& Anrs., 2015 (Vii) Slt 554 (10) ... vs . Cbi, 2011(3) Cc on 15 January, 2019
Delhi District Court
& Anrs., 2015 (Vii) Slt 554 (10) ... vs . Cbi, 2011(3) Cc on 15 January, 2019
IN THE COURT OF SH. ARVIND KUMAR
SPECIAL JUDGE, CBI-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
CC No. 04/2016
ID No. DLNDO010158892016
RC NO.
Branch
U/S
: DAI-2016-A-0004
: CBI/ACB/New Delhi
: 7 & Sec. 13(2)
r/w 13(1)(d) P C Act, 1988
CBI
..... Complainant
Versus
N.D.Sharma
S/o Sh. D.R. Sharma
Present Address
R/o 4, block A, Jaya Nagar
Near Lal Bagh, Banglore Karnataka
Metro Vihar, Shastri Park
Permanent Address
Village & PO Atwa
Tehsil & Dist Palwal
Haryana
Date of Institution
Date on which reserved for judgment
Date of Judgment
Present :
..... Accused
Page no. 1
:
:
:
05.10.2016
24.12.2018
15.01.2019
Sh. B.K.Singh, Ld. Sr. PP for CBI.
Accused in person with Ld. Counsel
Sh. Yogesh Verma.
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JUDGMENT :-
1.
Briefly stating, the case of the prosecution is as under :(i) M/s Avid Apparel Industries is a partnership firm and is manufacturer and exporter of ready
made garments. The firm has been dealing with Canara Bank, Okhla Industrial Estate Branch since
1983. The bank had sanctioned packing credit facility to M/s Avid Apparel Industries for Rs. 6
Crores on 12.04.2013 and this tenability of the working capital limit was valid upto 11.04.2014. In
view of the said validity Page no. 2 period, the party had submitted a proposal for renewal of
facilities on 10.04.2014 to Canara Bank, Okhla Industrial Estate Branch, New Delhi along with the
enhancement in working capital limits from Rs. 1410 to Rs. 1710 Lacs and new term loan proposal of
Rs. 637.50 Lacs. After getting some clarification from the party i.e. M/s Avid Apparel Industries, on
26.05.2014, the Branch forwarded the proposal to the Circle Office of Canara Bank.
(ii) On 18.07.2014, Circle Office sent the proposal for PFD study and also extended the existing limit
of the firm for three months i.e. till 11.07.2014. But despite submissions of renewal proposal on
10.04.2014 to the Okhla Industrial Estate Branch, Canara Bank along with the enhancement in
working capital limits from Rs. 1410 to Rs. 1710 Lacs and new term loan proposal of Rs. 637.50 Lacs,
the renewal/enhancement proposal was neither sanctioned nor declined by the Canara Bank till
March 2015. On the other hand, the branch permitted the party an overdrawing Page no. 3 beyond
its sanctioned limit without ratification from the competent authorities.
(iii) That during the Branch Audit, on 20.04.2015, the Statutory Auditor M/S H K Chowdhary & Co.,
classified the account as sub-standard and submitted Memorandum of Change (MoC) dated
20.04.2015 due to nonratification of overdrawing, delayed renewal of the Working Capital Limit on 31.03.2015 and return
of the discounted Cheque of Rs.
20 Lacs. This MoC was referred to the Balance Sheet & Internal Control Section, Head Office,
Bangalore through BS & IC Section of Circle Office of Canara Bank.
(iv) That when the fact of this MoC came into the knowledge of Mr. K.K.Thomas, he met Sh. N. D.
Sharma, DGM, SME, Sulabh and requested him that his account should not be declared as NPA as
he had submitted the proposal for renewal and enhancement well in time on 10.04.2014 and the
same was pending with the Circle Office. On that Sh. N D Sharma, DGM, SME said to Mr. K .K.
Thomas that the Page no. 4 bank had decided to proceed against his Company for recovery and to
report the same to CIBIL and account would be treated as willful defaulter and his firm will not get
any finance from any other bank in future. Thereafter, series of discussion took place between Sh.
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N.D.Sharma and Mr. K.K.Thomas over mobile phone as well as in person. During that discussion
Mr. N D Sharma had suggested a proposal to Mr. K. K. Thomas that one person from Head Office of
bank in the high level could help him out in this matter if he agreed to satisfy his condition by paying
Rs. 5 Lacs in cash and therefore, he will make account as performing assets. To get rid of this
problem Sh. K. K.
Thomas agreed to pay the amount demanded by Sh. N.D.Sharma, DGM.
(v) During telephonic discussion with Mr. K.K.Thomas on 18.05.2015, Sh. N.D.
Sharma demanded Rs. 5 Lacs from him. Sh.
K.K. Thomas informed that said amount cannot be paid in one go. Again on 19.05.2015, Sh.
N.D. Sharma told Sh. K. K. Thomas to come at Pind Balunchi Restaurant, Nehru Place to meet Page
no. 5 so called high level person of Head Office. Mr. K. K. Thomas recorded the conversation held
between Mr. N. D.Sharma and himself for the said demand of bribe. Accordingly on 19.05.2015, Sh.
K. K. Thomas alongwith his driver Sh. Saukar Singh at about 1.00 pm reached at Pind Baluchi
Restaurant , Nehru Place, New Delhi. Prior to that as per instruction Sh. K .K.Thomas, his office
staff Sh. Jasbir Rawat had withdrawn Rs. 4 Lacs from current account no. 0348201001564 of M/s
Avid Apparel Industries and also reached at Pind Baluchi Restaurant, Nehru Place, New Delhi with
Sh. Anurag Rahi, a field officer of M/s Avid Apparel Industries. After reaching at Pind Baluchi
Restaurant, Sh. K. K. Thomas instructed to his driver Sh. Saukar Singh and field officer Sh. Anurag
Rahi to capture the video of the person accompanying with him at the time of coming out of
restaurant. Out of the said withdrawn amount of Rs. 4 Lacs, Rs. 2 Lacs were kept for office expenses
and Rs. 2 Lacs were meant for giving to Sh. N . D. Sharma. On entering inside the restaurant, Sh. K.
K. Thomas found sitting Sh. N. D. Sharma and both have taken lunch Page no. 6 together there. In
between Sh. N. D. Sharma made a call through his mobile phone pretending that he was calling the
said high level person of Head Office. After making call Sh. N . D. Sharma told Sh. K. K. Thomas that
said person could not come as he has stuck-up somewhere and asked Sh. K. K.Thomas to hand over
the money. Thereafter, Sh. K.K.Thomas telephoned his driver Sh. Shaukar Singh and told him to
bring the packet from Sh. Jasbir Rawat at the gate of restaurant. Sh. Shaukar Singh brought packet
containing cash amount of Rs. 2 Lacs and handed over the said packet to Sh. K.K.Thomas. Sh.
K.K.Thomas went inside the restaurant and handed over the said packet containing cash amount of
Rs. 2 Lacs to Sh. N. D.Sharma. When Sh. K. k. Thomas along with Sh. N.D.Sharma was coming out
of the restaurant, Sh. Shaukar Singh through his mobile phone and Sh. Anurag Rahi through the
mobile phone given to him by Sh. Jaswir Rawat, captured their video in which Sh. N. D.Sharma is
visible having the said packet of Rs. 2 Lacs in his hand. The bank account statement of M/s Avid
Apparel Industries shows that on 19 Page no. 7 .05.2015, as stated by Sh. K.K.Thomas in his
statement, Rs.4,00,000/- were withdrawn.
(vi) That after accepting Rs. 2 Lacs on 19.05.2015, Sh. N. D.Sharma kept calling Sh. K. k. Thomas for
balance amount. Due to that on 29.05.2015, Sh. K. K. Thomas asked Sh. N D Sharma to come at
Hotel Radisson Blue Noida, UP. Sh. N.D.Sharma reached there and on his demand Sh. K.K.Thomas
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again paid Rs.1,50,000/- to him. Mr. K. K. Thomas again recorded the conversation held between
Mr. N.D.Sharma and himself for the above mentioned bribe demand/transaction.
(vii) That due to MOC dated 20.04.2015 which was referred to the Balance-sheet & Internal Control
Section, Head Office, Bangalore through BS & IC Section at Circle Office, the account of M/s Avid
Apparel Industries had shown NPA on 29.05.2015, in the system for one day as on 31.03.2015.But
due to the already regularization of the account, the said account of M/s Avid Apparel Industries
was shown in the system as Performing Assets (P) Page no. 8 on the very next day i.e. 30.05.2015.
(viii) That on receiving information that on 29.05.2015, his firm account has been shown NPA in the
system for one day against the promise given by Mr. N.D. Sharma. Sh.
K.K. Thomas felt very aggrieved. Due to that mental tension, on 10.06.2015, Mr. K. K.
Thomas reported the matter to Sh. A K Das, DGM, Circle Office along with the recorded
conversation held between him and Sh. N D Sharma and recorded videos. The bank took a note of
the issue and forwarded the matter for inquiry.
(ix) That on the basis of complaint dated 15.06.2015 of Sh. Ajit Kumar Das, DGM, Canara Bank,
circle Office, Delhi Sh. Rakesh Kapoor, DGM-ZI, Delhi has conducted investigation and submitted
investigation report dated 03.07.2015 to the General Manager, HR Wing, Head Office, Bangalore.
(x) Thereafter, Sh. N.D.Sharma, Deputy General Manager has been placed under Page no. 9
suspension by the bank on 08.07.2015.
(xi) That due to the above said action of Sh. K K Thomas, Sh. N.D.Sharma got afraid of consequence
and he approached to Mr. Lalit Thukral, the President of Noida Apparel Export Cluster in which Sh.
K.K.Thomas's firm is also a member. Sh. N.D. Sharma requested Sh.
Lalit Thukral that he wanted to settle the matter with Sh. K.K.Thomas. On that Mr. Lalit Thukral
contacted Sh. K.K.Thomas and Mr. K.K.Thomas narrated the issue to Mr. Lalit Thukral and
requested him to get his money back from Mr. N.D. Sharma. On that Mr. Lalit Thukral asked to Sh.
N.D. Sharma who after discussion, agreed to return the amount of Rs. 3,50,000/- to Sh.
K.K.Thomas. On 24.06.2015, SH. N.D.Sharma sent a person with a packet containing Rs.
3,50,000/- to the office of the association of NAEC. But that that time Mr. Lalit Thukral was not
present at the office so he called Sh. P.N.Singh, Secretary of his association to receive the packet
from the said person and to send someone from the office to deliver the same to Sh. K.K.Thomas.
On that Page no. 10 Sh. P.N.Singh, Secretary of Garment Export Association, directed his Assistant
Sh. Brijesh Srivastava to take the packet and to deliver the same to Sh.K.K.Thomas. In the
meantime, Sh. K.K.Thomas was informed by Mr. Lalit Thukral telephonically that Sh. N.D.Sharma
will be returning the money on that day itself. After that on the same day i.e., 24.06.2015 when Mr.
K.K.Thomas was going to the Airport at near Hayat Hotel, Bhikaji Cama Palace, Mr. Brijesh Kumar
Shukla, gave him an envelope containing Rs. 3,50,000/-.
(xii)
The
mobile
phone
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(make
of
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& Anrs., 2015 (Vii) Slt 554 (10) ... vs . Cbi, 2011(3) Cc on 15 January, 2019
Samsung
Galaxy
S-5)
IMEI
No.
353295061231659/01 containing
Vodafone
Sim no. 9811013277, memory card was seized
from Sh. K.K.Thomas. The said mobile phone
was containing recorded conversation and the video recording. Though the video recordings were
done by Sh. Saukar Singh in his mobile phone and by Sh. Anurag Rahi in Sh. Jasbir Rawat's mobile
phone but later on they had transferred the said video recordings to Sh. K.K.Thomas's mobile and
deleted from their Page no. 11 mobile sets. The said mobile of Sh. Shaukar Singh has been damaged
while the said mobile of Sh. Jasbir Rawat has been lost.
(xiii) Apart from it, a transcription of telephonic conversation which took place between Sh.
K.K.Thomas and Sh. N.D.
Sharma was also prepared in the presence of independent witnesses. The analysis of CAF and CDR
and transcription of conversation corroborated the allegation levelled by the complainant Sh.
K.K.Thomas.
(xiv) The seized mobile handset in which conversations were recorded, was sent to CFSL for
examination and matching of voice samples of Sh. N.D. Sharma and Sh.
K.K.Thomas as well as for analyzing the video clips captured by Sh. K.K.Thomas. In the CFSL
report, it is opined that the recorded voices are the probable voice of the persons (Sh. N.D.Sharma
and Sh. K.K.Thomas) whose specimen voices were sent to CFSL for opinion. It is also opined that
the audio recording contained in the mobile phone and Page no. 12 micro SD Card revealed that the
audio recording are continuous and no form of tampering detected. The opinion regarding video
recorded in mobile phone and CFSL report was filed later on.
2. After completing investigation, charge-sheet was filed against accused N.D.Sharma for the
offences punishable under Section 7 and U/S13(2) r/w 13(1)(d) Prevention of Corruption Act, 1988.
3. Since, accused N.D.Sharma was a public servant at the time of commission of alleged offence,
necessary sanction under Section 19 of Prevention of Corruption Act, 1988, was obtained qua him by
the CBI.
4. Vide order dated 25.07.2017, this Court held that prima facie case is made out against accused
N.D.Sharma for the offences punishable under Section 7 and U/S 13(2) r/w 13(1)(d) of Prevention of
Corruption Act, 1988.
5. On 28.07.2017, formal charges were framed against the Page no. 13 accused person, wherein, he
pleaded not guilty and claimed trial.
6. In order to bring home the guilt of the accused, prosecution has examined as many as following
26 witnesses :-
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PW-1
Sh. K.K.Thomas is the complainant.
PW-2
Sh. Pardip Singh, Alternate Nodal Officer, Vodafone, Delhi
Circle. He exhibited the call detail records of mobile no. 9811013277, the Cell ID Chart, Certificate
U/S 65 B of Indian Evidence Act and Customer Application Form of the above mobile.
PW-3 Sh. Manas Ranjan Patnaik deposed regarding complaint made by him to CBI.
PW-4 Sh. K.L.Varghese, General Manager, M/s Avid Apparel Industries. He deposed about the
mobile SIM issued to complainant K.K.Thomas.
PW-5 Sh. Rakesh Kapoor conducted the internal inquiry in the bank regarding complaint made by
complainant, K.K.Thomas.
Page no. 14 PW-6 Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Ltd. He exhibited Cell ID Chart
and customer application form subscribed in the name of Canara Bank.
PW-7 Sh. Ajit Kumar Das. He deposed about the complaint made by complainant K.K.Thomas
against accused N.D. Sharma.
PW-8 Sh. Monish Baweja, Chartered Accountant, H.k.
Chaudhary & Company. He deposed that the account of the complainant was classified as NPA.
PW-9 Sh. Utkarsh Pandey, Canara Bank. He deposed that he has handed over certain documents to
CBI.
PW-10 A.K.Bhatnagar, Clerk, Canara Bank. He deposed that account of M/s Avid Apparel Industries
became NPA on 31.03.2015.
PW-11 Sh. Purshotam Chand, Regional Office, Canara Bank.
He deposed regarding the proposal of Branch regarding renewal, enhancement in packing credit
limit, term loan and foreign bill discounting Page no. 15 limit availed by M/s Avid Apparel
Industries.
