin Kumar, Shashikanth Verma and Vinay Kumar, who are examined as PWs.38, 10, 16 and 11.
139. Thereafter, on 19.12.2014, S.P., CBI/Bengaluru entrusted part investigation to Raghavendra, Inspector, 115 Spl.C.C. No.204/2015 CBI/ACB/Hyderabad. On 22.12.2014, he has visited BSNL Office, Bengaluru and collected documents from PW42, afterwards recorded his statement. The statements of PWs.3 and 4 recorded before 17th ACMM, Bengaluru under Section 164 Cr.P.C. identified as Exs.P58 and 62. He has further identified documents seized by him marked as Exs.P232 to 225. In further chief-examination he has identified the original application form of one Prabeen Kumar Das with enclosures marked as Ex.P141(a) for the sake of convenience.
140. In the cross-examination for accused No.1 he has admitted that the witness Mohammed Nijas, who is examined as PW36 has not stated anything against said accused No.1 who was explained the procedure at the time of written examination as on 23.6.2013 and also only NMDC invigilators put their signatures on the answer sheet. Further admitted that PW38 Amit Kumar Singh has not given any statement stating that accused No.1 with Mr.Patnayak and C.B.P.Sinha came and took the question paper from computer system in pen drive for printing. Likewise, PW50 - Ranjit Diware has not stated that accused No.1 has explained as to the procedure of conducting 116 Spl.C.C. No.204/2015 written examination and instructed not to take signature of invigilators the teachers of Kendriya Vidyalaya.
141. The Clear admission made by PW62 that PW49 - Koteshwara Rao has not stated that accused No.1 instructed the procedure of conducting examination and only invigilators of NMDC shall put their signatures on question-cum-answer sheet and admit card. Likewise, no instructions given by accused No.1 to the invigilators of Kendriya Vidyalaya shall not put their signatures on admit card and question-cum-answer sheets. He has also admitted that no witnesses stated anything against accused No.1 relating to instruction given by him, particularly, not to take signatures of invigilators of Kendriya Vidyalaya and to take signatures of only NMDC Officials, acted as invigilators in the written examination. Therefore, statements of the witnesses said to be recorded by him are contrary to the case of CBI, in connection with allegations made against accused No.1. Because one of the allegations made that specific instruction given by accused No.1 to the officials of NMDC acted as invigilators only to put their signatures on the question-cum- answer sheet and admit card, specific instruction given to the 117 Spl.C.C. No.204/2015 teachers of Kendriya Vidyalaya acted as invigilators not to put their signatures in the answer sheet, falsifies in view of admissions made by the witnesses that no such statement given by them relating to the said instructions given by accused No.1.
142. Further important admission made by him that PW12 - L.N.Mathur was Executive Director and Project in-charge of Donimalai NMDC who has constituted different committees at different stages of appointment of Junior Officer (Mining). He has further admitted the important aspect relating to participation of members of each committee at different stages while recruiting the candidates for the post of Junior Officer (Mining). Therefore, the clear and important admission made by Investigating Officer reveals about no sole participation of accused No.1 in the recruitment process of Junior Officer (Mining) from the stage of scrutiny of applications till the interview as contended in the charge sheet.
143. Though PW62 has denied that no documents relating to criminal conspiracy and illegal gratification received by accused No.1 by way of abusing his official position are 118 Spl.C.C. No.204/2015 produced, he has not pointed out any specific document relating to the criminal conspiracy by accused No.1, received with other accused and also illegal gratification received by him way of abusing his official position as AGM (Personnel) while recruiting candidates for the post of Junior Officer (Mining). Though he has denied for the suggestion that the statements of witnesses not recorded during his investigation, but the statements of witnesses pointed out in the cross-examination are inconsistent to the evidence deposed by them before the Court.
144. In further cross-examination on behalf of accused No.2, he has admitted that accused No.2 joined NMDC as Junior Officer (Mining) on 29.5.2013 and the case registered against him on 23.12.2013, afterwards charge sheet submitted on 31.12.2014. He has also admitted that since accused No.2 was not working as public servant in NMDC during the relevant point of time, no Sanction was obtained to prosecute against him. However, he has voluntarily stated that as on the date of commission of offence, accused No.2 was not a public servant, therefore, no Sanction obtained from the competent authority. In further cross-examination he has admitted that accused No.3 119 Spl.C.C. No.204/2015 has deposited an amount of Rs.3,00,400/- on 15.7.2013 to the account of accused No.2 and the same amount available in his account till the date of his cross-examination as on 17.3.2017. However, the said amount has not been seized by him during the investigation. He has denied the documents produced by accused No.2 relating to loan borrowed by accused No.3, returned by him after considering the same during the investigation. Though he has denied return of the documents of loan, not offered any explanation as to why not seized those documents during his investigation.
145. PW62 in further cross-examination has admitted the documents verified by him from time-to-time assigned by accused No.1. He is particular about the noting put by accused No.1 himself as Head of Personnel Branch during the course of written examination, conducting interviews, verification of documents as noted in Exs.P1 and 2. In support of said evidence he has referred the first page of Ex.P1, in which, it is made out that the matter relating to recruitment for the post of Junior Officer (Mining) from the date of initial stage, notification venue for conducting written examination, interview and verification of 120 Spl.C.C. No.204/2015 documents submitted for approval by the accused No.1 and it was approved by Executive Director, who is examined as PW12 who was the head of Project.
146. He has clearly admitted that no mention in Ex.P1 as accused No.1 alone made note in connection with recruitment process and forwarded everything as stated by him. However, it can be said that accused No.1 being Assistant General Manager of Personnel Department might have given entire responsibility of getting recruitment for the post of Junior Officer (Mining) relating to conducting written examination, oral interview and verification of documents. Therefore, he might have submitted the same before Executive Director for approval, as could be seen from Ex.P1. Because, it is not in dispute that accused No.1 was the head of Personnel Department entrusted with the work of recruitment process for the post of Junior Officer (Mining).
147. The Investigating Officer has further admitted that no document produced to show the nexus between accused No.1 and 2. Therefore, it implies no conversation between them to enter into an agreement and also criminal conspiracy between 121 Spl.C.C. No.204/2015 accused No.1 with accused Nos.2 and 3 to do an illegal act. Though Investigating Officer has denied that the documents produced before the Court not reveal about independent role played by accused No.1 in the recruitment process, the documents relied on by CBI will not establish the sole participation taken by accused No.1 in the recruitment process as alleged in the charge sheet. Because PW12 being head of Project has formed different committees comprising different officers who were looked after different stages of the recruitment process.
148. Though the specific allegation made against accused No.3 that he has paid amount of Rs.3,00,400/- to accused No.2 and selected for the post of Junior Officer (Mining), there was no impediment for the Investigating Officer to seize the said amount if it was really paid towards the bribe as alleged by prosecution. However, the evidence of PW62 who is responsible officer has conducted part investigation and identified many documents seized by him, has stated that the statements of witnesses recorded by him are inconsistent to the oral evidence deposed by the witnesses.
122 Spl.C.C. No.204/2015
149. Accused No.1 has filed written statement under Section 313(5) of Cr.P.C. and stated that the entire process recruitment was being monitored and done under the authority of Executive Director Sri L.N.Mathur examined as PW12 and no individual officer was assigned with any particular job or work with regard to recruitment process taken for the post of Junior Officer (Mining) at NMDC. He has further stated that PW12 is the project head and PW3 - Gungi Ankamma Rao not furnished OBC certificate in Central Format at the time of interview, therefore he was not selected for the reason that not furnished the required certificate for the above post as per the Notification issued under Ex.D3. The defence of the accused No.1 is that there was no nexus with other accused Nos.2 and 3 or any of the persons in connection with the above recruitment process. He has stated that no candidate treated as General who has to be treated as OBC category. The entire process of recruitment was being dealt with by independent committees constituted by head of the project PW12 and he was only a member of committees formed by Executive Director.
123 Spl.C.C. No.204/2015
150. The defence taken by the accused No.2 in the written statement filed under Section 313(5) of Cr.P.C. is that allegation made against him he had conspired with officers of NMDC Limited, in furtherance of conspiracy cheated the NMDC and other eligible candidates by illegal acts in the matter of selection of candidates for the post of Junior Officer (Mining) is false. Further the allegation made against him that he dishonestly induced accused No.1 to pay illegal gratification for himself and accused No.1. However, he has stated that he was top 7 candidates in the selection list and has selected for the post of Junior Officer (Mining). Subsequently, he was kept under suspension from 13.11.2014 to 7.2.2017, thereafter on the same day on 7.2.2012 terminated from the service. Further stated that the amount deposited by accused No.3 on 15.7.2013 of his account maintained in SBI and Axis Bank was towards the amount borrowed from him on 29.6.2013 to purchase the flat. In connection with the said loan, copy of the promissory note said to be executed by accused No.3 dated 29.6.2013 along with other copies of documents are produced. He has further stated that the amount has been withdrawn by him from the Axis Bank on 28.6.2013 to pay the loan of Rs.3,00,000/- to the accused 124 Spl.C.C. No.204/2015 No.3 for purchasing flat. He has also stated that PWs.3 to 5 are friends, therefore he had casual talk with them on certain occasions. The amount deposited by accused No.3 towards loan was in his account till filing of the charge sheet, but Investigating Officer has not seized the said amount. According to him, if it was a bribe amount, it would have been given to accused No.1. In support of his defence has produced the copies of letters issued by NMDC dated 27.5.2013, 25.6.2013, 1.8.2013, Merit list of candidates in the written test, letter of appointment dated 5.9.2013, letter of his discharge dated 7.2.2017 with copies of statements of account maintained in Axis Bank & State Bank of India and Promissory note executed by accused No.3 dated 29.6.2013 for Rs.3,00,000/-.
151. The defence taken by the accused No.3 that he was selected for the post of Junior Officer (Mining) as per the recruitment policy and procedure of NMDC Limited, Donimalai. He had no contacts or communication with any public servants and a false allegation made against him that he paid bribe to the accused No.2 to get select for the post of Junior Officer (Mining). The amount paid to the accused No.2 is relating the loan 125 Spl.C.C. No.204/2015 borrowed by him to purchase land and not for any other purpose. He has not cheated the NMDC, Donimalai, in recruitment process of Junior Officer (Mining). He has fulfilled the requirements of recruitment process and he was not given benefit at any stage of the selection for the post of Junior Officer (Mining). He will not come in any reserve category of OBC/SC/ST, he was selected on the basis of merit in open category. The marks awarded to him during the interview was as per the policy and procedure of NMDC, Donimalai, which was approved by competent authority and he got selected for the post of Junior Officer (Mining). He has not manipulated any of the records as alleged by the prosecution.
152. The learned Public Prosecutor has submitted that the accused No.1 with fraudulent intention entered into criminal conspiracy with accused Nos.2 and 3 for selection of the candidates for the post of Junior Officer (Mining). The submission made by the learned Public Prosecutor that accused No.1 purposefully and willfully not received the OBC certificate from the candidates particularly from PW3 on the ground that he has refused to pay bribe. The case of prosecution is based on 126 Spl.C.C. No.204/2015 circumstantial evidence as no direct evidence is available relating to criminal conspiracy entered between accused Nos.1 to 3. In connection with the criminal conspiracy submitted that no necessity to each person know each other and meet each other while they entered to do some illegal act with some dishonest intention. According to the arguments accused No.1, paved way for accused 2 and 3 to get selection for the post of Junior Officer (Mining) by collecting bribe in view of criminal conspiracy between them. Further submitted that they need not be directly participate even if a person paves way to act and object of conspiracy is even if no active participation of each of them. In this regard, relied on the ruling reported in (2017) 6 Supreme Court Cases 1, in the case of Mukesh and another Vs. State (NCT of Delhi) and Others.
The observation made in the relevant paras, that the criminal thoughts in the mind when take concrete shape of an agreement to do or cause to be done an illegal act or an act which is not illegal by illegal means then if nothing further is done an agreement is designated as a criminal conspiracy. The proviso to Section 120-A engrafts a limitation that no agreement except an agreement to 127 Spl.C.C. No.204/2015 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.
Further the illegal act may or may not be done in pursuance of an agreement but the mere formation of an agreement is an offence and is punishable.
If acts done by two persons on the same object, one performing one part of an act, and the other another part of the same act, so as to complete it.
The reference of observation made in the case of Noor Mohammad Mohd. Yusuf Momin Vs. State of Maharashtra in which stated, a criminal conspiracy from its very nature is generally hatched in secrete, therefore, it can be proved by circumstantial evidence.
Further referred case of E.G.Barsay Vs. State of Bombay wherein discussed, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts.
Further the reference made about Kehar Singh case in which discussed as the illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. With reference to 128 Spl.C.C. No.204/2015 Section 120-A and 120-B Indian Penal Code would make these aspects clear beyond doubt. Further, Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. Therefore, the acts of various parties to infer that they were done in reference to their common intention to be relied on. It is sufficient that there was "a tacit understanding between conspirators as to what should be done"
The various facts of criminal conspiracy discussed in the case of Mir Nagvi Askari Vs. CBI discussed and pointed out the ingredients of criminal conspiracy.
Further made an observation that whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object as referred in the cases of Damodara Vs. State of Rajasthan, Kehar Singh Vs. State (Delhi Admn.) and State of Mahrashtra Vs. Som Nath Thapa.
The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. ... no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished. The agreement may be proved by necessary implication.
