Delhi District Court
Cbi vs Radhey Shyam Sharma Etc (3)(Trap) on 19 March, 2026
IN THE COURT OF SUSHANT CHANGOTRA
SPECIAL JUDGE (P.C. ACT) (CBI)-22, ROUSE AVENUE
COURT COMPLEX, NEW DELHI.
Case No. : 214/2019
RC No. : 8A/2010/ACU-V/CBI/ND
CBI Vs : Radhey Shyam Sharma & Ors
U/s : 120-B IPC & 11 & 12 of PC Act
CNR No. : DLCT11-001238-2019
Date of Institution : 29.07.2013
Date of Judgment reserved on : 09.03.2026
Date of Judgment : 19.03.2026
Brief Details Of The Case
Offence complained of
or proved : 120-B IPC and 11 & 12 of
PC Act, 1988
Name of the accused : 1. Radhey Shyam Sharma
S/o Sh. Rameshwar
Sharma R/o Flat no.
A-601, IRWO, Westend
Tower, Sector-47, Sohna
Road, Gurgaon, Haryana.
2. Raj Kishore Gupta
S/o Sh. Gauri Shanker
Gupta R/o E-109, Japyee
Greens, Greater Noida,
201306.
3. Lavina Gupta
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D/o Dr. S. Saran
R/o E-109, Jaypee
Greens, Greater Noida,
201306.
Plea of the accused : Pleaded not guilty
Final Order : Acquitted
JUDGMENT
1. The brief facts of the case as stated in the
chargesheet are that an FIR bearing no. RC-8(A)/2010 CBI/ACU-
V/New Delhi was registered against accused Radhey Shyam
Sharma i.e. Director (Provisioning), Ministry of Home Affairs,
New Delhi, directors of M/s Anjani Technoplast Ltd. (M/s ATL)
i.e. Raj Kishore Gupta and Ms. Lavina Gupta, Sh. Bhuwanish
Kumar i.e. DGM (Marketing), M/s ATL and unknown officials of
MHA as well as against M/s Anjani Technoplast Ltd.
2. It is alleged that accused Raj Kishore Gupta was
dealing in supply of hardware i.e. ballistic protection products,
armoured panels etc., to the defence and central para forces. He
alongwith his wife accused Lavina Gupta, Bhuwanish Kumar and
others were indulging in corrupt practices with several public
servants of defence and paramilitary forces by offering illegal
gratification and gifts to them and thereby they were able to secure
contracts.
3. The Ministry of Home Affairs (MHA) floated
Tender No. U-II.794/2009-10 dated 03.07.2009 for procurement
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of 59,000 light-weight bulletproof jackets for Central Paramilitary
Forces. It is alleged that during the process, a private company,
namely M/s S.M. Group, procured a favourable trial report by
wrongful means. M/s ATL lodged a complaint with MHA alleging
unfair and discriminatory trials and manipulation during the
evaluation process. Consequently, the earlier product evaluation
and trial report were cancelled, leading to re-evaluation and
retrial.
4. It was alleged in the FIR that during the said period,
M/s ATL remained in regular contact with accused Radhey Shyam
Sharma who provided regular updates and extended undue favours
in the retrial process and related matters. In return, M/s ATL
allegedly provided him with illegal gratification as a reward for
abuse of his official position. Even after the order for retrial,
Radhey Shyam Sharma remained in continuous contact with Raj
Kishore Gupta, Lavina Gupta, and employees of the company,
including Bhuwanish Kumar, and continued to demand and accept
illegal gratification.
5. It is further alleged that an earlier FIR No. 11/2010
under Section 120-B IPC read with Sections 7 and 13 of the
Prevention of Corruption Act, 1988, was registered by the Anti-
Corruption Branch, GNCT of Delhi, on 11.03.2010. The ACB had
received a CD from an unknown source on 22.01.2010. The
allegations pertained to a criminal conspiracy between
manufacturers/suppliers and government officials/experts to
secure undue advantage in the procurement process of 59,000
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bulletproof jackets initiated by the offices of DG, CRPF, BPR&D,
and TBRL, Chandigarh. The said FIR was later transferred to the
CBI and merged with the present case.
6. During investigation, on 28.04.2010, searches were
conducted at seven locations, including the residential and official
premises of the accused persons. Accused Radhey Shyam Sharma,
Raj Kishore Gupta, and Lavina Gupta were arrested on
29.04.2010. Accused Radhey Shyam Sharma was also arrested and
pursuant to his disclosure, jewellery of worth Rs. 9.75 lakhs and
cash amounting to Rs. 25,000/- were recovered from the garage of
the residence of Radhey Shyam Sharma.
7. It is alleged that on 24.01.2010, accused Radhey
Shyam Sharma contacted Raj Kishore Gupta and demanded a
bribe of Rs. 10 lakhs. Thereafter, accused Lavina Gupta directed
the company secretary of M/s ATL, Sh. Vinod Raina, to arrange
the said amount. Vinod Raina contacted his friend Praveen Garg
(also a company secretary), who agreed to arrange the cash on a
commission of 3% including TDS. Praveen Garg, in turn,
contacted Mr. Pankaj Jain, Chartered Accountant of M/s Pankaj
Sumit & Associates, who agreed to raise a bill in the name of M/s
Varun Associates in favour of M/s ATL on a commission of 2%.
Accordingly, bank account details of M/s Varun Associates (Axis
Bank) were shared and communicated to Vinod Raina.
8. As per the allegations, on 27.01.2010, Vinod Raina
was asked to issue a cheque in favour of M/s Varun Associates for
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the required amount along with an additional 3% commission. On
the directions of accused Lavina Gupta, a service order of Rs.
11,91,240/- was raised in favour of M/s Varun Associates under
the pretext of repair of an extrusion machine, and a cheque for the
said amount was issued. After the cheque was cleared, Praveen
Garg collected cash amounting to Rs. 10,56,175/- (after
deductions) from Pankaj Jain and handed over Rs. 10,44,262/- to
Vijay Sharma, an employee of M/s ATL. Vijay Sharma, on the
directions of Lavina Gupta, delivered the said amount to accused
Radhey Shyam Sharma at his residence in Railway Colony, New
Delhi.
9. It is alleged that accused Radhey Shyam Sharma
failed to provide any plausible explanation regarding receipt of the
aforesaid amount. He also did not intimate his department about
any loan transaction of Rs. 10 lakhs during the period 2009 to
28.04.2010, nor he gave intimation of purchase of jewellery.
10. The mobile phone numbers of accused Raj Kishore
Gupta were placed under surveillance by the Special Unit of CBI,
New Delhi, after obtaining requisite authorization from the
competent authority. Raj Kishore Gupta was using mobile number
9811012858 and Lavina Gupta was using mobile number
9811012859. The original CD of intercepted conversations,
transcripts thereof, certificate under Section 65-B of the Indian
Evidence Act, and approval orders of MHA were collected.
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11. During investigation, specimen voice samples of
Radhey Shyam Sharma, Raj Kishore Gupta, Lavina Gupta, and
other witnesses were recorded and sent to CFSL, New Delhi, for
examination. The CFSL report bearing No. CFSL-2010/P-599
dated 01.09.2011 was collected.
12. It is alleged that accused Radhey Shyam Sharma had
official dealings with M/s ATL Pvt. Ltd. and was involved in
procurement processes relating to:
(i) procurement of 40,353 BPJs in 2006 (later
scrapped);
(ii) procurement of 20,000 BPJs on an urgent basis in
2008-2009; &
(iii) procurement of 20,000 units of riot control
equipment from M/s ATL and MKU for supply to
Nepal Police in 2008.
13. In the chargesheet, it is further stated that accused
Radhey Shyam Sharma was dealing with the files pertaining to
tender no. U-II.794/2009-10 for procurement of 59,000 light
weight Bullet Proof Jackets for Central Para Military Forces in
MHA. A lot of private companies responded to the tender and
several communications and complaints relating to the
procurement were being dealt by him. However, during
investigation no role was found to have been played by accused
Radhey Shyam Sharma in showing any specific favours in this
process to M/s ATL.
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14. It is further alleged that besides taking illegal
gratification, accused Radhey Shyam Sharma had also obtained
other favours from M/s ATL in the form of vehicle for his personal
use on several occasions. During investigation no criminality on
the part of Sh. Bhuwanish Kumar was found. It is stated that he
did not have any role in arranging the payment of illegal
gratification or giving of any favour to accused Radhey Shyam
Sharma nor there is any evidence to suggest that he had knowledge
of payment of illegal gratification to accused Radhey Shyam
Sharma by Raj Kishore Gupta and Lavina Gupta.
15. During investigation certain deviations were found
in the process of procurement of 59,000 light weight Bullet Proof
Jackets for Central Para Military Forces. The ballistic test of Bullet
Proof Jackets were conducted at Terminal Ballistic Research
Laboratory (TBRL) of DRDO at Ramgarh but the said deviations
attributed to negligence of the officials of TBRL and members of
Technical Evaluation Sub-Committee for Ballistic Evaluation.
Such lapses were general and not specific nor the same were
confined to any single firm so as to show favour or disfavour to
any individual firm or specific vendor.
16. During investigation, statements of witnesses were
recorded and documents as well as articles were collected. The
sanction for prosecution of accused Radhey Shyam Sharma u/s 19
of Prevention of Corruption Act, 1988 was received from the
competent authority. Accordingly, chargesheet u/s 120 (B) of IPC
r/w section 11 & 12 of PC Act, 1988 was filed.
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17. Upon completion of investigation, the chargesheet
was filed in the court on 29.07.2013 and the ld. predecessor of this
court vide order dated 24.08.2013 took cognizance of offences and
accused were summoned to face trial. Compliance of Sec. 207
Cr.PC was done. Thereafter, vide detailed order dated 31.05.2014,
charges for commission of offences u/s 120-B of IPC r/w section
11 & 12 of PC Act as well as u/s 11/12 of The PC Act were framed
against all three accused persons, to which they pleaded not guilty
and claimed trial.
Prosecution Evidence :
The prosecution examined thirty witnesses to prove
its case. The gist of the depositions of the prosecution witnesses
are as follows: –
18. PW-1 Sh. M.C. Kashyap deposed that he was posted
in Special Unit, CBI, New Delhi for collection of intelligence and
telephonic surveillance between November 1997 to February
2014. In January 2010, certain phone numbers being used by
accused R. K. Gupta (A-2) and Lavina Gupta (A-3) and others
were put on telephonic surveillance pursuant to the orders of
Union Home Secretary dated 08.01.2010. In May 2010, on
receipt of information a case was registered against accused R.
K. Gupta (A-2) and Lavina Gupta (A-3) and 36 recorded voice
calls were burnt in a CD. The said CD contained 36 voice calls,
recorded call information report in respect of said 36 calls,
Certificate u/Sec. 65 (B) Indian Evidence Act with regard to theCC No. 214/2019
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telephone calls alongwith the details of recorded calls as well as
two original orders of Union Home Secretary dated 08.01.2010
and 11.03.2010. The said CD was given to Insp. Shailender Singh
in sealed cover on 20.05.2010 which was taken into possession
vide seizure memo dated 20.05.2010 Ex.PW1/A. The certificate
u/s 65 (B) IEA & details of the recorded calls (Annexure A)
Ex.PW1/B, recorded calls information report Ex.PW1/C, order
dated 08.01.2010 of Secretary, Ministry of Home affairs in respect
of telephone nos. 98101-85003, 94175-13496, 98110-12859,
98110-12858 and 99360-11122 Ex.PW1/D and order dated
11.03.2010 of Secretary, Ministry of Home affairs in respect of
telephone nos. 98738-00739 and 97171-96229 Ex.PW1/E were
exhibited in his evidence. He also stated that copy of the aforesaid
CD containing 36 voice calls was also handed over to the IO in
open condition for day to day investigation. He identified the CD
in the court Ex. P-1 as the same CD which was handed over by
him to IO. He also identified the inlay card i.e. Ex.P-2 and
protective cover Ex.P-3.
In his cross-examination by ld. defence counsel,
PW-1 Sh. M.C. Kashyap further admitted CDR of mobile no.
9811012859 Ex.PW1/DA, CDR of mobile no. 9811012858
Ex.PW1/DB and CDR of mobile no. 9873800739 Ex.PW1/DC.
19. PW-2 Sh. Tapan Kumar Satpati deposed that he was
posted as Section Officer in Administration-I Section, Ministry of
Home Affairs (MHA) w.e.f. August 2006 to November 2012. He
was looking after establishment work of gazetted officers of MHA
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i.e. maintenance of service book and personal files of such officers.
Vide letter no. F.No.20/G/2728-AD-I dated 09.08.2010 Ex.
PW2/A, original service book and personal file of accused Radhey
Shyam Sharma were forwarded to CBI. He also identified service
book and personal file of accused Radhey Shyam Sharma i.e.
Ex.PW2/B and Ex.PW2/C respectively. He deposed that accused
Radhey Shyam Sharma was on Central Deputation to MHA under
Central Staffing Scheme w.e.f. 12.12.2005 and the CCS (Conduct)
Rules were applicable to him. He also deposed that as per personal
file of accused Radhey Shyam there was no intimation/ mention
of taking of any loan of Rs.10 lacs nor any intimation about
purchase of jewellery of Rs.9.7 lacs (approx) had been given by
him.
20. PW-3 Sh. Ram Krishan Gupta deposed that he was
working as Chief Section Supervisor in Sanchar Haat for last about
12 years. He was looking after the work of sale of new Trump
connections, Trump Re-charge Sale Counter, issuance of SIM
cards and booking of new connections, etc. The agreement form
alongwith photocopy of passport (no. E-2460448) Ex. PW3/A was
submitted by accused Radhey Shyam Sharma for Trump Pre-Paid
Cellular Mobile Connection and thereby a pre-paid Tump mobile
connection/ sim card bearing no. 9868364920 was issued to
accused Radhey Shyam Sharma. He also stated that SIM card /
connection no. 9868364920 was issued on 08.07.2004. After
issuance of SIM card/ connection to the subscriber i.e. accused
Radhey Shyam, the application form alongwith documents
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submitted therewith were forwarded to the Idgah Exchange
Building i.e. Head-Quarter of Trump Connections from where the
connection was activated.
21. PW-4 Sh. Sunil Tirkey deposed that in April 2010,
he visited the office of CBI. He was told that he will have to be a
witness and he was given two mobile phones i.e. one of make
Motorola and the other make of Nokia and his introductory voice
was recorded. Thereafter, three persons i.e. Radhey Shyam
Sharma, Lavina Gupta and R.K. Gupta were called. A memory
card was inserted in the mobile. Thereafter, his introductory voice
was recorded and specimen voice of all the afore-stated persons
were recorded by making a call vide specimen voice recording
memo dated 30.04.2010 Ex. PW4/A. Then the said memory card
was removed from the mobile and it was sealed in an envelope
with a seal and the said seal was handed over to him. He identified
the case property i.e. memory card of 512 MB of make NOKIA as
Ex.P-1 and stated that it was the same memory card in which
specimen voice of accused persons were recorded.
22. PW-5 Sh. Sunil Kumar deposed that in July 2013, he
was posted as Director (D&A), Railway Board, Ministry of
Railways. The President of India was the appointing and removal
authority of the officers of the rank of Senior Administrative Grade
(SAG). The President of India was the authority competent to
remove accused Radhey Shyam Sharma from service as he was
then posted as Chief Workshop Manager (of the rank of SAG),
Harnaut, East Central Railway, Hajipur. He also stated that being
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Director (D&A) he was competent to authenticate the order of the
President of India granting sanction for prosecution of accused
Radhey Shyam Sharma, as per Authentication (Orders and Other
Instruments), Rules 2002. In that capacity, he prepared the formal
Sanction Order dated 19.07.2013 Ex. PW5/A on the basis of the
sanction granted by Hon’ble Minister for Railways on behalf of the
President of India and he identified the said sanction order in the
court.
23. PW-6 Sh. S.S. Prasad deposed that in the year 2010,
he was working as Section Officer (Provisioning-1), MHA,
Jaisalmer House, New Delhi. On 28.04.2010, the searches were
carried out by the CBI at the office premises of accused Radhey
Shyam Sharma in Room No. 28, Jaisalmer House, New Delhi and
the documents mentioned in the search list Ex. PW6/A were
seized. He also stated that during his posting with accused Radhey
Shyam Sharma he had seen said accused writing and signing.
Therefore, he also identified signatures of accused Radhey Shyam
Sharma on a note-sheet of File No. IV-20011/12/01-PROV-1 Part
(regarding procurement of 20,000 numbers of BPJ through single
tender enquiry) on page 5N i.e. Ex.PW6/B. He further identified
signature of accused Radhey Shyam Sharma on page 6N i.e.
Ex.PW6/C (D-13, page 975), as well as on pages 7N, 12N, 16N,
17N, 18N, 19N, 21N, 24N, 26N, 27N, 28N, 33N, 35N, 37N, 38N,
39N, 40N, 42N, 43N, 47N, 48N, 50N, 53N, 56N, 57N, 61N, 62N,
64N, 65N, 66N, 69N, 71N, 73N and 74N (i.e. Ex.PW6/D, colly).
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PW-6 Sh. S.S. Prasad also identified signatures of
accused Radhey Shyam Sharma on the documents i.e. letter dated
26.12.2008 Ex.PW6/E, letter dated 07.01.2009 Ex.PW6/F, letter
dated 09.01.2009 Ex.PW6/G, letter dated 16.01.2009 Ex.PW6/H,
letter dated 16.01.2009 Ex.PW6/I, letter dated 16.01.2009
Ex.PW6/J, letter dated 16.01.2009 Ex. PW6/K, letter dated
30.01.2009 Ex. PW6/L and letter dated 10.04.2009 Ex. PW6/M.
He further identified signatures of accused Radhey Shyam Sharma
on note-sheet at pages 1384 to 1386 i.e. Ex.PW6/N and on letter
dated 16.01.2009 Ex.PW6/O.
24. PW-7 Sh. Himanshu Rastogi deposed that in the
year 2010, he was posted as Deputy Manager, Axis Bank, Greater
Noida, U.P. He had handed over the original Account Opening
Form of current account no. 624010200006255 i.e. Ex. PW7/A of
M/s Anjani Technoplast Ltd vide seizure memo dated 13.05.2010.
Accused Raj Kishore Gupta and Ms. Lavina Gupta were the
authorized signatories of the said current account. He handed over
certified copy of the account statement for the period 01.01.2009
to 30.04.2010 (Ex. PW7/B), five cheques bearing no. 042023,
042047, 042067, 042133 and 042209 in the name of Varun
Associates (Ex. PW7/C to Ex. PW7/F and Ex. PW-7/H
respectively) and one cheque bearing no. 042260 in the name of
Janki Associates (Ex. PW7/G) to CBI vide seizure memo dated
13.05.2010 (Ex. PW7/I).