PW-12 Sh. Sunil Kumar Jha, Manager, Canara Bank.
He identified the voice of accused N.D. Sharma in the transcription.
PW-13 Sh. Anurag Rahi, Field Officer, M/s Avid Apparel Industries. He stated about the incident
regarding withdrawal of amount from bank and giving of bribe to accused.
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PW-14 Sh. Amitosh Kumar, Scientific Officer. , CFSL, New Delhi. He exhibited his report, as Ex.
PW14/C.
PW-15 Sh. Saukar Singh, Driver of K.K.Thomas. He stated about the incident regarding withdrawal
of amount from bank and giving of bribe to accused.
PW-16 Sh. Jasbir Rawat, Manager, Finance of M/s Avid Apparel Industries. He stated about the
incident regarding withdrawal of amount from bank and giving of bribe to accused.
PW-17 Sh. Ajay Kumar Meena, Officer, Canara Bank.
He exhibited the statement of account Page no. 16 of M/s Avid Apparel Industries.
PW-18 Sh. Lalit Thukral deposed that he was not aware of any dealing between complainant
K.K.Thomas and accused N.D.Sharma before visit to CBI office.
PW-19 Sh. Brijesh Kumar Srivastava, Assistant Secretary in Noida Apparel Export Cluster. He
deposed that he delivered a packet to K.K.Thomas.
PW-20 Sh. Prem Narayan Singh, Secretary, Noida Apparel Export Cluster. He stated that he got a
packet delivered to K.K.Thomas as informed to him by President Sh. Lalit Thukral.
PW-21 Insp. H.C.Attri, ACB, CBI. He stated that he collected certain documents from Canara Bank
and he recorded statement of the witnesses.
PW-22 Sh. Harideesh Kumar B, Executive Director, Canara Bank. He passed the sanction order, Ex.
PW22/B.
PW-23 DSP B.S.Chauhan, IO of the case.
Page no. 17 PW-24 Sh. Neeraj Kumar, Security Guard, NDMC.
He witnessed the seizure of mobile phone, data cable, memory card and charger by CBI.
PW-25 Sh. Radhey Shyam, Superintendant, Education Department, Delhi Government.
He deposed about taking of the specimen voice of the accused.
PW-26 Sh. A.D.Tiwari, Senior Scientific Officer, Lodhi Road.
He exhibited his video examination report as Ex. PW 26/A.
7. The accused was examined U/S 313 Cr.PC. The accused denied to have demanded or taken bribe
from the complainant. Accused stated that he was innocent and a false FIR had been registered at
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the instance of complainant who had grudge against him and the CBI officials had falsely implicated
him in the present case as they were interested in the success of the case. Accused stated that
Disbursal & Ensuring end use of P C Loan funds(PCL) of Avid apparels were done at Okhla Branch
only and A K Bhatnagar was heading the Branch, whereas he was working at Circle Office, Nehru
Page no. 18 place, as DGM for SME credit growth of entire Delhi Circle. Avid apparels had filed PC
enhancement proposal from existing PC limit of Rs 6 crores to Rs. 7 crores, and even before filing
above proposal with Okhla Branch on 10/04/2014, Avid apparels was already using PC funds at Rs.
7.32 crores. Accused further stated that the Sanctioning Authority for above proposal was GM CAC
Committee, (and not the DGM). Even before Okhla Branch filing said proposal with SME Sulabh
Circle Office on 10/06/2014, Avid Apparels was already using PC funds at Rs.8.32 crores, therefore
GM CAC Committee ordered that Overdrawings in PCL be regularised immediately & confirmed.
The Branch Head & Complainant had not complied with GM committee orders & the instructions of
Circle Office, issued vide various letters and because of existence of such serious irregularities in the
account, Okhla Branch & K K Thomas had not enabled the SME Sulabh, Circle Office to proceed
further in the matter of proposal.
The Auditors reported that "Circle Office sought explanation from the branch on 27/10/2014 and
again on 15/12/2014 and even during this period, the branch further allowed Overdrawings,
Increasing PC liability to Rs.13.13 crores on 15/12/2014.(D-10).The auditors Declared the account as
NPA by issuing MOC on 20/04/2015, as the account was Overdrawn since 02.04.2014 and the
auditors signed the Branch Balance sheet on 20/04/2015 itself by taking Avid apparels account as
NPA. Accused further stated that the complainant cooked up false allegation about demand of
money for Page no. 19 preventing his account from declaring as NPA, whereas, he was already well
aware that, his account had already been declared as NPA by the Auditors with MOC on
20/04/2015. Accused stated that Auditor's report can not be modified by Bank officials, hence, there
can not be any occasion/motive for the alleged demand for preventing declaring his account as NPA.
Accused stated that K K Thomas was well aware that PC money is to be used only for purchase of
Raw Materials, however, even before receipt of PC enhancement proposal by SME Sulabh Circle
Office, Complainant in connivance with the Branch Officials, had misused/diverted PC funds for
purchasing property from M/S EMM Libas and for liquidation of Overdue Bills, and these unlawful
actions were concealed by them from SME Sulabh Circle Office Authorities. It is further stated that
complainant had fabricated audio/video recordings and cooked up false story of giving Rs 2 lac at
Pind Baluchi and created false witnesses of his own employees, who themselves had contradicted
each other's version. The Complainant, without any evidence cooked up another false allegation of
giving Rs 1.50 lac at Hotel Radisson,whereas, neither he visited said places nor demanded nor
accepted any such alleged money at any of the places. Accused stated that he was innocent in the
entire case.
8. The accused examined two witnesses in his defence.
DW-1 Sh. Prateek Prasad, Law Officer, Circle Office, Page no. 20 Nehru Place, Canara Bank, New
Delhi. DW 1 deposed that he had brought the HRM System generated documents.
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DW-2 Sh. Aditya Nath, Chief Manager, Canara Bank, Okhla Industrial Estate, Phase-III, New Delhi.
DW-2 produced certified copy of transaction Enquiry, statement of account, copy of statement
showing details of instruments used and copies of pass sheet for PC Account used by M/s Avid
Apparel.
9. I have heard Ld. Counsel for the accused as well as Ld. PP for CBI.
Contentions of Ld. Public Prosecutor for CBI 10 Ld. Counsel for CBI contended that accused N.D.
Sharma had demanded a bribe of Rs. 5 Lac from the complainant for his account not turning as NPA
and to avoid the negative CIVIL RATING with the bank. Ld. PP submits that accused N.D. Sharma
had taken a sum of Rs. 2 Lac on 19.05.2015 in the Hotel Pind Baluchi Restaurant Page no. 21 and a
sum of Rs. 1.5 Lac on 29.05.2015 in Hotel Radisson and the aforesaid fact of payment of taking bribe
by the accused is corroborated by different recordings and conversations in the mobile of
complainant. It is submitted that the CDR also shows that there has been continuous conversation
between the accused and the complainant during the relevant period.
11 Ld. Counsel for CBI contended that accused demanded bribe from the complainant and same was
recorded by the complainant in his mobile phone and CFSL report also supports the case of the
prosecution as the voice of accused was identified as a probable voice and further CFSL has also
opined that there has been no tampering in the said audio recording. Therefore, the prosecution has
succeeded in establishing that the accused has demanded bribe from the complainant.
12 Ld. Counsel for CBI contended that accused thereafter had called the complainant at Pind
Balluchi Restaurant and took bribe of Rs.2 Lac and the complainant and his employees has
supported the prosecution case in this regard. Further the video recording clearly establishes that
accused has taken bribe of Rs. 2 Lac at Pind Balluchi Restaurant on 19.05.2015.
13 Ld. Counsel for the CBI further contended that thereafter accused had demanded remaining
amount and a sum of Rs.1.5 Lac Page no. 22 was paid as bribe to the accused by the complainant in
Hotel Raddison Blue on 29.05.2015. Ld. Counsel for CBI submitted that the aforesaid incident have
been proved beyond reasonable doubt by the prosecution.
14 Ld. Counsel for CBI further contended that the testimonies of the witnesses including
complainant and other witnesses, are reliable and consistent. Ld. Counsel for CBI contended that
the bank officials have also conducted internal investigation and found the accused to have
committed the offence of demand and acceptance of bribe amount.
15 Ld. Counsel for CBI submitted that accused is a public servant and necessary sanction was
obtained by CBI before prosecuting the accused. Ld. Counsel for CBI contended that Pws have
proved the sanction order which is a speaking order containing all the necessary facts and it has
been proved by the prosecution that all the necessary documents were placed before the Competent
Authority and the Competent Authority has applied its mind and has granted sanction. Ld. Counsel
for CBI further submitted that the purpose of sanction is not to shield the corrupt officials but to
provide with a protection against false implication and hypertechnical approach need not be
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adopted.
16 Ld. Counsel for the CBI submitted that testimonies of the Page no. 23 defence witnesses do not
help the case of prosecution as the prosecution has established its case.
17 Ld. Counsel for CBI submitted that prosecution has also established the motive of accused for
demanding the bribe amount. Ld. Counsel for CBI submitted that account of complainant was
declared NPA for one day and the accused had informed the complainant that the company M/s
Avid Apparel Industries Pvt. Ltd. would be put in list of willful defaulters category and would get
negative CIBIL report which would debar the complainant's company from availing any credit
facility from any bank. Ld. Counsel for CBI submitted that accused has assured complainant that he
would help him in getting out of aforesaid problem and put pressure on the complainant to part
with money.
18 Ld. Counsel for CBI contended that the mobile phones which were used to record video were not
available, hence, secondary evidence was led. Ld. Counsel for CBI also contended that the minor
discrepancies in the testimonies of the witnesses do not go to the root of the matter and do not affect
the case of prosecution. Ld. Counsel for CBI contended that CDR collected from the service provider
also supports the case of the prosecution.
19 Ld. Counsel for CBI has relied upon the following judgments:Page no. 24 (1) S.Pratap Singh V. State of Punjab, AIR 1964 DC 72 (2) Yusuf Esmail Nagree V. State
of Maharashtra, 1968 Crl.LJ. 103 (3) Shafi Mohammad V. State of Himachal Pradesh, AIR 2018 SC
714 (4) State of Rajasthan V. Kalki, 1981 Crl. L.J. 1012 (5) Murari Lal V. State of MP, 1980 Crl. L.J.
396.
Contentions of Ld. Counsel for Accused 20 On the other hand, Ld. Counsel for accused contended
that complainant has lodged a false complaint against him in order to divert attention of the bank
towards the illegal acts done by the complainant. Ld. Counsel for accused further contended that
accused has been taking the benefit of over drawing the C.C Limit although he was not entitled for
the same during the period April 2014 to March 2015. It is also submitted by Ld. Counsel for
accused N.D. Sharma that complainant did not give any written complaint to the CBI and has
reported the matter to the bank officials and that too after lapse of 23 days and the complainant has
no reasonable explanation for the delay caused in lodging of the said FIR.
21 Ld. Counsel for accused further submits that complainant was aware of the fact that his account
has been ordered to be NPA by the auditors much before 19.05.2015, therefore, there was no Page
no. 25 occasion for complainant to request the accused to save his account from getting NPA when
the same had already been declared NPA and the very basis of the prosecution case that accused has
demanded the money for saving the account of the complainant from getting NPA, is, therefore,
without any basis. Ld. Counsel for accused further submitted that the testimony of PWs and the
relevant documents shows that there has not been any delay or lapse on the part of the accused
when proposal of the complainant for enhancing cash credit limit was placed before him.
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22 It is also submitted that even the CFSL report is not conclusive regarding voice of the accused,
hence, transcription filed by CBI cannot be relied upon. It is further submitted that the said video
recording allegedly done on some other phone which was stated to have been transferred to the
complainant's phone and authenticity of such recording cannot be relied upon. It is also submitted
that there is nothing on record to show that accused has taken Rs.2 Lac in Pind Baluchi Restaurant
on 19.05.2015 and had taken Rs. 1.5 Lac in Hotel Radisson on 29.05.2015.
23 Ld. Counsel for accused contented that accused has been falsely implicated by the complainant in
connivance with some of the bank officials who were having some enmity with the accused. It is
further submitted that there was no reason for the complainant to pay bribe to the accused on the
assurance that the accused would Page no. 26 prevent the account turning into NPA since the
account of the accused's company M/s Avid Apparel Industries had already been declared NPA on
29.04.2015. Therefore, there was no occasion for the complainant to pay bribe to the accused It is
further submitted that accused has himself taken undue advantage from the bank by overdrawing
CC Limit and further using the fund for the purpose other than permitted as per terms and
conditions of the CC Limit.
24 Ld. Counsel for accused contended that there has been major discrepancies in the testimonies of
the prosecution witnesses which makes the prosecution case totally improbable. It is submitted by
Ld. Counsel for accused that the prosecution has failed to establish that there has been demand on
the part of accused so much so that the prosecution failed to prove the audio recordings and
conversation transcription as the prosecution failed to produce the primary evidence.
25 It is submitted that the CBI has failed to prove the incident of giving and taking of bribe at Pind
Balluchi Restaurant as the prosecution failed to produce the original video recording and also did
not establish the loss of primary evidence to enable it to lead secondary evidence. It is submitted
that there is a gross contradiction in the prosecution case in as much as, as per the prosecution the
bribe amount was paid to accused between 1.30 pm to 2.00 pm and the said amount was withdrawn
by the complainant on the same day Page no. 27 from Canara Bank before 2.00 pm, while defence
has succeeded in proving that the amount of Rs. 4 Lac was withdrawn from Canara Bank at 4.00
pm, therefore, there was no question of giving any bribe to accused between 1.00 pm to 2.00 pm on
the same day.
26 Ld. Counsel for accused also contended that the CBI failed to prove the incident of giving bribe to
accused by the complainant at Raddison Blue Hotel. The CBI neither collected any CCTV footage
nor was able to establish the presence of accused and complainant, in Raddison Blue Hotel on
29.05.2015 through any reliable and cogent evidence.
27 Ld. Counsel for accused contended that the sanction order is not valid in the eyes of law in view
of the fact that the competent authority had not applied its mind while granting sanction.
28 Ld. Counsel for accused contended that the CBI has failed to establish the chain of custody of
mobile phones, SIM card and there remained every possibility of tampering with the electronic
evidence and the evidence produced by CBI in the form of electronic evidence is not admissible for
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the reason that it is not supported by Certificate U/s 65B of Indian Evidence Act and also for the
reason of want of safe custody of these articles.
29 Ld. Counsel for accused lastly contended that witnesses Page no. 28 of the prosecution are not
worthy of credence and cannot be relied upon.
30 Ld. Counsel for accused has relied upon the following judgments:(1) Panalal Damodar Rathi V. State of Maharashtra, 1980 SCC (Crl) 121 (2) Anand Sarup V. State,
1988 Crl. L.J 756 (3) State of Punjav V. Madan Mohal Lal Verma, VII 2013 SLT 180 (4) State V.
Devender Singh, 2013 (4) JCC 2635 (5) Rajpal V. State, IV 2104 DLT (Crl.) 523 (6) L.K.Jain V. State,
2005(3) JCC 1677 (7) C.Sukumaran V. State of Kerela, 2015(1) SLT 694 (8) Krishan Chander V.