129 Spl.C.C. No.204/2015
Further observed the case of
K.R.Purshothaman Vs. State of Kerala in
which discussed that "To constitute a
conspiracy, meeting of minds of two or more
persons for doing an illegal act or an act by
illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts."
Further held that what part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
If two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor.
An agreement of criminal conspiracy must be inferred from the circumstantial evidence of cooperation between the accused.
153. The learned Public Prosecutor submitted the factual aspects that the case of CBI based on assumption, but it is not for non-selection of PWs.3 and 4 for the post of Junior Officer 130 Spl.C.C. No.204/2015 (Mining) who gave complaints to Chief Vigilance Officer, but no other non-selected candidates given any complaint regarding irregularities taken in the recruitment process of Junior Officer (Mining). Further, even no Sanction obtained to prosecute against accused Nos.2 and 3 who are shown as public servants in the charge sheet, it is a technical aspect will not vitiate the proceedings under Section 19(4) of Prevention of Corruption Act, 1988 to convict under Section 8 of Prevention of Corruption Act, 1988.
154. The points submitted relating to non-selection of PW3 even though he was belonged to OBC category and produced the OBC certificate in Central Format as per Ex.D4. Therefore alleged disfavour shown to him by accused No.1. Further pointed out the favour shown by accused No.1 to accused No.2 and accused No.3 to select for the post of Junior Officer (Mining) who would not have come into service. Therefore, according to prosecution accused No.1 has misused his official position and committed misconduct by way of receiving pecuniary advantage in the form of making accused 2 and 3 to get salary and other emoluments from the post of Junior Officer 131 Spl.C.C. No.204/2015 (Mining). According to the learned Public Prosecutor, the chain of circumstance elicited in the evidence of prosecution will complete the alleged illegal act done by accused Nos.1 to 3 with dishonest and fraudulent intention. Further accused No.2 induced accused No.3 and other candidates to pay the bribe for get selection of the post of Junior Officer (Mining). Therefore, submitted that the offence under Section 8 of Prevention of Corruption Act, 1988 attracts against accused No.2 and 3 on the basis of attempt made by accused No.2 to get the bribe from different candidates.
155. It is also pointed out by the learned Public Prosecutor that OBC certificate not to be produced at later stage, but the benefit of producing such certificate given to one of the candidates, infers some favoursim shown by accused No.1 as no opportunity given to PW3 to produce the same who has scored highest marks in the written examination, who was not selected for the above post. Therefore, on all the said grounds which will amount cheating of PWs.3 and 4 who were not selected candidates. Further submission made that the source information received by CBI applies to any person can set law 132 Spl.C.C. No.204/2015 into motion as per Section 39 (iii) of Cr.P.C. The investigation report Ex.P65 also referred, which is corroborating document of CBI and ancillary part of investigation. Further submitted that in absence of no document to show money transferred to the account of accused No.1 he cannot be exonerated.
156. It is pointed out that since accused 2 and 3 were not public servants during the cause of action dtd.3.11.2012 which ends on 21.7.2013, no Sanction order obtained against them. Moreover, Sanction is required against the person who has committed misconduct to do an official act during discharge of the official duty. Therefore, as the Sanction is required for protection of official act required under Section 19 of Prevention of Corruption Act, 1988 will not apply to accused No.2 and accused No.3 as they were not public servants at the relevant point of time.
157. The contention taken by accused 2 and 3 regarding loan transaction of Rs.3,00,400/- to purchase the flat by accused No.3 is denied by prosecution on the ground that the parents of accused No.3 spent money for purchasing property in the name 133 Spl.C.C. No.204/2015 of accused No.3 and his brother. In this regard pointed out the PF accumulation amount of Rs.2,25,000/- borrowed as loan by the father of accused No.3 on 26.12.2012 shown in Ex.P69 (a). Likewise the mother of accused No.3 sold the property for Rs.2,40,000/- on 18.5.2013 as per Ex.P96. Father of accused No.3 also obtained loan by pledging gold as per the receipts Ex.P99 to 102. Subsequently on 3.7.2013, the property purchased in the name of accused No.3 and his brother for Rs.2,19,000/- each as per the sale deeds Ex.P93 and 94. Therefore, submitted that the evidence of parents of accused No.3 and the vendor produced before the Court only to prove that the funds generated from PPF loan, Gold Loan and the property sold by the mother of accused No.3, to purchase the property, which will not prove the case of accused No.3 as loan borrowed from accused No.2 to purchase the flat. It is also submitted that the copy of DPN produced by accused No.2 cannot be considered in proof of the genuine loan borrowed by accused No.3 which was not repaid with interest. Further argued that the date and purpose of loan not elicited in the cross- examination of witnesses, though they have admitted the loan borrowed by accused No.3 from accused No.2.
134 Spl.C.C. No.204/2015
158. The learned Counsel for accused No.1 has submitted that the prosecution has failed to prove the alleged criminal conspiracy by accused No.1 with accused Nos.2 and 3 and other allegations made against him in the charge sheet. The evidence of all the prosecution witnesses brought to the notice of the Court and particularly P.W.7 who has deposed that at initial stage itself PW3 was considered as General as not produced the OBC certificate in the Central Format. Therefore, on the ground of non-production of said document, he was shown in General category at later stage during interview he has produced the OBC certificate in Central Format and since he was aged less than 35 years and not having sufficient experience in the Mining filed, not considered as OBC candidate and also not selected for the post of Junior Officer (Mining).
159. The learned Counsel submitted that the Ruling relied by learned Public Prosecutor is not applicable to the facts of the case as distinction made with nature of the case. Because, in the said Ruling, the accused entered in to a criminal conspiracy to kill others by way of employing persons and involved in the murder 135 Spl.C.C. No.204/2015 case in which, all of them need not know each other. But in the case on hand, allegation made against accused No.1 who is a public officer said to be induced accused No.2 to demand and collect bribe from accused No.3 and other candidates, in turn, at the instance of accused No.1, accused No.2 collected the bribe amount. However, the allegation made in charge sheet regarding bribe amount paid to accused No.1 is not corroborated by any document. Moreover, for criminal conspiracy, all the conspirators must know each other to do some illegal act, because meeting of minds of accused persons is important, which is not proved before the Court.
160. Further submitted the agreement entered between accused Nos.1 and 2 at any point of time to do an illegal act and there was meeting of minds between accused Nos.1 and 2 is not proved by prosecution. Because accused No.2 never took the name of accused No.1 at any point of time. The chain of circumstances to prove the allegation made against accused Nos.1 to 3 as to criminal conspiracy entered between them, accused No.1 induced accused No.2 to collect bribe and accused No.3 paid bribe and selected for the post of Junior Officer 136 Spl.C.C. No.204/2015 (Mining) are not completed in the case of prosecution. The name of accused No.1 is taken who is alleged to be responsible for the offence under Section.120-B Indian Penal Code on the ground that induced accused Nos.2 and 3 to collect the bribe by way of paving the path is also not proved.
161. In support of arguments submitted on behalf of accused No.1, the learned Counsel has relied on the following Rulings:-
(i) (2005) 12 Supreme Court Cases 631 in the case of K.R.Purushothaman Vs. State of Kerala.
The Hon'ble Supreme Court has observed in relevant paras 13 to 15 regarding "to constitute a conspiracy meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy."----- The agreement amongst conspirators can be inferred by necessary implication.------The conspiracies are proved by the circumstantial evidence as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the 137 Spl.C.C. No.204/2015 conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the well known rule governing circumstantial evidence viz, each and every incriminating circumstance must be clearly established by reliable evidence and be 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 guilty is possible. ---- Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy.
Suspicion cannot take legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances as to complete the chain.
Further observed that it is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt. The acts or conduct of the 138 Spl.C.C. No.204/2015 parties must be conscious and clear enough to infer their concurrence as to the common design and its execution.
(ii) (2009) 8 Supreme Court Cases 617 - State of Madhya Pradesh Vs. Sheetla Sahai and others. The Hon'ble Supreme Court discussed on Section 13 (1)
(d) (ii) and (iii) read with Section 13 (2) and Section 120-A Indian Penal Code regarding criminal misconduct. The observation made in the relevant paras as follows:-
We would proceed on the basis that two divergent opinions on the construction of the contract in the light of the stand taken by World Bank as also the earlier decision taken by the State were possible. That, however, would not mean that a fresh decision could not have been taken keeping in view the exigencies of the situation. A decision to that effect was not taken only by one officer or one authority. Each one of the authorities was ad idem in their view in the decision-making process. Even the Financial Adviser who was an independent person and who had nothing to do with the implementation of the Project made recommendations in favour of the contractors stating that if not in law but in equity they were 139 Spl.C.C. No.204/2015 entitled to the additional amount. From the materials available on record, it is crystal clear that the decision taken was a collective one. The decision was required to be taken in the exigency of the situation. It may be an error of judgment but then no material has been brought on record to show that they did Sanction Order for causing any wrongful gain to themselves or to a third party or for causing wrongful loss to the State.
It is also interesting to note that the prosecution had proceeded against the officials in a pick-and-choose manner. We may notice the following statements made in the counter- affidavit which had not been denied or disrupted to show that not only those accused who were in office for a very short time but also those who had retired long back before the file was moved for the purpose of obtaining clearance for payment of additional amount from the Government viz. M.N.Nadkarni who worked as Chief Engineer till 24.3.1987 and S.W.Mohoganokar, Superintending Engineer who worked till 19.6.1989 have been made accused but, on the other hand, those who were one way or the other connected with the decision viz., Shri J.R.Malhotra and Mr.R.D.Nanhoria have not been proceeded at all. We fail to understand on what basis such a discrimination was made.140 Spl.C.C. No.204/2015
(iii) (2007) 5 Supreme Court Cases 403 in the case of Soma Chakravarty Vs. State Through CBI.
The discussion made by the Hon'ble Supreme Court in the relevant paras relating to settled legal position in the different rulings that on the basis of material on record the Court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
Further in the case of fraud and criminal conspiracy alleged against accused the question with regard to doctrine of parity should be considered by Special Judge. Only on the ground an accused similarly situated has not been proceeded against only because, the departmental proceedings ended in his favour. Whether an accused before him although stands on a similar footing despite he having not been departmentally proceeded against or had not been completely exonerated also required to be considered. Whether the exonerated officer in the departmental proceeding also faced same charges including the charge of being a party to the larger conspiracy.
141 Spl.C.C. No.204/2015
(iv) (2009) 6 Supreme Court Cases 587 - A
Subair Vs. State of Kerala.
The Hon'ble Supreme court discussed
essential ingredients of offences under section 7 and 13 (1) (d) read with Section 13(2) of Prevention of Corruption Act, 1988. In the relevant para 15 referred the ruling reported in C.K.Damoodaran Nair Vs. Government of India to consider the word "obtained" the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant is to be proved by the prosecution.
The legal position is no more res integra that primary requisite of an offence under Section 13(1) (d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In the absence of proof of demand or request from the public servant for a valuable thing or a pecuniary advantage, the offence under Section 13(1) (d) cannot be held to be established.
(iv) 2002 (5) Supreme Court Cases 86 in the case of Subash Parbat Sonvane Vs. State of Gujarat.
142 Spl.C.C. No.204/2015
The Hon'ble Supreme Court discussed on obtaining pecuniary advantage contemplates an element of effort or initiative on the part of the receiver of the advantage. Mere acceptance of money without their being any other evidence would not be sufficient for convicting the accused under Section.13 (1) (d) of Prevention of Corruption Act, 1988.
For convicting the person under the said section there must be evidence on record that the accused "obtained" for himself or for any other person, any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person valuable thing or pecuniary advantage without any public interest. Further discussed the statutory presumption under Section 20 of the Prevention of Corruption Act, 1988 and is available for the offence punishable under Section 11 or clause
(a) or clause (b) of sub-section (1) of Section
13.
(v) ILR 2001 KAR 5687 in the case of Mahesh Joshi IB (P) Vs. State by Central Bureau of Investigation/SPE, Bengaluru.
143 Spl.C.C. No.204/2015The Hon'ble High Court of Karnataka held that Case of conspiracy under Section 120B Indian Penal Code alleged cannot be interfered even faintly as there could not have been any agreement between the first accused and the other accused as they were in charge of the post of Director at different points of time and none of them worked together. And the facts alleged also do not fit-in into any of the "acts or omissions: which constitute offences under Section 13 of Prevention of Corruption Act particularly when admittedly there is no allegation against the subsequent Director A4- Petitioner that he had taken any undue favour or illegal gratification for continuing Telecast of the disputed sponsored programme."
The Hon'ble High Court in relevant paras discussed that it cannot be inferred even faintly that there has been agreement between accused No.1 to accused No.4 and the other accused inter se, to do any alleged illegal act.
The discussions made that the provisions of law and the facts put forth by the CBI in the said ruling does not anywhere indicate that the acts alleged can fit into any of the defined acts or omissions which constitute offence under Section 13 of the Act. The petitioner caused loss to the organization by his inaction of the said case held as not proved.
144 Spl.C.C. No.204/2015
Likewise, the material facts of the said case opined as it would not fit into any acts and omissions which are defined as an offence under Section.13 of the Act as there is no allegation against the petitioner that he had taken any undue favour or illegal gratification for allowing disputed telecast.
Further observed that there might be a technical flaw in allowing the telecast for about three days before the modified rates came to be effective. Therefore held there is no faintest prima facie material to hold the petitioner guilty of the offence under Section 13 of the Act and for an offence of criminal conspiracy.