25. PW-8 Sh. Rajiv Verma deposed that in the year
2010, he was posted as Manager in Dena Bank, Lodhi Road, New
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Delhi. On 30.04.2010, he visited the office of CBI, Lok Nayak
Bhawan, New Delhi and met Insp. N.K. Mishra, ACU-V, New
Delhi. Accused Radhey Shyam Sharma was introduced to him by
Insp. N. K. Mishra. Accused Radhey Shyam Sharma disclosed
that after receiving the aforesaid amount he alongwith his wife
visited Tanishq showroom and purchased jewellery and remaining
amount was lying at his home. He stated that disclosure memo of
accused Radhey Shyam Sharma i.e. Ex. PW8/A was prepared by
the IO.
PW-8 Sh. Rajiv Verma further deposed that thereafter
he alongwith Insp. N. K. Mishra and Sh. Pradeep Ahlawat, Credit
Officer, Dena bank and some other CBI officers went to residence
of accused Radhey Shyam Sharma at Panchkuian Road and
accused disclosed that above-stated jewellery was kept in the
garage. They remained outside the garage and the garage was
opened by accused Radhey Shyam and a trunk was found there.
From the trunk accused Radhey Shyam took out a briefcase which
contained a ‘potli’ having jewellery. Some keys, passbook and
cash were seized by the IO and a pointing out /recovery and seizure
memo Ex. PW8/B was prepared by the CBI official at the house
of accused Radhey Shyam. He also stated that before preparing the
seizure memo, CBI official called one employee of Tanishq
Jewellers. The said person brought the invoices of purchase of
jewellery. The said invoices were seized vide production memo
dated 30.4.2010 Ex.PW8/C. He also identified the said invoices
Ex.PW8/D. He identified the case property i.e. file in plastic
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folder having a list of jewellery items Ex.PW8/E, second file in
yellow colour having some papers on the pad of Om Prakash
Malhotra i.e. govt. registered valuer of jewellery Ex.PW8/F,
passbook of Vijaya Bank Ex.PW8/G, black colour key pouch with
key ring having key of make ‘Godrej’ Ex.PW8/H. He identified
currency notes of Rs. 25,000/- Ex.PW8/J (colly). He also
identified one bangle with studded stone of green colour
Ex.PW8/K, one pair of ear buds and one gold necklace studded
with red colour stone Ex.PW8/L, one pair of ear tops and one gold
necklace studded with white colour stone Ex.PW8/M, one pair of
gold bangles studded with red colour stone Ex.PW8/N and one
pair of ear buds and one gold necklace studded with green colour
stone Ex.PW8/P.
26. PW-9 Sh. Vijay Sharma deposed that he was
working in M/s Anjani Technoplast Ltd., 6A, Sector 40/41, Eco
Tech-I, Gautambudh Nagar, UP since 1995 as a Peon. His nature
of duties were to carry the file from one officer’s table to another
officer’s table. He also stated that accused Raj Kishore Gupta and
Ms. Lavina Gupta were the Directors/owners of M/s Anjali
Technoplast Ltd. He also stated that his statement was recorded
by the ld. Metropolitan Magistrate. He turned hostile and did not
support the case of prosecution. In his cross-examination by ld.
PP for CBI, he denied all the suggestions given to him as per his
statement u/s 161 Cr. PC Mark A.
27. PW-10 Vinod Raina deposed that he was posted as
Company Secretary in M/s Anjani Technoplast Ltd. From 2006 to
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October, 2010. Accused R. K. Gupta and Ms. Lavina Gupta were
the directors in the said company. He identified both of them in
the court. He was looking after the affairs and finances of M/s
Anjani Technoplast Ltd. In the month of January, 2010, Lavina
Gupta informed him that she required a cash of Rs. 10 lacs and
told him to talk to someone for arranging the said money.
Thereafter, he spoke to Sh. Praveen Garg, Company Secretary in
practice who promised to give Rs. 10 lacs in cash against the
cheque. Accordingly, a cheque was issued by Ms. Lavina Gupta
in the name of M/s. Varun Associates for a sum of Rs.11 lacs
approx. Sh. Vijay Sharma was told to go to the office of Sh.
Praveen Garg for collecting the cash. The witness deposed that
his statement Ex. PW10/A was recorded by ld. Magistrate.
PW-10 Vinod Raina identified signatures of accused
Lavina Gupta on cheques no. 042023 Ex. PW7/C, 042047 Ex.
PW7D, 042067 Ex. PW7/E, 042133 Ex. PW7/F, 042209 Ex.
PW7/H and 042260 Ex. PW7/H. He also identified his signature
on general voucher dated 16.03.2010 Ex. PW10/B. He handed
over the documents Ex. PW10/B, Ex. PW10/D and Ex. PW10/E
vide production-cum-seizure memo dated 28.04.2010 Ex.
PW10/C.
28. PW-11 Sh. Hemraj deposed that he was posted as
Sales Executive in Titan Industries Ltd, E-04, Inner Circle,
Connaught Place, New Delhi. On 30.04.2010 CBI officials visited
the aforesaid office and asked him to join the investigation.
Thereafter, he accompanied the CBI team and went to one flat at
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Panchkuian Road, Railway Officers’ Quarters and found that some
persons were already sitting there. In the aforesaid flat, CBI
officials showed him bills of purchase of jewellery and asked
whether those jewellery items were purchased from their
showroom. He checked the said bills and told the CBI officials
that those bills were issued by their showroom M/s Titan Industries
Ltd., E-04, Inner Circle, Connaught Place, New Delhi. The CBI
officials also showed jewellery to him and he identified those
jewellery articles. He handed over the invoice no. CPD/CM/11889
dated 27.01.2010 Ex. PW11/A and retail invoice Ex. PW11/B to
Insp. Shailender Singh Mayal, CBI which were seized vide
seizure-cum-production memo dated 30.04.2010 Ex. PW8/C.
29. PW-12 Sh. Praveen Garg deposed that he was
Company Secretary by profession and the proprietor of M/s
Praveen K. Garg & Co. since 2002. In April 2010, the CBI officials
had interrogated him in their office. He was inquired about his
profession, business and working and about one Pankaj Jain. He
stated to CBI officials that he used to work for the client companies
of Pankaj Jain and he knew Sh. Pankaj Jain, Chartered Accountant
who was working under the name and style of M/s Pankaj Sumit
& Associates, Pratap Nagar, Jail Road in the year 2010. He was
partner in the partnership firm M/s SRP & Co. situated at 406,
Manglam Paradise, Manglam Place, Sector-3, Rohini, New Delhi.
Earlier the name of his firm was M/s Pankaj Sumit & Associates
and it was the proprietorship concern and he was the proprietor of
said firm.
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The said witness did not support the case of
prosecution and he was cross-examined by ld. PP for CBI. In his
cross-examination by ld. PP, he denied the suggestion that he knew
Vinod Raina. He also denied all the suggestions given to him as
per his statement u/s 161 Cr. PC Mark PW12/A.
30. PW-13 Pankaj Jain deposed that he had told CBI
officer that Varun Kumar Jha was working with him as Account
Assistant in his sole proprietorship concern and at that time said
Varun Kumar Jha was also having his own proprietorship concern
in the name and style of M/s Varun Associates at Uttam Nagar,
New Delhi, but he did not know about the nature of work of said
firm. He handed over some documents to CBI relating to M/s
Varun Associates.
He was also cross-examined by ld. PP for CBI. He
denied the suggestion that he had opened the firm i.e. M/s Varun
Associates in December, 2007. He admitted the suggestion that he
had never provided cab services on behalf of M/s Varun Associates
to M/s Anjani Technoplast. He denied the remaining suggestions
given to him by ld. PP for CBI.
31. PW-14 Varun Kumar Jha deposed that he used to
work for Pankaj Sumit & Associates as Accounts Trainee from
August 2007 to 2010. He did not open any account in Axis Bank
on his own, the account was opened at the instance of Pankaj Jain.
Later on he came to know that the aforesaid account was opened
in the name of Varun Associates having address of his house
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A-691, Mahavir Enclave, Part-III, Gali no. 18, Uttam Nagar, New
Delhi. He did not have any knowledge about transaction done
through aforesaid bank account by anyone. He did not know any
person by the name of Praveen Garg. The photographs pasted on
the current account opening form Ex. PW14/A were obtained from
him by Pankaj Jain by saying that he will open his salary account
in Axis Bank. He also stated that the signature on the said account
opening form was not put by him.
PW-14 Varun Kumar Jha further deposed that the
invoice dated 03.02.2010 Ex. PW10/D on the pad of Varun
Associates for repair and maintenance charges of sheet extrusion
machines did not bear his signature and it was not issued by him.
He also stated that he had never done the repair and maintenance
of sheet extrusion machine.
32. PW-15 Deepak Kumar Tanwar, Sr. Scientific Officer,
CFSL, New Delhi deposed that he had done M.Sc (Physics), M.
Phil (Physics) and certificate course of Forensic Science from
University of Delhi and he was working in the field of Voice
Examination for more than 20 years. He stated that during this
period, he had examined voices of 1000 persons and had opined
on them. He had undergone one month training on the subject
“Speaker Identification and Allied Areas” from University of Trier,
Germany.
In the present case, his office had received a letter
no. 4489/8(A)/2010/ACU(V)/CBI/New Delhi dated 24.08.2010
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alongwith three sealed parcels marked A-1, A-2 and Q-1,
transcripts of the recorded conversation and specimen seal
impression for voice examination from SP, CBI, ACU-V, New
Delhi. The seals on the parcels were tallied with the specimen seal
impression and were found intact. The parcel marked Q-1 was
opened and it contained a Compact Disk of Sony CD-R make,
which was played and it contained 36 recorded conversations
marked from Q-1(1) to Q-1(36). After examining the abovesaid
exhibits marked Q-1, A-1 and A-2, they were returned to the
forwarding authority along with their original packing/parcels in
three sealed parcels, sealed with his official seal alongwith his
report bearing CFSL-2010/P-599 dated 01.09.2011 i.e. Ex.
PW15/A. He confirmed the contents of his report Ex. PW15/A.
He proved the office copy of the letter vide which the aforesaid
parcels were forwarded to CFSL as Ex. PW15/B.
PW-15 also deposed that Parcel Q-1, sealed with the
seal of the court “PAB”, was produced by Insp. Ranjeet Kumar
Tank. He identified the said parcel Q-1 i.e. marked as Ex.
PW15/C and identified his signatures on it. He also identified the
CD marked as Ex.P-1 along with its inlay card and stated that it
was the same CD Ex. P-1 which he had examined. He further
identified envelope (marked as Ex. PW4/B) in which he had
received the memory card in sealed condition. He identified a
memory card already marked as Ex.P-1A as the same memory card
he had examined. He identified another CD Ex. PW15/G and
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yellow-coloured envelope (marked Ex.PW15/F) in which CD Ex.
PW15/G was received.
33. PW-16 Mohd. Hussain Ansari deposed that he was
Deputy Director in the Procurement Wing of Police Modernization
(PM) Division of Ministry of Home Affairs in Jaisalmer House
from April 2008 to March 2012. He explained the functioning and
duties of Director Provisioning. He stated that the Police
Modernization was headed by Joint Secretary, Division of
Ministry Home Affairs and it consisted of 4 sections i.e. (i) PM
and reforms headed by Director (PMR), (ii) VIP security headed
by Director (VS), (iii) Provisioning headed by Director (Prov.) and
(iv) Procurement headed by Deputy Director General
(procurement). The Director Provisioning was to process various
proposals of Central Paramilitary Forces (CPMFs) for obtaining
financial sanction so that the CPMFs can initiate procurement
action. The proposal was signed in Provisioning Section for the
following issues i.e. (i) Existing scale and sanction qualities, (ii)
Deficiency – whether due to fresh requirements or due to normal
wear and tear, (iii) Mode of procurement – whether single, limited
or opened tender and (iv) Finalization of specifications – if not
existing. He also stated that once the proposal is critically
examined by the Director (Provisioning), administrative approval
is obtained from the Joint Secretary (PM) of the MHA. Then, the
proposal is sent to the Integrated Finance Division (IFD). After
due examination by the IFD, the approval of the competent
authority depending on the total value is obtained, and a Finance
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Sanction Order is issued to the concerned CPMF. Thereafter,
tenders are floated by the concerned CPMF and are finalized for
procurement process.
PW-16 Mohd. Hussain Ansari identified accused
Radhey Shyam in the court and stated that he was the Director
Provisioning when he joined the department as Dy. Director.
Accused remained posted in that capacity till April, 2010. During
his posting as Deputy Director in Police Modernization Wing of
MHA, a proposal for purchase of light weight bullet proof jackets
came from CRPF and he had also dealt with the said file i.e. File
no. IV-21011/10/09-Prov-I. He identified the aforesaid file no.
IV-21011/10/09-Prov-I as Ex. PW16/A (colly) which contained
notings, pages 01 to 32 and also a file containing pages 01 to 158.
These files were maintained in their office in usual course of
business. He stated that as per note-sheet, the aforesaid proposal
for purchasing light weight bullet proof jackets was initialed by
accused Radhey Shyam Sharma on 06.05.2009 and then processed
by said accused on 12.05.2009, 20.05.2009, 21.05.2009,
27.05.2009, 28.05.2009, 02.06.2009, 15.06.2009, 18.06.2009,
10.07.2009, 15.07.2009, 17.07.2009, 20.07.2009, 31.07.2009,
05.08.2009, 11.08.2009, 12.08.2009, 21.08.2009, 26.08.2009,
27.08.2009, 16.10.2009, 21.10.2009, 22.10.2009, 12.11.2009,
16.11.2009, 04.12.2009, 09.12.2009, 17.12.2009 and finally on
21.12.2009. He identified signatures of accused Radhey Shyam on
the above-said notings.
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He identified his letter dated 24.11.2009, written by
him to the Director (Provisioning) and stated that the Home
Secretary had directed examination / investigation of the matters
relating to purchase of light weight bullet proof by CRPF as MHA
had received various representations. He also identified
representation dated 16.11.2009 given by M/s Anjani Technoplast
Ltd. The said representation was received by them and the said
representation was marked to SO (Provisioning-I) by accused
Radhey Shyam Sharma.
34. PW-17 Sh. Prempal, Asst. General Manager, Central,
MTNL deposed that in the year 2012, he was working as
Commercial Officer (C-1), Central, Eastern Court, Janpath, New
Delhi. During this period, CBI had sought two files pertaining to
two landline numbers issued by MTNL i.e. one installed at office
of MHA, Jaisalmer House and the other installed at the residence
of accused Radhey Shyam Sharma. He had provided aforesaid two
files to CBI which were seized vide a seizure memo Ex. PW17/A.
He identified the first file Ex. PW17/B on the court record
pertaining to MTNL telephone no. 23365639 and note-sheet pages
1 to 3 which was seized by CBI. He handed over the said file to
CBI. He deposed that the aforesaid telephone connection i.e.
23365639 was earlier installed in Ministry of Railway and from
there it was transferred on 10.02.2006 to the MHA on the request
of MHA and consent of Ministry of Railway. He also stated that
the said telephone connection with no. 23365639 was transferred
from Ministry of Railway to MHA but it continued to be physically
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installed at 254/1-B, Railway Officer’s Flat, P. K. Road, New Delhi
in the name of accused Radhey Shyam Sharma. He identified letter
Ex. PW-17/B.
PW-17 Sh. Prempal also identified the 2nd file Ex.
PW17/C pertaining to MTNL telephone no. 23386191 which was
seized by CBI vide seizure memo Ex.PW-17/A. He stated that
connection of telephone no. 23386191 was earlier installed at the
North Block with no. 3092132 and from there it was transferred
on 25.10.2002 to Jaisalmer House on the request of MHA. Due to
change of the area and exchange, the initial number of aforesaid
connection was changed from 3092132 to 23386191. He also
stated that the telephone no. 23386191 was installed at the office
of accused Radhey Shyam Sharma in Room no. 06, Double Storey
Building, Jaisalmer House, New Delhi.
35. PW-18 Sh. Rakesh Soni deposed that in October
2010, he was posted at Tis Hazari Telephone Exchange as J.T.O
(CDR). He had provided the CAF alongwith CDR of mobile no.
9868364920 for the period from 01.01.2010 to 30.04.2010 to CBI
vide letter dated 08.10.2010 Ex. PW18/A. He also stated that as
per copy of CAF alongwith copy of passport Ex. PW3/A, the
aforesaid connection of mobile no. 9868364920 was issued in the
name of Radhey Shyam Sharma R/o Flat no. 254/1B, P. K. Road
Railway Officers Colony, New Delhi. He had requisitioned the
attested copy of CAF already Ex. PW3/A from Idgah Telephone
Exchange since CAF unit was situated there. He had also handed
over the computer generated CDR of mobile phone no.
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9868364920 for the period 01.01.2010 to 30.04.2010 to CBI vide
his letter Ex. PW18/A. He proved the said CDR as Ex. PW18/B.
He also stated that he himself generated the printout of the CDR
from the computer system as he was authorized to access the
system.
36. PW-19 Mr. Israr Babu, Retd. Asst. Nodal Officer,
Vodafone deposed that in May, 2010, he was posted as Executive
in Vodafone. He had handed over certain documents to CBI vide
seizure memo Ex. PW19/A. He also handed over the documents
mentioned in the seizure memo to CBI on the asking of then Nodal
Officer Sh. Anuj Bhatia. The CAF pertaining to mobile no.
98110125859 was issued in the name of Sh. R. K. Gupta. He
handed over the said CAF to CBI vide aforesaid seizure memo Ex.
PW19/A. He proved the said CAF as Ex. PW19/B He had also
handed over the CDR of mobile no. 9811012859 for the period
01.09.2009 to 30.04.2010 already Ex. PW-1/DA to CBI vide
seizure memo Ex. PW19/A.
PW-19 Mr. Israr Babu further deposed that he had
handed over CAF of mobile no. 9873800739 issued in the name
of Anjani Technoplast Ltd to CBI vide seizure memo already Ex.
PW19/A. He proved the said CAF alongwith enclosure as Ex.
PW19/C (colly). He also handed over the CDR of said mobile no.
9873800739 for the period 01.09.2009 to 30.04.2010 i.e. Ex.
PW1/DC. He also stated that he had handed over CAF of mobile
no. 9873666139 issued in the name of Anjani Technoplast Ltd
alongwith enclosures to CBI vide seizure memo already Ex.
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PW19/A. He proved the CAF of mobile no. 9873666139 as Ex.
PW19/D (colly). He also handed over CDR of said mobile no.
9873666139 for the period 01.09.2009 to 30.04.2010 i.e. Mark
PW19/1. He handed over CDR of mobile no. 9811012858 for the
period 01.09.2009 to 30.04.2010 (Ex. PW1/DB) to CBI vide
seizure memo Ex. PW19/A.
37. PW-20 Sh. B. L. Meena, Under Secretary, MHA
deposed that in March 2005, he was posted as Section Officer,
Provisioning-II in the Ministry of Home Affairs. Provisioning-II
was dealing with the allocation of arms & ammunition to State
Police Organization and Central Paramilitary Forces. Being
Section Officer, he was overall In-charge of this desk. He was
responsible for processing of the case/proposals received from
State Police and Central Paramilitary Forces and he was the
custodian of the files pertaining to this desk. He identified accused
no. 1 and stated that during his tenure as Section Officer in
Provisioning-II, accused Radhey Shyam Sharma was the Director
(Provisioning). He was directly reporting to said accused.