State, 2016(1) SLT 215 (9) P.Satyanarayan Murthy V. Distt. Insp. Of Police & Anrs., 2015 (VII) SLT
554 (10) P.K.Gupta Vs. CBI, 2011(3) CC Cases (HC) 328 (11) Roshan Lal Saini & Anr. V. CBI, 2011(1)
JCC 102 (12) V.Sejappa V. State, 2016 (3) LRC 61 (SC) (13) Brij Mohan V. CBI, 2014 (1) LRC 316
(Del.) (14) Ram Singh &Ors V. Col. Ram Singh, AIR 1986 SC 3 (15) Anvar P.V. V. P.K.Basheer , AIR
2015 SC 180 (16) Subhash Chand Chauhan V. CBI, 2005(1) JCC 230 (17) Nilesh Dinkar Paradkar V.
State of Maharashtra, III 2011 SLT 35 (18) Ankur Chawla & Ors. V. CBI, 2014 (10) LRC 96 (Delhi)
(19) S.K.Saini V. CBI, 2015 (3) JCC 2169 (20) Chander Bhan V. State, 1998 (73) DLT 318 (21) State
V. Ravinder Singh, 1995 Crl.L.J. (22) Bishambhar Dayal Srivatava V. State of UP,
Cri.A.No.1566/1989 (23) Tirath Prakash V. State, 2001 V AD 752 (Delhi) (24) State of Karnataka V.
Page no. 29 Ameer Jan, VIII 2007 SLT 667 (25) CBI V. Ashok Kumar Aggarwal, IV 2014 SLT 760
(26) Raj kishor V. State, 2013 (4) LRC 262 (Delhi) . 26.10.2018 SANCTION TO PROSECUTE 31 The
first point for consideration is whether proper sanction was accorded for prosecuting accused
N.D.Sharma.
32 Here the testimony of PW-22 Sh. Harideesh Kumar B is relevant.
33 PW-22 Sh. Harideesh Kumar B deposed that on 04.11.2016, he was functioning as Executive
Director, Canara Bank, Head Office, Mangalore. He was Incharge of overall Administration with
particular reference to departments like, Human Resources, Industrial Relations and he was also
the disciplinary authority for Executives in the Bank for Deputy General Managers (scale-VI). Sh.
N.D. Sharma at that point of time was an Officer in scale-VI i.e. Deputy General Manager.
34 PW-22 stated that Bank's HR Wing had put up a Note before him pertaining to the case of Sh.
N.D. Sharma with regard to his having engaged in activities under P.C. Act amongst other cases.
After having gone through the papers placed before him and after Page no. 30 having applied his
mind on the documents and after having gone through in detail the report of internal investigation,
report received from the CBI, the deposition by the witnesses in the internal investigation report,
the CFSL report on the audio transcriptions, he concluded that there was a prima facie case against
Sh. N.D. Sharma that can be proceeded with by the CBI and accordingly he had granted the
sanction.
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35 PW-22 identified the signature of Sh. C.P. Giri, the then General Manager of HR Wing, at point
'A' on letter dated 11.11.2016, Ex. PW22/A vide which the sanction order was forwarded to CBI. PW22 proved the Sanction Order dated 04.11.2016, Ex. PW 22/B. PW-22 further stated that the
Sanction Order was then sent to HR Wing for doing the needful.
36 During cross-examination by Ld. Counsel for the accused, PW-22 stated that he did not give any
personal hearing to Mr. N.D. Sharma before granting sanction for his prosecution. PW-22 stated
that before Disciplinary Authority acts on the charge-sheet, detailed enquiry proceedings were
conducted wherein the charge-sheeted official was given an opportunity to present his case either by
himself or through his defence representative, which was followed in this case. PW-22 stated that he
did not go through the statement of account of M/s Avid Apparel as it was not required as he was
having detailed investigation proceedings before him. PW-22 stated that Page no. 31 there was draft
sanction order placed before him by HR Wing and further stated that the covering letter of the CBI
enclosing the draft sanction order, had specifically stated that the sanctioning authority should
apply its mind, analyze and come to an independent conclusion in the matter. PW-22 stated that he
had gone through the CFSL report regarding audio and he did not exactly recollect about the
opinion as given in CFSL report but he can tell after seeing the said report. In the CBI report, it was
mentioned that CFSL report of video clippings was awaited. PW-22 stated that he did not ask for the
CFSL report regarding video clippings. PW-22 also stated that the evidence was enough to grant
sanction for prosecution of Mr. N.D. Sharma.
37 PW-22 stated that he had gone through the statements of Mr. K.K. Thomas, Jasveer Rawat and
Utkarsh Pandey but he was not confirmed about the dates and at present was unable to recollect the
exact contents of those statements. PW-22 further stated that he had seen the statements of
aforesaid witnesses which were recorded during departmental proceedings.
38 PW-22 further stated that he had not seen the statements of Mr. K.K.Thomas dated 22.11.2016,
Ex. PW-22/DA, Jasveer Rawat dated 22.11.2016, Ex.PW-22/DB and Utkarsh Pandey dated
23.11.2016, Ex. PW22/DC at the time of grant of sanction order.
39 PW-22 also stated that he remember having gone Page no. 32 through the statements of different
witnesses recorded by CBI at the time of granting sanction for prosecution of Mr. N.D. Sharma.
40 PW-22 stated that he had seen the statement of Mr. M.R. Patnaik dated 26.07.2016,
Ex.PW22/DD, Mr. Lalit Thukral dated 29.07.2016, Ex. PW 18/A, statement of Mr. K.K.Thomas
dated 22.11.2016, Ex. PW 22/DA. However, about rest of the statements, he was unable to recollect
if those statements were placed before him at the time of grant of sanction.
41 PW-22 stated that he had seen the certificate U/S 65B of Indian Evidence Act, Ex. PW1/F at the
time of grant of sanction.
42 Section 19 of the Prevention of Corruption Act deals with the sanction necessary for prosecution .
Section 19(1) reads as under :-
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"Previous sanction necessary for prosecution. - (1) No court shall take cognizance of an offence
punishable under sections 7, 10, 11, 13 and 15 allged to have been committed by a public servant,
except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act,
2013](a) in the case of a person who is employed in connection with the affairs of the Union and is not
removable from his office save by or with the sanction of the Central Government, of that
Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not
removable Page no. 33 from his office save by or with the sanction of the State Government, of that
Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
43 Hon'ble Supreme Court of India in 2005 CRI. L.J. 2145 "C.S. Krishnamurthy Vs. State of
Karnataka, while dealing with the issue regarding validity of sanction, observed as under :
".......It is no doubt true that the sanction is necessary for every prosecution of public
servant, this safeguard is against the frivolous prosecution against public servant
from harassment. But, the sanction should not be taken as a shield to protect corrupt
and dishonest public servant."
"The sanction itself shows that there is something to be accounted by the accused.
When the sanction itself is very expressive, then in that case, the argument that
particular material was not properly placed before the sanctioning authority for
according sanction and sanctioning authority has not applied its mind becomes
unsustainable. When sanction order itself is eloquent enough, then in that case only
formal evidence has to be produced by the sanctioning authority or by any other
evidence that the sanction was accorded by a competent person with due application
of mind."
44 Hon'ble Supreme Court of India in State of Maharashtra Vs. Page no. 34 Mahesh G Jain,
reported in 2013 Cri. L.J. 3092, observed as under :
....... The learned trial Judge, as it seems, apart from other reasons has found that the
sanctioning authority has not referred to the elementary facts and there is no
objective material to justify a subjective satisfaction. The reasonings, in our
considered opinion, are absolutely hyper-technical and, in fact, can always be used by
an accused as a magic trick to pave the escape route. The reasons ascribed by the
learned trial Judge appear as if he is sitting in appeal over the order of sanction. True,
it is, grant of sanction is a sacrosanct and sacred act and is intended to provide a
safeguard to the public servant against vexatious litigation but simultaneously when
there is an order of sanction by the competent authority indicating application of
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mind, the same should not be lightly dealt with. The flimsy technicalities cannot be
allowed to become tools in the hands of an accused. In the obtaining factual matrix,
we must say without any iota of hesitation that the approach of the learned trial
Judge as well as that of the learned single Judge is wholly incorrect and does not
deserve acceptance.
45 It is clear from aforesaid judgments that entire material should be placed before the competent
authority and there should be application of mind by competent authority while granting sanction
for prosecution of the concerned person. It would be enough for the prosecution to prove that
sanctioning authority had all the relevant papers before it and it was satisfied that it was necessary
in the ends of justice to accord prosecution sanction. While granting sanction, it is not for
sanctioning authority to judge the truth of all the allegations made against the accused by insisting
or Page no. 35 calling for the records of the accused. It is also well settled that when the application
of the mind by the sanctioning authority to the facts consisting the offences is discernible exfacie
from the sanction order itself, there is no need for the sanctioning authority to depose before the
Court with regard to the satisfaction arrived at by him in the case.
46 The sanction order Ex. PW-22/B is signed by PW-22 Harideesh Kumar B. He has proved the said
sanction order. PW-22 Harideesh Kumar B has also proved the letter dated 11.11.16, Ex. PW- 22/A
vide which the sanction order was forwarded to CBI. PW-22, Harideesh Kumar B has explicitly
stated that he had gone through the papers before him and applied his mind on the documents and
after going through the report of internal investigation, the report from CBI, deposition of the
witnesses, CFSL report and the audio transcription, he concluded that there was prima facie case
against accused N.D.Sharma and accordingly granted the sanction.
47 Perusal of the sanction order Ex. PW 22/B shows that PW-22, Harideesh Kumar B had
considered the departmental report dated 03.07.2015 and the complaint, bank internal
investigation report, transcription of conversation held between K.K.Thomas and N.D.Sharma,
CFSL opinion and the statement of witnesses recorded during investigation and has applied his
mind.
48 Ld. Counsel for accused contended that during crossPage no. 36 examination, PW-22, Harideesh Kumar B stated that he had seen statement of number
of witnesses such as K.K.Thomas, Jasbir and Uttkesh Pandey which were recorded on 22.11.2016
and further he was also not having CFSL report though falsely stated that he has seen the said
reports. It is submitted that entire documents pertaining to this case were not put before the
Competent Authority and the Competent Authority has not applied its mind and the sanction order
is bad in the eyes of law.
49 Here it is noted that witness was having statement of witnesses recorded prior to 04.11.2016, the
conversation, report of internal investigation and the report received from CBI which was sufficient
to form opinion. Further the sanction order, details about the facts stated by PW-22, Harideesh
Kumar B. The sanction order is expressive and eloquent and, therefore, it cannot be said that the
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competent authority has not applied its mind. Further, it is also clear from testimonies of aforesaid
witness that sufficient material has been placed before competent authority. Few discrepancies are
likely to appear in statement of witnesses on account of lapse of time. Hon'ble Supreme Court in
State of Maharashtra Vs. Mahesh G Jain, has clearly observed that flimsy technicalities should not
be allowed to be raised. The contention of Ld. Counsel for accused that entire material was not
placed before Competent Authority is, therefore, without any merit.
50 Further, the contention of Ld. Counsel for accused that draft order and sanction order are same
and therefore it leads to inference that Competent Authority has not applied its mind, is also without
any basis. To support his arguments, Ld. Counsel for accused referred the judgment Page no. 37
passed by Hon'ble Delhi High Court in Ashok Aggarwal Vs. CBI. The judgment of Ashok Aggarwal
V/s CBI, is not applicable under the facts and circumstances of the present case as in that case
relevant documents were not placed before the Sanctioning Authority and further the draft order
and sanction order were found verbatim same. While in the matter in hand, sanction order speaks
about the fact of taking bribery by the accused and has also stated that elaborate report along with
supporting documents were placed before the competent authority. Further, from the testimonies of
PW- 22, it is clear that entire relevant material was placed before competent authority. The
contention of Ld. Counsel for accused is without any merit.
51 Thus under the facts and circumstances, it is clear the Sanction Order is valid order in the eyes of
law.
WHETHER PROSECUTION HAS SUCCEEDED IN PROVING THE GUILT OF ACCUSED BEYOND
REASONABLE DOUBT 52 Now, I turn to next issue whether prosecution has succeeded in proving
the guilt of accused beyond reasonable doubt.
53 Section 7 of the Prevention of Corruption Act reads as under :" Public servant taking gratification other than legal remuneration in respect of an
official act. - Whoever, being, or expecting to be a public servant, accepts or obtains
or agrees to Page no. 38 accept or attempts to obtain from any person, for himself or
for any other person, any gratification whatever, other than legal remuneration, as a
motive or reward for doing or forbearing to do any official act or for showing or
forbearing to show, in the exercise of his official functions, favour or disfavour to any
person or for rendering or attempting to render any service or disservice to any
person, with the Central Government or any State Government or parliament or the
Legislature of any State or with any local authority, corporation or government
company referred to in clause (c) of Section 2, or with any public servant, whether
named or otherwise, shall be punishable with imprisonment which shall be not less
than [three years] but which may extend to [seven years] and shall also be liable to
fine."
54 Section 13(1)(d) and (2) of Prevention of Corruption Act reads as under :-
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"13 Criminal misconduct by a public servant. - (1) A public servant is said to commit
the offence of criminal misconduct, (a)
(b)
(c)
(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; or
(e) .....
(2) Any public servant who commits criminal misconduct shall be Page no. 39
punishable with imprisonment for a term which shall be not less than [four years] but
which may extent to [ten years] and shall also be liable to fine."
55 It is well settled that for proving case beyond reasonable doubt, the prosecution has to prove the
following three aspects namely :a) demand of bribe by public servant.
b) Acceptance of bribe by public servant.
c) Recovery of bribe amount from public servant.
Demand of bribe by public servant :56 Now I consider the first point as to whether there has been demand of money on the part of
accused.
57 Here the testimonies of PW-1, Sh. K.K.Thomas, PW-3, Sh. Manas Ranjan Patnaik, PW-7, Sh. Ajit
Kumar Das, PW-12, Sh. Sunil Kumar Jha, PW-14, Sh. Amitosh Kumar, PW-23, DSP B.S.Chauhan,
PW-24, Sh. Neeraj Kumar and PW-25, Sh. Radhey Shyam are relevant for deciding the aforesaid
point.
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58 PW-1 Sh. K.K.Thomas deposed that he had been dealing in garment manufacturing business
since 1994-95. M/s Avid Apparel Industries consisted of two partners namely K. K. Thomas, myself
and his wife Mrs. Sheeba Thomas. The office of M/s Avid Apparel industries is situated at K-47,
Sector-11, Noida, UP and the Page no. 40 factory is at B-17, Sector-58, Noida.
59 PW-1 further deposed that the account of his firm M/s Avid Apparel Industries has been with
Canara Bank, Okhla Industrial Area, Fruits and Vegetable Market since 1989. PW-1 stated that M/s
Avid Apparel Industries was having Packing Credit Limit (PCL), Bill Negotiation Limit (BNL) and
LC Opening Limit (LCOL) at Canara Bank. In the year 2014, the limit was Rs. 6 Crore PCL, Rs. 8
Core BNL and Rs. 10 Lac LCOL at Canara Bank, Okhla Industrial Area, Fruits & Vegetable Market.
Some where in March-April, 2014, he got some good offer to enhance his business so he wanted to
purchase a new factory and renovate his existing factory and required enhancement in the existing
Packing Credit Limit (PCL), Bill Negotiation Limit (BNL) and L.C. Opening Limit (LCOL). They
applied to aforesaid Canara Bank for enhancement of aforesaid three limits and Term Loan for
purchase of new factory and renovation of the existing factory.