162. The learned Counsel for accused No.2 submitted that the prosecution has not obtained sanction to prosecute accused No.2 and 3 and also no ingredients in proof of the offence committed by them under Section 120B of Indian Penal Code 420 Indian Penal Code Section 8 of Prevention of Corruption Act, 1988. The learned Counsel pointed out a specific allegation made against accused No.2 as a public servant working as Junior Officer (Mining) and no Sanction Order obtained to prosecute against him. Therefore, under Section 196 (2) Cr.P.C. in absence of sanction or consent entire proceedings 145 Spl.C.C. No.204/2015 vitiated. Further submitted no witness has deposed that accused No.2 talked with accused No.1 and he has induced by him to collect the bribe to attract the offence under Section 8 of Prevention of Corruption Act, 1988. No documents produced to show the bribe amount paid by accused No.2 to the accused No.1. The amount deposited by accused No.3 relating to the loan borrowed by him for purchase of flat. Further submitted that PW3 has admitted that accused No.2 is his friend and he never demanded bribe over phone. The call details produced before the Court will not prove the demand of bribe by the accused No.2 from accused No.3 and others. The OBC certificate produced by PW3 is of the year 2000 which was valid only for six months. Since both accused 2 and 3 were friends they called over phone. Further the conversation between accused No.2 and 3 will not amount demand of bribe. Moreover, PW4 was called by accused No.2 on 26.6.2013 which will not amount demand of bribe made by him. Because prior to that, PW4 himself made two calls to the mobile of accused No.2, the reason of the same not explained before the Court. The amount deposited by accused No.3 on 15.7.2013 to the account of accused No.2 admittedly towards the loan borrowed by him from accused No.2 146 Spl.C.C. No.204/2015 as admitted in the cross-examination of PW21. The learned Counsel further relied on the documents produced along with the written statement and submitted that no nexus between accused No.1 and 2 and no talks between them. There were six members in the Interview Committee to award the marks since accused Nos.2 and 3 were eligible candidates selected by the said committee. Further the accused No.2 is not a competent authority to select the candidates for the post of Junior Officer (Mining), therefore no occasion for him to act at the instance of accused No.1 to collect the bribe from accused No.3 and other candidates.
163. In support of the arguments the learned counsel for accused No.2 has relied on the following Rulings:
(i) (1980) 4 SCC 491 in the case of Shripad Shivram Kulkarni Vs. State of Maharashtra.
The Hon'ble Supreme Court held that mere circumstance that accused in spite of being the dealing person in the office, referred the complainant to co-accused for being appraised of as to what the complainant had to do in regard to his work, held, does not lead to a 147 Spl.C.C. No.204/2015 definite and unerring inference of criminal conspiracy between two accused to obtain bribe
- Other circumstances having material contradictions and not firmly established - Since circumstantial evidence did not definitely point towards the guilt of offence under Section 120B Indian Penal Code and Section 5(1)(d) of Prevention of Corruption Act, 1988 held, conviction of the appellate not justified.
(ii) AIR 2006 SC 35 in the case of K.R.Purushothaman Vs. State of Kerala.
The observation made by the Hon'ble Supreme Court that for the offence under Section 120B Indian Penal Code - No evidence on record to show agreement between conspirators to misappropriate gold - accused not held guilty of conspiracy.
Further accused could not be convicted under Section 13 (1) (c) and (d) of Prevention of Corruption Act, 1988 - If the property in question neither entrusted nor was under control of accused who has not obtained for himself or for any other person any valuable thing or pecuniary advantage.
148 Spl.C.C. No.204/2015
(iii) 1995 (1) Supreme Court Cases 142 in the case of P.K.Narayanan Vs. State of Kerala.
The Hon'le Supreme Court held that an offence of criminal conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence. The ingredients of the offence of criminal conspiracy 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. 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 evidencse or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available.---- Even if some facts 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 guilt may be drawn only when such circumstances are incapable of any other reasonable explanation.
149 Spl.C.C. No.204/2015
(vi) 2015(7) Supreme Court Cases 178 in the case of Tomaso Bruno and another Vs. State of Uttar Pradesh.
This ruling is rendered on Sections 65 (A),
65(B) and 65 of Evidence Act. - The
Electronic evidence, if omitted in a trial,
creates serious doubts about prosecution case. The contents of document can be proved by secondary evidence as provided under Section 65-B of Evidence Act.
164. The learned Counsel for accused No.3 has adopted the submission made on behalf of accused No.1 and accused No.2. Further in-continuation has submitted that the Investigating Officer has not seized the amount of Rs.3,00,400/- alleged to be bribe amount paid by accused No.3 to accused No.2 for selection of post of Junior Officer (Mining), though the said amount was kept in the account of accused No.2 till the filing of charge sheet on 31.12.2014. Further submitted the allegation made against accused No.3 in the charge sheet relating to the above amount deposited to the account of accused No.2 on 15.7.2013 and selected by dishonest and fraudulent means. However, accused No.2 has withdrawn the amount of 150 Spl.C.C. No.204/2015 Rs.4,65,000/- on 28.6.2013 from Axis Bank as per self-cheque Ex.P85 and out of which, paid a sum of Rs.3,00,000/- as a loan to accused No.3 to purchase two properties. After borrowing the said loan accused No.3 had purchased the property on 3.7.2013 under the sale deed Ex.P93. Further since the accused No.2 insisted for the repayment of said loan accused No.3 made arrangement to deposit the amount of Rs.3,00,000/- on 15.7.2013 to the account of accused No.2. It is also pointed out since the accused No.2 and 3 are friends and as the loan amount deposited within a month, accused No.2 did not insist for any interest on the loan amount. Further the gold loan amount borrowed by father of accused No.3 on 13.7.2013 as seen from Ex.P99 also credited to the account of accused No.2. The learned Counsel further pointed out that though the charge for the offence under Section 120-B and 420 Indian Penal Code alleged against the accused No.3, the prosecution has not produced any illegal agreement entered by him with accused No.1 and accused No.2 as well as cheated the NMDC.
165. Further submitted no proof placed by prosecution relating to, when the accused No.3 met accused No.1 and 151 Spl.C.C. No.204/2015 accused No.2 and where they have conspired and entered into illegal agreement. No circumstantial evidence placed to complete the chain of offence relating to criminal conspiracy. Further the name of accused No.3 not mentioned in the FIR and later in charge sheet his name mentioned on the false grounds. The charge under Section 420 Indian Penal Code also not proved as manner of cheating committed by accused No.3 produced before the court. The evidence of Investigating Officer PW62 brought to the notice of Court with documents relating to the account of accused No.2, in whose account the sufficient balance amount was shown as on 31.12.2013 which is supported by the evidence of PW46. Further, no proof produced by prosecution whether any amount withdrawn from the account of accused No.2 and paid to accused No.1. Moreover, the amount deposited by the accused No.3 through Bank cannot be said bribe. The termination of accused No.3 and he was directed to be reinstated as per the orders passed by Hon'ble High Court of Karnataka in Writ Petition No.1058/2015 also brought to the notice of Court.
166. I have perused the case of prosecution alleged against accused 1 to 3 in the charge sheet with oral documentary 152 Spl.C.C. No.204/2015 evidence placed before the Court with the defence taken by the accused Nos.1 to 3 in the written statements filed under Section 313(5) of Cr.P.C. It is important to point out that, in the charge sheet the accused No.1 shown as Assistant General Manager (Personnel), accused Nos.2 and 3 shown as Junior Officer (Mining) of NMDC, Donimalai and all of them have alleged to be committed the offence punishable under Section 120-B read with 420 Indian Penal Code and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. However, the Investigating Officer, who has filed the charge sheet has clearly mentioned that the Sanction Order against accused No.1 was await from the Competent Authority and it will be filed after its receipt.
167. However, no clarification given as to Sanction Order not obtained to prosecute against accused No.2 and accused No.3, though they were specifically shown as Junior Officer (Mining), NMDC, Donimalai. The learned Public Prosecutor has submitted that since accused Nos.2 and 3 were not public servants as on the date of commencement of offence, Sanction not obtained against them. However, even if it is considered that allegation made relating to criminal conspiracy with accused 153 Spl.C.C. No.204/2015 No.1, taking illegal gratification to pay to public servants of NMDC by accused Nos.2 and 3 started from December-2012 prior to the written examination conducted on 23.6.2013 and oral interview on 21.7.2013, accused Nos.2 and 3 were shown as public servants by mentioning Junior Officer (Mining) while filing charge sheet. Moreover, the date of commencement of alleged offence by accused Nos.1 and 2 as submitted is not specifically stated in the FIR marked as Ex.P228. It is important to point out the period of commencement of offence mentioned in the FIR at Serial No.3(b) under which Day, Date and Time as during the year 2012-2013. The date of information received at police station mentioned under Column(c) is 10.12.2013. Therefore, it is very clear that the date of information received on 10.12.2013, on which date, the accused No.2 and 3 were public servants as Junior Officer (Mining) at NMDC.
168. However, the court cannot presume the exact Day, Date and Time of commencement of offence from December 2012 ends on 21.7.2013, only on the submission made before the Court by learned Public Prosecutor, when the details of which are not specifically mentioned in the relevant column. There was 154 Spl.C.C. No.204/2015 no difficulty or reason for the Investigating Officer not to mention the exact date of commencement of the offence in the month of December 2012, when the relevant columns provided in the FIR. Further it is not explained as to the exact date of information received at the police station, but it is noted in the FIR as on 10.12.2013, without mentioning exact date of offence in the year 2012.
169. However, even if the case of the prosecution alleged in the charge sheet is considered, then accused Nos.2 and 3 were not the public servants, against whom no Sanction obtained by prosecution. However, the charges alleged against accused Nos.1 to 3 who are shown as public servants in the capacity of Assistant General Manager (Personnel) and Junior Officers (Mining) respectively of NMDC, Donimalai. Therefore, the prosecution should have clarified the aspect relating to whether any attempt made to get the Sanction to prosecute against accused Nos.2 and 3 when they were specifically shown as Junior Officer (Mining) of NMDC. Because as on the date of filing of charge sheet, that is, on 31.12.2014, all the accused Nos.1 to 3 shown as public servants, but Sanction obtained only against 155 Spl.C.C. No.204/2015 accused No.1 under Ex.P255, which cannot be considered as issued by the Competent Authority after application of mind. However, the submission made by the learned Public Prosecutor since no official work discharged by the accused Nos.2 and 3 and no criminal misconduct alleged against them, sanction not necessary is against the provision of Law as no satisfactory materials placed in proof of the alleged offence.
170. The learned Public Prosecutor has submitted that based on circumstantial evidence case of prosecution is proved against accused Nos.1 to 3, who were entered into criminal conspiracy and cheated NMDC. However, in view of observation made by the Hon'ble Supreme Court in the Rulings cited for the accused No.1, the ingredients of Section 120-B Indian Penal Code should be agreement entered between the parties and meeting of minds to do an illegal act with dishonest intention. The alleged criminal conspiracy by accused Nos.1 to 3 is not proved by the prosecution, though learned Public Prosecutor submitted in proof of the said offence circumstantial evidence has been placed before the Court, for the reason no direct evidence is able to produce, is however, not acceptable as 156 Spl.C.C. No.204/2015 no corroboration in the evidence of prosecution witnesses. Because the oral evidence of witnesses with documents discussed above will no way establish or prove the ingredients of Criminal Conspiracy punishable under Section 120-B Indian Penal Code as defined under Section 120-A of Indian Penal Code, reads as follows, - 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:
The proviso to the said Section says 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.
The Explanation given under the said proviso that - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
The important fact is the prosecution is not required to prove that perpetrators agreed to do or cause to be done the illegal act. The 157 Spl.C.C. No.204/2015 evidence as to transmission of thoughts sharing the unlawful design may be sufficient.
171. After going through the above section with supporting rulings which are already discussed above, I am of the view that prosecution has failed to prove the alleged conspiracy between accused Nos.1 to 3. Because, the important ingredient of criminal conspiracy illegal agreement entered by accused No.1 with accused Nos.2 and 3 or their collective participation in conspiring to do an illegal act is absent in the evidence of prosecution witnesses. Because, the oral evidence of witnesses discussed above will no way prove that any attempt made by accused No.1 to induce accused No.2 to get the bribe at his instance either from accused No.3 or from other candidates.
Prosecution has failed to prove that the conspiracy between accused No.1 with accused Nos.2 and 3 to do the alleged act of collecting bribe which was accepted by accused No.1 to do favour to his candidates and disfavour to candidate PW3 who was not paid the bribe for the selection for post of Junior Officer (Mining). Further the evidence of official witnesses disclosed that accused No.1 is also one of the member of interview and another 158 Spl.C.C. No.204/2015 committee constituted during recruitment process of Junior Officer (Mining) at NMDC, Donimalai. The admission made by PW12 Executive Director infers that no single officer entrusted with the recruitment process, particularly accused No.1 who was head of Personnel Department. Therefore, the prosecution ought to have establish the manner of which adopted by accused No.1 to cheat the NMDC. Though the learned Public Prosecutor has submitted that mere selection of accused No.2 and accused No.3 for the post of Junior Officer (Mining), who were not eligible for the said post, itself amounts cheating is not supported by any corroboration of oral and documentary evidence. Because, both accused No.2 and 3 were selected as per the rules of NMDC. The prosecution has failed to establish the ingredients of either Section 13(1) (c) or (d) of Prevention of Corruption Act, 1988, which reads as follows:
13(1) A public servant is said to commit the offence of criminal misconduct,---
13(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so; or 159 Spl.C.C. No.204/2015 13(d) if he---
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage, without any public interest;
13(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine.