PW-20 Sh. B. L. Meena also deposed that he had dealt
with file no. IV-13018/4/2004-Prov-II-Pt bearing subject –
“Proposal Govt of India’s Assistance to Nepal Police”, pertaining
to Provisioning-II desk i.e. Ex.PW-20/A (colly). He also dealt with
another file no. IV-13018/4/04-Prov-II-Pt, bearing subject –
“Proposal Govt of India’s Assistance to Nepal Police” i.e. Ex.
PW-20/B (colly) and file bearing subject – “Proposal Govt of
India’s Assistance to Nepal Police” pertaining to Provisioning-IICC No. 214/2019
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desk i.e. Ex. PW-20/C (colly) which was the correspondence
portion. He stated that all the above three files i.e. Ex. PW-20/A,
Ex. PW-20/B and Ex. PW-20/C were part files of the subject
“Proposal Govt of India’s Assistance to Nepal Police”. The
correspondence file Ex.PW-20/B (colly) contained letter no.
82/846/NGO dated 19.07.2007 of Preeti Saran, Joint Secretary
(North), Ministry of External Affairs, New Delhi i.e. Ex.
PW20/B-1 vide which Ministry of External Affairs had intimated
that they had received a request from Govt. of Nepal for Arms and
Ammunition and some riot control gears for use of Nepal Civil
Police. It was also informed that the matter was discussed by
Foreign Secretary with Home Secretary and it was decided that a
team of officials of MHA and MEA will visit Nepal within next 10
days to make an assessment of the requirement of Nepal Govt.
Vide aforesaid letter Ex. PW20/B-1, Ms. Preeti Saran, Joint
Secretary, MEA requested MHA to indicate possible set of dates
for visit as well as to nominate suitable officials for the visit. Vide
his noting dated 26.07.2007 i.e. Ex. PW20/A-1 he proposed
nomination of suitable officers from MHA and possible set of
dates for the visit and also submitted the file to the Director
(Provisioning). Below his noting Ex. PW20/A-1, accused Radhey
Shyam made noting dated 30.07.2007 Ex. PW20/A-2 vide which
said accused had proposed to nominate suitable officers from
MHA and for dates to be decided by MEA. Accused Radhey
Shyam marked the said file to JS (M). Below noting Ex.
PW20/A-2 of accused Radhey Shyam, JS (PM) also made noting
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dated 30.07.2007 Ex. PW20/A-3 and proposed nomination of
accused Radhey Shyam Sharma. He identified noting of Ms. Anita
Chaudhary, Additional Secretary (CS) dated 13.08.2007 i.e. Ex.
PW20/A-4 and identified noting dated 06.09.2007 i.e. Ex.
PW20/A-5 of accused Radhey Shyam with respect to visit
undertaken by the team including accused Radhey Shyam.
PW-20 Sh. B. L. Meena identified noting dated
18.09.2007 i.e. Ex. PW20/A-6 of accused Radhey Shyam with
respect to putting up of the minutes of meeting held on 17.09.2007
for assistance to Nepal Police. Vide aforesaid noting Ex.
PW20/A-6 accused Radhey Shyam highlighted that: (i) Riot
control equipments may be procured from 2 firms at the last
purchase date at which they supplied it to CRPF and both the firms
are willing to supply this item at the LPR within a month and (ii)
AS & FA (Home) stated that let MEA make the payment directly
to all agencies. He stated that he made noting dated 21.08.2007
Ex. PW20/A-7 with respect to taking the financial approval of AS
& FA (Home) for deputation of team to visit Nepal. After his
noting dated 21.08.2007 Ex. PW-20/A-7, he lastly dealt with this
file on 27.11.2009 and made noting Ex. PW-20/A-8.
PW-20 Sh. B. L. Meena deposed that between
21.08.2007 to 27.11.2009, the files Ex.PW-20/A (colly), Ex.
PW-20/B (colly) and Ex. PW-20/C (colly) were not in his custody.
In the first week of November 2009, he inquired about the files
from his subordinate staff in the section. Files were not found in
the record of the section. He then personally inquired about the
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files from accused Radhey Shyam Sharma and said told him that
the aforesaid files were with him in his almirah. Thereafter,
accused Radhey Shyam took out the files from his almirah and
handed over the same to him. After receiving the files, he made
noting dated 27.11.2009 Ex. PW-20/A-8. He also stated that vide
noting dated 06.05.2008 Ex. PW20/A-9 accused Radhey Shyam
had marked this file to him. He also stated that the file Ex.
PW20/A was not received by him after the noting Ex. PW20/A-9.
He received the said file only in November, 2009.
PW-20 Sh. B. L. Meena deposed that in the noting
Ex. PW20/A, there was mention of the last purchase price of riot
control gear by CRPF @ Rs. 6,000/- from DRDO approved firm
i.e. M/s MKU, Kanpur and M/s Anjani Technoplast, Noida.
PW-20 Sh. B. L. Meena identified letter dated
21.02.2008 of Director (North), MEA alongwith annexures ‘A’ &
‘B’ as Ex. PW20/A-10. He stated that as per annexure ‘A’ estimate
of price was Rs. 6,000/- per unit for riot control equipment.
However, the letter Ex. PW20/A-10 and annexures were silent
about the purchaser or the seller or the rate approver or approved
price.
38. PW-21 Prem Singh i.e. driver of M/s Anjani
Technoplast Ltd. deposed that in the year 2010, he was taken to
the office of CBI at Lok Nayak Bhawan and CBI officials inquired
from him regarding the present case. He informed the CBI that he
was working under the HR department of M/s Anjani Technoplast
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Ltd. since the year 1998 as a driver. He also informed the CBI that
he was only driving the vehicles including a bus and cars of make
– Skoda, Tata Sumo, Santro. The CBI officials asked him about
the details of the occupants of various vehicles which were driven
by him and the destination of said travels. He was specifically
asked about the travel to Haridwar, but he could not tell the details
of persons who had travelled with him or the number of times he
had visited Haridwar. The entries in the log books were made by
Sh. Ashok Panda, incharge of HR/Admin in the said company.
PW-21 identified the log books of vehicles (i) Tata
Sumo – UP 16 P 3832 M-198/ 10/RC-8(A)/ 10-ACU V. and (ii)
Santro 7687 M-197/10/RC-8(A)/10-ACU V i.e. Ex. PW21/1 and
Ex. PW21/2 respectively. He stated that he was familiar with
above-log books and these related to Anjani Technoplast Ltd as the
same were brought from the record of the company by the CBI
officials, but he failed to identified the person who used to make
entries in it. He stated that CBI had taken his voice sample, but
upon hearing the CD Ex. PW15/G, he stated that it was not his
voice.
He was cross-examined by ld. PP for CBI and he
denied the suggestions vis-a-vis different places he had visited and
the persons who had accompanied him to said places.
39. PW-22 Ravi Dewan deposed that in the year 2009-
2011 he was working with a Anjani Technoplast Company. CBI
officials took him to their office and inquired about description of
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vehicles driven by him for the company. He also stated that CBI
officials also asked him about the occupants and destination of
such travels. He was also specifically asked about him having
taken a passenger namely Sh. R. S. Sharma. He identified the log
book of vehicle Tata Sumo – UP 16 P 3832 M-198/10/RC-8(A)/10-
ACU V i.e. already Ex. PW21/1. He also stated that he was
familiar with said log book as it was brought from record of the
company by CBI officials.
He identified his signature on entry for the date
04.02.2010 in log book, but HR Manager namely Sh. Ashok Panda
had made the said entry. As per procedure of their company, the
drivers used to affix their signatures to the entries corresponding
to the travel made by them as drivers for the company. He also
stated that he had affixed his signature after completing the
travel.
40. PW-23 Neer Kumar, Driver deposed that in the year
2009-2010, he was taken to the office of CBI at Lok Nayak
Bhawan and the CBI officials had inquired from him regarding
the present case. He informed the CBI that he had worked with
M/s Anjani Technoplast Ltd. from the year 2006 as a driver till
2019-20 and he used to drive Honda City and Skoda vehicles for
the company. He was driving the Honda City vehicle for children
of his owner. He identified the log book of vehicle bearing
registration No. DL-4CR-9071 i.e. Ex. PW-23/1, but could not
tell who had recorded the said entry or had driven the vehicle as
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described in the said entry. He also failed to recognize the
signature of the person in the said entry.
He stated that CBI officers had played certain audio
recordings to him. He failed to identify his voice in two audio
files, but identified his voice recording sample in the folder
bearing name – “Nir Kumar” in CD Ex. PW15/G.
He was cross-examined by ld. PP for CBI. In his
cross-examination by ld. PP, PW-23 Neer Kumar admitted that a
Tata Sumo vehicle was operating for the said company. The other
drivers namely Prem Singh, Ravi Diwan and Shyam Thapa were
also working in the company. He and other drivers were informed
regarding the identity and name of the person they were
supposed to drop or pick up from any particular destination. He
admitted that he used to pick up and drop guests on the instructions
of Mr. Bhuvnesh Kumar on several occasions and had visited
multiple locations during the course of his official duty for
dropping or picking up guests including places like Vrindavan,
Jind, Agra, Jaipur, Lucknow, Dehradoon and Mussoorie etc. He
also stated that it was also a part of his duties to visit the IGI
Airport, New Delhi. However, he stated that he did not visit the
residence of Radhey Shyam Sharma and Panchkuian Road for
picking him up or for dropping him. He identified his signatures
on the log book Ex. PW23/1. In his cross-examination by ld.
Defence counsel he stated that he was beaten up by CBI officials
and was threatened with his life for giving a statement.
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41. PW-24 Om Prakash, Retd. ASI, RPF deposed that
he had accompanied the CBI officials for a raid at the premises of
accused Raj Kishore Gupta on 28.04.2010. He alongwith CBI
team entered the premises at about 8:00 am and the search
continued till 1:00 pm. The bed room of accused R. K. Gupta
situated at first floor was searched during the raid and the articles
were recovered during the said search were recorded on Ex.
PW24/1. He identified his signature on the search list Ex. PW24/I
(D23).
42. PW-25 Harjeet Singh, Manager, HUDCO, IHC
deposed that in the year 2010, he was posted as Stenographer at
HUDCO, India Habitat Centre, Lodhi, Road, New Delhi and on
the instructions of his senior officials, he joined the proceedings at
CBI Office, Khan Market, New Delhi. Voice samples of Sh.
Bhuvanish Kumar, Prem Singh, Sh. Neer and Sh. Vijay Sharma
were taken by IO Inspector Shailender Singh in the CBI office on
13.08.2010 vide specimen recording memo Ex. PW21/3. The said
voice recordings were saved as four separate files in the laptop of
CBI and were transferred to the CD. Thereafter, the CD was sealed
by the IO. He also signed the said CD and he identified the said
CD as Ex. PW15/H.
43. PW-26 Subhash Chandra deposed that in April 2010,
he was working as Sr. Office Manager at STC of India Ltd.,
Jawahar Vyapar Bhawan, Tolstoy Marg, New Delhi-110001. He
had joined the investigation in the present case with CBI officials
towards the end of April 2010. On that day, at about 9:30 am, he
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had accompanied the investigation officer namely Rajpal Singh to
an address at a high rise building in Gurgaon, Haryana. They were
accompanied by other officials of STC namely Sanjeev Kumar,
Kamal Singh and Bir Bahadur. He and the other officials from the
STC had taken part in the said proceedings upon the written
instructions issued by the Personnel Department of the STC. The
CBI officials had searched the address in question and prepared a
search list dated 28.04.2010 Ex. PW26/1 of the articles seized
from the said premises. He identified his signature on the said
search list.
44. PW-27 Amarjeet, Retd. Dy. Manager, SBI deposed
that in the year 2009, he had joined the Noida branch of SBI. On
15.12.2009, he had produced certain documents relating to current
account No. 10829466487 in the name of M/s Anjani Technoplast
Limited. He identified signatures of Sh. Sushil Khurana, Chief
Manager at point A on the letter dated 12.05.2010 (Ex. PW-27/1).
He also stated that he handed over original account opening form
(Ex. PW-27/2), certified copy of statement of account for the
period 01.01.2009 to 30.04.2010 (Ex.PW-27/3), original cheque
No. 614226 dated 18.03.2010 for an amount of Rs. 3,00,292/- (Ex.
PW-27/4), all in the name of M/s Anjani Technoplast Limited to
CBI. He also stated that the authorized signatories of above-said
account were accused Raj Kishore Gupta and Lavina Gupta being
directors of the company. The said cheque was cleared by Mr. S.
K. Aggarwal. He also proved the documents i.e. seizure memo of
statement of account dated 18.03.2010 and RTGS record form Ex.
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PW27/5. He also proved statement of accused dated 18.03.2010
Ex. PW27/6 and RTGS record Ex. PW27/7.
45. PW-28 Bhuwanish Kumar deposed that he had
joined M/s Anjani Technoplast Limited in the year 2007 as
Assistant General Manager (Armoury Division) in the Marketing
Department. His job profile included marketing of the entire range
of armoury products including bullet-proof jackets, helmets,
shields, body protectors, vests, bomb helmets and body protectors.
He was also required to meet officials from Para-military forces,
Police, Ministry of Home Affairs, Army, Navy, Air Force and
PSUs. He used to look after the work of making presentations and
participating in the sale/tender process of various such articles.
During the course of his official work, he met accused R. S.
Sharma i.e. Director in MHA at that time who was posted at
Jaisalmer House, New Delhi. He identified accused Radhey
Shyam Sharma in the court. MHA had given two orders for
equipment to their company M/s Anjani Technoplast Limited
during his tenure. The first order related to riot control equipments
and the second order related to bulletproof jackets. Two companies
were involved in the riot control equipment order i.e. M/s Anjani
Technoplast and M/s MKU. The value of the said order was above
Rs. 4 crore approximately. He was involved in the process of riot
control equipment order. The riot control equipment order was an
emergency order for supply by the Indian Government to Nepal,
therefore, the process for the said emergency order had been
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assigned to accused Radhey Shyam from the MEA and said
accused was looking after its provisioning.
PW-28 Bhuwanish Kumar further deposed that the
second order for bulletproof jackets was for about Rs. 45 crore. He
was involved in the documentation of the bulletproof jackets order
on behalf of M/s Anjani Technoplast Limited. The role of accused
Radhey Shyam Sharma in both the above-said orders came at the
end of the process after the Cabinet Committee on Security had
sanctioned the same. Accused Radhey Shyam Sharma had signed
the above-said orders at the last stage. Other persons/entities were
also involved in the above-said two orders. CBI obtained his
specimen voice samples and a memo dated 13.08.2010 Ex.
PW21/3 was prepared in that regard. He also identified his
signatures on the envelope Ex. PW-15/F as well as on the CD Ex.
PW-15/G. He also deposed that the CBI had also played multiple
audio conversations to him.
PW-28 Bhuwanish Kumar also deposed that his
voice sample had been recorded in the CBI office. After hearing
the “Track01.cda from the CD in the court, he deposed that the
voice sample heard by him in the court from “Track01.cda” was
similar to what he had stated as a voice sample. He also stated that
the voice of the said recording appeared to be similar to his voice.
The CBI official had given him specific written content to speak
for the voice sample. He also stated that the audio file 10-162453-
0-14-20100127-018610.wav contained voices of two males and
“Neer” mentioned in the recording was a driver at M/s Anjani
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Technoplast who was known to him for 3-4 years. Vijay was an
employee of M/s Anjani Technoplast Ltd. and was handling work
related to finance. He also stated that Vijay was in the nature of
‘runner’ and was assigned the duties of going to banks. Their
company had 5-6 vehicles including Tata Sumo. He also knew
one Vijay Gupta who was relative of R. K. Gupta. However, he
failed to identify the voices of any of the accused as well as of
driver Neer in the recordings played in the court. He was also
cross-examined by ld. PP for CBI, but he once again stated that he
could not identify the voices played in the court.
46. PW-29 Nishant Kumar Mishra, the then Inspector,
CBI deposed that FIR of this case was registered and investigation
of the case was entrusted to him on 24.04.2010. He identified the
signatures of Sh. D. S. Shukla, Superintendent of Police, CBI,
ACU-V, New Delhi on the FIR Ex. PW-29/1. The FIR was
registered against accused Radhey Shyam Sharma (being the
then Director Provisioning, MHA), Sh. R. K. Gupta, Director, M/s
Anjani Technoplast, Smt. Lavina Gupta W/o Sh. R. K. Gupta and
Sh. Bhuwanish Kumar, DGM Marketing, M/s Anjani Technoplast.
It was alleged that accused Radhey Shyam had been obtaining
illegal gratification regularly from Sh. R.K. Gupta, Smt. Lavina
Gupta, and other employees of M/s Anjani Technoplast while
having direct official dealings with that company. Searches were
conducted at the residential as well as official premises of accused
persons and other relevant places and accused persons were
arrested. He prepared disclosure memo dated 30.04.2010 of
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accused Radhey Shyam i.e. Ex. PW8/A. Accused Radhey Shyam
disclosed that he had used Rs. 9.75 lakh from the bribe money for
purchasing jewellery from Tanishq showroom on the same day and
he had kept the jewellery and the remaining Rs.25,000/- in a
suitcase in the garage of his official residence. At the instance of
said accused, independent witnesses were requisitioned and
accused took the CBI team to his garage, pointed out a suitcase
with a cloth cover, and stated that the lock code of said suitcase
was ‘000’. Thereafter, the suitcase was opened with code ‘000’
and it was found containing jewellery and Rs.25,000/- as disclosed
by said accused. Accused Radhey Shyam also informed the
location of Tanishq showroom from where the above-said
jewellery was purchased. Tanishq showroom staff produced a
copy of the official invoice stating that jewellery worth Rs. 9.75
lakh was purchased. The ‘pointing out, recovery and seizure
memo’ dated 30.04.2010 i.e. Ex. PW-8/B was prepared. The retail
invoice and transaction slip for the gold jewellery worth Rs.
9,79,286/- were seized vide seizure and production memo dated
30.04.2010 i.e. Ex. PW-8/C and Ex. PW-8/D. He proved the
seizure memo of documents, bank vouchers and invoice dated
28.04.2010 prepared by him Ex. PW10/C and the documents
mentioned in it were produced by Sh. Vinod Raina of M/s Anjani
Technoplast.
PW-29 Nishant Kumar Mishra also deposed that the
general vouchers of M/s Anjani Technoplast (Ex. PW-10/B),
invoice of M/s Varun Associates (Ex. PW-10/D) and bank voucher
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of Anjani Technoplast Ltd. (Ex. PW-10/E) were produced by
Vinod Raina and they were used to generate Rs. 10 lakh bribe by
way of false book entries. The above-mentioned documents were
seized vide production cum seizure memo dated 28.04.2010 Ex.
PW-10/C. The statements of Vinod Raina and Vijay Sharma u/s
164 Cr. PC were recorded. He also recorded the statements of
Vinod Raina, Praveen Garg, Pankaj Jain, Varun Kumar Jha,
Devender Pandey, and Bhuwanish Kumar u/s 161 Cr. PC.