60 PW-1 further stated that the letter dated 20.07.2016 along with annexures, Ex.PW1/A was
written by him to AGM, Canara Bank, Okhla Industrial Estate, New Delhi Branch requesting for
enhancement of Working Capital Limits and for Term Loans, as mentioned therein. PW-1 further
stated that they applied for enhancement of their limits and term loan for purchase of new factory
and renovation of existing factory and they were under the impression Page no. 41 that they will be
getting the required limit and term loan sanctioned from the bank. Based on that to fulfill their
working capital limit they requested the branch to give them extra packing credit limit pending
enhancement which bank gave them and they utilized the amount. Thus the account was over
drawn.
61 PW-1 further stated that they were following with the bank on their proposal sent in February
2015 and they came to know that nothing has happened to their proposal and the bank advised
them to bring back the account to the normal limits. It means that if they had over drawn then they
would have to bring back the account to the normal limit as on 31.03.2015, which they did. Almost
for one year the application was pending with the bank. It is further stated that on 01.04.2015 they
got the sanction from the circle office of Canara Bank which only renewed the existing limit. It is
stated that there was no enhancement or term loan sanctioned on their loan application.
62 PW-1, K.K.Thomas further stated that somewhere in April 2015, the statutory auditor from the
RBI was auditing the Okhla Branch of Canara Bank, he pointed out that due to the over drawings
during 2014-2015 the account will be termed as NPA (non performing account), however he
advised, if circle office can ratify the branch actions i.e (the over drawings permitted during
2014-2015) the account will not go NPA. This information came to his knowledge from various
persons of the bank. PW-1 further stated that they started Page no. 42 discussing this issue with Mr.
N.D. Sharma, DGM, Canara Bank and requested how to come out from this problem. PW-1 stated
that they had many discussions and conversations on this and finally Mr. N.D. Sharma advised him
that there was nothing they can do on this and company will go NPA and then the recovery
procedure will be started.
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63 PW-1, K.K.thomas further stated that after some days, somewhere in 1st week of May, 2015 Mr.
N.D. Sharma, DGM, Canara Bank telephoned him and advised that he has some higher person from
Head Office who can take care of this matter if he satisfy his demands. PW-1 stated that this was the
time, he thought something was not right and he started recording the calls on the mobile. It is
stated that when he came to know about the NPA message he had written to Head Office, about his
company's position saying, as on 31.03.2015 his account was within the permissible limits and there
was no over dues or anything and it should not be considered as NPA. The reply he got from the
Head Office was that he should go to circle office on this matter.
64 PW-1, K.K.Thomas further stated that somewhere in 2nd week of May 2015, Mr. N.D. Sharma
telephoned him and advised him that the so called person from Head office is coming to his house
and he should meet him at his house. He also advised him to bring five lacs rupees. But the
complainant told him that it cannot be possible now. PW-1 stated that he went to his house in the
evening and waited Page no. 43 there for 20-25 minutes, but no third person came. So he left his
house. PW-1 stated that the next day morning, Mr. N.D.Sharma called him and advised him that the
person who was supposed to be coming to his house could not come, but he is coming to Nehru
Place and complainant should meet him at the Restaurant called Pind Balucchi at Nehru Place
around 1.30 pm with the stuff. PW-1 stated that he arranged some money from the bank and went to
Pind Balucchi restaurant. PW-1 stated that around 1.30pm Mr. N. D. Sharma came, they sat for
lunch and waited for the third person to arrive. But after half an hour the third person did not come.
They had their lunch and Mr. N.D. Sharma took two lac rupees, which he was carrying and left.
PW-1 stated that there were number of persons who were having lunch in the Pind Balluchi
Restaurant. PW-1 deposed that he reached at the Pind Baluchi in the car and his driver namely Sh.
Saukar was driving the car.
65 PW-1 stated that when he was having lunch with Mr. N.D. Sharma, his driver was outside the
restaurant. After having lunch they left and after 3-4 days Mr. N. D. Sharma called again i.e in 3rd
week of May, saying that everything was being taken care of and complainant should pay the
balance amount. PW-1, K.K.Thomas further stated that on 28/29.05.2015 they had an award
function at Radisson Hotel, Sec- 18, where Mr. N. D. Sharma came and took 1.50 lac rupees from
him. The account was classified as technical NPA for a day. After that Mr. N.D. Sharma called him to
say everything was normal in the account Page no. 44 and the balance amount he had to pay, but
that time he was in Israel to visit his client. PW-1 stated that on 10.06.2015 he met Mr. A. K. Das,
acting GM at Circle office, Canara Bank, Nehru Place and apprised him about what had happened
with the account and demand. PW-1 stated that he told Mr. A. K. Das that he was not interested in
lodging any case against Mr. N. D. Sharma, and whatever information he had given to Mr. A.K. Das
was only for bank information and he further told him that he wanted refund of his money which he
had paid to Mr. N.D. Sharma. PW-1 stated that he got back Rs. 3.50 lac from Mr. N. D. Sharma,
which was given to him when he was going to his home town and was there at Delhi Airport. The
money was given near to airport on road side by a person namely Mr. Brijesh who was from Noida
Apparel Export Cluster (NAEC).
66 PW-1, K.K.Thomas stated that on 30.06.2015 the bank people called him and in the presence of
Mr. A.K.Das, one Mr. Kapoor, DGM, Canara Bank, recorded his statement and got it signed. PW-1
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stated that he signed his statement after two days of recording of his statement. He gave a pen drive
to Mr. A.K.Das which contained the recorded conversation between Mr. N.D. Sharma and him.
PW-1 stated that they withdrew around Rs. 3.5-4 lac from Canara Bank, Okhla Branch and Mr.
Jasbir Rawat, his Finance Manager came to Nehru place to give the amount. Mr. Jasbir Rawat had
withdrawn the amount from the Canara Bank.
Page no. 45 67 While testimony of PW-1 was recorded, the malkhana assistant produced yellow
envelope sealed with the seal of CFSL with reference no "CFSL-2016/P-530/RC4/A/2016 marked as
Q1 and it contained memory card wrapped in a white paper in a brown envelope. PW-1 stated that
he can not identify whether the article wrapped in white paper is chip or memory card or any other
article. PW-1 stated that he did not know where from this article had come. The memory card was
marked as mark PW 1/1. The brown envelop has writing "one mobile handset of Samsung Glaxy S5."
68 PW-1 identified his signature on the said brown envelope at point A. PW-1 stated that the CBI
officials had taken his mobile phone and they sealed it in the brown envelop and took his signature
on brown envelope. The said mobile contained the recording of conversation between complainant
and accused Mr. N. D. Sharma. PW-1 identified his signatures on the seizure/sealing memo,
Ex.PW1/B. PW-1 stated that when his mobile was seized by CBI, there were two persons, one Mr. B.
S. Chauhan and one more person when he handed over his mobile to CBI alongwith data cable and
SIM card. PW-1 identified his signature on the voice recording memo dated 01.04.2016, Ex.PW1/C,
at point A. PW-1 identified his signature on voice identification cum transcription memo dated
25.07.2016, Ex.PW1/D vide which transcription of conversation lying in the mobile of complainant
was prepared. PW-1 identified his signature on Ex.PW1/D (colly) and stated that it was prepared in
CBI Office and Page no. 46 Sh. B. S. Chauhan and one more person was also present there. PW- 1
stated that he did not remember, If he had issued any certificate in support of conversation recorded
in his mobile phone. PW-1 identified his signature on production cum seizure memo dated
22.11.2016, Ex. PW1/E vide which which he handed over one certificate u/s 65 B of Indian Evidence
Act Ex. PW1/F, regarding various conversation in his mobile.
69 During examination of PW-1, the Malkhana Assistant had produced yellow envelop sealed with
the seal of CBI/ACB/ ND. PW-1 stated that he did not know if his signature are appearing at point
'A', 'B' and 'C'. The yellow envelope, Ex. PW 1/G was opened and an unsealed brown envelope was
found which contained a charger and mobile phone of Samsung in a white cover and same was
shown to PW-1 and PW-1 stated that the charger, Ex. PW1/H and the mobile phone, Ex. PW1/I did
not belong to him.
70 At the time of re-examination of the PW-1, complainant, the Malkhana Assistant produced yellow
envelope sealed with CFSL seal bearing CFSL reference no. CFSL-2016/P-530/RC 04(A) /2016 and
the same contained a mobile phone of make Samsung Galaxy S5 in Flip Cover and a data cable also.
The flip cover bear reference number "CFSL-2016/P-530 Ex Q1". PW-1 stated that the mobile phone
Samsung Galaxy S5 in Flip Cover, Ex. PW-1/J and data cable, Ex.PW1/K, belonged to him. The said
mobile phone had the recording Page no. 47 of conversation between himself and Mr. N. D. Sharma
and CBI official asked him to provide the said conversation hence he provided the said mobile
phone and data cable to CBI officials.
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71 During cross-examination PW-1 stated that on 09.04.2014, the PC liability of M/s Avid Apparel
was Rs.7.32 Crore approximately as shown at Point A in the bank statement, Ex.PW1/DX-1. PW-1
stated that on 09.04.2014, the sanctioned Packing Credit Limit of M/s Avid Apparel was Rs.6 Crore
as per document Ex.PW5/DX-3. PW-1 stated that his account was regularized as on 31.03.2015.
PW-1 stated that his account was not regularized as on 31.03.2015.
72 PW-1 stated that the next day morning Sh. N.D.Sharma called him and advised him that the
person who was supposed to be coming to his house could not come, but he is coming to Nehru
Place and he should meet him at the restaurant called Pind Balucchi at Nehru Place around 1.30 pm
with the stuff". PW-1 stated that he went to Pind Balucchi Restaurant around 1.30 pm. Mr. N.
D.Sharma came there. PW-1 stated that CBI official did not ask for any recording or any document
regarding award function organized by Noida Apparel Expoters Cluster at Radisson Hotel. CBI
officials did not take him to Radisson Hotel to identify the place. CBI official did not ask for any
CCTV footage from Radisson Hotel in his presence.
Page no. 48 73 PW-1 stated that the transcript Ex. PW 1/D was prepared after playing the
conversation. It took more than 5-6 hours in preparing the said transcript Ex. PW1/D. PW-1 stated
that he might have reached CBI office at about 11-11.30 am on the day when said transcript was
prepared and he remained there till 6-6.30 pm. 74 PW-3, Sh. Manas Ranjan Patnaik deposed that
he was working in Circle Office, Canara Office as General Manager, Recovery Wing, Head Office,
Bangalore, Stationed at Delhi, he was Incharge of Circle Office Delhi from 06.07.2015 to
09.08.2017. He has filed the complaint with CBI vide letter dated 23.11.2016, Ex. PW 3/A. PW-3
stated that the complaint dated 11.07.2015 was addressed to the Head of the Branch, CBI,ACB, New
Delhi and bears his signature at Point A and this was the same complaint which was sent to CBI. He
had only sent complaint dated 11.07.2015, Ex. PW-3/B to the CBI and later on copy of investigation
report might have been sent.
75 PW-3 deposed that when he joined the Circle Office on 06.07.2015, he came to know about the
complaint made by Mr. K. K. Thomas from Sh. Ajit Kumar Das, Dy. General Manager who was
Incharge of the Circle prior to him. PW-1 stated that he had seen the audio and the video as well as
the letter written by Sh. Ajit Das, DGM to Head Office in this regard. He had also gone through the
relevant office notes regarding the request of the party for renewal and enhancement of their credit
limits. Thereafter, on 08.07.2015 when he Page no. 49 received the instruction from Head Office to
file a complaint with CBI, he had filed the complaint on 11.07.2015. PW-3 exhibited the investigation
report as Ex. PW3/C.
76 PW-7,Sh. Ajit Kumar Das deposed that he was presently posted as General Manager at Circle
office, Canara Bank, Mumbai. PW-7 deposed that on 10.06.2015, Mr. K.K.Thomas made a
complaint. His complaint was that Mr. N.D. Sharma had demanded money from him to upgrade the
account from NPA to PA and that if his account is turned NPA, his name would be reported as
willful defaulter and it would reflect in CIBIL and he may not get loan from any bank. Mr. K.K.
Thomas had given 9 audio clips and 2 video clips regarding conversation between Mr. N.D. Sharma
and Mr. K.K. Thomas regarding demand of bribe by Mr. N.D. Sharma.
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77 PW-7 stated that he identified the voice of Mr. N.D. Sharma and of Mr. K.K. Thomas which was
recorded in audio clip and then he reported the matter to head office. He sent one copy of the audio
and video clips to head office after retaining one copy of the aforesaid audio clips and video clips.
PW-7 further stated that he sent letter dated 15.06.2015, Ex. PW7/A to the Executive Director,
Human Resource Wing, Head Office, Bangalore for necessary action.
78 PW-7 further deposed that Mr. Rakesh Kapoor, DGM Zonal Inspectorate Delhi had recorded
statement of Mr. K.K. Thomas, Page no. 50 part of Ex. PW3/C (colly), in his presence on
30.06.2015. PW-7 further deposed that he had seen the complaint dated 10.06.2015 lodged by Mr.
K.K.Thomas to him for the problems faced by him regarding his account. A complaint was given to
him by Mr. K.K.Thomas and same was forwarded by him to Head Office. The complaint given to
him by Mr. K.K. Thomas was not shown to him at the time of recording his statement in the Court
on 09.10.2017. The complaint dated 10.06.2015 must be in Head Office. PW-7 stated that he had not
annexed the complaint given by Mr. K.K. Thomas to him alongwith his report submitted to Head
Office.
79 PW-12 Sh. Sunil Kumr Jha deposed that he was posted as Manager in SME Sulabh, Canara Bank
Circle Office since August 2014. He was called by CBI in July, 2016. He met some CBI officials.
Some conversation was played on computer. He was asked to identify the voice of Mr. N.D.Sharma
if the same is in the conversation. After hearing the conversation, he told them that one voice was
appearing to be of Mr. N.D.Sharma. At that time 2-3 persons were there.
80 PW-12 stated that he signed on voice identification memo dated 25.07.2016, Ex.PW12/A when
the proceedings regarding identification of voices was over.
81 During PW-12's examination Malkhana Assistant produced yellow envelope sealed with the court
seal, Q1 'CFSLPage no. 51 2016/P-530/RC 4/A/2016'. Same was opened and another unsealed brown envelope
was found and same mentioned "one mobile handset of Samsung Glaxy S-5" and same contained
memory card wrapped in a white paper with marking as Mark PW 1/1. Same was played on the
laptop brought by Malkhana Assistant with write blocker. This memory card folder DCIM was
opened which contained three folders, "camera, cover camera and ND". All these folders contained
date of modification as 29.03.2016 at 18:53, 27.03.2016 at 10.37 and 29.03.2016 at 19:06
respectively. The memory card Mark PW1/1 contained no audio file. Thereafter, a CD kept in
unsealed cover on judicial record, was played on laptop brought by Malkhana Assistant. It contained
three folders Q-1 relevant, S-1 and S-2. Q-1 was opened and it contained two folders, phone memory
and SD Card. Phone memory folder contained a folder namely Call Recordings which contained 9
files.
82 PW-12 identified the voice of accused N.D.Sharma and stated that sentences Marked 'N' in
transcription memo , Ex. PW1/D are in the voice of N.D.Sharma. With regard to the fourth, fifth,
sixth, seventh and eight Voice Files, PW-12 stated that some of the sentences appear to be in the
voice of Mr. N. D. Sharma. The ninth Voice File had no sound.