172. Though the prosecution alleged the charge under Section 13(1) (d) of Prevention of Corruption Act, 1988, this Court took cognizance of offence 13(1)(c) of said Act, the prosecution has failed to prove the ingredients of either Section 13(1)(c) or (d) of Prevention of Corruption Act, 1988 against accused No.1. Because, the evidence of prosecution witnesses 160 Spl.C.C. No.204/2015 will not prove the accused No.1 dishonestly or fraudulently misappropriated or converted for his own use any property entrusted to him, which was under his control as a public servant or allows any other person to do so. Likewise, no proof relating to by corrupt or illegal means obtained for himself or any other person any valuable thing or pecuniary advantage without any public interest. In the absence said important proof of misappropriation of property or obtaining any valuable thing or pecuniary advantage obtained for himself or for any other person, there cannot be any criminal misconduct committed by him. Moreover, no evidence placed by prosecution in proof of accused No.1 being public servant in view of criminal conspiracy entrusted accused No.2 and accused No.3 to do an illegal act for himself. Another important aspect is that there is no proof placed before the Court relating to entrustment of entire recruitment process for the post of Junior Officer (Mining) to the accused No.1 and he was alone responsible for the selection of candidates for the said post. Therefore, the allegation made against accused No.1 either alleged misappropriation of property entrusted to him or allowing accused No.2 and accused No.3 to 161 Spl.C.C. No.204/2015 obtain pecuniary advantage for himself or others can be said false.
173. Further, charge under Section 8 of Prevention of Corruption Act, 1988 framed against accused No.2, who was also said to be attempted to get bribe from accused No.3 and other candidates to induce accused No.1 a public servant to do an illegal act. It is true the evidence of PWs.3, 4 and 32 placed before the Court reveal that accused No.2 called them over phone and disclosed about bribe amount to be paid for selection of post of Junior Officer (Mining) to the officials of NMDC. Though the prosecution evidence is silent about who are those officials demanded the bribe through accused No.2, whether accused No.1 or other officials of NMDC, the above said witnesses are clearly stated that accused No.2 did not mention names of any of the official of NDMC, including accused No.1. Further the evidence of official witnesses PW5 and PW29 disclose that accused No.2 approached them and made known his intention to pay bribe amount for getting post of Junior Officer (Mining) after giving application for the said post, which will establish that the accused No.2 made an attempt to pay the bribe to get his 162 Spl.C.C. No.204/2015 selection as Junior Officer (Mining). Though the documents produced before the Court shows that he was seventh in the Merit list of candidates in the written test held on 23.6.2013 and interview held on 21.7.2013 for Junior Officer (Mining), the evidence deposed by PW5 and PW29, being officials of NMDC certainly proves the attempt made by accused No.2 to get the post of Junior Officer (Mining) by way of illegal method. No explanation offered by accused No.2 as to the reason why PW5 and PW29 deposed against him regarding approach made with an intention to pay bribe to get the selection for the above post. It is true his roll number given JN-096 categorized under General category secured 62 marks out of 100 in the written test and in the oral interview secured 18.17 out of 30 marks and aggregate of marks shown at 61.57 out of 100 secured by him and he was also shown as OBC candidate in the admit card issued under Ex.P91. However, the checklist Ex.P30 shows though category claimed OBC, he was shown General category for non-production certificate as per the norms. The accused No.1 gave marks 16 for 30 in the oral interview as on 21.7.2013, when other members of Interview Committee given more marks like 22 and 20 out of 30 marks. Therefore, even though, no favour shown by 163 Spl.C.C. No.204/2015 accused No.1 to accused No.2 while giving marks in the oral interview, the attitude of accused No.2 who had called the candidates PWs.3, 4 and 32 and made known them to pay bribe to get selection of Junior Officer (Mining), certainly proves the attempt made by him to get the post of Junior Officer (Mining) for himself and induced them to pay bribe on the assurance that he will get their selection for the said post. However, he has been selected for the said post and subsequently removed by the NMDC. But the prosecution has not placed any supporting and corroborating evidence that only after paying the bribe amount he was selected for the above post.
174. Further, the above merit list mentioned that accused No.3 stood at No.17 given No.JM-025 under General category secured 55 marks in the written test and 18 marks in the oral interview. The assessment sheet relating to him marked under Ex.P67 reveal that accused No.1 gave marks 18 for 30 in the oral interview as on 21.7.2013, whereas other Interview Committee members gave marks more than that as 23 and 19 apart from 14, 16 and 18 for total marks of 30. Therefore, it can be said that accused No.3 might not have paid bribe to accused 164 Spl.C.C. No.204/2015 No.2 to get the post of Junior Officer (Mining). Subsequently he got selected for the said post without paying any bribe. Because, if the amount said to be paid towards repayment of loan was a bribe amount as alleged by prosecution, the same amount would have been given to accused No.1 or any other officials of NMDC before his appointment as Junior Officer (Mining).
175. For the candidate Venkatasudarshan against whom, accused No.1 alleged to be shown favour in awarding marks in the oral interview is contrary to the document produced by the prosecution. Because the oral interview accused No.1 awarded 18 marks whereas, other members awarded him more than that as 22, 19 ½ apart from 15 and 16 for marks of 30. The selected candidate PW32 also awarded sufficient marks by other committee members apart from accused No.1.
176. Further the allegation made against accused No.1 that lesser marks awarded to PWs.3 and 4 though seen from the records that both of the witnesses awarded 11.5 each for 30 marks, other committee members awarded more marks to both of them in the oral interview. However, the selection of other 165 Spl.C.C. No.204/2015 candidates PWs.32, 53, 54, 58 and 65 did not say anything about the demand of bribe made by accused No.2 or they were paid bribe to the accused No.1 or any other officials of NMDC to get selection for the post of Junior Officer (Mining). Therefore, on what basis the prosecution alleged against accused No.1 that he has shown disfavour to PW3 and favour to other candidates is not explained before the Court. Moreover, it can be said that PW3 though not complied the requirement of production of OBC certificate in the Central Format along with application, he was called for interview as scored highest marks in the written test. However, the OBC certificate produced in the Central Format during the interview not considered by the scrutiny committee as he was already categorized under General candidate. Because, the important condition of the OBC certificate in the Central Format annexed to application is not complied by PW3 at the time of filing the application for the post of Junior Officer (Mining). Moreover, the OBC certificate said to be produced under Ex.D4 is dated 10.7.2013 produced at the time of interview not considered by the Interview Committee as the same was not produced along with the application in compliance of condition that, the OBC certificate ought to have been 166 Spl.C.C. No.204/2015 obtained prior to six months as on the date of submitting the application. Therefore, the OBC certificate produced in Central Format as per Ex.D4 is not proper. Further, the document Ex.D11 is a Service Certificate of one G.Ahil Rao S/o.Koteswa Rao, who worked as Mines Engineer from 20.4.2004 to 21.6.2005 in Indus Projects Pvt.Ltd., Hyderabad.
177. Therefore, for the above said reason since PW3 has not complied the conditions of Notification Ex.D3, it can be said he might not have selected for post of Junior Officer (Mining). Moreover, the prosecution has failed to prove any ill-will between accused No.1 and PW3 to show disfavour against him as alleged in the charge sheet. The important aspect is the Vigilance Officer made known the reason of bribery allegation against PW3 for not selecting him for the post Junior Officer (Mining), when PW3 met him subsequent to pronouncement of result of the said post. It is also important to point out that only after coming to know about his non-selection for the reason of bribery allegation he gave complaint to the Chief Vigilance Officer alleging about the irregularities in the recruitment process of Junior Officer (Mining) at NMDC. But nothing stated about bribe or demand for bribe 167 Spl.C.C. No.204/2015 made by accused No.1 or accused No.2 or accused No.3 in the complaint given under Ex.P54.
178. Likewise, PW4, another non selected candidate gave complaint under Ex.P61 to Chief Vigilance Officer, alleging about phone call demanding some amount for selection of post of Junior Officer (Mining) before oral interview as on 28.6.2013 requested to enquiry about the recruitment as he was not selected though attended oral interview on 21.7.2013. In the said complaint also he has not stated anything about demand of bribe by accused No.1 or accused No.2 or accused No.3. The statement given before 17th ACCM Bangalore as per Ex.P62, is about demand made by accused No.2 for payment of Rs.3 to 5 lakhs as bribe, to select for the post of Junior Officer (Mining), but the same is not stated in the complaint. However, he has disclosed about approach made to CVO and complaint given under Ex.P61. He did not mention the name of accused No.1 either in the complaint or in the statement given under Ex.P62. From the said documents, which does not disclose the name of accused No.1, who was being public servant as AGM in NMDC alleged to be obtained valuable thing or pecuniary advantage by 168 Spl.C.C. No.204/2015 corrupt or illegal means without any public interest as provided under Section 13 (1)(d) of Prevention of Corruption Act, 1988. However, the ingredients of offence under Section 13(1) (c) of Prevention of Corruption Act, for which, this Court has taken cognizance against accused No.1 also not placed before the Court.
179. The prosecution alleged that accused No.2 at the instigation of accused No.1 has demanded bribe from accused No.3 and collected Rs.3,00,400/- to pay to accused No.1. In support of the same, prosecution relied on the statements of account relating to accused No.2, in which the total amount of Rs.3,00,400/- deposited as on 15.7.2013 by the accused No.3. It is true, the document Ex.P82(a) statement of account of A-2 in Axis Bank reveal that the total amount of Rs.1,50,500/- credited and the amount of Rs.1,49,900/- credited to his another account maintained in SBI. It is alleged that the amount of Rs.3,00,400/- said to be paid by accused No.3 through his brother-in-law and others towards the bribe for getting post of Junior Officer (Mining), which will not prove the allegation made against him. Because according to the defence of accused No.2, he has paid 169 Spl.C.C. No.204/2015 loan amount of Rs.3,00,000/- to accused No.3 for purchasing flat after withdrawing the amount of Rs.4,65,000/- on 28.6.2013 as could been from his self Cheque marked as Ex.P85. Since accused No.2 demanded the repayment of the said amount, accused No.3 made arrangement to pay the amount without interest through his brother and his brother-in-law who were also examined before the Court.
180. The defence taken by accused No.3 is supported by the evidence of PWs.21 to 23 who were clearly stated that the amount of Rs.1,00,000/- deposited to the account of accused No.2 as could been from Ex.P74. Likewise, the brother of accused No.3 requested PW21 to deposit amount of Rs.1,00,000/- as requested by him. In the cross-examination clear admission made by them that the amount mentioned in Ex.P74 is relating to the loan availed by accused No.3 from accused No.2. Further property purchased by accused No.3 under Ex.P93 and his brother under Ex.P94, the certified copies of the said sale deeds dated 4.7.2013 identified by respective Sub-Registrar examined as PW.27 - Srilakshmi, who is the Sub-Registrar of Vatluru, West Godavari District has identified 170 Spl.C.C. No.204/2015 the certified copies of document Nos.2510 and 2511/13 dated 4.7.2013, which were registered in the same office marked as per Exs.P93 and 94, handed over to CBI with covering letter Ex.P95.
181. However, the arguments submitted by learned Public Prosecutor that there was no necessity for accused No.3 to borrow loan of Rs.3,00,000/- from accused No.2 to purchase the property. Because the sale consideration of the property purchased under Ex.P93 in the name of accused No.3 was paid by his parents from the funds generated through PPF loan, Gold loan and sale consideration from sale of the property under Ex.P96 by the mother of accused No.3. However, the same is not proved by prosecution by supporting oral and documentary evidence. Because in the oral evidence the witnesses clearly admitted that the amount deposited to the account of accused No.2 is with respect to the loan borrowed by accused No.3. Moreover, there was no necessity for the parents of accused No.3 to purchase the property after accumulating the funds from various sources, that too, in the names of their sons accused No.3 and his brother.
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182. Further, balance amount of Rs.1,06,469.23 found in the account of accused No.2 maintained in Axis Bank as on 28.12.2013. It is also made out that amount of Rs.1,83,233.52 was in State Bank of India as on 31.10.2013 and Rs.1,96,354.88 as on 5.9.2014. Likewise, the total amount of Rs.3 to 4 lakhs was kept in his account at Axis Bank, not withdrawn during the period after completion of written examination and oral interview as well as subsequently as on the date 5.9.2013 when he was appointed for the post of Junior Officer (Mining). It is important to point out that accused No.2 did not withdraw the amount deposited by accused No.3 during the recruitment process taken from 23.6.2013 date of written examination till 5.9.2013 when his selection as Junior Officer (Mining) in NMDC. If really the amount of Rs.3,00,400/- deposited in the account of accused No.2 was bribe amount, the same would have been withdrawn and given to the accused No.1 for getting selection as Junior Officer (Mining) in NMDC. But no such proof placed by prosecution either by direct evidence or by circumstantial evidence. Because, as admitted by the learned Public Prosecutor there is no direct evidence placed in proof of the allegations of 172 Spl.C.C. No.204/2015 cheating or bribe demanded and accepted either by accused No.1 or by accused No.2 or bribe paid by accused No.3. However, even the circumstantial evidence placed through official and other independent witnesses placed by the prosecution is taken into consideration, the same will not prove the criminal conspiracy and cheating by accused Nos.1 to 3.