47. PW-30 Shailender Singh Mayal, Dy. Superintendent
of Police, CBI deposed that in the year 2010, he was posted as
Inspector in CBI, AC-II, New Delhi and was attached with this
case on 28.04.2010. He conducted search at the office of accused
Radhey Shyam in Room No. 28, Jaisalmer House, New Delhi. He
had seized the documents vide search list already Ex. PW6/A. On
30.04.2010, he recorded specimen voice of all three accused
persons in the presence of independent witness namely Sumit
Tirkey vide specimen voice recording memo Ex. PW-4/A. During
recording proceedings, he had used two mobile phones – Nokia
N72 and a Motorola and a new 512 MB memory card was
unsealed in the presence of an independent witness. The
introductory voice of Sumit Tirkey was recorded and thereafter the
specimen voice of the three accused persons were recorded. He
stated that subsequently the case was transferred to him from
Inspector N.K. Mishra on 06.05.2010. During investigation, he
moved an application for recording the statements of Sh. Vinod
Raina and Sh. Vijay Sharma under Section 164 CrPC and
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thereafter their statements i.e. Ex. PW-10/A and Ex. PW-9/A were
recorded.
PW-30 Shailender Singh Mayal further deposed that
on 13.08.2010, he recorded the specimen voice of Sh. Bhuwanish
Kunwar, Prem singh, Sh. Nir and Sh. Vijay Sharma vide specimen
voice recording memo Ex. PW21/3. The recordings were done in
the presence of independent witness Sh. Harjeet Singh and all the
accused had volunteered to give the specimen voice samples. The
CD containing specimen voice of aforementioned persons was
sealed in yellow colour envelope. He identified signatures of Sh.
Harjeet Singh and Sh. Vijay Sharma on the aforementioned memo
as they had signed the same in his presence.
He stated that vide letter no. 4489/8(A)/2010/
ACU/(V)/ CBI/ New Delhi dated 24.08.2010 Ex. PW15/B (D16)
the exhibits mentioned at column “Description of exhibit” were
sent to CFSL for opinion. He collected the CFSL report no. T-1464
dated 01.09.2011 Ex PW15/A. He also stated that case no. RC
8(A)/2010 CBI ACU-V, New Delhi was registered on 24.01.2010
against accused Radhey Shyam, the then Director (Provisioning),
MHA, Sh. R. K. Gupta and Smt. Lavina Gupta (Directors of M/s
Anjani Technoplast as well as against Sh. Bhuvnesh Kanwar,
DGM (Marketing). Vide seizure memo dated 13.05.2010 (D-6),
already Ex. PW-7/I, he collected documents pertaining to account
no. 624026255 of M/s Anjani Technoplast Ltd. These documents
included cheque no. 44209 for Rs. 11,79,328 in the name of M/s
Varun Associates. The said cheque was used to generate cash
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amount of Rs.10 lakhs which was paid by Sh. R.K. Gupta and Smt.
Lavina Gupta to accused Radhey Shyam as illegal gratification on
27.01.2010. The CDs and other documents containing intercepted
telephone calls were collected from the Special Unit of CBI vide
seizure memo dated 20.05.2010 already Ex. PW-1/A. He also
prepared a transcript from the CD i.e. Ex. PW30/C.
PW-30 Shailender Singh Mayal deposed that from
the telephonic conversation dated 24.01.2010, it was revealed that
accused Radhey Shyam had demanded illegal gratification of
Rs.10 lakhs from Sh. R.K. Gupta. It was also revealed that the
said illegal gratification of Rs. 10 lakhs was delivered to accused
Radhey Shyam by Sh. Vijay i.e. employee of M/s Anjani
Technoplast on the instructions of Smt. Lavina Gupta at his official
residence i.e. Railway Officers Colony, Panchkuian Road, New
Delhi. It was also revealed that demand for illegal gratification of
Rs. 10 lakhs was made in code language i.e. “ek das ka intjaam ho
sakta hai”. Subsequently, on 27.01.2010 accused Radhey Shyam
had informed Smt. Lavina gupta in code language i.e. “Ha prashad
mil gaya mereko”.
During investigation CDRs and CAFs of the mobile
numbers used by accused persons were collected through seizure
memo dated 31.05.2010 already Ex. PW-19/A. The CDR of
mobile no. 9811012859 used by Smt. Lavina Gupta and
9811012858 used by Sh. R.K. Gupta were also collected. The
details of CDR of mobile no. 9811012859 confirmed that accused
Radhey Shyam had contacted Smt. Lavina Gupta on 24.01.2010.
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The details of CDR of mobile no. 9811012859 and 9811012858 of
Ms. Lavina Gupta and Sh. R. K. Gupta confirmed that they had
talked to accused Radhey Shyam on his mobile number, office
phone number and his residential phone number on 27.01.2010.
PW-30 Shailender Singh Mayal deposed that during
investigation he also collected CAF and CDR of mobile number
9868364920 from MTNL, New Delhi. He received the said
documents through letter Ex. PW-18/A. The CDR of mobile no.
9868364920 confirmed that accused Radhey Shyam had contacted
Smt. Lavina Gupta on 27.01.2010. He collected original files
pertaining to landline telephone nos. 23365639 (residence) and
23386191 (office) of accused Radhey Shyam vide seizure memo
dated 25.09.2012 i.e. Ex. PW-17/A. He collected personal file and
service book of accused Radhey Shyam through letter dated
09.08.2010 Ex. PW-2/A.
He stated that accused Radhey Shyam had joined
MHA in the year 2005 on deputation and was posted as Director
(Provisioning), Police Modernization from 2005 till 15.04.2010.
He received relevant files in three parts from MHA through letter
dated 20.05.2010. He identified the file parts exhibited as Ex.
PW-20/A, PW-20/B and PW-20/C. He seized the documents from
Axis Bank regarding M/s Varun Associates vide memo dated
04.06.2010 Ex. PW-30/D. The said account confirmed that Rs.
11,79,328 was transferred from M/s Anjani Technoplast to Varun
Associates on 27.01.2010. He also seized the documents from
Titan Industries Ltd., Connaught Place vide memo dated
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28.01.2011 Ex. PW-11/A. The said document was the advance
receipt of payment made towards of jewellery items which were
purchased in the name of Smt. Surekha Sharma i.e. wife of accused
Radhey Shyam. The original retail invoice dated 27.01.2010 was
also seized and it was prepared on 27.01.2010 at 3:43 PM.
PW-30 Shailender Singh Mayal deposed that he
collected certified documents from SBI i.e. original account
opening form, statement of account and cheque no. 614226 from
CBI through letter dated 12.05.2010 Ex. PW-27/A. The said
account pertained to M/s Anjani Technoplast and the cheque of Rs.
3,00,292 was issued by M/s Anjani Technoplast Ltd. on
18.03.2010.
During investigation he also received CAF of mobile
no. 9811012858 i.e. in the name of M/s Anjani Technoplast Ltd.
from Vodafone Mobile Services Ltd i.e. Ex. PW30/E. He stated
that vide seizure memo dated 14/5/2010 i.e. Ex.PW27/5 statement
of account no. 10829466487 of M/s Anjani Technoplast dated
18.03.2010 and certified copy of fund transferred of Rs. 3,00,292/-
from Anjani Technoplast to the accused Varun Associates were
seized. He recorded statements of witnesses namely Sh. Neer
Kumar, Prem Singh, Shyam Thapa, Ravi Diwan, Bhuwanish
Kumar. Sh Barun Bhattacharya the then Inspector CBI, ACU-IV,
New Delhi had recorded statement of Sh. Vijay Sharma S/o Sh.
Hari Prakash Sharma. He identified signature of Sh. Rajpal Singh,
the then Inspector on the search list dated 28.04.2010 Ex. PW26/1.
He also identified signatures of Sh. Harikesh, the then DSP on
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Ex.PW-24/1. He stated that as per investigation, accused Radhey
Shyam (Director, Provisioning) alongwith R. K. Gupta and Lavina
Gupta, Directors of M/s Anjani Technoplast Ltd were involved in
commission of offence in this case.
48. PE was closed on 22.04.2025 after completion of
examination of all the prosecution witnesses.
Statement of Accused U/s 313 Cr. PC:
49. Upon completion of entire prosecution evidence, the
incriminating evidence was put to all the accused persons in their
respective statements recorded u/s 313 Cr. PC.
Accused Radhey Shyam Sharma denied the
incriminating evidence and took a plea that he was falsely
implicated on account of the fact that other accused had lodged an
FIR against certain officials with Anti-Corruption Branch, Delhi.
The investigation was taken up by CBI in order to take vengeance
and he was made to suffer on the basis of hand picked witnesses.
Accused Raj Kishore Gupta and Lavina Gupta also
denied the incriminating evidence and they pleaded that they were
the whistle blowers as they had provided information regarding
malpractices in procuration of bulletproof jackets which led to
registration of FIR no. 11/2010 by ACB, Delhi against officials of
TBRL. An audio conversation of Mr. R. K. Verma i.e. the official
of TBRL, Chandigarh containing malpractices was also given to
ACB, Delhi. They had followed their complaint which led to re-
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trial of equipments. However, the IO conveniently closed the said
investigation and lodged a false FIR against them for targeting
them for making a complaint. In addition, Ms. Lavina Gupta
stated that she was director in M/s ATL Pvt. Ltd for name sake and
had not participated in management or operations of company.
Defence Evidence:
50. All the accused persons opted to lead defence
evidence. However, only accused no. 1 Radhey Shyam Sharma
examined defence witness i.e. DW-1. DW-1 ASI Chanchal
Kumar, DO, CBI, AC-II, Branch, New Delhi. He brought the
summoned recorded i.e. unbound file containing two copies of FIR
No. RC8 (A) / 2010/ACU-V dated 24.04.2010 already Ex.
PW29/1(D1). He deposed that the serial number and book number
of the RC prior to the RC of the present case bears book number
695 and serial no. 01 and the RC no. RC7(A)/2010/ACU-V dated
07.01.2010. The serial number and book number of the RC after
the RC of the present case bears book number 697 and serial no.
04 and the RC no. RC 9(A) / 2010/ACU-V dated 22.05.2010. He
also proved the copy of general diary dated 24.10.2010 bearing
serial no. 0389158 i.e. DW1/A (OSR).
51. Accused no. 1 closed his DE on 01.12.2025.
Accused no. 2 & 3 did not examine any witness in defence
evidence and closed their DE on 01.12.2025.
Arguments:
Arguments of Ld. PP for CBI –
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52. Ld. PP for CBI argued that the prosecution has
proved its case beyond reasonable doubt. PW-1 Sh. M.C. Kashyap
proved the CD containing the conversations recorded between the
accused persons, which categorically shows that accused no. 1,
being a public servant made a demand of Rs. 10 lakhs from
accused no. 2. The specimen voice samples of the accused persons
and witnesses were sent to CFSL for comparison and a positive
report was given by CFSL.
He further argued that the recovery of gold jewellery
from the premises of accused no. 1 has also been proved. As per
case of prosecution, accused no. 2 and 3 had generated cash of Rs.
10 lakh which was given to accused no. 1 through PW-9 Vijay
Sharma. He argued that the prosecution has proved that accused
no. 1 had purchased gold jewellery of Rs. 9.70 lakhs from Tanishq
Jewellers. Accused no. 1 did not submit any information or
intimation regarding the purchase of said jewellery to his
department. The CDR and CAF of the mobile numbers used by
the accused persons have also been proved by PW-19. The
prosecution has also proved the money trail showing the
generation of money by accused no. 2 and 3 for payment of Rs. 10
lakh to accused no. 1. PW-14 Varun Kumar Jha deposed that a
fake bank account was opened in his name by Pankaj Jain. He
further stated that he had not carried out any business with M/s
ATL and he had not carried out any repair or maintenance work of
machine of M/s ATL.
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Ld. PP further argued that although PW-9 Vijay
Sharma did not support the case of the prosecution, but he had
turned hostile as he was employee of accused no. 2 and 3.
However, his statement under Section 164 Cr.P.C. was recorded
before the Ld. Metropolitan Magistrate. The prosecution has also
proved the notings which show that accused no. 1, being a public
servant, had participated in the process of procurement of light-
weight jackets in favour of M/s Anjani Technoplast.
Ld. PP for CBI also argued that the prosecution has
also established that accused no. 1 had used the vehicles of accused
no. 2 and 3. PW-5 has proved the sanction order for prosecution of
accused no. 1 Radhey Shyam Sharma. Thus, he argued that the
prosecution has proved its case beyond reasonable doubt against
accused persons. Accordingly they may be convicted for the
offences charged.
Arguments For Accused no. 1 –
53. The ld. Counsel for accused no. 1 vehemently
argued that investigating officer had carried out unfair
investigation and had falsely implicated the accused persons. He
has argued that the evidence led on record categorically shows that
accused no. 2 & 3 were falsely implicated with ulterior motive. As
per the deposition of IO, accused no. 1 Radhey Shyam Sharma was
apprehended on 28.04.2010 and on the same day search was
conducted at his official residence i.e. 254/1B, Panchkuian Road,
Railway Colony, Delhi, but as per case of prosecution evidence
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nothing was recovered from the said house. The prosecution has
not proved any document relating to search at the aforesaid
premises on 28.04.2010. Further cross-examination of IO reveals
that accused as well as his wife were taken to office of CBI and
they remained there on 29.04.2010 and finally the recovery of gold
jewellery was planted on accused on 30.04.2010. He argued that
arrest memo of accused has not been proved on record to
substantiate the allegation that accused no. 1 was infact arrested
on 30.04.2010 and not earlier. He further argued that as per case
of prosecution, the recovery was effected from a suitcase kept in
garage of the official residence of accused no. 1, but no site plan
was prepared to show the location of the said garage nor any
explanation has been given as to why the aforesaid recovery was
not effected during the earlier search which was conducted on
28.04.2010. As per case of prosecution and deposition of PW-29
Insp. Nishant Kumar Mishra, he was not present at the time of said
raid/ inspection of property. No videography/ photography of
recovery was done. He argued that the said facts reveal that the
recovery was planted on accused no. 1 so as to falsely implicated
him. The said gold jewellery was infact taken on 28.04.2010 from
the residence of accused no. 1 from the possession of his wife from
Gurugram, Haryana.
He argued that the IO had acted with total malice.
The perusal of relied upon document i.e. D2 (ii) shows that other
articles belonging to wife of accused were also found in search and
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the IO falsely stated that the same were returned, but he did not
prepare any document in that regard.
He also argued that the prosecution tried to prove
the orders granting permission for phone tap through PW-1 PW-1
Sh. M.C. Kashyap who was posted in surveillance unit of CBI.
There is neither any evidence nor any material on record to show
that the aforesaid orders were infact put up before the Review
Committee. The said witness admitted that these orders was
neither signed in his presence nor he had seen the file. Therefore,
the said orders have neither been proved nor the same are valid in
the eyes of law.
Ld. Counsel for accused no. 1 also argued that PW-1
M. C. Kashyap deposed about handing over of 36 calls, but
admitted that there were numerous other calls which were
intercepted. PW-1 further stated that he was not aware about the
contents of FIR, therefore, this witness could not have been in
position to cherry pick the random calls. Since all the intercepted
calls were not produced before the court, therefore, it is a
deliberate attempt of the investigating agency to conceal the
relevant material so as to paint a different picture.
He also argued that the data of call records so
collected by the IO on the face of it shows that it is false and
fabricated. There is a distinct difference of time in the calls logs
as recorded in CD as compared to logs of Service Provider. The
said difference run from few seconds to 5 minutes. PW-1 M. C.
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Kashyap admitted that the timings of the logs could not have been
different and the prosecution has not able to explain the said
difference in timings.
Ld. Counsel for accused no. 1 also argued that as per
case of prosecution, the IO i.e. PW-30 Insp. Shailender Singh had
prepared the transcriptions, but the copy of CD of IO on the basis of
which it was prepared was not produced in the court. He also argued
that voice identification memos were not prepared. No known person
from the office of accused no. 1 or any other person known to him was
examined for the purpose of identification of his voice. The prosecution
had examined PW-16 Md. Hussain Ansari and PW-20 Sh. B. L. Meena
from the office of accused no. 1, but they were not examined vis-a-vis
identification of voice of accused no. 1.
Lastly, he argued that the report of CFSL vis-a-vis
accused no. 1 is also not conclusive as the expert had only opined that
the voices compared appear to be probable voices of accused.
Ld. counsel for accused no. 1 also placed reliance upon
the following judgments: (i) Vedivelu Thevar & Anr. vs. State of
Madras (AIR 1957 SC 614); (ii) P. Sirajuddin vs. State of Madras
((1970) 1 SCC 595); (iii) Suraj Mal vs. State ((1979) 4 SCC 725);
(iv) Sharad Birdhichand Sharda vs. State of Maharashtra ((1984)
4 SCC 116); (v) Ram Singh vs. Col. Ram Singh (1985 Supp. SCC
611); (vi) State of Haryana vs. Bhajan Lal (1992 Supp (1) SCC
335); (vii) C. M. Girish Babu vs. State ((2009) 3 SCC 779); (viii)
Banarsi Das vs. State of Haryana ((2010) 4 SCC 450); (ix) Ashok
Tshering Bhutia vs. State of Sikkim ((2011) 4 SCC 402); (x)
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Neeraj Dutta vs. State (GNCT of Delhi) ((2023) 4 SCC 731); (xi)
Manoj Kumar Soni vs. State of M.P. ((2024) 17 SCC 401); and
(xii) M. Sambasiva Rao vs. State of A.P. (2025 SCC OnLine SC
1463).
Thus, ld. counsel for accused no. 1 argued that
prosecution has failed to prove its case beyond reasonable doubt and
benefit of doubt may be extended to accused and he may be acquitted
of the offences charged against him.
Arguments For Accused no. 2 & 3 –
54. Ld. Senior Advocate for accused no. 2 and 3
vehemently argued that the case of the prosecution is primarily
based on phone tapping. He submitted that for this purpose the
prosecution was required to prove the orders of the Union Home
Secretary by which permission for phone tapping was granted.
However, the prosecution has neither examined the Union Home
Secretary nor any other official who could identify his handwriting
or signatures. He argued that mere exhibition of a document does
not amount to proof of the document. PW-1 M. C. Kashyap stated
in his deposition that the said orders were neither signed in his
presence nor had he seen the file in which such permission was
granted and the witness stated that the said orders were not handed
over to him and that they were only shown to him by his superior.
However, he failed to disclose the name of the superior who had
informed him about the interception orders. Thus, he argued that
the prosecution has failed to prove the interception orders by
which the alleged permission was granted. Accordingly, the
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telephonic conversations relied upon by prosecution are invalid
and inadmissible.
Ld. Senior Advocate further argued that the
investigating agency had contravened the procedure provided
under Rule 419(A) of the Indian Telegraph Rules, 1951, as the said
orders were not placed before the Review Committee, which
renders them invalid and inadmissible in the eyes of law.
He further argued that PW-1 M. C. Kashyap had
selected only a few intercepted calls, which shows mala fide on
the part of the investigating agency in manufacturing a false case
and this is contrary to the law laid down in Ram Singh vs. Col.
Ram Singh, 1985 SCC OnLine SC 351.
He also argued that the prosecution has failed to
prove the chain of custody of the intercepted calls. There is no
material on record to show whether the CD allegedly seized by the
IO from PW-1 M. C. Kashyap was deposited in the Malkhana as
the prosecution has failed to prove the relevant Malkhana record.