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83 PW-14 Sh. Amitosh Kumar deposed that the letter dated 3668 dated 11.04.2016, Ex. PW14/A of
SP, CBI, ACB, New Delhi, was Page no. 52 received in the office of Director, CFSL, New Delhi, on
27.04.2016, by Sh. Mithlesh Jha, Crime Assistant. The case was allotted to him by HOD (Physics).
The seals on the exhibits were found intact. The copy of letter dated 11.04.2016, which contains
different endorsements by CFSL, is Ex. PW-14/B.
84 PW-14 stated that the said exhibits were opened by him for examination on 24.06.2016. The
exhibits were marked as "S-3", "S-1" and "S-2" by forwarding authority and were remarked as "Q-1",
"S-1" and "S-2" in the laboratory.
85 PW-14 stated that Exhibit "Q-1" contained a mobile phone of Make Samsung, along with Micro
SD card inserted in the mobile phone having questioned recorded conversation. Exhibit "S-1" and
"S- 2" contained Micro SD Cards having specimen voice recording of the persons. The questioned
and specimen voice recording were transferred to the instrument namely Speech Science Lab (SSL)
for examination. The questioned voice of suspected persons were segregated from their recorded
conversation and compared with the respected specimen voice.
86 The whole questioned recorded conversations and the specimen voice recordings were repeatedly
listened to compare the auditory analysis and thereafter some common clues were selected for the
spectrographic examination. After comparing and identifying Page no. 53 the questioned voice
marked as "Q-1 (1) (A), Q-1 (2) (A), Q-1 (3) (A), Q-1 (4) (A), Q-1 (5) (A), Q-1 (6) (A), Q-1 (7) (A), Q-1
(8) (A), Q-1 (9) (A) and Q-1 (10) (A)" and specimen voice marked as S-1 (1) (A) and it was opined
that questioned voice and specimen voice are similar and of the same person namely Sh. N.D.
Sharma, on the basis of Linguistics, Phonetics and Spectrographic examination. Similarly about the
questioned voice "Q-1 (1) (B), Q-1 (2) (B), Q-1 (3) (B), Q- 1 (4) (B), Q-1 (5) (B), Q-1 (6) (B), Q-1 (7)
(B), Q-1 (8) (B), Q-1 (9) (B) and Q-1 (10) (B)" and specimen voice marked as S-2 (1) (B), it was
opined that questioned voice and specimen voice are similar and of the same person namely Sh.
K.K.Thomas, on the basis of Linguistics, Phonetics and Spectrographic examination.
87 PW-14 stated that he prepared his opinion, which is signed by him and sent to CBI along with the
exhibits, which were sealed with his official seal and other details of examination is mentioned in his
Report dated 02.09.2016 as Ex.PW-14/C. Thereafter, all the exhibits were sealed with his official
seal and same were sent to SP, CBI, ACB, New Delhi, through proper channel. PW- 14 stated that the
Yellow envelope, parcel-1/Ex.Q-1, bears his signature at point 'A' and bears remnant of his CFSL
office seal. The yellow envelope was exhibited as Ex. PW-14/D. Brown envelope, Ex. PW14/E bears
his signature at point 'D' which has remnant of his CBI seal.
Page no. 54 88 During cross-examination PW-14 stated that it is correct that he got transcript along
with the exhibits. PW-14 deposed that the copy of transcript was consisted of 9 pages, Ex.
PW-14/DX-1. PW- 14 stated that out of the nine audio files containing recorded conversation, he
had chosen only three files for spectrographic examination. PW-14 stated that the CFSL Lab, CBI,
Lodhi Road, is not yet notified under Section 79A of Information & Technology Act and they are in
process of getting it notified.
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89 PW-14 further stated that he did not check the hash value of the mobile phone examined by him.
PW-14 stated that the recording in the mobile was original recording and it was in the hard disk of
the mobile. When the voice file is transferred from any electronic gadget to mobile phone, it is
transferred to memory card or to hard disk depending upon option selected in the phone. The
witness stated that he cannot comment if the recording in the mobile phone is the original recording
or is transferred from any other electronic gadget, since he did not examine this aspect.
90 PW-23 DSP B. S. Chauhan deposed that he was posted as DSP in ACB, CBI, New Delhi during
December 2013 to August 2016. PW-23 exhibited the FIR as Ex. PW23/A.
91 PW-23 stated that he seized mobile handset Make of Page no. 55 Samsung Galaxy S-5 IMEI no.
353295061231659/01 containing Vodafone SIM of mobile no. 9811013277, memory card and data
cable from Sh. K.K.Thomas, Managing Partner of M/s Avid Apparel Industries in presence of
witness Sh. Neeraj Kumar. He sealed aforesaid case property in an envelope Mark S-3 vide
seizure/sealing memo of mobile dated 01.04.2016, Ex.PW-1/B in presence of Neeraj Kumar and
K.K.Thomas and under their signatures.
92 PW-23 stated that transcription was prepared regarding conversation between K.K.Thomas and
N. D. Sharma contained in mobile handset which was sent to CFSL for examination. After
examination CFSL has prepared and sent a copy of conversation in a CD contained in mobile. At the
time of voice identification cum transcription memo, already Ex. PW 1/D (colly),Sh. Abhishek Vats,
Draftsman, Delhi Jal Board was present as independent witness who signed at Point C on all pages.
93 PW-23 identified the photo impression of signature of Sh. Jagroop.S.Gusinha, SP, CBI, New
Delhi on forwarding letter dated 11.04.2016 vide which exhibits marked as S-1, S-2 and S-3 collected
during investigation, were sent to CFSL.
94 PW-23 stated that he cannot tell exactly as to how many brass seals were used in the present case
but he was confirmed that more than one brass seals have been used in the present case. The Page
no. 56 brass seals did not have any number. PW-23 stated that he did not remember what was the
initial on the seal which he used and usually CBI is embossed on the seal. He was not familiar with
the fact that every year brass seals were prepared and number and year was also mentioned on the
said seals. On seeing Ex. PW1/B, the witness stated that it bear number of seal as 1/2015.
95 During cross-examination PW-23 stated that he had examined Purshottam Chand and his
statement was recorded. PW-23 stated that seized the letters dated 27.10.2014, 15.12.2014,
29.12.2014 and 05.01.2015. PW-23 stated that he cannot say if the aforesaid four letters have been
filed along with charge-sheet as charge-sheet has been filed by some other IO. PW-23 stated that he
had come to know that office of DGM, Canara Bank was regularly writing letters to the Branch
Office calling for the explanation as to why the Branch is permitting over drawings in the account
and further direction for regularization of account of M/s Avid Apparel. PW- 23 stated that he did
not take Certificate U/S 65 of Indian Evidence Act from complainant at the time of seizure of mobile
phone and he did not examine any of the official or employee of Pind Baluchi Restaurant. He stated
that he did not visit Pind Baluchi Restaurant and hence, he could not say if CCTVs are installed
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inside Pind Baluchi Restaurant. He did not prepare site plan of Pind Baluchi Restaurant and also
did not visit Radison Hotel hence he cannot say if CCTV were installed inside Radison Hotel. PW-23
stated that he did Page no. 57 not prepare the site plan of Radison Hotel.
96 PW-24 Sh. Neeraj Kumar deposed that he was posted as Security Guard in the office of NDMC,
Palika Kendra, New Delhi. PW-24 stated that he visited CBI office as his office had received a letter a
day before his visit for providing two witnesses for CBI proceedings. The witness stated that he did
not remember the date, month or year when he visited CBI office but it was one and half year ago.
PW-24 stated that he went to CBI office at CGO Complex and met CBI official Insp. Chauhan. There
he met K.K.Thomas and there was some staff of Insp. Chauhan. PW-24 stated that there statement
of Sh. K.K.Thomas was recorded by CBI and his mobile phone, data cable, memory card and charger
were kept in an envelope and it was sealed and seal was affixed on it. The seal was given to him by
Insp. Chauhan and he has brought the said seal.
97 PW-24 further stated that specimen voice of Sh. K.K.Thomas was recorded in a recording system
and he identified his signature at Point C on Ex. PW1/C. PW-24 stated that he was explained that
aforesaid articles were kept inside an envelope and his statement was recorded. PW-24 stated that
he did not know what proceedings were done. Vide Ex. PW1/B, seizure/sealing of articles, mobile,
data cable, memory card and charger were kept inside envelope in his presence. Statement was also
recorded. The recording system was not sealed by the CBI officials in his presence.
Page no. 58 98 PW-25 Sh. Radhey Shyam deposed that on 29.03.2016, he was posted as Head Clerk
in Food & Supply Department, Delhi government. PW-25 stated that on 29.03.2016, he was called in
the CBI office by Mr. Chauhan who had explained him that he had to record voice of some bank
official. PW-25 stated that Mr. Chauhan had got a chip through his staff members and inserted it in
recording system and got it checked that it was blank. Thereafter, he gave him some writing and
asked him to read and he recorded his voice. Thereafter, he played the recording system and he
heard his voice. Thereafter, Mr. Chauhan had given some writing on a paper to Mr. N. D. Sharma
and asked him to read. Mr. N.D.Sharma read the said writing and his voice was recorded. Thereafter
he played the recording system and PW-25 heard the voice of Mr. N.D.Sharma. Thereafter Mr.
Chauhan sealed the recording system in an envelope and took his signature on envelope. The chip
was inside the recording system. After sealing the envelope the brass seal was handed over to him.
PW-25 identified his signature at Point A on specimen voice recording memo dated 29.03.2016. The
specimen voice recording memo dated 29.03.2016 is Ex. PW 25/A. PW-25 produced the brass seal
which was kept in a sealed cover.
99 During examination of PW-25, a yellow envelope with the title "CFSL-2016/P-530/RC
4/A/2016"- parcel 3/Exhibit S-1 sealed with the seal of CFSL was produced from malkhana. Same
was opened Page no. 59 and same contained unsealed brown envelope which contained a 4 GB
memory card inside plastic pack.
100 PW-25 stated that the brown envelope, Ex.PW25/B bears his signature at Point A. He put his
signature on this envelope on 29.03.2016 in which a chip containing recording was kept. The
packing of memory card, Ex. PW25/C bear his signature at Point B. The memory card, Ex. PW25/D
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was kept inside the packing by CBI official in his presence. PW-25 stated that Inside the said
memory card, voice of Mr. N. D. Sharma was recorded on 29.03.2016.
ANALYSIS 101 As per prosecution, during Branch audit on 20.04.2015, statutory auditors classified
the account of M/s Avid Apparels as sub standard and submitted memorandum of change dated
20.04.2015 due to non ratification of over drawings, delayed renewal of the working capital limit on
31.03.2015 and return of discounted cheque of Rs. 20 Lac. The complainant met accused
N.D.Sharma and accused N.D.Sharma assured that one person from Head Office of the Bank can
help him out of this matter to make account performing assets if complainant pays a sum of Rs. 5
Lac. In the telephonic discussion between complainant and accused on 18.05.2015, there is demand
of Rs. 5 Lac and on 19.05.2015 a sum of Rs. 2 Lac were paid by complainant to accused in Pind
Balluchi Restaurant and Rs. 1.5 Page no. 60 Lac were paid by complainant to accused in Hotel
Raddison on 29.05.2015. The accused and complainant had number of telephonic discussions which
were recorded by complainant and it shows that accused demanded money. As per the prosecution,
the said conversation proves that there has been demand of bribe on the part of accused N.D.
Sharma. The aforesaid conversation has been recorded by the complainant himself from 13.05.2015
to 15.06.2015 in his mobile.
102 The prosecution sought to prove demand of bribe through conversation between accused
N.D.Sharma and complainant K.K.Thomas, recorded in mobile phone of complainant. The
prosecution played a CD, Ex.C-1, filed on judicial record in unsealed condition, to prove
conversation and transcription, Ex. PW-13/D. It is well settled that primary evidence need to be led
to prove a fact. Now the question arises as to whether prosecution succeeded in proving the audio
recording of conversations between complainant and accused, allegedly recorded in the the mobile
phone of the complainant. The facts as unfolded, will show that prosecution was not aware of the
custody of the said mobile phone and the recording therein, hence, played the CD, Ex.C-1, at the
time of recording of testimony of PW-12, Sunil Kumar Jha. The said CD, Ex.C-1 was lying on record
in unsealed condition.
103 It is noticed that PW-23, DSP B.S.Chauhan vide seizure Page no. 61 memo, Ex.PW1/B has
seized complainant's mobile phone Samsung Galaxy S-5 number 98110013273, Vodafone SIM Card
and memory card and data cable and sealed it in the presence of witnesses and the said envelope
was marked S-3 and it was mentioned on envelope "one mobile Handset of Samsung Galaxy S-5"
and it was sent to CFSL vide forwarding letter dated 11.04.2016, Ex.PW-14/A alongwith two more
parcels. The said mobile phone alongwith data cable as well as the SIM card and memory card were
marked to PW-14 Amitosh Kumar, Senior Scientific Officer (Physics), CFSL, New Delhi who gave his
report, Ex.PW14/C. The parcel Ex. S-3 when opened by PW-14, Amitosh Kumar contained only
mobile phone, SIM card and memory card and there is no mention of data cable in his report, Ex.
PW14/C. Further the micro SD Card marked Ex.Q1 (SD card) was further sent by PW-14 to Photo
Division for further analysis. The photo division has sent its report dated 15.02.2017, Ex. PW26/A to
CBI and Q-1 (SD) Card was sent back to Physics Department .
104 PW-14, Amitosh Kumar during his testimony stated that he prepared his opinion, which is
signed by him and sent to CBI with exhibits, which were sealed with his official seal. The report of
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PW-14 Amitosh Kumar is of 02.09.2017, which means mobile phone, SIM Card, Memory Card were
sent to CBI alongwith report dated 02.09.2017, Ex. PW14/C. However, there is nothing on record to
show that these articles were sent to CBI on 02.09.2017. The CBI/prosecution also does not say that
it received these articles Page no. 62 alongwith said report dated 02.09.2017.
105 There is also discrepancy in the statement of PW-14 and his report dated 02.09.2017,
Ex.PW14/C in as much as, PW-14 deposed before Court that after preparing his report he sent back
the articles to CBI in sealed packet along with his report while his report 02.09.2017, Ex.PW14/C
says that memory SD card was sent to photo division of CFSL and mobile phone along with micro
SD Card, Ex.Q-1 (SD) will be returned to forwarding authority on receipt of examination report from
photo division. It is not clear from record as to when memory card was received back by PW-14 and
when it was sent to CBI. Needless to say that data cable sent by CBI to CFSL alongwith other articles
was not mentioned in report dated 02.09.2017 of PW-14.
106 It is noted that yellow envelope with Mark Q-1 "CFSL- 2016/P-530/RC-4(A)/2016 was shown to
PW-1, Mr. K.K.Thomas, the complainant and it contained brown envelope which mentioned "one
mobile hand set of Samsung Galaxy S-5". However, the said envelope contained only memory card
Mark PW1/1 (Ex.13/A). While admittedly in envelope marked "one mobile handset of Samsung
Galaxy S-5" four articles were sent to CFSL i.e. mobile phone Samsung Galaxy S- 5, memory card,
SIM card and data cable, however, when the said envelope was opened in court it contained only the
memory card. PW- 1 stated that he cannot identity whether the articles wrapped in white Page no.