183. However, the documents reveal that accused No.1 gave lesser marks to accused No.2 during the interview and he along with accused No.3 were got selected on the basis of procedure followed in the NMDC. The important aspect is complaint given by PW3 and PW4 will not disclose criminal conspiracy between accused Nos.1 to 3. The important fact to be noted that PW3 himself was undergoing bribery allegation of attempted to give bribe to NMDC officials to get the post of Junior Officer (Mining).
184. The evidence of all the official witnesses and independent witnesses will not prove the entire allegation made against accused Nos.1 to 3. The documents relied by the prosecution, which are statements of account relating to accused 173 Spl.C.C. No.204/2015 No.2, will not disclose anything about the amount deposited by accused No.3 was towards bribe, which was subsequently paid to accused No.1 and got selected for the post of Junior Officer (Mining). Further, the call details produced by the Nodal Officers PW48 and PW57 can be considered as the proof of attempt made by accused No.2 with PW3 and other candidates who were applied for the post of Junior Officer (Mining) to pay bribe for getting post of Junior Officer (Mining). The evidence of PWs.3, 4, 5 and 32, is sufficient to come to conclusion about the attempt made by the accused No.2 for demand of bribe amount to pay to any officials of NMDC or may be for himself.
185. Further, the allegation made regarding accused No.1 dishonestly and fraudulently in order to show favour to the candidates of his choice, not accepted the OBC certificate of eligible candidates. In connection with said allegation, referred the application given by PW3 Gungi Ankamma Rao, marked as Ex.P52. The said candidate given roll number JM-55 and after scrutiny he was categorized as OBC candidate, who was said to be shown under General category, has not produced OBC certificate in Central Format. Further, allegation made that 174 Spl.C.C. No.204/2015 though PW3 had actual experience of 6 years 2 months only the experience of 5 years 9 months shown. But the evidence of PW3 which is already discussed above, infers that the necessary requirement of production of OBC certificate in the Central Format not complied, though it was produced at later stage during interview, which was not considered by the recruitment authority. Therefore, the accused No.1 cannot be blamed for decision taken by the competent authority during the recruitment process. However, on the application given by PW3, marked under Ex.P52 a note made OBC certificate not produced at the time of scrutiny of documents. Therefore, he was considered as candidate of General Category. Further, the service certificate annexed to his application marked as Ex.D11, relates to one G.Ahil.Rao, who is not PW3. It shows giving false information by PW3, which is nothing but, cheating the NMDC by producing service certificate of another person. Moreover, admittedly he had experience of only two and half years in the Mining field and three years in the Construction Field. But as per the Notification five years experience was to be required in the mining field. Apart from that, he was aged below 35 years and had lesser 175 Spl.C.C. No.204/2015 experience. Therefore, it can be said that PW3 has not complied the mandatory requirements of Notification for the post of JO.
186. Hence, for all the above mentioned reasons the NMDC authority constituted by various committees formed during the recruitment process for the post of Junior Officer (Mining) might not have selected PW3 for the said post, though he got highest marks in the written test. Therefore, the allegation made by PW3 that since he was refused to pay bribe, accused No.1 manipulated the work experience and caused disadvantage by showing less experience are false.
187. Further it is made out from the evidence of PW12, the Executive Director - L.N.Mathur that he had completed the recruitment process for the post of JO, after entrusted the said work to the HOD of Personnel department. He himself has stated about preparation of question papers for the written test fixed on 23.6.2013, prior to one day, with the help of his P.A. Veeranna, who is examined as PW14. The evidence deposed by PW12 is clear about the question papers were prepared well within the time prior to written examination and the same were 176 Spl.C.C. No.204/2015 taken to his home in sealed bags kept in the presence of other committee members. Therefore, the allegation made against accused No.1 that no steps taken by him to put up proposal before the competent authority for constituting a committee to prepare question papers, is false.
188. One of the allegations made against accused No.1 that he with malafide intention instructed the NMDC Officials who perform duties as invigilators only to sign on the question-cum- answer sheets and not other teachers as invigilators appointed from the Kendriya Vidyalaya. But the evidence of invigilators discussed above establish that accused No.1 did not give any such type of instructions, though they stated on his behalf another official namely V.Mehaboob Basha, AGM (M&S) a member of Overseeing Committee, instructed them to do so. But the CBI has not made the said important official as prosecution witness to prove the specific instructions alleged to be given by accused No.1.
189. Further, the allegation made that all the OBC candidates namely Standly Kanikraj, Gungi Ankamma Rao, 177 Spl.C.C. No.204/2015 A.Ramanjineyalu, Sharada Prasad Sahoo, Gunde Boyina Yadagiri and M.Joseph Raj shown in General Merit category, the applications given by the said candidates marked as Ex.P9, Ex.P22, Ex.P30, Ex.P35, Ex.P38 and Ex.P46. The assessment sheet Ex.P5 relates to the candidate Standly Kanikraj reveal that the all the members of interview committee given separate marks in total 26 for 30 towards communication skills, subject knowledge, general behaviour and appearance, previous relevant experience, attitude and aptitude. However, accused No.1 given him three marks each out of six marks except two marks given to the previous relevant experience. The income and caste certificate issued by Revenue Authority of Sandur Taluk, relating to him marked as Ex.D13. However, he has been selected for the post of Junior Officer (Mining). Though prosecution made him as CW61 in the charge sheet, he is not examined before the Court.
190. The candidate Sharada Prasad Saho made as CW60, for whom the marks given by accused No.1 in the oral interview is 26 for 30. It is true other members of Interview Committee given lesser marks to said candidate who was not selected for 178 Spl.C.C. No.204/2015 the post. Only more marks given by accused No.1 will not lead to favour shown to him as alleged in the charge sheet.
191. Further, another candidate M.Joseph Raj categorized under OBC examined as PW58. The accused No.1 gave 23 out of 30 marks, whereas, another member S.K.Verma also gave 23 marks to him. However, he was selected for the post of Junior Officer (Mining) subsequently.
192. The selected candidate T.Venkatasudarshan had been given benefit of reservation though he has not produced caste certificate as belonged to SC. Therefore, it is alleged that accused No.1 shown favour to him and selected for the post of JO even though caste certificate not produced, depriving the genuine candidate. But in the checklist of this witness Ex.P42, the note made as 'produce another SC certificate' who had experience for six years and nine months though mentioned in the relevant column as eight years three months.
193. The allegation made regarding benefit given to the candidates qualifying them in the interview and fraudulently 179 Spl.C.C. No.204/2015 selected for the post of JO are namely Asit Kumar Behra, Avijith Rai, Anadi Mahapatra, T.Venkatasudarshan, Khaja Babu Sheik, P.Thanesh Kumar. But prosecution has failed to prove that the manner in which they were shown favour by the accused No.1, when other committees also constituted during the recruitment process for selection of said post.
194. However, the prosecution has not produced any oral or documentary proof in support of the allegation regarding Compilation of interview marks on the same day on 21.7.2013 and it was done after one week on 29.7.2013 for the purpose of manipulating the marks. Because the numbers given to each of the candidate who are attended interview shown in the separate assessment sheets marked as Ex.P5 to P.58. Only on the ground that assessment sheets of marks list of all the six member of Interview Committee not kept in the sealed cover and their signatures not obtained will not give any scope for manipulation of the marks by the accused No.1 subsequently. Admittedly, signatures of all the Interview Committee members had been obtained subsequently in the presence of all of them without any objections of members of said Committee. 180 Spl.C.C. No.204/2015
195. The specific allegation made against accused No.2 is that in furtherance of criminal conspiracy dishonestly and fraudulently collected mobile number and other particulars of candidates and contacted them over phone and he acted as conduit between candidate and management for collecting bribe from many candidates. The assurance given by him to get the selection for the post of Junior Officer (Mining) deposed by candidates PWs.3 and 4 is already discussed above. However, the witness PW5 - Jagadishwar Singh, served as Master Mechanic in NMDC from 2009 to 2015 was also in-charge of Kumarswamy Iron Ore Mine, knew accused No.2 who was in- charge of BCPC Mines and also his friend during tenure of in- charge. He has deposed that Accused No.2 had approached him and sought for help in the matter of appointment of JO when application called for at NMDC during 2013. However, he made known him that he had no role in said appointment and informed him to approach Executive Director Sri L.M.Mathur at Donimalai. At the same time, accused No.2 informed him that he was ready to pay anything if he is appointed as JO. In the cross- examination he has stated that while working at BCPC Mines, he 181 Spl.C.C. No.204/2015 had causal contact with accused No.2 only with regard to their work. It is admitted that accused No.2 did not disclose anything about his willingness to pay bribe towards the appointment. However, the evidence deposed by this witness reveals that accused No.2 known to him prior to the Notification called for the post of JO at NMDC as both of them were working in another Company. But the evidence of this witness infers about the intention of accused No.2 who was disclosed that ready to pay bribe for getting the job of Junior Officer (Mining), which is one of the ingredient of Section 8 of Prevention of Corruption Act, 1988, for which, attempt to obtain illegal gratification either for himself or any other person 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 is sufficient.
196. It is relevant to point out that accused No.2 before interview called upon mobile number of PW3, which is shown as 9916256550 and informed about demand made by some of the NMDC officials to pay money for appointment to the post of JO. But PW3 who was said to be refused to give money, after 182 Spl.C.C. No.204/2015 interview he was again called him and asked about giving money for getting appointment, but did not name any of the officials. However, PW3 was very much confident about his selection for the post of JO as he was one among the top of 10 candidates but not selected on the bribery allegation. Further evidence of prosecution placed that accused No.2 called PW4 on the same day of receiving message after one week from the date of written examination and asked him to pay Rs.5 lakhs to NMDC officials. Admittedly, the Cell number of PW4 is 9704095043 who has clearly stated the Cell number of accused No.2 as 9449647614, which is not denied by him. In support of their conversation, the prosecution has relied on the call details which are discussed above, but no specific details of customers of the relevant mobile numbers are produced. However, PW4 was also stated that since he was confident of getting job, not interested to give bribe and same was disclosed with accused No.2.
197. It is made out from the evidence of prosecution witnesses that accused No.2 made attempts to get employment and approached his friend PW5, the then Master Mechanic, who was informed about he had no role in appointment of JO and 183 Spl.C.C. No.204/2015 asked him to approach Executive Director - L.N.Mathur. PW5 deposed that about accused No.2 expressed his intention to pay money to get the post of JO which is denied in the cross- examination.
198. However, the selected candidate PW32 - Poli Naveen Kumar also deposed about he was called over phone by accused No.2 after one week from the date of written examination. It is alleged that, after written examination in the month of July- 2013, he was called him and asked if PW32 is ready to join NMDC, has to pay Rs.3 to 4 lakhs, for which, accused No.2 will facilitate job. Though no materials placed by prosecution as to the amount paid by accused No.3 was towards bribe to get the post of Junior Officer (Mining) and no proof placed with regard to the bribe amount received from above said witnesses and paid to either to accused No.1 or other officials of NMDC, the attempt made by accused No.2 cannot be ignored. It is made out from the evidence of selected candidates that they did not pay any bribe amount to accused No.1 or accused No.2 or any other officials of NMDC. However, the allegation made against accused No.2 regarding attempt made by him to receive the illegal 184 Spl.C.C. No.204/2015 gratification to induce the public servant to do an illegal act is proved by prosecution by reliable evidence of above mentioned witnesses. No explanation offered by accused No.2 as to why the above-said witnesses deposed about call made by him for paying bribe to the NMDC officials, if he was not called them and disclosed about intention of paying bribe amount for getting the post of Junior Officer (Mining). Even if accused No.2 is friend of those witnesses, there was no necessity for them to depose about the fact of bribe to be paid for getting the said post as disclosed by him. Therefore, their evidence leniently viewed by this Court.
199. The prosecution has relied on the evidence of PWs.21 to 23, 25 to 28 and 30 in support of allegation made against accused No.3, who was said to be fraudulently and dishonestly paid bribe amount of Rs.3,00,400/- to accused No.2 for inducing public servant to get select for the post of JO and selected for the said post. The said payment made by accused No.3 to the account of accused No.2 on 15.7.2013 through PWs.21 to 23. Therefore, it has become necessary to discuss their evidence in brief whether it establish the case of prosecution. 185 Spl.C.C. No.204/2015
200. PW.21 - Shaik Shamraj Ahmad, is brother-in- law of Khadar Sharif Shaik is known accused No.3 Khaja Babu Shaik, has identified the account opening form given to open the account at State Bank of India, Nidadavole Branch, marked as Ex.P73. The statement of account is marked as Ex.P74. He has identified the withdrawal form of SBI Ex.P76 and his signature Ex.P76(a). He has deposed that, according to instruction given by his brother-in-law Khadar Sharif Shaik, he has transferred amount of Rs.1,00,000/- from his account to the SB Account No.0031147478026 which is entered in the statement of account from 19.9.2006 to 19.2.2014. The relevant entry dated 15.7.2013 marked as Ex.P74(a), which is admitted as pertaining to repayment of loan availed by accused No.3 from accused No.2.
201. PW.22 - Khadar Sharif Shaik, is the younger brother of accused No.3 and brother-in-law of PW.21. He has deposed about the request made by accused No.3 to remit amount of Rs.1,00,000/- to the account of accused No.2. Since he had no money, requested his brother-in-law to pay 186 Spl.C.C. No.204/2015 Rs.1,00,000/- and to remit the same to the account of accused No.2. However, he has colleted money from one Sathish, afterwards his brother-in-law remitted the same amount to the account of accused No.2. He is also personally known accused No.2 since both of them were studying Polytechnic course, but he was not having any money transaction with him during said period.