Thus, he argued that the interception orders and the records
pursuant thereto have not been proved in accordance with law.
Ld. Senior Advocate also argued that the sanctity of
the procedure for collection of voice samples was not
maintained. As per the case of the prosecution, the seal of the
sealed documents was handed over to PW-4 Sh. Sunil Tirkey, but
he failed to produce the same before the court despite opportunities
which casts serious doubt on the integrity of the chain of evidence.
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As per the case of the prosecution, the intercepted calls were seized
by the IO on 20.05.2010, but during his examination before the
court, the IO stated that he had used the intercepted conversations
on 30.04.2010 while recording the voice samples. If the
intercepted calls were seized on 20.05.2010, the same could not
have been used 20 days earlier. This fact show that the entire
process of recording voice samples was manipulated by the IO.
The ld. Senior Advocate further argued that the IO
had taken the voice samples illegally in contravention of the law
laid down in Ritesh Sinha vs. State of U.P., (2019) 8 SCC 1. It was
also argued that the prosecution has failed to prove that the voices
of accused no. 2 and 3 were identified by any person known to
them at the time of collection of voice samples. PW-28 Bhuwanish
Kumar did not support the case of the prosecution. Moreover, the
primary devices alleged to have been used for recording the
voice samples were neither seized nor produced in the court. The
perusal of specimen voice recording memo Ex. PW-4/A shows that
the IO had installed a software called “Total Recall” for recording
the voice samples of the accused persons. However, the said
mobile phones were also not sent for forensic examination.
Therefore, the installation, utility, compatibility and purpose of the
said software remain unverified. It was further argued that the call
recording machine allegedly used by PW-1 was also not produced
before the Court. In the absence of primary evidence, the
secondary evidence in the form of output data is inadmissible.
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Ld. Senior Advocate also argued that the
prosecution has miserably failed to establish the sequence of
events so as to prove the generation of the alleged bribe amount.
The prosecution examined four witnesses in this regard, but
PW-12 Praveen Garg and PW-13 Pankaj Jain did not support the
case of the prosecution and turned hostile. PW-10 Vinod Raina
partly supported the case of the prosecution but stated that he was
not aware of the purpose for which the funds were required. It was
further argued that the alleged banking transactions have not been
proved on record, as the documents relied upon are computer-
generated documents which were tendered without a certificate
under Section 65-B of the Indian Evidence Act. Hence, the
prosecution completely failed to establish that the amount of Rs.
10 lakhs was generated at the instance of accused no. 2 and 3.
Ld. Senior Advocate further argued that as per the
case of the prosecution, PW-9 Vijay Sharma had handed over the
cash amount of Rs. 10 lakhs to accused no. 1 at the instance of
accused no. 2 and 3. However, the said witness did not support the
case of the prosecution. He categorically deposed that he was
beaten by CBI officials and was threatened to give a false
statement before the Ld. Metropolitan Magistrate. It was argued
that in any case the statement of PW-9 recorded under Section 164
Cr.P.C. is not substantive evidence and cannot be relied upon
during trial.
He also argued that the prosecution has failed to lead
any reliable or cogent evidence to show that accused no. 1 had
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used the vehicles allegedly provided by accused no. 2 and 3 at any
point of time. It was further argued that the case of the prosecution
is neither based on information received from the surveillance unit
nor on source information in a proper manner. As per FIR Ex.
PW-29/1, the case was registered on 24.04.2010 on source
information, whereas the said FIR does not contain reference to
the alleged interception orders dated 08.01.2010 and 11.03.2010
granting permission for recording intercepted calls. Since the case
was allegedly based on source information, as per the CBI Manual
a preliminary inquiry was required to be conducted.
Ld. Senior Advocate argued that the prosecution has
failed to prove that any specific favour was extended by accused
no. 1 to accused no. 2 and 3. Therefore, it has failed to establish
the allegations of commission of offences under Section 12 of the
PC Act and Section 120-B IPC. The chargesheet itself admits that
no specific favour could be ascertained or disclosed which was
allegedly extended by accused no. 1 to accused no. 2 and 3 or to
their company. In view of the law laid down in Neeraj Dutta vs.
State (NCT of Delhi), (2023) 4 SCC 731, the prosecution was
required to establish “obtainment”, which in turn entails proof of
demand.
Ld. Senior Advocate argued that the company of
accused no. 2 and 3 had earlier made a complaint regarding
illegalities in the tendering process of a project of Armed Services,
pursuant to which an FIR was registered by ACB, Delhi. The
Investigating Officer, without any authority or direction, usurped
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the investigation of the said case and merged it with the present
case, even though the accused herein were the complainants in that
matter. He brushed aside those allegations by stating in the
chargesheet that only procedural irregularities were found in the
said process. The cross-examination of the IO shows that Sh. R.
K. Verma, an official from TPRL, Chandigarh, was named as an
accused in the said FIR bearing no. 11/2010, but he was neither
arrayed as an accused in the present case nor cited as a witness.
The IO acted with mala fide against the whistle-blowers and had
falsely implicated accused no. 2 and 3 in the present case.
Ld. Sr. Advocate for accused nos. 2 and 3 also
placed reliance upon the following judgments: (i) Central Bureau
of Investigation v. V.C. Shukla ((1998) 3 SCC 410); (ii) Kishor
Khachand Wadhwani and Anr. v. State of Maharashtra (Bombay
High Court, Writ Petition No. 2925 of 2019); (iii) N.A. Abdul
Rahiman v. State of Kerala (Kerala High Court, CRL.A. No. 52 of
2006(C)); (iv) P. Kishore v. Secretary to Government of India and
Ors.; (v) Vinit Kumar v. Central Bureau of Investigation (2019
SCC OnLine Bom 3155); (vi) K.L.D. Nagasree v. Govt. of India,
Ministry of Home Affairs, New Delhi (2006 SCC OnLine AP
1085); (vii) People’s Union for Civil Liberties (PUCL) v. Union of
India ((1997) 1 SCC 301); (viii) Ram Singh and Ors. v. Col. Ram
Singh (1985 SCC OnLine SC 351); (ix) CBI v. Kehar Singh (CC
No. 121/2019, RC No. 2016-A-011); (x) Nilesh Dinkar Paradkar
v. State of Maharashtra ((2011) 4 SCC 143); (xi) Sanjaysinh
Ramrao Chavan v. Dattatray Gulabrao Phalke and Ors. ((2015) 3
CC No. 214/2019
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SCC 123); (xii) Jatinder Pal Singh v. Central Bureau of
Investigation (Delhi High Court, CRL.M.C. No. 3118/2012); (xiii)
Tharamel Peethambaran & Anr. v. T. Ushakrishnan & Anr.; (xiv)
Jagmail Singh v. Karamjit Singh ((2020) 5 SCC 178); (xv)
Sanjeev Saxena v. State (NCT of Delhi) (2015 SCC OnLine Del
9564); (xvi) Ravindra v. Central Bureau of Investigation (2025
SCC OnLine Bom 4833); (xvii) Banarsi Das v. State of Haryana
((2010) 4 SCC 450); (xviii) Neeraj Dutta v. State (Govt. of NCT
of Delhi) ((2023) 4 SCC 731); (xix) Mahabir Prasad Verma v. Dr.
Surinder Kaur ((1982) 2 SCC 258); (xx) State v. Ravi @ Munna
& Ors. (Delhi High Court, 2000 Crl. LJ 1125); (xxi) Ajay Gupta v.
State (Delhi High Court, Crl. A. No. 469/2003); (xxii) N.
Vijaykumar v. State of Tamil Nadu ((2021) 3 SCC 687); (xxiii)
State of Punjab v. Madan Mohan Lal Verma ((2013) 14 SCC 153);
(xxiv) Sudhir Chaudhary v. State (NCT of Delhi) ((2016) 8 SCC
307); (xxv) Rakesh Bisht v. Central Bureau of Investigation (2007
SCC OnLine Del 13); (xxvi) Ritesh Sinha v. State of U.P. ((2019)
8 SCC 1); (xxvii) Om Prakash Berlia and Anr. v. Unit Trust of
India and Ors. (1982 SCC OnLine Bom 148); (xxviii) Narbada
Devi Gupta v. Birendra Kumar Jaiswal and Anr. ((2003) 8 SCC
745); and (xxix) Rajesh Yadav and Anr. v. State of U.P. ((2022) 12
SCC 200).
Accordingly, Ld. Senior Advocate argued that
prosecution has failed to prove its case and accused no. 2 and 3
may be acquitted of the offences charged against them.
CC No. 214/2019
CBI Vs. Radhey Shyam Sharma Page no. 57 of 129 Rebuttal Arguments -
55. In rebuttal, Ld. PP for CBI argued that the factum of
purchase of gold jewellery is not disputed by accused no. 1. He
submitted that the question whether the jewellery was recovered
from Gurugram or from the official residence of accused no. 1 is
not of much significance in the present case.
56. He further argued that accused no. 1 denied the
receipts issued by the jewellery showroom from where the
jewellery was purchased, but he did not discharge the burden of
proving that the said receipts were forged as the burden had shifted
upon him. It was also argued that accused no. 1 had not intimated
his department regarding the purchase of said jewellery items
which corroborates the prosecution version.
Ld. PP further argued that PW-9 Vijay Sharma was
employee of accused no. 2 and 3 and therefore he turned hostile
despite the fact that his statement under section 164 Cr.P.C. had
been recorded earlier. In support of his arguments, Ld. PP for CBI
placed reliance upon the judgments in B. Hanumantha Rao vs.
State of A.P., 1992 AIR 1201 and R. M. Malkani vs. State of
Maharashtra, 1973 AIR 157.
Appreciation of Evidence:
57. I have considered the oral arguments, written
submissions and judgments so relied upon by the ld. PP for CBI
and the ld. defence counsels. I have also carefully gone through
the chargesheet and evidence lead on record.
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Public Servant and his Involvement in the Process –
58. In order to attract the applicability of provisions of
The Prevention of Corruption Act, 1988 in this case, the
prosecution had to prove that accused Radhey Shyam Sharma was
a public servant as he was posted as Director (Provisioning),
Ministry of Home Affairs, New Delhi at the time of commission
of offence. It was also required to prove that accused Radhey
Shyam Sharma being a public servant was involved in the
procurement process of light weight jackets etc.
59. The perusal of material on record shows that the
aforementioned facts have not been disputed by any of the
accused. Further perusal of prosecution evidence shows that PW-2
Sh. Tapan Kumar Satpati (i.e. Section Officer in MHA during the
relevant period) deposed that accused no. 1 was on central
deputation to MHA w.e.f. 12.12.2005.
60. As regards the involvement of accused no. 1 in the
procurement process is concerned, PW-16 Mohd. Hussain Ansari
i.e. Deputy Director in the Procurement Wing of Police
Modernization, Division of MHA proved the concerned notesheets
relating to file no. IV-21011/10/09-Prov-I. Thereby the
prosecution established that accused Radhey Shyam Sharma had
initiated and processed the said notings. PW-16 also deposed that
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the representation given by M/s ATL Pvt.Ltd. was marked by
accused Radhey Shyam Sharma to SO (Provisioning-I).
61. Similarly, PW-20 Sh. B.L. Meena i.e. Section
Officer, Provisioning-II, MHA identified handwriting and initials
of accused Radhey Shyam Sharma in the file no.
IV-13018/4/2004-Prov-II-Pt i.e. relating to “Proposal of Govt. of
India’s Assistance to Nepal Police”. He deposed that accused no.
1 had dealt with the file (i.e. notings Ex.PW20/A-2, Ex.PW20/A-5,
Ex.PW20/A-6 & Ex.PW20/A-9) and he had also written or
received letters in relation thereto (i.e. Ex.PW20/B-1 &
Ex.PW20/A-10). He further deposed that between 21.08.2007 to
27.11.2009 the files i.e. Ex.PW20/A, Ex.PW20/B and Ex.PW20/C
were not in his custody and the same were also not found in the
record section and he personally inquired from accused no. 1 who
handed over the files after taking out the same from his almirah.
62. It is not disputed that accused no. 2 Raj Kishore
Gupta and accused no. 3 Lavina Gupta were the directors of M/s
Anjani Technoplast Pvt. Ltd (M/s ATL) and the said company had
made complaint against allotment of order vis-a-vis procurement
of 59,000/- light weight bullet proof jackets to another company
i.e. M/s S. M. Group alleging that M/s S.M. Group had procured a
favourable report by use of wrongful means.
63. The above-stated oral and documentary evidence
shows that accused Radhey Shyam Sharma in his capacity as a
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public servant had dealt with the files which had concern with
accused Raj Kishore Gupta & Lavina Gupta respectively.
Sanction for Prosecution –
64. Before proceeding to evaluate the role played by
accused Radhey Shyam Sharma, it is necessary to probe the
validity of compliance vis-a-vis mandate provided u/s 19 of the
Prevention of Corruption Act, 1988. Section 19 of the Act
mandates that no court shall take cognizance of the offences
punishable u/s 7, 10, 11, 13 and 15 alleged to have been committed
by public servant except with previous sanction accorded by the
competent authority. The provision is reproduced below:-
19. Previous sanction necessary for prosecution. –
(1) No Court shall take cognizance of an offence punishable under
[sections 7, 11, 13 and 15] alleged to have been committed by a
public servant, except with the previous sanction,
(a) in the case of a person [who is employed, or as the case may
be, was at the time of commission of the alleged offence
employed] [Substituted ‘who is employed’ by Act No. 16 of 2018,
dated 26.7.2018.] 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, or as the case may
be, was at the time of commission of the alleged offence
employed] [Substituted ‘who is employed’ by Act No. 16 of 2018,
dated 26.7.2018.] in connection with the affairs of a State and is
not removable from his office save by or with sanction of the State
Government, of that Government;
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(c) in the case of any other person, of the authority competent to
remove him from his office.”
65. At the outset, it has to be noted that neither of the
accused had advanced arguments qua validity of the sanction so
accorded u/s 19 of the PC Act. However, the court is duty bound
to examine its validity as the grant of sanction is not acrimonious
exercise and the sanction order must reveal the application of mind
by the competent authority. In CBI Vs. Ashok Kumar Aggarwal
(2014) 14 SCC 295, while dealing with the issue, the Hon’ble
Supreme Court held that grant of sanction for prosecution is a
solemn and sacrosanct act. In Prakash Singh Badal Vs. State of
Punjab & Ors (2007) 1 SCC 1, it was held that:
“The sanction order must show basic application of mind,
however, the specific offences need not be listed separately
in the sanction order as that is to be done at the stage of
framing of charge. The law only requires that the
sanctioning authority must be provided with all the
material to make an informed decision.”
66. In order to prove the requisite sanction for
prosecution of accused no. 1, the prosecution examined PW-5 Sh.
Sunil Kumar, Director (D&A) Ministry of Railways (Railway
Board). The witness deposed that the Hon’ble President of India
was the competent authority for removal of officers of the rank of
Senior Administrative Grade (SAG) and accused no. 1 was then
posted in the aforestated rank of SAG. He being the director was
competent to authenticate the order of sanction as per
Authentication (Orders & Other Instruments), Rules 2002 and in
that capacity he prepared the formal sanction order dated
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19.07.2013 i.e. Ex.PW5/A on the basis of sanction granted by the
Hon’ble Minister for Railways on behalf of the Hon’ble President
of India. The witness was cross examined at length, but nothing
material came out in his cross examination which could cast a
shadow of doubt qua validity and authenticity of sanction order
Ex.PW5/A. Infact the perusal thereof shows complete application
of mind by the competent authority.
67. Hence, it has to be said that the prosecution has
successfully established that a valid sanction for prosecution of
accused Radhey Shyam Sharma was granted by the competent
authority.
Charge of Criminal Conspiracy –
68. All accused have been charged with allegations of
having committed criminal conspiracy with the object of
providing regular updates by accused Radhey Shyam Sharma to
the other accused with respect to following procurement processes
i.e. :-
a. Procurement of Bullet Proof Jackets in the year
2008-09; &b. Procurement of Riots Control Equipment for
supplying to Nepal Police in the year 2008.
69. Section 120-B of IPC defines criminal conspiracy: –
120-B Punishment of criminal conspiracy – (1) Whoever is
a party to a criminal conspiracy to commit an offence
punishable with death, imprisonment for life or rigorousCC No. 214/2019
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imprisonment for a term of two years or upwards, shall,
where no express provision is made in this Code for the
punishment of such a conspiracy, be punished in the same
manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a
criminal conspiracy to commit an offence punishable as
aforesaid shall be punished with imprisonment of either
description for a term not exceeding six months, or with fine
or with both.
70. As regards the proof of criminal conspiracy, it is
aptly said that conspiracy is generally hatched in secrecy and there
can hardly be any direct evidence of existence of conspiracy. In
this regard, in Kehar Singh & Ors. v. State (Delhi Administration)
(1988) 3 SCC 609, the Hon’ble Supreme Court held that the
conspiracy can be proved by circumstantial evidence as well as by
direct evidence and that though the conspiracy is hatched in
secrecy, the prosecution must prove some physical manifestation
of agreement although it may not be necessary to prove actual
meeting of two persons or the words by which the two persons
communicated. Further, in Ram Sharan Chaturvedi vs. State of
M.P., AIR 2022 SC 4002, the Hon’ble Supreme Court held that:
“22. The principal ingredient of the offence of criminal
conspiracy under Section 120B of the IPC is an agreement to
commit an offence. Such an agreement must be proved
through direct or circumstantial evidence. Court has to
necessarily ascertain whether there was an agreement between
the Appellant and A-1 and A-2. In the decision of State of
Kerala v. P. Sugathan and Anr.2, this Court noted that an
agreement forms the core of the offence of conspiracy, and it
must surface in evidence through some physical
manifestation:
“12. …As in all other criminal offences, the prosecution has to
discharge its onus of proving the case against the accusedCC No. 214/2019
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beyond reasonable doubt. …A few bits here and a few bits
there on which the prosecution relies cannot be held to be
adequate for connecting the accused with the commission of
the crime of criminal conspiracy…
71. The case of prosecution qua existence of criminal
conspiracy amongst all accused is based on two premises i.e. (i)
extension of favours in the form of regular updates by accused
Radhey Shyam Sharma to the remaining accused; & (ii)
Obtainment of favours by accused Radhey Shyam Sharma from
the other accused.
Providing Regular Updates –
72. The allegations qua providing of regular updates by
accused Radhey Shyam Sharma relating to procurement process
of 20,000 bullet-proof jackets in the year 2008-09 and 20,000 riots
control equipment in 2008 finds mention in the FIR Ex. PW-29/1.
However, in the charge-sheet i.e. after detailed investigation it has
been categorically mention that the investigation did not disclose
any role played by accused Radhey Shyam Sharma in showing
favours to M/s ATL. For the purpose of clarity, the relevant portion
of the chargesheet is reproduced below:-
“The investigation has not disclosed any role played
by Sh. Radhey Shyam Sharma in showing any specific favours in
this process to M/s Anjani Techonoplast Ltd.”