63 paper was chip of memory card or any other article.
107 Here it is noticed that on 31.01.2018 while recording testimony of PW-1, K.K.Thomas, he was
shown a mobile phone of Samsung, Ex.PW1/I and charger Ex.PW1/H which the PW-1, K.K.Thomas
stated, did not belong to him. It is not clear as to which mobile phone, Ex. PW1/I and charger,
Ex.PW-1/H were shown to the PW-1 on 31.01.2018 which the witness has denied. It is also not clear
to whom this mobile phone and charger belonged to and why it was shown to the witness, when it
did not belong to complainant.
108 Thereafter on 19.02.2018 CBI filed an application U/S 311 CrPC for reexamination of PW-1,
K.K.Thomas stating that mobile phone of complainant, K.K.Thomas, PW-1 could not be collected
from CFSL earlier and sought permission to reexamine PW-1, K.K.thomas to show him the mobile
phone. It is only then the CBI produced mobile phone, Ex.PW1/J alongwith data cable, Ex.PW1/K
on 20.02.2018 and shown to PW-1, K.K.Thomas and K.K.Thomas, PW-1 admitted it to be his mobile
phone. As per prosecution, this mobile and data cable was lying in CFSL. It is not clear as to how the
memory card separated from mobile phone when memory card, mobile phone, data cable and SIM
card were sent to CFSL in one envelope, bearing marking "one mobile handset of Samsung Galaxy
S-5".
Page no. 64 109 As per prosecution they collected mobile phone from CFSL vide letter dated
31.01.2018. The said facts shows careless approach of the prosecution as firstly they had shown a
mobile phone to PW-1, which did not belong to him and then they woke from sleep to find out that
mobile phone of complainant was lying with CFSL. Even the letter dated 31.01.2018 vide which the
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said mobile was collected by CBI, is not on record nor there is any other letter of CFSL to show when
mobile was sent back to CBI. There is a gross discrepancy in the custody of these articles. The doubt
regarding safe custody of these articles is further compounded, if PW-14, Amitosh Kumar is to be
believed that he sent the articles to CBI with his report dated 02.09.2017, then there was no
question of CBI collecting mobile phone of complainant from CFSL vide letter dated 31.01.2018.
110 It is also not clarified as to why no effort was made by the prosecution to collect the said mobile
phone at the time of filing charge-sheet or at the time when they had received a report from CFSL,
Physics Division and Photo Division. Even otherwise the memory card was found in separate
envelope and mobile phone and data cable in another envelope and further there is no mention of
SIM card in any of the packet.
111 It has already been discussed that the audio conversation as recorded in mobile phone of
complainant was not put to Page no. 65 complainant as the prosecution itself was not clear about
the place of custody of mobile phone of complainant and rather showed some other mobile phone to
complainant, which admittedly did not belong to him. The CD, Ex.C-1 containing conversation was
played. The CD, Ex. C-1 was in unsealed condition and was also not the primary evidence, hence,
cannot be relied upon.
112 Above discussion lays serious doubt on safe custody of mobile phone and memory card and does
not rule out altogether the possibility of tampering with the electronic evidence. The way custody of
mobile phone is handled also raises doubt as to whether it is same mobile phone which was allegedly
used to record audio conversation. Further it is also worthwhile recording here that the mobile
phone, Ex.PW1/J remained with complainant after recording conversation till 01.04.2016 (for about
nine months from the date of recording conversation) when it was seized by IO and during this
period audio and video clipping were copied to pen drive which was given to bank official by the
complainant, K.K.Thomas.
113 There is one more discrepancy. PW-15, Saukar Singh stated that he had seen the video in CBI
office when the CD was played. Statement of Saukar Singh U/S 161 CrPC was recorded on
22.06.2016. Admittedly, on 22.06.2016, the mobile phone and memory card were with CFSL which
was sent by CBI on 11.06.2016 and the packet was opened by CFSL on 24.06.2016. Therefore, how it
is Page no. 66 possible for PW-15, Saukar Singh to have seen the video on 22.06.2016 in the CD
when admittedly no CD was prepared by the CBI before 24.06.2016.
114 Here it is relevant to refer some judgments. In the judgment of Ram Singh Vs. Col. Ram Singh,
AIR 1986 SC 3, it is clearly observed that while relying upon the recorded conversation, the
possibility of tampering should be clearly ruled out.
115 In the judgment of S.M. Katwal Vs. Veerbhadra Singh, Hon'ble Supreme Court did not rely upon
the CD containing voice recording when the same remained unsealed during the course of inquiry
and investigation and in view of the report of the Forensic Expert that authentication of tape
recorded conversation was not possible in the absence of phone call details and original calling
device.
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116 In the judgment, Suraj Singh Ram Vs. Dutt T Gulab Rao Phalkey and Ors., Hon'ble Supreme
court observed that no reliance can be placed on translated conversation as the voice recorder was
not subjected to analysis.
117 Further, in the judgment of Nilesh Dinkar Paradkar Vs. State of Maharashtra, Hon'ble Supreme
Court observed that evidence of voice identification is at best suspect, if not wholly unreliable and
Page no. 67 accurate voice identification is much more difficult then visual identification. It is prone
to such extensive and sophisticated tampering, doctoring and editing with the reality can be
accordingly replaced by fiction, therefore, the Court have to be extremely cautious basing
conversation purely on the voice identification.
118 In the matter S.Pratap Singh V. State of Punjab, AIR 1964 SC 72, the Hon'ble Supreme Court has
observed that the fact that the tape recordings are susceptible to tampering is no ground to reject the
same. It is further observed that rejection of said evidence is appropriate in a case where there is
well grounded suspicion about its genuineness.
119 In the matter of Yusuf Esmail Nagree V. State of Maharashtra, 1968 Crl.LJ. 103, the Hon'ble
Supreme Court has observed that if a statement is relevant, an accurate tape record of the statement
is also relevant and admissible. The time and place and accuracy of the recording must be proved by
the competent witness and the voice must be properly identified. One of the features of magnetic
tape recording is the ability to erase and re-use the recording medium. Because of this facility of
erasure and reuse, the evidence must be received with caution. The Court must be satisfied beyond
reasonable doubt that the record has not been tampered with.
120 In the matter of Murari Lal V. State of MP, 1980 Crl. L.J.
Page no. 68 396, the Hon'ble Supreme Court has observed that there is no rule of law, nor any rule
of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert
must never be acted upon, unless substantially corroborated. But, having due regard to the
imperfect nature of the science of identification of handwriting, the approach should be one of
caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence
must be considered. In appropriate cases, corroboration may be sought and cases where the reasons
for the opinion are convincing and there is no reliable evidence throwing a doubt, the
uncorroborated testimony of a handwriting expert may be accepted. There cannot be any inflexible
rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight.
121 Law is well settled as discussed above and it is clear that proper chain of custody of mobile
phone/electronic evidence need to be established and any possibility of tampering should be ruled
out in view of susceptible nature of electronic evidence as the same can be easily tampered with the
help of modern gazettes.
122 In view of the above discussion and the settled law, I am unable to place any reliance on mobile
phone, Ex.PW1/J containing alleged audio conversations, the transcription of which is Ex. PW13/A.
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123 Under the facts and circumstances, it can safely be Page no. 69 concluded that the prosecution
has utterly failed to prove the audio conversation/transcription, Ex.PW-13/A. The prosecution thus
failed to prove demand of bribe by accused.
ACCEPTANCE 124 Now, turning to the next question whether there is acceptance of money on the
part of the accused.
125 Here, the testimonies of PW-1, K.K.Thomas, PW-2, Pardip Singh, PW-13, Sh. Anurag Rahi,
PW-14, Sh. Amitosh Kumar, PW-16, Jasbir Singh and PW-17, Ajay Kumar Meena are relevant.
126 The testimony of PW-1 and PW-14, have already been discussed in detail, hence is not being
repeated for the sake of brevity.
127 PW-2 Sh.Pardip Singh, Alternate Nodal Officer, Vodafone, Delhi Circle exhibited the production
cum seizure memo dated 18.04.2016 as Ex. PW2/A and Customer application form in the name of
M/s Avid Apparel Industries, for 43 mobile connections provided to Company M/s Avid Apparel
Industries including connection number 9811013277, driving license, ID of Mr. K.K.Varghese as Ex.
PW-2/B (colly).
128 PW-2 identified his signature on letter dated 08.04.2016, Ex.PW2/C written to DSP
ACB/CBI/New Delhi at Point A. PW-2 exhibited call details of mobile number 9811013277 from
13.05.2015 Page no. 70 to 15.06.2015 as Ex. PW-2/D. Certificate U/S 65 B of Indian Evidence Act, as
Ex. PW-2/E (colly). The letter dated 09.06.2016 along with Cell ID Chart is exhibited as Ex. PW 2/F
(colly).
129 PW-13 Sh. Anurag Rahi deposed that he was working in M/s Avid Apparel Industries and
looking after the field work for the last four years. PW-13 deposed that he knew Sh. Jasbir Rawat
who was looking after finance and documentation in M/s Avid Apparel Industries and Sh. Shaukar
Singh who was driver of Sh. K.K.Thomas. PW-13 stated that on 19th May, perhaps in 2016, he went
to Canara Bank at Okhla Industrial Estate for some work of M/s Avid Apparel Industries and there
he met Mr. Jasbir Rawat who was already present there. Mr. Jasbir Rawat told him that he would
have to go to Nehru Place but he did not disclose him the purpose to visit Nehru Place. Mr. Jasbir
Rawat had withdrawn some amount from the Canara bank. PW-13 stated the he did not know how
much amount he had withdrawn. The money was withdrawn from the account of M/s Avid Apparel
Industries. PW-13 stated that they went to Nehru Place on bike. Mr. Jasbir Rawat talked to Mr.
Saukar Singh on mobile and asked him to meet them. In the mean time Mr. Jasbir Rawat had also
talked to Mr. K.K.Thomas. Mr. Shaukar Singh also arrived there. PW- 13 stated that Mr. Jasbir
Rawat told him that Mr. K.K. Thomas would come out from Pind Baluchi Restaurant, Nehru Place
and he had to make video. He was not informed by Mr. Jasbir Rawat as to whose video he had to
make. PW-13 further stated that Mr. Jasbir Rawat Page no. 71 asked him to make video saying that
the person who would be accompanying Mr. K.K.Thomas knows him. PW-13 stated that he made
video by mobile of Mr. Jasbir Rawat. PW-13 stated that Jasbir Rawat initially had asked him to
make video and said that he could not make video because the person who would be accompanying
Mr. K.K.Thomas knows him. Thereafter, he along with Mr. Jasbir Rawat went at the first floor of
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Pind Balunchi Restaurant. PW-13, Again said that they went at first floor of building opposite Pind
Baluchi Restaurant and as soon as Mr. K.K.Thomas along with one person came out of Pind Baluchi
Restaurant , he made video of about one minute.
130 PW-13 stated that Mr. Jasbir Rawat had already handed over cash to Mr. Shaukar Singh who
was near Sona Sweets which was opposite to Pind Baluchi Restaurant. PW-13 further stated that as
soon as K.K.Thomas along with one person came out. Shaukar Singh met him and handed over a
thick packet to K.K.Thomas. Mr. K.K.Thomas then handed over the said packet to the person who
was accompanying Mr. K.K.Thomas. PW-13 further stated that after shooting video, he returned the
mobile to Jasbir Rawat. Thereafter, he along with Jasbir Rawat came back to Canara Bank and there
he dropped Mr. Jasbir Rawat and proceeded for his work.
131 PW-13 stated that when he was shooting video Mr. Jasbir Rawat was beside him. PW-13 stated
that about one-two years have Page no. 72 passed, hence he did not remember exactly the year when
this incident happened.
132 During testimony of PW-13, a memory card, Mark PW-1/1 was played on laptop and the
memory card folder DCIM was opened which contained three folders, "camera, cover camera and
ND". All these folders contains date of modification as 29.03.2016 at 18:53, 27.03.2016 at 10.37 and
29.03.2016 at 19:06 respectively. The memory card Mark PW1/1 contained no audio file. The file
'ND' contained two video files with both the files having modification dates as 29.03.2016 at 19.06.
The first video file was played.
133 PW-13 stated that he had shooted the video which was shown to him. The witness identified Mr.
K.K.Thomas who was appearing in the video but he could not dentify the person who was
accompanying Mr. K.K.Thomas. PW-13 was shown the second video which was also played and
witness stated that he had not shooted the said video.
134 During cross-examination by Ld. PP, PW-13, Anurag Rahi stated that CBI official has recorded
his statement U/S 161 CrPC, Ex. PW-13/B. PW-13 stated that he did not state the date to the CBI
official as CBI official did not ask him the date when he shooted the aforesaid video. PW-13 denied
the suggestion that CBI official had asked him the date when he shooted the said video and he told
the Page no. 73 date to be 19.05.2015.
135 During cross-examination by Ld. Counsel for accused, PW-13 stated that they reached Nehru
Place at about 2 pm and he reached at Canara Bank, Okhla Industrial Estate at about 12 pm. PW- 13
stated that they stayed in bank for about one and half hour. PW-13 stated that he had stated to the
CBI official at the time of recording of his statement that Mr. Jasbir Rawat talked to Mr. Shaukar
Singh on mobile and asked him to meet them and in the meantime Mr. Jasbir Rawat had also talked
to Mr. K.K.Thomas. PW-13 stated that CBI official did not ask him to hand over any mobile.
136 PW-15 Saukar Singh deposed that he was working as Driver for Mr. K.K. Thomas two and half
years ago. PW-15 identified accused N.D. Sharma. PW-15 stated that he had seen accused N.D.
Sharma as he had gone to give Diwali gift to bank officials in the bank. PW-15 further stated that
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about 4-5 years back, he went with Mr. K.K. Thomas from Noida to Nehru Place. Mr. Thomas told
him that Mr. Rawat, Accountant of M/s Avid Apparel Industries, would give him a packet and he
should take that packet and that Mr. Rawat would meet near Pind Balluchi, Nehru Place. PW-15
stated that he dropped Mr. K.K. Thomas at parking. Mr. Rawat and Mr. Anurag met him outside
Pind Balluchi restaurant and asked him to come with them. They went at the first floor of building
opposite Pind Balluchi restaurant. PW-15 stated that they told him that Mr. K.K. Thomas directed
them to make Page no. 74 a video. He was not knowing why they were to make a video. After 10-15
minutes, he got a phone call from Mr. K.K. Thomas and he asked him to hand over the packet which
he was carrying, to him. PW-15 further stated that when he was on the stairs of Pind Balluchi
restaurant, he saw Mr. Thomas alone was coming and he handed over packet to him. Thereafter, Mr.
Thomas went back inside Pind Balluchi restaurant and thereafter he went near his car, which was in
the parking.
137 PW-15 further stated that Mr. Rawat had also asked him to make video and he made 5-10
seconds video. It is further stated that in the meantime, he received a phone call from Mr. K.K.
Thomas. Thereafter, he put his mobile in the camera switch on condition, in his pocket. Mr. K.K.
Thomas had seen that video and asked him to send the same through whatsapp on his mobile
phone. PW-15 stated that mobile phone through which he shooted the video, went out of order four
years ago. PW-15 further stated that he did not know whose video he was to shoot and was not even
told whose video he was to shoot but they asked him to make video. He opened the camera of his
mobile phone and started shooting video when he was going towards Pind Balluchi restaurant.