202. Shaik Anwar Pasha, father of accused No.3 examined as P.W.23. He has identified account opening form Ex.P68 and mentioned the account No.31553895853. According to him, his son accused No.3 used to remit the amount to his SB Account. He has identified the entry made in respect of amount of Rs.49,900/- deposited to the account of accused No.2. In the cross-examination he has admitted that his son accused No.3 had borrowed loan of Rs.3,00,000/- from accused No.2. Therefore, he has remitted the amount of Rs.49,900/- to the account of accused No.2 on the request made by his son accused No.3. He has also admitted that the said amount paid towards part payment of loan availed by his son from the accused No.2. 187 Spl.C.C. No.204/2015
203. PW.25, Avatapalli Kanakadurga Prasad, Accounts Manager of East India Commercial Company Ltd., has deposed about father of accused No.3 Sheik Anwar Pasha was working in Finishing Department in the same Company and produced the relevant document to CBI officials. He has stated that the loan of Rs.2,25,000/- obtained by said Sheik Anwar Pasha from his P.F. Account for the purpose of purchase of house. The said amount paid through cheque and the statement of account of said Sheik Anwar Pasha marked as Ex.P69, his signature in the document marked as Ex.P69(a). The documents produced by him relating to father of accused No.3 marked as Ex.P92.
204. PW.26 - Ganta Naga Ravindra Satish is known person to Shamraj Ahmed and his brother-in-law Khader Shariff, who had paid Rs.1,00,000/- to him for purchasing of house site and stated the same before the CBI officials.
205. PW.30 - Vuram Naga Venkata Somashekar, deposed about the loan took by Shaik Anwar Pasha by pledging jewels on few occasions. The document produced by him relating 188 Spl.C.C. No.204/2015 to said transaction marked as Exs.P98 to 101. The ledger extract relating to the said transaction of loan marked as Ex.P102. All the documents are marked subject to objection as they were in Telugu language.
206. PW31 - Smt.Ameeda Begum is the younger sister of one Noor Jahan W/o.Shaik Anwar Pasha has deposed that site situated at Vuyyur had purchased from her elder sister Noor Jahan, mother of accused No.3, in the year 2013 for consideration of more than Rs.2,00,000/-. The document No.2742/2013 mentioned in the original sale deed, certified copy of the same produced before CBI identified as Ex.P96. In proof of the said sale deed prosecution examined the Sub-registrar of Vayur, Krishna District Patangadi Sharada deposed as PW28 has identified the certified copy of document No.2742/13 dtd.18.5.2013 marked as Ex.P96 and covering letter marked as Ex.P97.
207. However, according to prosecution the father of accused No.3 had purchased two flats in Eluru for Rs.2,19,000/- each and got registered the sale deeds in the name of accused 189 Spl.C.C. No.204/2015 No.3 and his brother as per sale deeds Ex.P93 and 94. Further, case alleged by prosecution that the mother of accused No.3 Smt. Mohammed Ameeda Begum examined as PW31 also sold property for Rs.2,40,000/- under registered Sale deed Ex.P96. However, the prosecution has contended that funds accumulated by the father of accused No.3 from non-refundable loan of Rs.2,25,200/ from his P.F. account for the purpose of purchasing house from Co-operative Society and relied on evidence of PW25, the Accounts Manager of East India Commercial Company Ltd. Eluru, who has identified the statement of account of PW21, marked as Ex.P69 and relevant entry marked as Ex.P69(a), which was produced before CBI under Production Memo marked as Ex.P92. Further, relied on the Gold Loan obtained by father of accused No.3 in a sum of Rs.2,70,000/- as per receipts Ex.P99 to 101.
208. However, the arguments relating to funds accumulated by parents of accused No.3 to purchase the property cannot be accepted in absence of reliable oral and documentary evidence. Because, the prosecution witnesses PWs.21 to 23 have categorically admitted the loan borrowed by 190 Spl.C.C. No.204/2015 accused No.3 in a sum of Rs.3,00,000/- from accused No.3 for purchase of property.
209. Admittedly, accused No.3 was one of the selected candidates under General category who was alleged to be favoured by accused No.1. But, the case of accused No.3 stated in the statement filed under Section 313 Cr.P.C. is that he was selected as per recruitment policy and procedure of NMDC Ltd., Donimalai. He had no contact or communication with any of the public servants in connection with recruitment process for the post of Junior Officer (Mining). The Investigating Officer has not involved him at the time of filing FIR, but later he was included in the charge sheet. Further, details of loan transaction of Rs.3,00,400/- with the accused No.2 to purchase the land was made known to Investigating Officer during the investigation. He had fulfilled all the requirements of recruitment process conducted by different committees constituted individually. He was awarded marks by the Interview Committee members as per the policy and procedures of NMDC which was approved by competent authority and selected to the post of Junior Officer (Mining).
191 Spl.C.C. No.204/2015
210. However, the case of prosecution relating to father of accused No.3 generated funds by different modes as stated above and his mother also invested money for purchasing the property under Ex.P93 and 94 is not proved by any reliable evidence. Because, the evidence of PWs.21 to 23 proves the loan of Rs.3,00,400/- borrowed by the accused No.3 from accused No.2,. Moreover, when the prosecution has alleged that the said amount was paid towards bribe to accused No.2, in turn it was paid to accused No.1 for selection of post of Junior Officer (Mining), it ought to have proved the same beyond reasonable doubt. Only on the basis of evidence deposed by PWs.21 to 23, 25 to 31, the prosecution cannot allege that the accused No.3 has paid bribe of Rs.3,00,400/- to the accused No.2 and got selected for the post of Junior Officer (Mining). Moreover, accused No.2 is also one of the candidate was not a competent authority to appoint him for the said post as himself was also applied for the same post and selected subsequently. Therefore, the above discussed evidence of PWs.21 to 23, 25 to 28, 30 and 31 supports the case of Accused No.3, which is corroborated with the relevant documents discussed above. 192 Spl.C.C. No.204/2015
211. After detail and careful perusal of entire oral and documentary evidence placed by the prosecution, I come to conclusion that the prosecution has utterly failed to prove that accused No.1 being public servant as Assistant General Manager (Personnel), NMDC, Donimalai, entered into criminal conspiracy with accused Nos.2 and 3, in recruitment process for selection of post of Junior Officer (Mining) in the year 2013 and cheated the NMDC and deprived eligible candidates applied for the said post. The prosecution has further failed to produce any corroborating evidence of witnesses in proof of the alleged criminal conspiracy as required under Section 120-A of Indian Penal Code. Under the said Section the mandatory requirement is meeting of minds of all the conspirators to do an illegal act, as discussed above. Further, the manner of cheating NMDC by accused No.1 also not produced before the Court.
212. However, the arguments of Public Prosecutor that getting selection of accused No.2 and accused No.3 for the post of Junior Officer (Mining) itself cheating NMDC, on the ground some eligible candidates were deprived of said post. But as 193 Spl.C.C. No.204/2015 pointed out earlier, both accused No.2 and accused No.3 were selected by the Competent Authority which was not headed by accused No.1 alone on the basis of Merit list.
213. Further, the important aspect is that the recruitment process for the post of Junior Officer (Mining), NMDC conducted by constituting different committees by Executive Director who was the head of project. It is not in dispute that though the accused No.1 was head of Personnel Department and one of the member of Interview Committee, other committees formed consisting of different officials as members looked after different stages of recruitment process. Only on the ground that accused No.1 was head of Personnel Department and said to be given instructions to the invigilators of NMDC to sign on the assessment sheets as well as secured the mobile numbers of each candidate, it cannot be alleged that he alone responsible for entire recruitment process. Because, the recruitment process was finalized after duties performed by members of Shortlist Committee, Scrutiny Committee and Overseeing Committee. The duty entrusted to Shortlist Committee to enquire the documents furnished along with application to categorize each of the 194 Spl.C.C. No.204/2015 candidate applied for the post of Junior Officer (Mining). Likewise, the documents were scrutinized by another Committee and made note on the applications. Admittedly accused No.1 was not member of those Committees who were short listed PW3 as he was not produced OBC certificate in Central Format.
214. The documents reveal that accused No.1 did not take or played any important role in the recruitment process as it was conducted on the basis of report given by members of different Committees discussed above. However, the prosecution not proved nexus between accused No.1 with accused Nos.2 and 3 and also no evidence placed in proof of all the three accused met together for planning to do some illegal act. Therefore, there cannot be any criminal conspiracy by accused No.1 with accused No.2 and accused No.3 as well as no cheating as contended by prosecution. Further the evidence of prosecution discussed above with supporting documents will not prove the favour shown by accused No.1 to some of the candidates who were subsequently selected for the above post and disfavour shown to PW3 for non-selection for the said post. However, the documents placed by prosecution proves that PW3 not complied 195 Spl.C.C. No.204/2015 the conditions of Notification and categorized under General category, therefore even after he has produced OBC certificate at the time of interview, he was not considered as OBC candidate and not selected for the above post. The said decision taken by the recruitment authority and accused No.1 had no independent role in that decision taken by the Committee. Therefore, it can be said that accused No.1 being public servant has not committed criminal misconduct during the course of recruitment process for the post of Junior Officer (Mining) at NMDC.
215. It is true, many lapses alleged to be taken by the officials of NMDC during recruitment process for the post of Junior Officer (Mining) and same has been clearly mentioned in the investigation report filed by Vigilance Department marked under Ex.P65, which is already discussed above in detail. However, except accused No.1, no other officials who were also responsible for irregularities in the recruitment process were not made as accused, for which, no explanation offered by CBI. Therefore, the doubt will certainly arose as to why CBI made allegations only against accused No.1 when other officials of NMDC also involved in the recruitment process entrusted with 196 Spl.C.C. No.204/2015 different work and responsible for irregularities, if any, took during the said period, all the other officials are not made as accused persons. The irregularities taken at NMDC during the recruitment process for the post of Junior Officer (Mining) are made out by the evidence of witnesses and also preliminary investigation report filed under Ex.P65. It is already pointed out that though accused No.1 made responsible for some of the irregularities, other officials of NMDC, whose names are mentioned above also responsible for the irregularities. However, the irregularities cannot be considered as offences committed by them. Moreover, there is a separate appropriate authority in NMDC to conduct departmental enquiry against those officials, if any irregularities committed during the recruitment process. Therefore, the Court cannot consider the irregularities occurred at NMDC during the recruitment process of Junior Officer (Mining), which was brought to the notice of Chief Vigilance Officer by PWs.3 and 4 by filing separate complaints alleging about irregularities.
216. Further, the documents reveal that accused Nos.2 and 3, are selected candidates on the basis of merit and also 197 Spl.C.C. No.204/2015 category wise, classified by the NMDC officials while scrutiny of documents. Further, from the oral and documentary evidence, it is made out that the eligible candidates also selected for the same post, without paying any bribe to NMDC officials. Some of the selected candidates were examined before the Court did not say anything about bribe paid by them for getting the post of Junior Officer (Mining) at NMDC. The important aspect of alleged bribe paid by accused No.3 to accused No.2 also not proved before the Court. However, the prosecution has proved only the attempt made by accused No.2, who was made calls to his friends, PWs.3, 4 and 32 to pay bribe for the selection of above post and insisted them repeatedly, which is nothing but illegal attempt made by him. It is true, prosecution has not placed any proof regarding bribe amount paid to him, in turn it was paid to any of the officials of NMDC. But, at initial stage itself he had contacted official witness PW5 with whom made known his intention to pay bribe for getting post of Junior Officer (Mining). But, the prosecution has not placed any proof that accused No.2 acted as conduit between candidates and Management for collecting bribe to get selection for the post Junior Officer (Mining) and influenced accused No.1 and other 198 Spl.C.C. No.204/2015 officials of NMDC. The evidence of prosecution certainly establish that the attempt made by accused No.2 that the bribe amount to be paid to the officials of NMDC, and he did not mention names of either accused No.1 or any of the officials of NMDC. Therefore, the evidence of prosecution witnesses corroborates the attempt made by accused No.2 to get the selection of post of Junior Officer (Mining) and not stated anything about bribe received by him or bribe paid to accused No.1. Therefore, even in absence of any bribe amount collected by accused No.2 on behalf of candidates or paid to officials of NMDC or to accused No.1, the Court cannot ignore the corroborative evidence deposed against him regarding attempt made by him by calling above mentioned witnesses to pay bribe for the selection of post, which attracts the offence under Section 8 of the Prevention of Corruption Act, 1988.
217. However, the prosecution has not proved that accused No.1 being public servant had misused his official powers and committed criminal misconduct as provided under Section 13 (2) of the Prevention of Corruption Act, 1988. I have already discussed how the prosecution has not placed any oral or 199 Spl.C.C. No.204/2015 documentary evidence against accused No.1 to attract the offence punishable under Section 13(1) (c) or (d) and Section 13(2) of Prevention of Corruption Act, 1988. Therefore, though Court took cognizance of the offence against accused No.1 under Clause (c) of Section 13(1) of Prevention of Corruption Act, 1988, no proof placed before the Court.