73. Thus, as per conclusions arrived in the investigation
and as stated in the final report, accused Radhey Shyam Sharma
did not extend any favour to other accused. Since charge was
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framed against accused persons even to that extent, therefore,
prosecution evidence demanded careful scrutiny in this regard.
However, the evidence brought on record shows that prosecution
did not lead any evidence in this regard nor it relied on any material
to show that accused Radhey Shyam Sharma had shown any
favour to M/s ATL or had provided any updates with respect to
procurement processes as stated above. There is not even a whisper
of said allegation in the depositions of any of the prosecution
witnesses including the IO i.e. PW30 Sh. Shailender Singh Mayal.
On the contrary, in his cross-examination, the IO failed to respond
to a direct question as to what material was found during
investigation to show as to what specific favour had been given by
accused Radhey Shyam Sharma to the company.
74. Therefore, in such circumstances the uncontroverted
statement in the charge-sheet that no role was found to have been
played by accused Radhey Shyam Sharma in showing favours to
M/s ATL, infact, disproves the case against accused persons that
accused no. 1 Radhey Shyam Sharma had given updates to
remaining accused.
Obtaining Favours –
75. The next limb of the case of prosecution qua criminal
conspiracy is also based on the allegation that accused no. 1 had
committed offence u/s 11 of the PC Act as he had obtained
valuable things in the form of cash and favours without
consideration from accused no. 2 Raj Kishore Gupta & no. 3
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Lavina Gupta, who were concerned in the proceedings transacted
by accused no. 1 Radhey Shyam Sharma. Accordingly, accused
no. 2 & 3 are also alleged to have abetted the commission of
offence u/s 11 by accused no. 1. On the basis of the above-set of
allegations, it is also alleged that all accused had entered into
criminal conspiracy to commit the said offence. Therefore, the pith
and substance of the above stated allegations qua criminal
conspiracy also stem from the case of prosecution qua commission
of offence u/s 11 of the PC Act, 1988.
76. Before adverting to the facts involved in the case, it
will be worthwhile to reiterate the statutory provisions which we
are about to deal with here. Section 11 of the PC Act provides that:
11. Public servant obtaining undue advantage, without
consideration from person concerned in proceeding or
business transacted by such public servant
Whoever, being a public servant, accepts or obtains or
attempts to obtain for himself, or for any other person, any
undue advantage without consideration, or for a consideration
which he knows to be inadequate, from any person whom he
knows to have been, or to be, or to be likely to be concerned
in any proceeding or business transacted or about to be
transacted by such public servant, or having any connection
with the official functions or public duty of himself or of any
public servant to whom he is subordinate, or from any person
whom he knows to be interested in or related to the person so
concerned, shall be punishable with imprisonment for a term
which shall be not less than six months but which may extend
to five years and shall also be liable to fine.
“Section 12: Punishment for abetment of offences.–Whoever
abets any offence punishable under this Act, whether or not
that offence is committed in consequence of that abetment,
shall be punishable withCC No. 214/2019
CBI Vs. Radhey Shyam Sharma Page no. 67 of 129
imprisonment for a term which shall not be less than three
years, but which may extend to seven years and shall also be
liable to fine.”
77. It is the settled proposition of law that prosecution
has to establish the guilt of accused beyond reasonable doubt. In
Sharad Briduchand Sarda Vs. State of Maharashtra 1984 (4) SCC
116, the Hon’ble Apex Court had laid down that:
“153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against an
accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned ‘must or should’ and not ‘may be’
established. There is not only a grammatical but a legal
distinction between ‘may be proved’ and ‘must be or should
be proved’ as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793] where the
observations were made:
“Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and
the mental distance between ‘may be’ and ‘must be’ is long
and divides vague conjectures from sure conclusions.”
(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty.
(3) the circumstances should be of a conclusive nature and
tendency.
(4) they should exclude every possible hypothesis except the
one to be proved, and
(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
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human probability the act must have been done by the
accused.”
78. The prosecution had to establish above-stated
allegations either by way of oral or documentary evidence, so as
to form a complete chain and sequence of facts which could
establish the guilt of the accused persons beyond reasonable doubt.
79. As discussed earlier, the edifice of the case of
prosecution is based on the allegations that : (i) accused no. 1 had
obtained a sum of Rs.10 Lacs from accused no. 2 & 3; & (ii)
accused no. 1 made personal use of vehicles belonging to M/s ATL
and accused no. 2 & 3 respectively. For ensuring clarity in
discussion, I shall deal with both the set of allegations separately.
Taking of Cash Amount of Rupees Ten Lakhs –
80. The prosecution has relied very heavily on the
alleged recordings of intercepted telephonic conversations
between accused no. 1 and accused no. 2 & 3 respectively for
establishing that accused no. 1 Radhey Shyam Sharma had taken
a sum of ten lakhs rupees from accused no. 2 & 3.
Orders Permitting Interception of Telephone Conversations-
81. The case of prosecution is that accused no. 1 Radhey
Shyam Sharma made a demand of ten lakh rupees from accused
no. 2 Raj Kishore Gupta on telephone and the said conversation
was intercepted and recorded by the Special Unit of CBI.
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82. It is the settled proposition of law that the audio
recordings of conversations constitute documents and can be
relied upon by prosecution. However, the law mandates and
provides a system of checks and balances for ensuring protection
of privacy of individuals in this process.
83. The seminal issue i.e. whether telephone tapping
constitutes invasion of individual’s privacy and thus is violative of
right to privacy (i.e. a part of fundamental right to ‘Life & Personal
Liberty’ enshrined under Article 21 of the Constitution) was dealt
with by the Hon’ble Apex Court in People’s Union of Civil
Liberties Vs. Union of India and Anr. AIR 1997 SC 568. In its
landmark judgment, the Hon’ble Supreme Court held as
follows :
“18. The right to privacy – by itself- has not been identified
under the Constitution. As a concept it may be too broad and
moralistic to define it judicially. Whether right to privacy can
be claimed or has been infringed in a given case would depend
on the facts of the said case. But the right to hold a telephone
conversation in the privacy of one’s home or office without
interference can certainly be claimed as “right to privacy”.
Conversations on the telephone are often of an intimate and
confidential character. Telephone-conversation is a part of
modern man’s life. It is considered so important that more and
more people are carrying mobile telephone instruments in their
pockets. Telephone conversation is an important facet of a
man’s private life. Right to privacy would certainly include
telephone-conversation in the privacy of one’s home or office.
Telephone-tapping would, thus, infract Article 21 of the
Constitution of India unless it is permitted under the procedure
established by law.”
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84. Section 5 (2) of the Indian Telegraph Act provides
the procedure to be employed for valid interception of telephone
calls. It is as follows:-
“5. Power for Government to take possession of licensed
telegraphs and to order interception of messages:-
(2) On the occurrence of any public emergency, or in the
interest of the public safety, the Central Government or a
State Government or any officer specially authorised in this
behalf by the Central Government or a State Government
may, if satisfied that it is necessary or expedient so to do in
the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States or
public order or for preventing incitement to the
commission of an offence, for reasons to be recorded in
writing, by order, direct that any message or class of
messages to or from any person or class of persons, or
relating to any particular subject, brought for transmission
by or transmitted or received by any telegraph, shall not be
transmitted, or shall be intercepted or detained, or shall be
disclosed to the Government making the order or an officer
thereof mentioned in the order:
Provided that press messages intended to be published
in India of correspondents accredited to the Central
Government or a State Government shall not be intercepted
or detained, unless their transmission has been prohibited
under this sub-section.”
85. Rule 419 (A) of the Indian Telegraph Rules, 1951
makes provision for the authorities who are competent to authorize
call interceptions as required in Section 5 (2) of the Indian
Telegraph Act. It is as follows:-
“419-A. (1) Directions for interception of any message or
class of messages under sub-section (2) of Section 5 of theCC No. 214/2019
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Indian Telegraph Act, 1885 (hereinafter referred to as the
said (Act) shall not be issued except by an order made by
the Secretary to the Government of India in the Ministry
of Home Affairs in the case of Government of India and
by the Secretary to the State Government in-charge of the
Home Department in the case of a State Government. In
unavoidable circumstances, such order may be made by an
officer, not below the rank of a Joint Secretary to the
Government of India, who has been duly authorized by the
Union Home Secretary or the State Home Secretary, as the
case may be.”
86. Rule 419 (A) of The Telegraph Rules encapsulates
the entire mechanism of checks and safeguards which have to be
complied with as well as the consequences which flow from its
non-compliance. However, at this stage we will stick to the
competency of the authorized persons to pass such orders and its
proof in the course of trial.
Proof of Orders Passed U/s 5 (2) of The Indian Telegraph Act R/w
Rule 419 (A) of The Indian Telegraph Rules –
87. As stated above, the prosecution had to prove that
either the Secretary to the Government of India, Ministry of Home
Affairs or the Joint Secretary of MHA had passed order/ orders
permitting the interception of the phone conversations in this case.
In this context, the prosecution has asserted that afore-stated
telephonic conversations were recorded in pursuance of earlier
orders dated 08.01.2010 Ex.PW1/D and dated 11.03.2010 Ex.
PW1/E passed by the worthy Union Secretary, Ministry of Home.
On the contrary, the defence argued that the said orders have
neither been proved on record nor the same are admissible in
evidence being invalid in totality.
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88. It is a settled proposition of law that mere
production of the document does not amount to its proof in a trial.
Accordingly, the prosecution was under obligation to prove the
afore-mentioned orders dated 08.01.2010 and 11.03.2010 which
were purportedly issued and signed by the Union Secretary,
Ministry of Home Affairs.
89. Section 61 of the Indian Evidence Act stipulates that
contents of documents may be proved either by primary or by
secondary evidence. Section 61 and 62 of Indian Evidence Act
read together shows that the contents of a document ought to be
proved by primarily producing it in the court, but truth of its
contents cannot be proved by mere production of the document.
Section 67 of Indian Evidence Act further provides the procedure
for proof of signature and handwriting of the person who is alleged
to have signed or written the document. In addition, section 47 of
the Act mandates that when the court has to form an opinion as to
the person by whom any document was written or signed, the
opinion of any person acquainted with the handwriting of such
person is a relevant fact.
90. In order to prove the documents i.e. orders dated
08.01.2010 and 11.03.2010, the prosecution was duty bound to
either examine the author of the documents or any other person
who could identify the signatures of said author of the document.
Admittedly, neither the worthy Union Secretary of Home nor any
official from his office were cited as prosecution witnesses in the
chargesheet. Infact, the prosecution aimed to prove above-stated
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orders by way of deposition of PW-1 Sh. M.C. Kashyap. PW-1 M.
C. Kashyap was not posted in MHA and rather he was posted in
the Special Unit of CBI for collection of intelligence and
telephonic surveillance.
91. The perusal of examination-in-chief of PW-1 shows
that he did not state that the afore-stated orders were signed in his
presence or he had seen the worthy Union Secretary of Home
signing at any point of time. Instead in his cross-examination,
PW-1 categorically stated that the Home Secretary had not signed
the orders in his presence nor he had seen the file in which said
orders were issued. He also deposed that he had not sent any
request to MHA for permitting telephone interception of the phone
numbers involved in this case. He also failed to identify the officer
of CBI who had made such a request for passing of orders dated
08.01.2010 and 11.03.2010 respectively.
92. Therefore, the evidence lead on record shows that
PW-1 M.C. Kashyap had neither seen the Union Secretary,
Ministry of Home Affairs signing the aforeestated orders nor he
was acquainted with his handwriting or signatures.
93. The net result thereof is that the prosecution has
failed to discharge its basic duty i.e. to prove the handwriting and
signature of the officer who had purportedly signed those orders.
94. It is a settled proposition of law that mere exhibition
of the document cannot amount to proof of the same. The
documents have to be proved in accordance with law. In Sudhir
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Engineering Company Vs. NITCO Roadways Ltd. 1995 II AD
Delhi 189, the Hon’ble High Court of Delhi held that, ” The mere
marking of an exhibits does not dispense with the proof of
documents”. Also in Om Prakash Berlia and Anr. Vs. Unique Trust
of Indian & Anr. 1982 SCC Online Bom, 148 it was held that,
“Mere admission of a document or making it an exhibit does not
dispense with requirement of proving it in accordance with law.” .
95. In absence of evidence to that effect, it has to be
concluded that the prosecution has failed to prove that the
aforeestated orders were infact passed by the Union Secretary,
Ministry of Home Affairs.
Validity and Admissibility of Orders dated 08.01.2010 and
11.03.2010 –
96. Even if the issue relating to proof of orders is
ignored, still the prosecution had to cross the next hurdle by
showing that the said orders were valid and legally admissible.
The said question can only be decided on the touchstone of
compliance of mandatory rules framed in this regard.
97. As per Rule 419-A of the Indian Telegraph Rules,
the order passed by the Home Secretary granting permission to
intercept telephonic conversations had to be forwarded to the
Review Committee within seven days of the passing of the order,
for the purpose of being reviewed by the Committee. The relevant
rules in this regard are reproduced below:-
“Rule 419 (A) (16) The Central Government and the State
Government, as the case may be, shall constitute a ReviewCC No. 214/2019
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Committee. The Review Committee to be constituted by
the Central Government shall consist of the following,
namely:
(a) Cabinet Secretary — Chairman
(b) Secretary to the Government of India Incharge, Legal
Affairs — Member
(c) Secretary to the Government of India, Department of
Telecommunications — Member
The Review Committee to be constituted by a State
Government shall consist of the following, namely:
(a) Chief Secretary — Chairman
(b) Secretary Law/Legal Remembrancer Incharge, Legal
Affairs — Member
(c) Secretary to the State Government (other than the Home
Secretary) — Member
(17) The Review Committee shall meet at least once in two
months and record its findings whether the directions
issued under sub-rule (1) are in accordance with the
provisions of sub-section (2) of Section 5 of the said Act.
When the Review Committee is of the opinion that the
directions are not in accordance with the provisions
referred to above it may set aside the directions and orders
for destruction of the copies of the intercepted message or
class of messages.
98. The perusal of charge-sheet and documents annexed
with it shows that there is no averment that above-stated orders
were sent to the Review Committee. The prosecution has also not
filed, let alone prove any document that the said orders were infact
sent to the Review Committee or the Review Committee had
passed any orders either affirming or disagreeing with the orders
purportedly passed by the Secretary Home.
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99. In his cross-examination conducted on 04.03.2025,
the IO i.e. PW-30 Sh. Shailender Singh Mayal categorically stated
that he did not verify during investigation if the interception orders
were forwarded to the Review Committee or not. The exact
statement of the witness is reproduced below:
“I did not verify during investigation if the
interception order was forwarded to the Review Committee or
not.”
The afore-stated categorical statement of the IO and
the complete absence of any material on record to show that the
orders were sent to the Review Committee raises adverse inference
against the prosecution to the effect that the said orders were infact
not sent to the Review Committee and thereby the mandate of Rule
419-A (16) & (17) was not complied with.
100. The consequences of non-compliance of the Rules
as referred above are well settled now. In People’s Union of Civil
Liberties Vs. Union of India (supra), the Hon’ble Supreme Court
laid down mechanism of checks and balances vis-a-vis exercise of
power permitting telephone tapping. The Hon’ble Supreme Court
had directed that states shall constitute Review Committees which
shall meet within two months of passing of order u/s 5 (2) of the
Act for determining the validity of such orders and it was also
given powers to set aside the order under scrutiny. Subsequently,
the legislature framed rules under the Indian Telegraph Rules,
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which were in conformity with the abovenoted directions of the
Hon’ble Apex Court.
101. The issue of non compliance of Section 5(2) of the
Indian Telegraph Act, 1885 r/w Rule 419-A of the Indian
Telegraph Rules, 1951 has also been dealt with at length by the
Hon’ble Delhi High Court in Jatinder Pal Singh Vs. Central
Bureau of Investigation 2022 SCC OnLine Del 135. The relevant
portion of the order of the directions passed is as follows :
“63. As per Rule 419A of the Rules framed under the
Telegraph Act, the order of the Home Secretary granting
permission to intercept telephonic conversations is to be
forwarded to the Review Committee within seven days of
passing the order, for the purpose of being reviewed by
the Committee. This Court does not find any material on
record to establish that any review of the order of the
Home Secretary was conducted in compliance of the
aforesaid rules framed under the Telegraph Act.
Therefore, this Court is convinced that the Special Judge
while passing the impugned orders has totally ignored the
provisions of the aforesaid rules.
64. This Court is of the view that as per Section 5 (2) of
the Telegraph Act, an order for interception can be issued
on either the occurrence of any public emergency or in
the interest of the public safety as per the law laid down
by the Hon’ble Supreme Court in the case of PUCL
(Supra). After the perusal of the records, this Court is
satisfied that in peculiar facts of the instant case, the
mandatory requirements laid down by law for placing
reliance on such audio conversations, have not been
fulfilled. It is an admitted position that Rule 419(A)(17)
which provides for destruction of intercepted message
also adopt the said directions. The court below while
passing the impugned orders has also ignored the settledCC No. 214/2019
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legal positions and directions of the Hon’ble Supreme
Court.
65. It is also relevant to add here that if the directions of
the Hon’ble Supreme Court in PUCL (Supra) which are
now re-enforced and approved by the Hon’ble Supreme
Court in K.S. Puttaswamy (Supra) as also the mandatory
rules in regard to the illegally intercepted messages/audio
conversations pursuant to an order having no sanction of
law, are permitted, it would lead to manifest
arbitrariness and would promote the scant regard to the
procedure and fundamental rights of the citizens, and law
laid down by the Hon’ble Supreme Court.
…….
81 …..
(iv) Tape records of the calls intercepted in the instant
case are not admissible since the due procedure for such
interception as mandated by the Telegraph Act and the
Rules framed thereunder has not been followed. Further,
even the same has not been verified in the FSL report. No
further witness/evidence to implicate the petitioner is on
record.”
102. Thus, as per the above-referred decision of the
Hon’ble Delhi High Court, the non-compliance of Rule 419-A of
the Indian Telegraph Rules qua the orders (passed u/s 5 (2) of the
Act) not having being sent to the Review Committee is fatal to the
case of prosecution as it makes the said orders invalid and
inadmissible.
103. The ld. PP for CBI had relied upon the judgment of
the Hon’ble Supreme Court in R. M. Malkani Vs. State of
Maharashtra AIR 1973 SC 157 to buttress his argument that even
if the said orders passed by the Secretary Home were invalid, it
does not make them inadmissible. However, the issue with respect
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to admissibility of orders passed u/s 5 (2) of the Telegraph Act
which are in contradiction of Rule 419-A of the Telegraph Rules
vis-a-vis the scope of law laid down in R. M. Malkani‘s case was
dealt with in detail by the Hon’ble Bombay High Court in Vinit
Kumar Vs. CBI and Ors 2019 SCC Online Bom 3155 and by the
Hon’ble High Court of Madras in P. Kishore Vs. Secretary to
Government of India & Ors 2025 Online Mad 3053.