138 While recording testimony of PW-15, the Memory Card, Ex. PW-13/A, was played on the laptop
brought by Malkhana Assistant. This memory card folder DCIM was opened which Page no. 75
contained three folders, "camera, cover camera and ND". All these folders contained date of
modification as 29.03.2016 at 18:53, 27.03.2016 at 10.37 and 29.03.2016 at 19:06 respectively. The
file 'ND' was opened which contained two video files with both the files having modification dates as
29.03.2016 at 19.06. The second video file was played. PW-15 stated that he had seen the video and
this video was shooted by him by his mobile phone and Mr. K.K. Thomas is seen coming down the
stairs in the said video.
139 During cross-examination by Ld. PP, the witness stated that CBI officials had interrogated him
and had recorded his statement. PW-15 stated that CBI officials did not ask him the date, month or
year of the aforesaid incident, hence, there was no occasion for him to tell them date, month or year
of the incident. PW-15 stated that CBI Officials had correctly recorded his statement U/S 161 Cr.PC,
Ex. PW-15/A.
140 During cross-examination by Ld. Counsel for accused, PW-15 stated that he reached at Nehru
Place near Pind Baluchi Restaurant at about 11 am-12 pm. Mr. K.K.thomas after leaving the car at
parking, proceeded to Pind Baluchi Restaurant and K.K.Thomas had told him earlier that
complainant was going to Pind Baluchi Restaurant. PW-15 further stated that CBI officials had
asked him to hand over the mobile phone but he told them that his children had misplaced.
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Page no. 76 141 PW-16 Jasbir Rawat deposed that he was working as Manager (Finance) since 2011
in M/s Avid Apparel Industries and his duties consisted of documentation and banking work of the
said firm. PW-16 stated that on 19.05.2015, he had been asked by Mr. K.K.Thomas to withdraw Rs. 4
Lac from the bank account of M/s Avid Apparel Industries in Canara Bank, Okhla Industrial Estate.
Mr. K.K.Thomas had asked him to hand over to him Rs.2 Lac and accordingly he went to Nehru
Place to hand over the said money to Mr. K.K.Thomas. PW-16 stated that he was accompanied with
Mr. Anurag on 19.05.2015 on his bike and when they reached near Pind Baluchi Restaurant they
met Saukar Singh. He handed over Rs. 2 Lac to Mr. Saukar Singh which were in a yellow packet.
There they waited for 20-25 minutes for Mr. K.K.Thomas and N.D.Sharma. Mr. Saukar Singh was
standing opposite Pind Baluchi Restaurant and he and Anurag went at first floor of the building
opposite Pind Baluchi Restaurant. When Mr. K.K.Thomas and N.D.Sharma were coming out from
Pind Baluchi Restaurant, Mr. Anurag had shooted video of these persons from his mobile phone.
Mr. K.K.Thomas had already instructed him to shoot video when he had left office at about 12.00
noon.
142 PW-16 further stated that Mr. K.K.Thomas had told him at about 12 noon on 19.05.2015 that
complainant had to give Rs.2 Lac to N.D.Sharma or to any person if accompanying them. PW-16
further Page no. 77 stated that he had handed over Rs. 2 Lac in packet to Mr. Saukar Singh and after
sometime Saukar Singh who was standing at the ground opposite Pind Baluchi Restaurant, received
a call and he went towards Pind Baluchi Restaurant. He had seen Saukar Singh going inside Pind
Baluchi Restaurant and after some time Saukar Singh came back. PW-16 deposed that he had not
seen Mr. Saukar Singh giving the aforesaid packet to any one. After sometime Mr. K.K.Thomas and
Mr. N.D.Sharma were seen coming out of the Pind Baluchi Restaurant through stairs. When they
were coming out through stairs, Anurag had shooted the video through PW-16's mobile. The said
video clip was sent to Mr. K.K.thomas through whatsapp by him in the evening. PW-16 further
stated that he did not shoot video himself from his mobile phone as N.D.Sharma was knowing him.
PW- 16 stated that his mobile went out of order. PW-16 further stated that the yellow packet was
with N.D.Sharma when N.D.Sharma and K.K.Thomas were coming out from Pind Baluchi
Restaurant.
143 During cross-examination by Ld. Counsel for accused, PW-16 stated that he reached in the
Canara Bank at about 10-11 am, He withdrew the money from the bank at about 1.30 pm and
reached Nehru Place at about 2.00 pm. He had withdrawn the amount from Current Account.
144 PW-16 stated that his mobile phone was not seized as the same was lost some time after he
withdrew the money. He could Page no. 78 not say whether it was lost after 2 months, 4 months, 6
months of the date he withdrew the money. He did not lodge any FIR regarding loss of his mobile
phone. He did not give any intimation to the police regarding this. PW-16 stated that when his
mobile phone was lost, SIM was inserted in the mobile phone. PW-16 stated that he did not
remember whether he got new SIM card issued or that the phone was lost with SIM card or without
SIM card. He had taken new mobile phone after loss of earlier one but he did not remember when
he had purchased the new mobile phone. PW-16 stated that he could not even tell the year in which
he had purchased the new mobile phone. IO did not ask for the bill of purchase earlier mobile
phone, which was lost or the subsequent mobile phone, which he had purchased. IO did not ask any
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kind of certificate regarding authenticity of video, which was shooted in his mobile phone. PW-16
stated that he sent the video to Mr. K.K. Thomas through whatsapp. PW-16 stated that IO did not
seize any record regarding use of mobile data to show that aforesaid video was sent from his mobile
phone to Mr. K.K. Thomas's mobile phone.
145 PW-17 Ajay Kumar Meena deposed that on 22.06.2016 he was posted in Canara Bank Branch at
Okhla Industrial Estate, New Delhi as an Officer and his duties were to deal with advances and retail
lending. PW-17 stated that he had handed over letter dated 22.06.2016 along with enclosures i.e.
Certificate under Banker's Book of Evidence Act and statement of account of M/s Avid Apparel of
Page no. 79 account no. 0348201001564 for the period 01.05.2015 to 31.05.2015, to CBI officials.
PW-17 stated that he had generated the statement of account of M/s Avid Apparel from computer.
Since he had taken the print out of the aforesaid statement of account from computer, hence, he
verified it to be true copy. M/s Avid Apparel had withdrawn a sum of Rs. 4 Lac on 19.05.2015 and
the said entry is appearing at page no. 12 of statement of account and is at Point B. PW-17 exhibited
the letter dated 22.06.2016 along with enclosures, Ex. PW 17/A (colly).
146 During cross-examination by Ld. Counsel for the accused, PW-17 stated that he was not sitting
on cash counter during May, 2015 and had not made the said entry regarding withdrawal of amount.
He was not personally maintaining account of M/s Avid Apparel. PW-17 stated that he could not say
as to who had withdrawn the said amount of Rs. 4 Lac and the time when the said amount was
withdrawn from the bank. PW-17 stated that it is correct that cash withdrawal in their bank was
reflected in computer and the statement of account reflects debit and credit entries besides balance.
PW-16 further stated that it is correct that complete details of particular cash withdrawal
transaction are available in the system generated report of the bank.
147 The testimony of DW-2, Aditya Nath is also relevant. DW-2 Aditya Nath, Chief Manager, Canara
Bank, Okhla Industrial Estate, Phase-III, New Delhi produced the certified copy of Page no. 80
Transaction Enquiry of Rs.4 Lac on 19.05.2015 of M/s Avid Apparel Industries from their current
account no. 0348201001564. DW-2 stated that the said amount was withdrawn at 03:49:17 pm
from Canara Bank, Okhla Industrial Branch, New Delhi. DW-2 exhibited the system generated
document authenticated by him as Ex. DW2/A.
ANALYSIS 148 The case of the prosecution regarding acceptance of bribe amount is that accused
had called the complainant at Pind Balluchi Restaurant on 19.05.2015 stating that a high level
person from Head Office would be visiting them at Pind Balluchi Restaurant, Nehru Place and a
meeting was arranged at about 1.00 pm. PW-15, Saukar Singh, driver of K.K.Thomas, complainant
reached Pind Balluchi Restaurant alongwith complainant. Sh. Jasbir Rawat, another employee of
K.K.Thomas had withdrawn Rs. 4 Lac from current account no. 0348201001564 of M/s Avid
Apparel Industries, Canara Bank, Okhla Industrial Estate and reached at Pind Balluchi Restaurant
with Anurag, the Field Officer of complainant's company. A packet containing a sum of Rs. 2 Lac
carried by Jasbir Rawat was handed over to Saukar Singh. When K.K.Thomas telephoned Saukar
Singh to hand over the packet at the gate of Pind Baluchi Restaurant, the same was handed over to
K.K.Thomas. K.K.Thomas went inside the Pind Balunchi Restaurant and handed over the packet of
Rs. 2 Lac to accused N. D. Sharma and when both these persons, accused and Page no. 81
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complainant were coming out from Pind Baluchi Restaurant. PW-13 Anurag had captured a video of
the person accompanying the complainant at the time of complainant K.K.Thomas and accused
coming out from Pind Baluchi Restaurant, through the mobile phone of Jasbir Rawat. Saukar Singh
through his mobile phone also captured a video in which accused N.D.Sharma is visible having
packet which contained Rs.2 Lac. As per prosecution case, bank statement of M/s Avid Apparel
Industries shows that on 19.05.2015, Rs. 4 Lac were withdrawn before 2.00 pm and out of these, Rs.
2 Lac were given to accused N.D.Sharma by the complainant between 1.30 pm to 2.00 pm on
19.05.2015.
149 Second incident as per prosecution case is that on 29.05.2015, N.D. Sharma came at Hotel
Raddison Blu, Noida, UP and on his demand K.K.Thomas handed over Rs. 1.50 Lac to accused
N.D.Sharma. K.K.Thomas recorded the said conversation between accused and complainant
regarding the aforesaid bribe demand/transaction.
150 Firstly, there is a huge discrepancy regarding the time when the money was withdrawn by Jasbir
Rawat from Canara Bank, Okhla Industrial Area to give it to K.K.Thomas, who further gave this
money to accused N.D.Sharma. As per complainant, the transaction of giving the bribe amount has
taken place between 1.30 pm-2.00 pm and Rs. 4 Lacs were withdrawn by his employee Jasbir Rawat
from Page no. 82 account no. 0348201001564 of M/s Avid Apparel Pvt. Ltd. at Canara Bank, Okhla
Industrial Area on 19.05.2015 and out of said Rs.4 Lac, Rs. 2 Lac were given to him by his driver
Saukar Singh at the gate of Pind Balluchi Restaurant which he had given to accused N. D.Sharma
when they were inside Pind Balluchi Restaurant between 1.30 pm to 2.00 pm. 151 PW-16, Jasbir
Rawat stated that he had withdrawn Rs. 4 Lac from the said Bank from the account of M/s Avid
Apparel Industries and handed over Rs. 2 Lac to Saukar Singh in a packet. PW-16 clearly stated that
he withdrew the money at about 1.30 pm from the said bank and reached Nehru Place at 2.00 pm.
152 The defence witness DW-2 Aditya Nath, Chief Manager, Canara Bank, Okhla Industrial Estate,
Phase-III, New Delhi brought certified copy of Transaction Enquiry regarding withdrawal of Rs.4
Lac on 19.05.2015 from current account no. 0348201001564 of M/s Avid Apparel Industries. The
said witness categorically stated that the said amount was withdrawn on 19.05.2015 at 03:49:17 pm
from Canara Bank, Okhla Industrial Branch, New Delhi. He exhibited the system generated
document authenticated by him as Ex. DW2/A.
153 The said witness was not cross-examined by Ld. PP on this point. Not even a single suggestion
was given to the said witness that the amount was withdrawn before 1.30 pm or before 2.00 pm.
Page no. 83 Therefore, from the testimony of DW-2 Sh. Aditya Nath, Chief Manager, Canara Bank
and Ex.DW2/A, it stands established that the amount of Rs. 4 Lac was withdrawn from account
number 0348201001564 in the name of M/s Avid Apparel Industries on 10.05.2015 at 03:49:17 pm.
The aforesaid fact demolishes the prosecution case that Jasbir Rawat withdrew the amount of Rs. 4
Lac from Canara Bank at 1.30 pm to 2.00 pm and came to Pind Balluchi Restaurant and gave a
packet containing Rs.2 Lac to Saukar Singh, who gave it to complainant and complainant gave these
Rs. 2 Lac to accused N.D.Sharma.
154 Further, even if it is believed that packet was handed over to N.D.sharma or N.D.Sharma was
seen carrying a packet it is not established by prosecution that the said packet contained Rs. 2 Lac.
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The description of the currency notes is not given by the complainant and the investigation agency
made no inquiry in this regard. Further, it appears very uncommon that a person would be carrying
Rs. 2 Lac in a packet in his hand in the busy place like Nehru Place.
155 Secondly, it needs to be mentioned that there is serious discrepancy regarding the date of
transaction/incident. The date of incident at Pind Balluchi Restaurant as per prosecution case is
19.05.2015. However, the prosecution witness PW-1, the complainant did not state the date when
transaction has taken place and the other witness PW-15, Saukar Singh also did not specify the date
of said Page no. 84 incident and could not even tell the month or year of transaction.
156 PW-15 Saukar Singh stated that transaction has taken place 4-5 years back. His testimony was
recorded on 28.05.2017. If PW-15 is to be believed, the transaction has taken place in the year 2012
or 2013. The said witness during cross-examination by Ld. PP on this point, stated that CBI initially
did not ask him the date, month or year of the said incident. Hence, there was no occasion for him to
tell them, the date, month or year of the incident. The witness categorically denied that he had told
to CBI officials that the incident had occurred at Pind Balluchi Restaurant in the month of May,
2015. The other witness Anurag Rahi, PW-13 although stated the date of incident as 19.05.2016 but
the said witness also categorically stated that he did not state to the IO that he shooted a video on
19.05.2015. PW-13 did not state the year of incident correctly. He further stated that CBI officials
did not ask him the date.
157 Besides aforesaid major discrepancies, there are certain other discrepancies which seriously
affect the prosecution case.
158 PW-15 Saukar Singh stated that video was shooted through his mobile phone and sent to the
mobile phone of K.K.Thomas through whatsapp and his mobile phone went out of order four years
ago and again stated that he did not remember when it went out of order. He also stated that he was
not aware as to whose Page no. 85 video he was to shoot.
159 It is noticed that statement of Saukar Singh was recorded on 28.11.2017 and the video is of
19.05.2015 and if the mobile phone of PW-15 went out of order four years ago then there was no
possibility of shooting video on 19.05.2015 through the said mobile. During cross-examination by
Ld. Counsel for accused the said witness stated that he had told to the CBI official that his children
had misplaced the mobile phone.
160 PW-16 Jasbir Rawat stated that Anurag Rahi had shooted the video of these persons from his
mobile phone when N.D.Sharma and K.K.thomas were coming out of Pind Balluchi Restaurant and
the said video clip was sent to K.K.Thomas by him in the evening. The said witness also stated that
his mobile went out of order.
161 During cross-examination PW-16 Jasbir Rawat stated that his mobile phone was not seized as
same was lost some time after he withdrew the money. The said witness failed to state when it was
lost. He stated that he did not lodge any FIR regarding loss of mobile phone nor gave any
information to the police regarding this. The witness went on to say that he did not remember if the
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phone was lost with SIM card or without SIM card. The said witness failed to state that when it went
out of order or whether it was repaired again or why the witness has not handed over it to CBI.