218. However, though the accused No.3 alleged to be paid bribe for getting the selection for post of Junior Officer (Mining), he was not shown as accused at the initial stage while registering the FIR. But, he was shown one of the accused in the charge sheet on the allegations of selected for the post of Junior Officer (Mining) after paying bribe to accused No.2. Admittedly, accused No.2 is not the competent authority to select accused No.3 for the said post. The prosecution though made allegations of bribe paid by accused No.3 has not produced any oral or documentary evidence regarding bribe paid by accused No.3 to accused No.2, in turn, which was alleged to be paid to accused No.1 and subsequently both of them selected for the post of Junior Officer (Mining). In absence of important proof for the alleged offences mentioned in the charge sheet, I am of the view 200 Spl.C.C. No.204/2015 that the prosecution has utterly failed to prove that accused Nos.1 to 3 have committed offence punishable under Section 120-B read with Section 420 Indian Penal Code and Section 420 Indian Penal Code. Further, no proof of charge for the offence punishable under Section 13(1)(c) or (d) and Section 13(2) of Prevention of Corruption Act, 1988 against accused No.1. However, prosecution has partly proved the offence under Section 8 of Prevention of Corruption Act, 1988 committed by the accused No.2. Therefore, I answer point Nos.2, 4, 5 and 6 in Negative and point Nos.3 and 7 partly in affirmative only against accused No.2.
219. Point No.7 :- For the above discussed reasons, I proceed to pass the following:-
: ORDER :
Acting Under Section 235(2) of Code of Criminal Procedure 1973, accused No.2 -
Appanna Boine Ramanjaneyulu is hereby convicted for the offence punishable under Section 8 of Prevention of Corruption Act, 1988.201 Spl.C.C. No.204/2015
Acting Under Section 235(1) of Code of Criminal Procedure 1973, accused No.1 - Dharmendra Acharya, accused No.2 -
Appanna Boine Ramanjaneyulu and
accused No.3 - Khajababu Sheik are
hereby acquitted for the offences
punishable under Sections 120-B read with
Section 420 of Indian Penal Code and
Section 420 of Indian Penal Code and
accused No.1 - Dharmendra Acharya
is hereby acquitted for the offence
punishable under Section 13(2) r/w.
Section 13(1) (c) of Prevention of
Corruption Act, 1988.
The bail bonds executed by accused
No.1 and accused No.3 under Section
437(A) of Cr.P.C. shall be in force, till the completion of appeal period.
(Dictated to Judgment Writer, transcribed and computerized by him, corrected, signed and then pronounced by me in the open court today on 3rd day of October, 2017.) (S.H.PUSHPANJALI DEVI) XLVI Addl. City Civil and Sessions Judge and Special Judge for C.B.I. Cases, Bengaluru.202 Spl.C.C. No.204/2015
Dt.3.10.2017 Heard regarding sentence.
The learned Public Prosecutor has submitted that maximum sentence be imposed to the accused No.2.
The learned Counsel for accused No.2 submitted that, accused No.2 has already lost his job and having small children.
Therefore, prayed to take lenient view while imposing sentence.
After hearing the submissions made by both learned Public Prosecutor and learned Counsel for accused No.2, I am of the view that accused No.2 has committed the offence under Section 8 of Prevention of Corruption Act, 1988, by making attempt to induce the public servant to do an illegal act. The punishment prescribed for the said offence is imprisonment for a term which shall be not less than three years, but which may extend to seven years and shall also be liable to fine Substituted by Act 1 of 2014.
If the Court take lenient view while imposing sentence, the offence of attempt of inducing public servant to do an illegal act, 203 Spl.C.C. No.204/2015 it will give wrong message to the Society. It is found from the order sheet that he has already undergone Police Custody for three days and Judicial Custody for 44 days. Therefore, taking into consideration that he has already lost his job and the proof placed against him only with respect to the attempt made to induce the public servant, I am of the opinion that if he is sentenced to undergo imprisonment for three years prescribed for the offence punishable under Section 8 of Prevention of Corruption Act, 1988 Substituted by Act 1 of 2014 and to pay fine of Rs.2,00,000/-, then it will meet the ends of justice. Hence, I proceed to pass the following:-
ORDER Accused No.2 is sentenced to undergo Simple Imprisonment for a period of three years and shall pay fine of Rs.2,00,000/- for the offence punishable under Section 8 of Prevention of Corruption Act, 1988. In default to pay fine amount, he shall further undergo Simple Imprisonment of six months.
Accused No.2 is entitled for set off u/S.428 of Criminal Procedure Code, for the period already undergone in Judicial Custody.204 Spl.C.C. No.204/2015
The bail bonds and surety bonds
executed by accused No.2 and surety stand
cancelled.
Supply free copy of judgment to accused
No.2.
(Dictated to Judgment Writer, transcribed and computerized by him, corrected, signed and then pronounced by me in the open court today on 3rd day of October, 2017.) (S.H.PUSHPANJALI DEVI) XLVI Addl. City Civil and Sessions Judge and Special Judge for C.B.I. Cases, Bengaluru.
ANNEXURE
1. LIST OF WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT :-
Cws. Date of
P.Ws. PARTICULARS exami-
nation
P.W.1 Bijaya Kumar C.W.7 12.7.2016
P.W.2 G.Ramakrishna C.W.6 13.7.2016
P.W.3 Gungi Ankamma Rao C.W.8 13.7.2016
P.W.4 Ramakrishna Singam Setty C.W.9 14.7.2016
P.W.5 Jagadishwar Singh C.W.10 1.8.2016
P.W.6 Nirmala Kumari M. C.W.14 1.8.2016
205 Spl.C.C. No.204/2015
P.W.7 Subhasihis Chatterjee C.W.35 2.8.2016
P.W.8 Murali Krishna C.W.53 2.8.2016
P.W.9 Mohammed Vahidoddin C.W.33 2.8.2016
P.W.10 Vipin Kumar M.B. C.W.37 3.8.2016
P.W.11 Vinay Kumar C.W.36 3.8.2016
P.W.12 Laxmi Narayan Mathur C.W.41 4.8.2016
P.W.13 C.B.P.Sinha C.W.42 4.8.2016
P.W.14 C.Veeranna C.W.76 4.8.2016
P.W.15 Rajkumar C.W.31 5.8.2016
P.W.16 S.K.Verma C.W.38 5.8.2016
P.W.17 K.V.Ramana Rao C.W.2 19.9.2016
P.W.18 G.Durga Prasad C.W.3 19.9.2016
P.W.19 S.Siddappa C.W.81 19.9.2016
P.W.20 Veerana Gowda C.W.4 20.9.2016
P.W.21 Shaik Shamraj Ahmad C.W.50 20.9.2016
P.W.22 Khadar Sharif Shaik C.W.52 20.9.2016
P.W.23 Shaik Anwar Pasha C.W.51 20.9.2016
P.W.24 T.Raja C.W.39 21.9.2016
P.W.25 Avatapalli Kanakadurga C.W.43 21.9.2016
Prasad
P.W.26 Ganta Naga Ravinra Satish C.W.44 21.9.2016 P.W.27 Smt.R.Srilakshmi C.W.47 22.9.2016 P.W.28 Panthagadi Sarada C.W.48 22.9.2016 P.W.29 A.Diwakar C.W.5 22.9.2016 P.W.30 Vuram Naga Venkata C.W.49 22.9.2016 Somashekar P.W.31 Smt.Mohammed Ameeda C.W.46 22.9.2016 Begum P.W.32 Poli Naveen Kumar C.W.11 23.9.2016 P.W.33 B.K.Madhav C.W.12 3.10.2016 P.W.34 Sudhanshu Verma C.W.13 3.10.2016 P.W.35 K.Bharathi Pandian C.W.55 3.10.2016 P.W.36 Mohammed Nijas C.W.26 4.10.2016 P.W.37 Rahul Kundurthi C.W.27 4.10.2016 P.W.38 Amith Kumar Singh C.W.77 4.10.2016 P.W.39 D.C.S.Murthy C.W.30 5.10.2016 P.W.40 K.Dhananjayan C.W.32 5.10.2016 P.W.41 P.Rathnakar Nayak C.W.83 6.10.2016 P.W.42 H.S.C.Rao C.W.84 6.10.2016 206 Spl.C.C. No.204/2015 P.W.43 K.L.Prabha C.W.85 6.10.2016 P.W.44 Krishna K. C.W.86 6.10.2016 P.W.45 N.Balsingh C.W.90 6.10.2016 P.W.46 Nandan Kumar C.W.1 16.11.2016 P.W.47 G.Rajashekar C.W.20 16.11.2016 P.W.48 S.N.Murthy C.W.40 18.11.2016 P.W.49 Koteshwara Rao C.W.25 18.11.2016 P.W.50 Ranjit Dhiware C.W.29 18.11.2016 P.W.51 K.Mohan C.W.34 18.11.2016 P.W.52 Usha Chandrashekar C.W.54 23.11.2016 P.W.53 Asif Sardar Khan C.W.56 23.11.2016 P.W.54 T.Venkatasudarshan C.W.71 23.11.2016 P.W.55 G.K.Patnayak C.W.78 23.11.2016 P.W.56 Kona Durga Rajalaxmi C.W.45 23.11.2016 P.W.57 Stanley Angella C.W.82 24.11.2016 P.W.58 M.Joseph Raj C.W.73 24.11.2016 P.W.59 Thippeswamy C.W.79 24.11.2016 P.W.60 Vivekananda Swamy C.W.92 10.1.2017 P.W.61 N.Raghavendra Kumar C.W.94 10.1.2017 P.W.62 T.Rajashekara C.W.95 17.2.2017 P.W.63 G.Priyadarshini C.W.97 8.3.2017 P.W.64 Narendra Kothari C.W.96 16.3.2017 P.W.65 Anadhi Mahapatra C.W.75 1.6.2017
2. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF COMPLAINANT:-
EXHIBITS PARTICULARS
Ex.P.1 File pertaining to recruitment process of Junior
Officers (Mining), NMDC.
Ex.P.1(a) Report of Scrutiny Committee
Ex.P.1(b) Signature of P.W.7
Ex.P.1(c) Signature of P.W.11
Ex.P.1(d) Signature of P.W.12
Ex.P.1(e) Publication of Employment Notification
dt.4.12.2012 in Ex.P1.
Ex.P.2 File pertaining to recruitment process of Junior
Officers (Mining), NMDC.