104. The conclusions arrived at by the Hon’ble Bombay
High Court and the Hon’ble High Court of Madras with respect to
afore-stated issue will have to be reiterated here at some length. In
the case of Vinit Kumar Vs. CBI (supra), the Hon’ble Bombay
High Court while dealing with the issue relied upon the judgment
of the Hon’ble Apex Court in PUCL (supra) and K. S. Puttaswamy
(supra) and held that:
“7. These directions not only forge procedural safeguards into
the matters of infringement of right to privacy, but also
provide for a just and reasonable procedure. These directions
also provide procedural guarantee against the abuse of any
illegal interference by the guaranteed destruction of the
copies of the intercepted material, in a case where pre-
requisite for invoking Section 5(2) i.e. “occurrence of any
public emergency” or “in the interest of public safety” is non-
existent. Needless to say that the aforesaid directions are
binding on us in view of Article 141 and enforceable through
India under Article 142 of the Constitution of India.
The proposition that illegal tapping of telephone
conversation violates right to privacy is now accepted and
reinforced as guaranteed fundamental right under Article 21
of the Constitution of India, by a nine Judge Constitution
Bench decision in K. S. Puttaswamy versus Union of India
[(2017) 10 SCC 1], by overruling the earlier ConstitutionCC No. 214/2019
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Bench judgments, which did not consider right to privacy as
fundamental rights, analogues to the American Fourth
Amendment, viz. M. P. Sharma versus Satish Chandra [AIR
1954 SC 300] , or held that invasion of privacy is not an
infringement of fundamental right guaranteed by Part III of
the Constitution viz. Kharak Singh [AIR 1963 SC 1295]. It
has now been held by the Constitution Bench in K. S.
Puttaswamy (supra) that the right to privacy is protected by
the Constitution as an intrinsic part of the right to life and
personal liberty under Article 21 of the Constitution of India
and as a part of the freedom guaranteed by Part-III of the
Constitution of India.
10. Thus, now the judgment in PUCL (supra) has to be
seen in the light of observations contained in the nine Judge
Constitution Bench judgment. The nine judge judgment also
noticed the earlier judgments in R. M. Malkani v. State of
Maharashtra (1973) 1 SCC 471 and observed as under :
“51. Among the early decisions of this Court
following Kharak Singh was R M Malkani v State of
Maharashtra. In that case, this Court held that Section 25 of
the Indian Telegraph Act, 1885 was not violated because :
(R.M.Malkani Case, SCC p. 476, para 20) “20. Where a
person talking on the telephone allows another person to
record it or to hear it, it cannot be said that the other person
who is allowed to do so is damaging, removing, tampering,
touching machinery battery line or post for intercepting or
acquainting himself with the contents of any message. There
was no element of coercion or compulsion in attaching the
tape recorder to the telephone.”
This Court followed the same line of reasoning as it
had in Kharak Singh while rejecting a privacy based
challenge under Article 21. Significantly, the Court observed
that : (R.M.Malkani Case, SCC p. 479, para 31) “31. Article
21 was invoked by submitting that the privacy of the
appellant’s conversation was invaded. Article 21
contemplates procedure established by law with regard to
deprivation of life or personal liberty. The telephone
conversation of an innocent citizen will be protected by
Courts against wrongful or high handed interference by
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tapping the conversation. The protection is not for the guilty
citizen against the efforts of the police to vindicate the law
and prevent corruption of public servants. It must not be
understood that the Court will tolerate safeguards for the
protection of the citizen to be imperilled by permitting the
police to proceed by unlawful or irregular methods.”
In other words, it was the targeted and specific nature
of the interception which weighed with the Court, the
telephone tapping being directed at a guilty person. Hence the
Court ruled that the telephone conversation of an innocent
citizen will be protected against wrongful interference by
wiretapping.
[Emphasis supplied]
11. Evidently, the nine Judge Bench was of the view
that the judgment in R.M. Malkani (supra) follows the same
line of reasoning as it held in Kharak Singh (supra), as
attaching tape recorder to the telephone was not considered
as invasion of fundamental right to privacy under Article 21
of the Constitution of India. Kharak Singh (supra) has now
been overruled.
…..
14. It is at this stage, it is pertinent to note that
directions contained in PUCL (supra) are in consonance with
the aforesaid 4 tests.
15. After the judgment in PUCL (supra) and before the
judgment in K.S.Puttaswamy (supra), Rules were also framed
by the Central Government. Relevant Rules introduced by
G.S.R. 193(4) dated 1st March, 2007 (w.e.f. 12th March,
2007) read as follows :
….
21. Having held so, the next question arises is as to
whether any directions for destroying the intercepted
messages are warranted in a particular case or the instant case.
The answer to the said issue would lie in ascertaining whether
following directions contained in PUCL case (supra) which
are now upheld by the constitution bench decision in K. T.
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Puttaswamy (supra) are mandatory :
“35. We, therefore, order and direct as under :-
There shall be a Review Committee consisting of
Cabinet Secretary, the Law Secretary and the Secretary,
Telecommunication at the level of the Central Government.
The Review Committee at the State level shall consist of
Chief Secretary, Law Secretary and another member, other
than the Home Secretary, appointed by the State Government.
(a) …….
(b) If on an investigation the Committee concludes
that there has been a contravention of the provisions of
Section 5(2) of the Act, it shall set aside the order under
scrutiny of the Committee. It shall further direct the
destruction of the copies of the intercepted material.”
22. We find that there is no scope to presume that
aforesaid directions are not mandatory. It is an admitted
position that Rule 419(A)(17) which provides for destruction
of intercepted messages also adopt the said directions. We can
neither permit the Respondents to continue to ignore the
directions of the Hon’ble Apex Court nor can we ignore the
same. Having held that the impugned interception orders
have been issued in contravention of the provisions of section
5(2) of the Act, we have no option but to further direct the
destruction of intercepted messages.
34. In KLD Nagashree v. Government of India
[ AIR-2007 AP 102] while considering the rules as existed
before 12.7. 2007 and directing the destruction of intercepted
messages pursuant to the illegal direction, it was observed in
paragraphs 35 to 38 :
“35. Keeping in view the object and purpose of the
said Rules as declared in People’s Union for Civil Liberties’s
case (supra) and particularly since the violation of the said
provisions would result in infraction of right to privacy of an
individual which is a part of the right guaranteed under
Article 21 of the Constitution of India, I am of the opinion
that Rule 419-A though procedural in nature is mandatory and
the non-compliance of the same would vitiate the entire
proceedings.
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36. It is also relevant to note that under Sub-rule (9) if
the Review Committee is of the opinion that the directions
are not in accordance with the provisions of Rule 419-A, it is
empowered to set aside the directions and order for
destruction of the copies of the intercepted message. The fact
that the consequences of non- compliance of the procedure
prescribed under Rule 419-A are also provided under the
same Rule further makes clear the intention of the Legislature
to make the said procedure mandatory. Hence, the non-
compliance of the procedure under Rule 419-A is
undoubtedly fatal.
37. At any rate, since the impugned order is also in
contravention of the substantive law as laid down in Sub-
section (2) of Section 5 of the Act and is declared illegal, the
consequential action of the respondents 2 and 3 in
intercepting the mobile telephone of the petitioner is
automatically rendered unauthorised. Hence, whatever
information is obtained pursuant to the order dated 17-11-
2003 cannot be taken into consideration for any purpose
whatsoever.”
35. We are in complete agreement with the view
taken by the Andhra Pradesh High Court which considers the
rules providing for consequences for non compliance, as well
as the directions of the supreme Court in PUCL‘s case (supra)
while deciding this issue.
….
38. Similarly, Navjot Sandhu (supra) was a case of
prevention of terrorist activities. It was serious case relating
to the national security. It was nobody’s case that ingredients
of section 5(2) of the Act could not be satisfied or there was
complete lack of jurisdiction under section 5(2) of the Act as
in the instant case. Moreover, the said judgment is only prior
to decision in K. T. Puttaswamy (supra). It in paragraph 154,
it relies on R. M. Malkhani (supra) which as noticed in
paragraph 51, K. T. Puttaswamy (supra) followed the same
line of reasoning as in Kharak Singh (supra) while rejecting
the privacy based challenge under Article 21 of the
constitution of India, which now stands overruled.
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....
42. We may also add here that if the directions of the
Apex Court in PUCL’case (supra) which are now re-enforced
and approved by the Apex Court in K. T. Puttaswamy (supra)
as also the mandatory rules in regard to the illegally
intercepted messages pursuant to an order having no sanction
of law, are permitted to be flouted, we may be breeding
contempt for law, that too in matters involving infraction of
fundamental right of privacy under Article 21 the
Constitution of India. To declare that dehorse the fundamental
rights, in the administration of criminal law, the ends would
justify the means would amount to declaring the Government
authorities may violate any directions of the Supreme Court
or mandatory statutory rules in order to secure evidence
against the citizens. It would lead to manifest arbitrariness
and would promote the scant regard to the procedure and
fundamental rights of the citizens, and law laid down by the
Apex Court.”
105. Thus, in nutshell the Hon’ble Bombay High Court
held that the orders passed u/s 5 (2) of the Act which are in
contravention of the Rules framed under the Indian Telegraph
Rules vis-a-vis the orders not being sent to the Review Committee
makes the said orders totally inadmissible and it cannot be relied
upon by the courts.
106. Similarly, in P. Kishore Vs. Secretary to Government
of India & Ors 2025 Online Mad 3053, the Hon’ble High Court of
Madras also dealt with the same issue in light of the judgment of
Hon’ble Supreme Court in R. M. Malkani‘s case (supra). The
excerpts of the judgment relevant for deciding the issue in
controversy herein are as follows:
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“63. This Court is unable to accept this submission since the
boundaries for invasion of a fundamental right through the
medium of enacted law is a function of the Legislature and
not the Court. Section 5(2) of the Act has set out the
Lakshman Rekha and the role of the Court is confined to
seeing as to whether the threshold is not crossed. As sentinels
on the qui vive, the Courts are gatekeepers of Fundamental
Rights. Gate keepers cannot become gate makers to
reposition the gates as and when the Executive requires
without the intervention of the Legislature as pointed out by
H.R.Khanna,J in the case of Godavari Sugar Mills Ltd. Vs.
S.B.Kamble [reported in 1975 (1) SCC 696], which reads
thus :
“Any provision which has the effect of making an
inroad into the guarantee of fundamental rights in the very
nature of things should be construed very strictly and it would
not, in our opinion, be permissible to widen the scope of such
a provision or to extend the frontiers of the protected zone
beyond what is warranted by the language of the provision.”
64. That apart, the above contention cannot be accepted since
this Court is bound by the interpretation put upon Section
5(2) of the Act in paragraph 28 of the decision of the Hon’ble
Apex Court in People’s Union for Civil Liberties, which has
also been approved by the Constitution Bench decision of the
Hon’ble Supreme Court in K.S. Puttaswamy Vs. Union of
India [reported in 2019 (1) SCC 1].
65. The decision of the Hon’ble Supreme Court in People’s
Union for Civil Liberties has been cited with approval in the
decision of the Hon’ble Apex Court in Anuradha Bhasin Vs.
Union of India [Reported in 2020 (3) SCC 637]. This case is
concerned with the validity of the Temporary Suspension of
Telecom Services (Public Emergency or Public Safety)
Rules, 2017 framed under Section 7 of the Act. These Rules
permit the restriction of telecom services including access to
the Internet. Rule 2(2) the said Suspension Rules contains
safeguards, which are akin to Rule 419- A of the Rules. One
of the safeguards is the forwarding of the reasoned order of
the Competent Authority to a Review Committee, which has
been set up under the said Suspension Rules within one
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working day. Rule 2(6) requires the Review Committee
concerned to meet within five working days of issuance of
the order suspending the telecom services and record its
findings as to whether the order issued under the said
Suspension Rules is in accordance with the provisions of
the main Statute viz. Section 5(2) of the Act.
68. In the decision in People’s Union for Civil Liberties, the
Hon’ble Supreme Court had issued various
directions/procedural safeguards under Article 142, which
were required to be mandatorily followed in all cases of
phone tapping. These directions were incorporated into the
Rules as Rule 419- A by virtue of the Indian Telegraph
(Amendment) Rules, 2007.
69. Advertising to these Rules, it was submitted by Mr.
Sharath Chandran, learned counsel appearing on behalf of the
petitioner that Rule 419-A of the Rules required the
intercepted material to be placed before a Review Committee
to examine as to whether the interception was carried out in
accordance with Section 5(2) of the Act. The attention of this
Court was drawn to Rule 419-A(17) to (19), which reads as
follows:
“(17) The Review Committee shall meet at least once
in two months and record its findings whether the directions
issued under Sub- Rule (1) are in accordance with the
provisions of Sub- Section (2) of Section 5 of the said Act.
When the Review Committee is of the opinion that the
directions are not in accordance with the provisions referred
to above it may set aside the directions and orders for
destruction of the copies of the intercepted message or class
of messages.
(18) Records pertaining to such directions for
interception and of intercepted messages shall be destroyed
by the relevant competent authority and the authorized
security and Law Enforcement Agencies every six months
unless these are, or likely to be, required for functional
requirements.
(19) The service providers shall destroy records
pertaining to directions for interception of message within
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two months of discontinuance of the interception of such
messages and in doing so they shall maintain extreme
secrecy.”
70. The attention of this Court was also drawn to the decision
of the Hon’ble Supreme Court in Anuradha Bhasin wherein
similar procedural requirements as contained in the said
Suspension Rules, 2017 framed under the Act were held to be
mandatory.
72. In the decision of the Hon’ble Supreme Court in Anuradha
Bhasin, the Supreme Court considered a similar review
mechanism contemplated under Rule 2(2) of the said
Suspension Rules, 2017. It was held thus:
“96. The second requirement under Rule 2(2) is the
forwarding of the reasoned order of the competent authority
to a Review Committee which has been set up under the
Suspension Rules, within one working day. The
composition of the Review Committee is provided under
Rule 2(5), with two distinct Review Committees
contemplated for the Union and the State, depending on the
competent authority which issued the order under Rule 2(1).
Rule 2(6) is the final internal check under the Suspension
Rules with respect to the orders issued thereunder. Rule 2(6)
requires the Review Committee concerned to meet within
five working days of issuance of the order suspending
telecom services, and record its findings about whether the
order issued under the Suspension Rules is in accordance
with the provisions of the main statute viz. Section 5(2) of the
Telegraph Act.”
73. Emphasizing on the mandatory nature of the procedural
safeguards, in the case of Anuradha Bhasin, the Supreme
Court held thus:
“106. We also direct that all the above procedural
safeguards, as elucidated by us, need to be mandatorily
followed. In this context, this Court in Hukam Chand Shyam
Lal case [Hukam Chand Shyam Lal v. Union of India, (1976)
2 SCC 128], observed as follows: (SCC p. 133, para 18) ’18.
It is well settled that where a power is required to be exercised
by a certain authority in a certain way, it should beCC No. 214/2019
CBI Vs. Radhey Shyam Sharma Page no. 88 of 129
exercised in that manner or not at all, and all other modes
of performance are necessarily forbidden. It is all the more
necessary to observe this rule where power is of a drastic
nature….”
74. In the instant case, the respondents have, by their own
admission, failed to comply with the mandatory requirement
of placing the intercepted material before the Review
Committee as contemplated under Rule 419-A(17) of the
Rules. The requirement of placing the matter before the
Review Committee is not a mere formality but is a crucial
safeguard to ensure that the power of interception under
Section 5(2) of the Act is not abused or exercised arbitrarily.
The non-compliance with this mandatory procedure, by
itself, vitiates the entire exercise of interception and renders
the same illegal.
76. It is also relevant to note that under Sub- Rule (9), if the
Review Committee is of the opinion that the directions are
not in accordance with the provisions of Rule 419- A of the
Rules, it is empowered to set aside the directions and order
for destruction of the copies of the intercepted message. The
fact that the consequences of non- compliance of the
procedure prescribed under Rule 419- A are also provided
under the same Rule, which further reinforces the intention of
the Legislature to make the said procedure mandatory.
Hence, the non- compliance of the procedure under Rule 419-
A is undoubtedly fatal.
77. At any rate, since the impugned order is also in
contravention of the substantive law as laid down in Sub-
Section (2) of Section 5 of the Act and is declared illegal, the
consequential action of respondents 2 and 3 in intercepting
the mobile telephone of the petitioner is automatically
rendered unauthorised. Hence, whatever information is
obtained pursuant to the order dated 12.8.2011 cannot be
taken into consideration for any purpose whatsoever.
82. This Court may also add here that if the directions of the
Hon’ble Apex Court in the case of People’s Union for Civil
Liberties, which are now re- enforced and approved by the
Hon’ble Apex Court in the case of K.S.Puttaswamy Vs.
Union of India reported in 2019 (1) SCC 1] as also the
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mandatory Rules in regard to the illegally intercepted
messages pursuant to an order having no sanction of law,
are permitted to be flouted, we may be breeding contempt for
law, that too in matters involving infraction of fundamental
right to privacy under Article 21 of The Constitution of India.
To declare that de- hors the fundamental rights, in the
administration of Criminal Law, it would amount to declaring
the Government Authorities to violate any directions of the
Hon’ble Supreme Court or mandatory Statutory Rules in
order to secure evidence against the citizens. It would also
lead to manifest arbitrariness and would promote the scant
regard to the procedure and fundamental rights of the citizens
and the law laid down by the Apex Court.
83. It was brought to the notice of the Court that this
judgment is now pending consideration before the Hon’ble
Supreme Court. However, the same view has been taken by
the Rajasthan High Court in the case of Shashikant Joshi
Vs. State of Rajasthan, [2023 SCC Online Raj 1108 : (2023)
3 RLW 23331 and recently in the case of Rakesh Kumar
Meena Vs. State of Rajasthan, [2025 SCC Online Raj 448].
What is the effect of evidence collected in violation of
Section 5 (2) of the Act?
87. Mr. AR. L. Sundaresan, learned Additional Solicitor
General of India appearing on behalf of the respondents
would submit that even assuming that the order under Section
5(2) of the Act was without jurisdiction, the evidence so
collected is admissible since it is a well settled proposition of
law that even illegally collected evidence is admissible
provided it is relevant. He placed strong reliance on the
decision of the Hon’ble Supreme Court in R.M.Malkani.
89. In R.M.Malkani, the Hon’ble Supreme Court dealt with
an appeal against conviction. Considering an argument of the
violation of the right to privacy, it was held thus:
“There is no scope for holding that the appellant was
made to incriminate himself. At the time of the conversation
there was no case against the appellant. He was not
compelled to speak or confess. Article 21 was invoked by
submitting that the privacy of the appellant’s conversationCC No. 214/2019
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was invaded. Article 21 contemplates procedure established
by law with regard to deprivation of life or personal liberty.
The telephonic conversation of an innocent citizen will be
protected by Courts against wrongful or highhanded
interference by tapping the conversation. The protection is
not for the guilty citizen against the efforts of the police to
vindicate the law and prevent corruption of public servants.
It must not be understood that the Courts will tolerate
safeguards for the protection of the citizen to be imperilled by
permitting the police to proceed by unlawful or irregular
methods. In the present case there is no unlawful or even
irregular method in obtaining the tape- recording of the
conversation.”