Page no. 86 162 The prosecution has failed to produce the primary evidence i.e. mobile phones
containing video and failed to prove that any video was shooted through any mobile phone. Even the
number and make of the said mobiles have not come on record. Needless to say that the video which
was played in the court was in the memory card of phone of complainant K.K.Thomas which was
allegedly sent to him through whatsapp. The said video has not been proved as per the requirement
of law. The prosecution failed to establish loss of mobile phone of Saukar Singh, PW-15 and Jasbir
Rawat, PW-16. No proper Certificate as per Section 65B of Indian Evidence Act has been given in
support of the said videos and not even mobile numbers, make of mobile phones through which
aforesaid videos were shooted, is on record.
163 It has already been discussed at length that memory card cannot be relied upon for the reason of
want of its safe custody and possibility of tampering.
164 Further, the incident of Pind Baluchi Restaurant is of 19.05.2015 and the said mobile has
remained with the complainant till 01.04.2016 when it was handed over to the CBI. It cannot be said
that mobile was not operated upon and remained intact throughout this period.
Page no. 87 165 Further, the certificate given by the complainant purportedly U/S 65B of Indian
Evidence Act, Ex. PW1/F does not inspire any confidence and is not as per Section 65B of the Indian
Evidence Act.
166 There is also discrepancy in the statement of witnesses.
167 PW-13, Anurag Rahi stated that Jasbir Rawat had handed cash to Saukar Singh and as soon as
K.K.Thomas alongwith one person came out, Saukar Singh met him and handed over a thick packet
to K.K.Thomas and K.K.Thomas then handed over the said packet to the person who was
accompanying K.K.Thomas.
168 While PW-15, Saukar Singh stated that he was asked by K.K.Thomas to hand over the packet
which he was carrying and when he was on the stairs of Pind Balluchi Restaurant he saw
K.K.Thomas alone coming and he handed over the packet to him and thereafter K.K.Thomas went
back to Pind Balluchi Restaurant and the witness went near his car which was in parking.
169 PW-1 K.K.Thomas stated that he arranged some money from bank and went to Pind Balluchi
Restaurant around 1.30 pm. They sat for lunch and waited for third person to arrive but after half an
hour, the third person did not come and he gave money to accused N.D.Sharma.
Page no. 88 170 The witnesses have given different statements and it is clear that PW-13, Anurag
Rahi has stated contrary to the version of PW-1, K.K.Thomas and PW-15, Saukar Singh regarding
handing over of packet to accused N.D.Sharma.
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171 Further, it is noted that as per prosecution case, Rs. 1.5 Lac were paid by the complainant to the
accused in Raddison Hotel on 28/29.05.2015. There is only oral evidence of the complainant
regarding said incident. Neither there is any detail of currency notes given by complainant to the
accused nor there is any other detail of the transaction which allegedly took place in Raddison Hotel.
The alleged person from Head Quarter did not meet the complainant on 19.05.2015 when he
allegedly met N.D.Sharma in Pind Balluchi Restaurant and when he allegedly parted with a sum of
Rs.2 Lac nor talked to him nor anything was done by the accused for complainant, then there was no
valid reason for the complainant to pay further Rs. 1.5 Lac to the accused in Raddison Hotel.
However, it is also not clear as to why the complainant did not got recorded any video of giving or
taking of bribe money in Raddison Hotel when he was well aware of transaction in advance although
allegedly shooted video of earlier incident of giving bribe. Further, in the testimony of PW-1, it is not
clear as to the place in the said Raddison Hotel where the said amount was paid. CBI also did not
make any effort to get CCTV footage either from Pind Baluchi Restaurant or from Raddison Hotel
Page no. 89 where the alleged transactions had taken place. PW-1 also did not give any detail of time
and place of giving of bribe to N.D. Sharma, in Raddison Hotel, Sector-18.
172 There is some glaring contradictions in the testimonies of complainant, K.K.Thomas, PW-1, the
complainant.
173 During examination in court, PW-1 stated that he was called by accused N.D.Sharma at his
home and the complainant had visited the house of accused as someone from the Head Office was to
come to his house. In the second week of 2015, he went to the house of accused and waited for 20-25
minutes but no third person came and in the next day of morning, he visited Pind Baluchi
Restaurant.
174 This is a clear improvement in the case of the prosecution as no such incident has been alleged
by the prosecution nor is a part of statement U/S 161 CrPC of the complainant. Here it is also noted
that during entire testimony of PW-1, there is no mention of taking photos/videos of Pind Balluchi
Restaurant incident.
175 One more fact needs to be mentioned is that the complainant did not approach CBI or any law
enforcing agency to complain about demand of bribe. The complainant had enough time to report
the matter to law enforcing agency but kept quiet and Page no. 90 reported the matter to bank
official on 10.06.2015 and the bank also did not bother to report the matter immediately to CBI or
any other law enforcing agency, rather conducted its in-house enquiry and matter was reported to
CBI only 26.02.2016. There is considerable delay in reporting the matter. Further CBI also did not
take pain to enquire about CCTV Footage, if available, in Pind Balluchi Restaurant and Hotel
Raddison Blue to get the video of giving and taking of bribe amount. Further, the electronic evidence
collected by CBI lost its significance because of shoddy manner the custody of electronic evidence
was handled.
176 Ld. PP relied upon the judgment of Hon'ble Supreme Court in Shafi Mohammad V. State of
Himachal Pradesh, AIR 2018 SC 714. Hon'ble Supreme Court has observed that the applicability of
procedural requirement under Section 65B (4) of the Evidence Act of furnishing certificate is to be
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applied only when such electronic evidence is produced by a person who is in a position to produce
such certificate being in control of the said device and not of the opposite party. In a case where
electronic evidence is produced by a party which is not in possession of a device, applicability of
Section 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under
the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the
person who is in possession of authentic evidence/witness but on account of manner of proving,
such document is kept out of consideration by the court in Page no. 91 absence of certificate under
Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus,
requirement of certificate under Section 65B(h) is not always mandatory.
177 In the matter of State of Rajasthan V. Kalki, 1981 Crl. L.J. 1012, Hon'ble Supreme Court has
observed that in the depositions of witnesses there are always normal discrepancies, however,
honest and truthful they may be. These discrepancies are due to normal errors of observations,
normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at
the time of the occurrence, and the like. Material discrepancies are those which are not normal, and
not expected of a normal person.
178 The aforesaid judgments are not applicable to the facts and circumstances of present case when
prosecution failed to prove the loss of primary evidence and safe custody of electronic evidence. In
view of the above discussion, I conclude that prosecution has failed to establish that accused has
demanded and accepted bribe amount from the complainant.
RECOVERY OF THE TAINTED AMOUNT 179 The last issue which need to be dealt with is whether
prosecution succeeded in establishing recovery of bribe amount or Page no. 92 return of bribe
amount to complainant.
180 The testimonies of PW-1, K.K.Thomas, PW-18, Lalit Thukral, PW-19, Brijesh Kumar Srivastava
and PW-20, Prem Narayan Singh are relevant for deciding this issue.
181 The testimony of PW-1 has already been discussed in detail, hence is not being repeated for the
sake of brevity.
182 PW-18 Lalit Thukral deposed that he deal in garment export business in the name and style of
M/s Twenty Second Miles and was in the said business for the last 35 years. PW-18 stated that he
was Executive Member of Apparel Export Promotion Council (AEPC). He was President of Noida
Apparel Export Cluster (NAEC). He knew Mr. K.K. Thomas, who was a Member of Noida Apparel
Export Cluster (NAEC). PW-18 stated that he knew N.D. Sharma, who was present in Court. PW-18
further stated that he was residing in the same locality, where N.D.Sharma was residing.
183 PW-18 stated that he got a call from CBI office and he was informed by CBI officials regarding
dispute between Mr. N.D. Sharma and K.K. Thomas. CBI officials informed him that Mr. N.D.
Sharma had taken some money from Mr. K.K. Thomas. PW-18 stated that he knew Mr. N.D. Sharma
for the last about 2 years as they met some time in Club. PW-18 stated that he knew Mr. P.N. Singh,
who has been Secretary General of NAEC for the last 8 years and also Page no. 93 knew Mr. Brijesh
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Kumar Srivastav, who has been Office Bearer of NAEC for the last 4 years.
184 During cross-examination by Ld. PP for CBI, PW-18 stated that CBI has made some enquiry
from him regarding dealing between Mr. N.D. Sharma and Mr. K.K. Thomas and he told them that
he did not know about any dealing between these two persons. CBI did not record his statement.
PW-18 stated that the contents of statement U/S 161 Cr.PC,Ex. PW18/A were never told by him to
CBI officials.
185 PW-19, Brijesh Kumar Srivastava deposed that he is working as Assistant Secretary in Noida
Apparal Export Cluster (NAEC) since April 2003. Mr. Lalit Thukral is the President of NAEC and he
know him well. Mr. P.N. Singh is Secretary General of NAEC and he also know him well. He know
Mr. K.K. Thomas. He is one of the Member of NAEC. Mr. K.K. Thomas is running business of ready
made garments and is having a factory. PW-19 stated that he was getting annual subscription from
Mr. K.K. Thomas. Otherwise, he had never been associated with Mr. K.K. Thomas relating to any
other payment. PW-19 stated that he did not know dealing of K.K.Thomas with any bank official.
186 During cross-examination by Ld. PP for CBI, PW-19 stated that CBI officials had called him in
CBI office and interrogated Page no. 94 him. CBI had interrogated him with regard to a packet.
PW-19 stated that he had delivered a packet to Mr. K.K. Thomas, which was delivered by some one
in the office of NAEC. Mr. P.N.Singh, their Secretary General, had asked him to deliver a packet to
Mr. K.K. Thomas and he delivered the said packet to Mr. K.K.Thomas near Hotel Hyatt Regency.
Before delivering the said packet to Mr. K.K. Thomas, he had talked to Mr. K.K. Thomas on his
mobile phone to know his location and he told him that he was going to Airport and packet may be
delivered to him near Hyatt Regency. PW-19 stated that he knew Mr. K.K. Thomas as he is Member
of NAEC. He knew Mr. K.K. Thomas since year 2013.
187 During cross-examination by Ld. Counsel for accused, the witness stated that he did not know
what was inside the said packet.
188 PW-20 Prem Narayan Singh deposed that he was working as Secretary General, Noida Apparel
Export Cluster (NAEC). PW-20 stated that he knew Mr. Lalit Thukral, who is President of NAEC
and he also knew Mr. K.K. Thomas, who was Director of M/s Avid Apparel. PW-20 stated that in the
month of May-June, 2015, his President Mr. Lalit Thukral, informed him that a person would come
to him with packet and said packet is to be delivered to Mr. K.K. Thomas. Some one had delivered a
packet to him and he directed his Assistant, Mr. Brijesh Srivastava, to deliver the said packet to Mr.
K.K. Thomas. Mr. Brijesh Srivastava had delivered the said packet to Mr. Page no. 95 K.K. Thomas.
189 During cross-examination by Ld. Counsel for the accused, PW-20 stated that the size of the
packet must be of file size. He did not know what was inside the said packet. There could be fabric
inside the said packet as it was soft and it might have contained some samples and hence he thought
it should be immediately delivered to Mr. K.K. Thomas and hence, he got it delivered to Mr. K.K.
Thomas at the earliest.
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190 Ld. Counsel for CBI re-examined the witness and PW-20 stated that since the contents of the
packet were not asked to him in the chief examination, hence, he did not state anything about the
contents in his chief examination. I had roughly stated about the contents of the packet but he was
not sure what was inside the said packet.
ANALYSIS 191 In nutshell the prosecution case regarding recovery/return of the bribe amount is
that on 10.06.2015 complainant made a complaint to the Punjab National Bank and accused
N.D.Sharma got afraid of consequences. Accused N.D.Sharma approached Mr. Lalit Thukral,
President of Noida Apparel Export Cluster (NAEC) of which K.K.Thomas's firm was member and
Lalit Thukral talked to Page no. 96 K.K.Thomas and on 24.06.2015 accused sent a person alongwith
packet containing Rs.3.50 Lac to the office of NAEC. Since Lalit Thukral was not in office, he asked
P.N.Singh and his associate to receive the said packet and send someone to get it delivered to
K.K.Thomas and the said packet was taken by P.N.Singh, and his Assistant Brijesh Srivastava
delivered the said packet to K.K.Thomas.
192 Sh. Lalit Thukral, PW-18 did not support the prosecution case and stated that he had been
informed about the dispute between N.D. Sharma and K.K.Thomas by CBI officials and was not
aware of any dealing between K.K.Thomas and N. D.Sharma before his visit to CBI office. PW-18
went on to say that his statement U/s 161 CrPC PW-1 was not recorded by CBI. PW-18 denied the
prosecution case regarding N.D.Sharma contacting him, his talking to PW- 1K.k.Thomas and
transaction of Rs.3.50 Lac. The witness did not support the prosecution case.
193 PW-20 Sh. Prem Narayan Singh deposed that a packet was delivered to him in the month of
May-June, 2015 and same was delivered to K.K.Thomas by his Assistant Brijesh Srivastava,
however, the said witness stated that the packet must be of file size and there could be fabric inside
the said packet as it was soft and it might PW-1 contain some samples. PW-20 when re-examined by
Ld. PP stated that he had roughly stated about contents of the packet and was not sure what was
inside the said packet.
Page no. 97 194 The prosecution failed to establish that any conversation had taken place between
accused N.D.Sharma and K.K.Thomas with Lalit Thukral regarding return of money. PW-19, Brijesh
Kumar Srivastav and PW-20, Prem Narayan Singh stated that packet was delivered to the
complainant, however, the complainant did not state about such packet but stated that he got
Rs.3.50 Lac. The prosecution failed to establish as to what was inside the said packet or that it
contained Rs.3.50 Lac, rather PW-20, Prem Narayan Singh stated that there was some soft material
inside the packet which could be fabric/sample and he did not know what was inside it. It is not the
case of the CBI that the said recovered amount was seized by CBI. There is no details of the
government currency notes consisting of Rs. 3.50 Lac, which was allegedly returned to the
complainant. The prosecution failed to establish that accused N.D.Sharma had sent this packer as
from the testimonies of PW-19 and PW-20 but it is not clear as to who had sent the alleged packet
which was delivered to complainant.
195 There is further discrepancy in the testimonies of the witnesses, as PW-19, Brijesh Srivastava
stated that he had delivered the packet to accused N.D.Sharma near Hyatt Regency while
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K.K.Thomas, PW-1 stated that he got Rs.3.50 Lac near airport. The place of return of money is also
disputed as both these places have different locations and Hotel Hyatt Regency, can by no stretch of
Page no. 98 imagination can be said to be near to the airport. Thus considering the totality of facts
and circumstances, I conclude that the prosecution has failed to establish recovery/return of the
alleged bribe amount.
196 Pondering over the ongoing discussion, I am of the considered opinion that prosecution has
failed to bring home guilt of accused N.D.Sharma beyond all reasonable doubt, accordingly, I hereby
acquit him from all the charges.
ARVIND
KUMAR
Announced in the open court
on 15.01.2019
Digitally signed by
ARVIND KUMAR
Date: 2019.01.15
13:17:43 +0530
(Arvind Kumar)
Special Judge - CBI
PHC/New Delhi
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