207 Spl.C.C. No.204/2015
Ex.P.2(a) Compilation in Ex.P.2
Ex.P.3 e-mail message
Ex.P.4 Envelope
Ex.P.4(a) Signature of P.W.16
Ex.P.4(b) Signature of A-1
Ex.P.5 Assessment sheets
Ex.P.6 Office memorandum
Ex.P.7 Seizure memo
Ex.P.8 Letter sent by Kendriya Vidyalaya, Donimalai
Ex.P.8(a) Signature of P.W.6
Ex.P.9 to 43 checklists
P.51
Ex.P.15(a) & Relevant entries
(b)
Ex.P.39(a) Relevant entry
Ex.P.44(a) Relevant entry
Ex.P.52 Bunch of documents containing application and
annexures including envelope
Ex.P.53 Question and answer sheet
Ex.P.54 Complaint given to CEO, NMDC
Ex.P.54(a) Signature of P.W.3
Ex.P.55 Seizure memo
Ex.P.55(a) OBC certificate
Ex.P.56 Attendance sheet
Ex.P.56(a) Relevant entry
Ex.P.56(b) Signature and mobile number of P.W.4 Ex.P.56(c) Signature of P.W.36 Ex.P.56(d) Signature of P.W.37 Ex.P.56(e) Signature of P.W.47 Ex.P.56(f) Attendance sheet of invigilators Ex.P.56(g) Signature of P.W.50 Ex.P.56(h) Signature of P.W.54 Ex.P.57 Attendance sheet Ex.P.57(a) Relevant entry Ex.P.57(b) Signature of P.W.4 Ex.P.58 Statement of P.W.3 Ex.P.58(a) Signature of P.W.3 Ex.P.59 Bunch of documents containing application and annexure 208 Spl.C.C. No.204/2015 Ex.P.60 Question and answer sheet Ex.P.61 Complaint given to Vigilance Officer Ex.P.61(a) Signature of P.W.4 Ex.P.62 Statement of P.W.4 given before Magistrate Ex.P.62(a) Signature of P.W.4 Ex.P.63 Letter of NMDC received by P.W.6 Ex.P.64 Seizure memo dated 4.12.2014 Ex.P.65 Vigilance final investigation report Ex.P.66 Seizure memo Ex.P.67 Assessment sheets (41) Ex.P.67(a) Assessment sheet of G.A.Rao Ex.P.68 Letter dated 21.1.2014 with account opening form Ex.P.69 Certified copy of statement of account with certificate 2A Ex.P.69(a) Signature of P.W.25 Ex.P.70 SBI credit voucher dated 15.7.2013 Ex.P.71 Withdrawal slip dated 15.7.2013 Ex.P.71(a) Signature Ex.P.72 List of documents produced by I.O Ex.P.72(a) Signature of P.W.17 Ex.P.73 Letter dated 21.2.2014 with account opening form Ex.P.74 Certified copy of statement of account Ex.P.74(a) Relevant entry in Ex.P.74 Ex.P.75 Certificate u/S.2A of Banker's Book Evidence Act Ex.P.75(a) Signature of P.W.18 Ex.P.76 SBI withdrawal form dated 15.7.2013 Ex.P.76(a) Signature of P.W.20 Ex.P.77 Letter as to production of documents before I.O Ex.P.77(a) Signature of P.W.18 Ex.P.78 Search list Ex.P.78(a) & Signature of P.W.19
(b) Ex.P.79 Locker operation proceedings Ex.P.79(a) Signature of P.W.18 to (c) Ex.P.80 Account opening form with enclosures Ex.P.81 Account opening form with enclosures Ex.P.82 Certified copy of statement of account of A-2 Ex.P.82(a) Relevant entries dated 15.7.2013 209 Spl.C.C. No.204/2015 Ex.P.83 Certificate u/S.2A of BBE Act Ex.P.84 Certified copy of statement of account of A-2 Ex.P.85 Original Axis Bank Cheque dated 28.6.2013 Ex.P.86 Original DD voucher dated 1.10.2013 Ex.P.87 Letter dated 17.11.2014 Ex.P.87(a) Signature of P.W.24 Ex.P.88 Service particulars of A-1 Ex.P.89 Service particulars of A-2 Ex.P.90 Service particulars of A-3 Ex.P.91 45 admit cards Ex.P.92 Documents pertaining to Shaik Anwar Pasha Ex.P.93 Certified copy of D.No.2510/13 dated 4.7.2013 Ex.P.94 Certified copy of D.No.2511/13 dated 4.7.2013 Ex.P.95 Letter dated 19.11.2014 Ex.P.96 Certified copy of D.No.2742/13 dated 18.5.2013 Ex.P.97 Letter to PSI Ex.P.98 Production memo Ex.P.99 to Three receipts (which are in Telugu language) P-101 Ex.P.102 Copy of ledger extract Ex.P.103 Application for the post of J.O of P.W.32 Ex.P.104 Question paper of P.W.32 Ex.P.105 Answer sheet of P.W.32 Ex.P.106 List of documents Ex.P.107 Letter dated 27.5.2013 Ex.P.108 Letter dated 25.6.2013 Ex.P.109 Letter dated 1.8.2013 Ex.P.110 Letter dated 5.9.2013 Ex.P.111 Entire file D242, D243 Ex.P.111(a) Signature of P.W.33 Ex.P.112 Copy of written test marks shown in sl.no.2 in seizure memo Ex.P.113 Entire file D240 & D241 Ex.P.113(a) Signature of P.W.34 in seizure memo Ex.P.114 Application for the post of J/O of P.W.35 Ex.P.114(a) Signature of P.W.35 Ex.P.115 Question and answer sheet of P.W.35 Ex.P.116 Question paper of NMDC Ex.P.116(a) Signature of P.W.37 210 Spl.C.C. No.204/2015 Ex.P.117 Question and key answer sheet Ex.P.118 Seizure memo Ex.P.118(a) Signature of P.W.38 Ex.P.119 Certificate u/S.65B of Indian Evidence Act Ex.P.119(a) Signature of P.W.37 Ex.P.120 Application of Standly Kanikraj Ex.P.121 Application of Ramesh with enclosures Ex.P.122 Application of Chandrashekar Parteti with enclosures Ex.P.123 Application of Ashok Kumar Urnaw with enclosures Ex.P.124 Application of Khaja Babu Sheik with enclosures Ex.P.125 Application of Rajendra Kumar Dadaji with enclosures Ex.P.126 Application of Anjanappa with enclosures Ex.P.127 Application of Kamlesh Tanwar with enclosures Ex.P.128 Application of Sanjay Kumar with enclosures Ex.P.129 Application of Ashok Kumar with enclosures Ex.P.130 Application of Asith Kumar Behera with enclosures Ex.P.131 Application of Asif Sardar Khan Ex.P.132 Application of Tapan Kumar Setty with enclosures Ex.P.133 Application of Suresh Kumar with enclosures Ex.P.134 Application of Tanka Dhara Behera with enclosures Ex.P.135 Application of N.Malleshi with enclosures Ex.P.136 Application of Naresh Kakuman with enclosures Ex.P.137 Application of Bijay Kumar Munda with enclosures Ex.P.138 Application of Ghanshyam Patel with enclosures Ex.P.139 Application of Sharada Prasad Sahoo with enclosures Ex.P.140 Application of Bapudev Mahanta with enclosures Ex.P.141 Application of Guruprasad Gupta with enclosures Ex.P141(a) Application Form of Prabeen Kumar Das Ex.P.142 Application of Gundeabonia Yadagiri with enclosures Ex.P.143 Application of P.Thanesh Kumar with enclosures Ex.P.144 Application of Anadi Mahapatra with enclosures Ex.P.144(a) Signature of PW75 Ex.P.145 Application of R.Dasaratha with enclosures 211 Spl.C.C. No.204/2015 Ex.P.146 Application of T.Venkatasudarshan with enclosures Ex.P.147 Application of Prasanth Vidam with enclosures Ex.P.148 Application of R.Venkatasalam with enclosures Ex.P.149 Application of Dheerendra Kumar with enclosures Ex.P.150 Application of M.Joseph Raj with enclosures Ex.P.151 Application of Ramesh Basappa with enclosures Ex.P.152 Application of Venugopal with enclosures Ex.P.153 Application of Devendra Kumar with enclosures Ex.P.154 Application of Jitendra Kumar with enclosures Ex.P.155 Application of Jayantha Kumar Sahoo with enclosures Ex.P.156 Application of Parag Sukhdeoro Wasnik with enclosures Ex.P.157 Application of A.Ramanjineyalu with enclosures Ex.P.158 Question and answer sheets Ex.P.159 Question and answer sheet of Ramesh Ex.P.160 Question and answer sheet of Chandrashekar Parteti Ex.P.161 Question and answer sheet of Ashok Kumar Uranaw Ex.P.162 Question and answer sheet of Rahim Khan Pathan Ex.P.163 Question and answer sheet of Avijith Roy Ex.P.164 Question and answer sheet of Khaja Babu Sheik Ex.P.165 Question and answer sheet of Parag Sukhdeorao wasnik Ex.P.166 Question and answer sheet of Anjanappa Ex.P.167 Question and answer sheet of Kamalesh Talwar Ex.P.168 Question and answer sheet of Ashok Kumar Natam Ex.P.169 Question and answer sheet of Asith Kumar Behera Ex.P.170 Question and answer sheet of Bijay Kumar Munda Ex.P.171 Question and answer sheet of Naresh Kakamanu Ex.P.172 Question and answer sheet of N.Malleshi Ex.P.173 Question and answer sheet of Tanka Dhara Behera Ex.P.174 Question and answer sheet of Suresh Kumar Ex.P.175 Question and answer sheet of Kanikraj Ex.P.176 Question and answer sheet of Ramanjaneyalu 212 Spl.C.C. No.204/2015 Ex.P.177 Question and answer sheet of Asif Sardar Khan Ex.P.178 Question and answer sheet of Ghanshyam Patel Ex.P.179 Question and answer sheet of Bapudev Mehta Ex.P.180 Question and answer sheet of Sarada Prasad Sahu Ex.P.181 Question and answer sheet of Guru Prasad Gupta Ex.P.182 Question and answer sheet of Prabeen Kumar Das Ex.P.183 Question and answer sheet of Gundeaboina Yadagiri Ex.P.184 Question and answer sheet of P.Thanesh Kumar Ex.P.185 Question and answer sheet of Anadi Mahapatra Ex.P.186 Question and answer sheet of T.Venkatasudarshan Ex.P.187 Question and answer sheet of Prashanth Vedam Ex.P.188 Question and answer sheet of R.Venkatasalam Ex.P.189 Question and answer sheet of Dhirendra Kumar Biswas Ex.P.190 Question and answer sheet of M.Joseph Raj Ex.P.191 Question and answer sheet of Ramesh Basappa Vadar Ex.P.192 Question and answer sheet of Venugopal Ex.P.193 Question and answer sheet of Devendra Kumar Ex.P.194 Question and answer sheet of Jitendra Kumar Panda Ex.P.195 Question and answer sheet of Jayanth Kumar Sahoo Ex.P.196 Call data record with covering letter Ex.P.196(a) Signature of P.W.41 Ex.P.197 Certified copy of customer application, election ID card and covering letter Ex.P.197(a) Signature of P.W.42 Ex.P.198 Arrest memo Ex.P.198(a) Signature of P.W.42 Ex.P.199 Personal search memo Ex.P.199(a) Signature Ex.P.200 Covering letter Ex.P.200(a) Signature of P.W.45 Ex.P.201 Customer application form with ID card Ex.P.202 Account opening form of Accused No.2 Ex.P.203 Statement of account accused No.2 213 Spl.C.C. No.204/2015 Ex.P.204 Certificate u/S.2A of Banker's Book Evidence Act.
Ex.P.204(a) Signature of P.W.46 Ex.P.205 Cheque No.746076 Ex.P.206 Attendance of Invigilators Ex.P.206(a) Signature of P.W.47 Ex.P.206(b) Signature of P.W.49 Ex.P.206(c) Signature of P.W.50 Ex.P.207 Covering letter dated 17.11.2014 Ex.P.208 Call details of 9916976520 Ex.P.209 Customer application form of Sudesh Kumar Ex.P.210 Call data records of 9916256550 Ex.P.211 Customer application form of Ankammma Ex.P.212 Call data records of 9966555125 Ex.P.213 Certificate u/S.65-B of Indian Evidence Act Ex.P.213(a) Signature of P.W.48 Ex.P.214 Certificate u/S.65-B of Indian Evidence Act Ex.P.214(a) Signature of P.W.48 Ex.P.215 Certificate u/S.65-B of Indian Evidence Act Ex.P.215(a) Signature of P.W.48 Ex.P.216 Seizure memo with documents Ex.P.216(a) Signature of P.W.51 Ex.P.217 Covering letter Ex.P.217(a) Signature of P.W.52 Ex.P.218 Copy of caste certificate Ex.P.219 Attested copy of caste and birth certificate Ex.P.220 to Xerox copies of experience certificates of P.W.54 222 Ex.P.223 Covering letter Ex.P.223(a) Signature of P.W.55 Ex.P.224 Certified copy of customer application form of Veerabhadrappa Ex.P.225 Copy of PAN card of Veerabhadrappa Ex.P.226 Covering letter dated 17.11.2014 Ex.P.226(a) Signature of P.W.57 Ex.P.227 Xerox copy of customer application form of James Anthony Raj along with copy of ID card Ex.P.228 F.I.R.
Ex.P.229 Search list
Ex.P.229(a) Signature of S.I.
214 Spl.C.C. No.204/2015
Ex.P.230 Arrest memo of A-2
Ex.P.230(a) Signature of S.I.
Ex.P.231 Letter dt.22.11.2014
Ex.P.232 Seizure memo
Ex.P.233 Copy of Service book of A-1
Ex.P.234 Copy of Service book of A-2
Ex.P.235 Copy of Service book of A-3
Ex.P.236 Seizure memo
Ex.P.236(a) Signature of PW65
Ex.P.237 Letter Dt.27.5.2013
Ex.P.238 Letter Dt.25.6.2013
Ex.P.239 Letter Dt.1.8.2013
Ex.P.240 Letter Dt.5.9.2013
Ex.P.241 Self attested copy of Caste certificate dt.24.9.13
Ex.P.242 Seizure memo
Ex.P.243 Covering letter dt.13.3.2014
Ex.P.244 Bank challan
Ex.P.245 Seizure memo
Ex.P.246 Covering letter dt.28.11.2014
Ex.P.247 Original Note sheet
Ex.P.248 Handwritten question-cum-answer sheets
Ex.P.249 Recruitment policy & procedure revised
Ex.P.250 Original question-cum-answer sheet in respect of
Babi Ranjan
Ex.P.251 Question-cum-answer sheets of Sri Sanjaykumar
Ex.P.252 Covering letter with copies of documents
Ex.P.253 Letter Dt.24.12.2014 of O/o.G.M.Telecom, BSNL
Ex.P.254 Original letter dt.3.3.2015 of Navendra Kothari
Ex.P.255 Sanction order of A-1
Ex.P.255(a) Schedule Annexed to Ex.P.255
Ex.P.255(b) Signature of PW63
Ex.P.255(c) Signature of PW64
3) LIST OF EXHIBITS MARKED THROUGH DEFENCE SIDE:-
EXHIBITS PARTICULARS Ex.D.1 & NMDC recruitment, policy, procedures along with D.2 office order Ex.D.3 Notification copy 215 Spl.C.C. No.204/2015 Ex.D.4 OBC certificate Ex.D.5 OBC certificate in state format Ex.D.6 Signature of P.W.7 in Ex.P.1 Ex.D.7 Relevant entry in Ex.P.52 Ex.D.8 Experience certificates annexed in Ex.P.52 Ex.D.8(a) -do-
Ex.D.8(b) -do-
Ex.D.9 Signature of P.W.12 in Ex.P.1
Ex.D.10 Signature of P.W.12 in Ex.P.52
Ex.D.11 Service certificate
Ex.D.12 Relevant entry in Ex.P.9
Ex.D.13 Copy of income and caste certificate
Ex.D.14 Relevant entry on Ex.P.37
Ex.D.15 Experience certificate
Ex.D.16 Certificate issued by Government of India
Ex.D.17 Notification in Ex.P.216
4. LIST OF WITNESSES EXAMINED BY COURT:-
C.Ws. Witnesses name
C.W.1 M.V.Sathish, Advocate
C.W.2 B.S.Ganesh Kumar, Bench Clerk,
CCH-48
5. LIST OF MATERAIL OBJECTS MARKED:
- Nil -
(S.H.PUSHPANJALI DEVI)
XLVI Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bengaluru.