90. This decision may not aid the case of the respondents
for more than one reason. In the first place, the decision of
the Hon’ble Supreme Court in R.M.Malkani was a case of
an appeal against conviction where the presumption of
innocence did not apply. It is in this context that the Hon’ble
Supreme Court had observed that the protection against
phone tapping is not available to a guilty citizen. Here, the
petitioner is only accused of an offence. The presumption of
innocence still applies in his favour.
91. Secondly, as pointed out above, the decision was rendered
during the time when the judgment of the Hon’ble Apex Court
in M.P.Sharma was holding the field. It has been pointed out
by the Nine Judges’ Bench of the Hon’ble Supreme Court in
K.S.Puttaswamy Vs. Union of India [reported in 2017 (10)
SCC 1] that the decision in R.M.Malkani had rejected the
argument based on privacy under Article 21 by placing
reliance on the decision of the Majority in Kharak Singh. As
already seen, the decision in K.S.Puttaswamy Vs. Union of
India [reported in 2017 (10) SCC 1] was significant because
it (a) overruled the majority view in the decision in Kharak
Singh and (b) affirmed the existence of a right to privacy
under Article 21.
92. Thus, the jurisprudential basis of the decision of the
Hon’ble Apex Court in R.M.Malkani having been altered, it
remains to be seen as to what is the effect of the decision in
K.S.Puttaswamy on the evidence that is collected by
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unconstitutional methods. The question was considered by
the First Bench of this Court in SNJ Breweries wherein it was
observed there as follows:
“Thus, it needs to be examined if the recent judgment
of 9 Judge Bench in Puttaswamy‘s case recognizing right to
privacy to be part of Article 21 of the Constitution of India
necessitates a revisit of Pooran Mal, to see the impact of the
judgment in Puttaswamy with regard to the view that illegally
obtained evidence can be used. We say so, since violation of
the safeguards relating to search would now render the search
not just illegal but unconstitutional. The sequitur of an
unconstitutional action is that it is rendered void.”
Having observed as above, the First Bench of this
Court remitted the matter to the learned Single Judge for
consideration of the said issue. Where the tapping of phones
is found to have been done in violation of Section 5(2) of the
Act, the order would be clearly unconstitutional. An
unconstitutional order is void under Article 13 and no rights
or liabilities can flow from it.
94. Leaving aside the broader question of the general
admissibility of evidence obtained by unconstitutional
means, this case can be decided on a narrower basis i.e., on
the basis of Rule 419- A of the Rules. As has been pointed out
earlier, one of the guidelines issued by the Hon’ble Supreme
Court in People’s Union for Civil Liberties, dealt with this
issue and it reads as follows:
“35.
(9)….
(a)….
(b) If on an investigation the Committee concludes
that there has been a contravention of the provisions of
Section 5(2) of the Act, it shall set aside the order under
scrutiny of the Committee. It shall further direct the
destruction of the copies of the intercepted material.”
95. Rule 419-A(17) of the Rules also authorizes the
destruction of intercepted messages/calls if it is found that the
action is not in accordance with Section 5(2) of the Act.
Noticing these provisions, the learned Single Judge of the
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Andhra Pradesh High Court, in K.L.D.Nagasree, had
declared that the material obtained in violation of Section
5(2) of the Act and Rule 419- A of the Rules cannot be used
for any purpose whatsoever. As noticed earlier, this decision
has been affirmed right up to the Supreme Court. Similarly in
the Division Bench decision of the Bombay High Court in
Vinit Kumar and the two decisions of the Rajasthan High
Court in the cases of Shashikant Joshi and Rakesh Kumar
Meena, directions were issued for destruction of records.
96. The very fact that the intercepted material was not even
placed before the Review Committee for its scrutiny would
show that the respondents have clearly acted in brazen
violation of the law. In view of the above discussions and as
was done in the decision of the Hon’ble Andhra Pradesh High
Court in K.L.D.Nagasree, it would suffice for this Court to
declare that the intercepted material collected pursuant to the
impugned order in violation of Section 5(2) of the Act and
Rule 419-A(17) of the Rules shall not be used for any
purposes whatsoever.
107. Therefore, the Hon’ble High Court of Madras also
held that the intercepted material collected pursuant to impugned
order which are in violation of Section 5 (2) of the Act and Rule
419-A (17) of the Rules framed under the Act cannot be used for
any purpose whatsoever.
108. Thus, in view of the above-stated propositions of
law, since the material on record shows that the impugned orders
dated 08.01.2010 and 11.03.2010 were not placed before the
Review Committee, therefore, the same are in contravention of the
mandatory rules and thereby are inadmissible and cannot be relied
upon for any purpose.
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109. It has to be noted that generally the act of IO in not
citing official of MHA as a prosecution witness for identification
of handwriting / signature of Secretary, Home and also in not
carrying out investigation qua the alleged orders being sent to the
Review Committee might sound inconspicuous. However, in the
facts of the present case in light of the peculiar manner in which
the present FIR was lodged and the allegations of accused no. 2 &
3 in the FIR no. 11/2010 of ACB, Delhi were brushed aside raises
clouds of suspicion vis-a-vis such lapses.
110. The observance of timelines of the present case
shows that as per prosecution version, the alleged transaction of
delivery of cash took place on 27.01.2010 and by that time another
wing of CBI was already intercepting telephone calls of accused
persons. In normal circumstances, the FIR ought to have been
registered soon after the alleged incident, but in this case the FIR
came to be registered after a gap of three months. There is
absolutely no explanation regarding the reasons for non-
registration of the FIR for such a long period of time. There is
nothing on record to show as to why the investigating agency
waited for so long.
111. The very timing of the FIR of present case creates a
lot of doubts. The FIR of present case was registered on
24.04.2010 i.e. after accused Raj Kishore Gupta had sent a CD to
ACB, GNCTD on 22.01.2010 alleging malpractices in the tender
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process in which another commercial entity had procured a
favourable report. As per allegations, the said CD contained audio
recording of an official of TBRL i.e. institute responsible for
conducting tests. On the basis of complaint and CD, ACB, Delhi
registered an FIR on 11.03.2010.
112. In the given context, the defence version that the
FIR was lodged in this case to pin the complainant / whistle
blowers appears probable. It also leads to a possibility that perhaps
the alleged orders dated 08.03.2010 and 11.03.2010 may not have
been passed by the Secretary Home and that is why the IO did not
cite any official from MHA nor he conducted investigation qua
orders having been sent to Review Committee.
113. The above-stated facts not just make the orders
dated 08.03.2010 and 11.03.2010 invalid and inadmissible, but it
goes on to create grave doubts qua their authenticity. Thus, as a
consequence, the telephone conversations recorded in a CD Ex. P1
cannot be read in evidence.
Voice Recordings –
114. Though as discussed above the orders permitting
interception are inadmissible and cannot be relied upon, but as the
remaining issues i.e. vis-a-vis authenticity and genuineness of said
recordings contained in CD Ex. P1 were advanced at length, now
I shall even examine and discuss the said facts.
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115. The prosecution had to establish that the voices
allegedly recorded in the intercepted telephonic communications
were of accused persons respectively.
116. In Ziyauddin Burhanuddin Bukhari v. Brijmohan
Ramdass Mehra & Ors., (1976) 2 SCC 17, the Hon’ble Supreme
Court had an occasion to deal with admissibility and proof of tape
recorded conversations. The Hon’ble Apex Court held that:
“We think that the High Court was quite right in holding
that the tape records of speeches were “documents” , as
defined by Section 3 of the Evidence Act, which stood on no
different footing than photographs, and that they were
admissible in evidence on satisfying the following
conditions:
(a) The voice of the person alleged to be speaking
must be duly identified by the maker of the record or by
others who knew it.
(b) Accuracy of what was actually recorded had to be
proved by the maker of the record and satisfactory evidence,
direct or circumstantial had to be there so as to rule out
possibilities of tampering with the record.
(c) The subject matter recorded had to be shown to be
relevant according to rules of relevancy found in the
Evidence Act.”
117. Thereafter, the Hon’ble Supreme Court in another
landmark judgment rendered in the case of Ram Singh and Ors Vs.
Col. Ram Singh 1985 SCC Online SC 351 reiterated the above-
stated ratio. It was held that:
“A tape recorded statement is admissible in evidence,
subject to the following conditions:-
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1. The voice of the speaker must be identified by the maker
of the record or other persons recording his voice. Where the
maker is unable to identify the voice, strict proof will be
required to determine whether or not it was the voice of the
alleged speaker.
2. The accuracy of the tape recorded statement must be
proved by the maker of the record by satisfactory evidence:
direct or circumstantial.
3. Possibility of tampering with or erasure of any part of, the
tape recorded statement must be totally excluded.
4. The tape recorded statement must be relevant.
5. The recorded cassette must be sealed and must be kept in
safe or official custody.
6. The voice of the particular speaker must be clearly audible
and must not be lost or distorted by other sounds or
disturbances.”
Serious Contradictions and Aberrations in Collection of Voice
Samples –
118. As per prosecution version, the IO had recorded
voice samples of accused and other persons including PW-4 Sunil
Kumar Tirkey on 30.04.2010 and the IO had also picked certain
key words which were allegedly used in the course of telephonic
communication for recording of the voice samples. However,
interestingly perusal of the seizure memo of the CD i.e. Ex.
PW1/A shows that the said CD (containing alleged recordings of
telephonic conversations) was seized much later i.e. on
20.05.2010. In his cross-examination, IO PW-30 Shailender Singh
Mayal re-affirmed that the said CD was seized on 20.05.2010
which rules out the possibility of inadvertent mistake in writing of
date on the seizure memo Ex. PW1/A.
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119. Thus, the evidence produced on record shows that
the IO without even having seen or heard the alleged recordings of
telephonic conversations was able to find out the key words which
were required for the purpose of voice samples. The said fact casts
a serious dent on the prosecution story qua collection of voice
samples.
Voice Identification –
120. In view of the law as laid down in judgments
referred above, the prosecution was required to examine witnesses
who could identify voice of accused persons in the alleged
intercepted telephonic communications.
121. In the course of trial, all accused categorically
denied the allegation that the voices heard in the intercepted calls
were their voices. They also denied having given voice samples
to IO. It is an admitted fact (not even denied in the course of final
arguments) that during investigation IO did not record statement
of any person who was known to accused Radhey Shyam Sharma
and could identify his voice. As regards the voice identification of
other accused, the case of prosecution was based entirely on the
statement of PW-28 Bhuwanish Kumar. However, PW-28 in his
deposition failed to identify the voices played in the court to be
that of accused no. 1, 2 & 3 respectively. Infact, the witness stated
that he could not identify the voices of any of the persons in all the
audio files. In his cross-examination by the ld. PP for CBI, PW-28
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Bhuwanish Kumar stated that he had heard the telephonic
conversations for the first time in the court and at the time of
joining investigation only one audio was played. Thus, the
prosecution failed to produce even a single witness who could
identify the voices of accused persons in the recorded telephonic
conversations which brings the entire evidence qua voice
recordings of intercepted calls in teeth with ratio of law as
discussed above.
Safe Custody –
122. As per the ratio of law laid down in Ram Singh & Ors
Vs. Col. Ram Singh (supra), the prosecution also had to prove that
CD Ex. P1 and the voice samples were duly sealed and kept in safe
or official custody.
123. The oral and documentary evidence on record shows
that the IO had collected the CD Ex. P1 from PW-1 Sh. M. C.
Kashyap on 20.05.2010 and then it was sent to CFSL in sealed
condition 24.08.2010 alongwith other exhibits. The prosecution
has not proved any documentary evidence to show that the said
CD was ever deposited in the malkhana of CBI. The prosecution
has not brought any evidence to show as to who was the custodian
of CD Ex. P1 for more than 3 months.
124. As per case of prosecution, the memory card
containing voice samples was sealed with the seal of SSM and the
same was handed over to PW-4 Sunil Tirkey. However, the said
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witness failed to produce it in the court. It is not improbable for a
person to misplace or even loose an article such as sample seal, but
in normal circumstances a person who is unable to trace a
government property would generally make an attempt to lodge a
complaint with the police, but PW-4 Sunil Tirkey admittedly did
not lodge any complaint with police regarding loss of seal. The
explanation for not producing the seal by PW-4 Sunil Tirkey
though is probable, but at the same time it can also be an
afterthought.
125. There is no explanation for not producing the record
of malkhana. The facts as mentioned above leaves scope for doubt
that there can be a possibility of interpolation in the case property
i.e. CD etc.
Non-Seizure of Mobile Phones –
126. It is necessary to bear in mind that as per depositions
of PW-4 Sunil Tirkey and IO PW-30 Shailender Singh Maiyal two
mobile phones i.e. of make ‘Motorola’ and ‘Nokia’ were used for
recording of sample voices. The IO also stated that he had
installed a special software i.e. namely ‘Total Recall’ in the mobile
phones before recording the sample voices. However, neither of
the said phones were made part of case property for reasons best
known to the IO. Accordingly, the said phones were also not sent
to CFSL and the impact of the software so installed upon the
alleged recordings has remained unknown.
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Contradictory Time Logs –
127. Admittedly the duration of alleged intercepted calls
as mentioned in Annexure ‘A’ of Ex.PW1/C differs materially
from the call logs provided by the service provider. PW-1 Sh. M.
C. Kashyap i.e. the author of Annexure ‘A’ was confronted with
the aforementioned fact in his cross-examination, but he gave an
explanation which is apparently incorrect. PW-1 stated that the
time of calls reflected in the call detail record is as per time of the
clock of server of the service provider, and the time reflected in
Annexure ‘A’ is as per the time set in the clock of the computer.
The said reasoning does not explain the difference in duration of
the said call logs which varies from seconds to minutes. The time
difference in clocks of two different devices can at best reflect
different timings of the calls, but it cannot vary or alter the duration
of such calls which are recorded in hours/ minutes/ seconds
format. This fact by itself creates a serious doubt that the call logs
could have been tampered with.
Incomplete Call Recordings –
128. It is further pertinent to note that as per PW-1 M. C.
Kashyap the service provider had forwarded more than 1200 calls
relating to mobile number 98110-12859, but only 36 selected calls
relating to all the three mobile numbers were handed over to the
IO in the CD Ex. P1. Thus, it is clear that complete data which
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was allegedly transferred to the CBI by the service provider was
not seized during investigation.
129. Although the above-noted fact by itself would not
generally assume much significance, but in view of the earlier
pointed out discrepancies, it does create some suspicion qua the
authenticity and genuineness of the alleged recordings. The said
fact coupled with difference in time duration of some of the calls
(between the call logs of service provider and as per annexure ‘A’
of report Ex. PW1/C) does not rule out the possibility of distortion
of the context in which subsequent alleged conversations took
place.
Evidence of Expert –
130. PW-15 Sh. Deepak Kumar Tanwar, Sr. Scientific
Officer of CFSL tendered his expert opinion report Ex. PW15/A.
As per settled proposition of law, the evidence of voice
identification is a weak form of evidence. In Nilesh Dinkar
Paradkar v. State of Maharashtra, 2011 (4) SCC 143, the Hon‟ble
Supreme Court held that:
“31. In our opinion, the evidence of voice identification is at
best suspect, if not, wholly unreliable. Accurate voice
identification is much more difficult than visual
identification. It is prone to such extensive and sophisticated
tampering, doctoring and editing that the reality can be
completely replaced by fiction. Therefore, the courts have to
be extremely cautious in basing a conviction purely on the
evidence of voice identification. This Court, in a number of
judgments emphasised the importance of the precautions,CC No. 214/2019
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which are necessary to be taken in placing any reliance on
the evidence of voice identification.
131. The perusal of the report Ex. PW15/A as well as the
deposition of PW-15 Sh. Deepak Kumar Tanwar shows that he
could conduct spectrographic analysis in only one of the fourteen
questioned audio files qua accused Radhey Shyam Sharma.
Finally, the expert opined that voices of all accused in the
questioned files were found to be their ‘probable voices’. Thus,
the forensic expert could not give a clear and definite opinion that
the voices in question were actually the voices of accused persons.
132. Hence, it has to be said that prosecution has also
failed to prove that the voices allegedly contained in the recordings
were that of accused persons.
CAF / CDR of Mobile Phones –
133. As per case of prosecution, the interception of
mobile phone numbers i.e. 98101855003, 9417513496,
9811012859, 9811012858 and 9936011122 was permitted vide
order dated 08.01.2010, whereas, interception of telephone mobile
numbers 9873800739 and 9717196229 was permitted vide order
dated 11.03.2010. Ultimately, PW-1 submitted 36 calls relating to
mobile phone numbers 9811012858, 9811012859 and
9873800739. The prosecution theory is that aforementioned three
mobile phone numbers were issued in the name of company of
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accused no. 2 & 3 or in their personal names and these were
operated upon by them.
134. Two witnesses i.e. PW-3 and PW-19 were examined
for proving CAF and CDR of mobile numbers. PW-3 Ram Kishan
Gupta did not produce the record relating to any of the
aforementioned mobile numbers. PW-19 Israr Babu i.e. Nodal
Officer, Vodafone produced the record relating to CAF of mobile
phone number 9811012859 Ex. PW19/B and CAF of mobile
phone number 9873800739 Ex. PW19/C. Thus, the CAF of
mobile no. 981101258 has not been proved on record.
135. The perusal of Ex. PW19/C which is purportedly
CAF of mobile number 9873800739 shows that it was submitted
in the name of M/s Anjani Technoplast and CAF Ex. PW19/B was
submitted in the name of accused R. K. Gupta. Both these
documents do not show the mobile phone numbers which were
allocated on the basis of aforesaid CAF/ applications. No other
document from the records of service provider was collected
during investigation nor any such document was brought on record
during trial to connect the above-stated CAFs/ application forms
to any of afore-stated mobile phone numbers.
136. PW-19 Israr Babu orally deposed that mobile
number 9811012859 was issued in lieu of CAF Ex. PW19/B and
mobile number 9873800739 was issued in lieu of CAF Ex.
PW19/C. However, the said witness only stated that he had
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handed over the said documents to IO, but he did not state that he
had processed either of the said documents at any point of time.
Essentially the deposition of PW-19 was on the basis of record,
which did not show any material qua allocation of mobile numbers
as was orally deposed by him. Therefore, his deposition that
mobile numbers 9811012859 was issued in the name of accused
R. K. Gupta and mobile number 9873800739 was issued in the
name of M/s Anjani Technoplast Ltd cannot be relied upon in the
absence of connecting documentary link between the CAFs
produced and the mobile phone numbers in question.
137. PW-19 Israr Babu had tendered computer generated
printouts of call detail records relating to the aforesaid phone
numbers. However, he did not submit requisite certificate u/s 65-
B of the Indian Evidence Act in support thereof. Simlarly, PW-18
tendered the CDR of the mobile phone belonging to accused
Radhey Shyam Sharma bearing no. 9868364920, but he too did
not tender the certificate u/s 65-B of the Indian Evidence Act.
138. In Anvar P.V. V. P.K.Basheer and Others, (2014) 10
SCC 473, the Hon’ble Supreme Court laid down that :
“18. The Evidence Act does not contemplate or permit the
proof of an electronic record by oral evidence if
requirements under Section 65-B of the Evidence Act are not
complied with, as the law now stands in India.
…….
20. Proof of electronic record is a special provision
introduced by the IT Act amending various provisions underCC No. 214/2019
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the Evidence Act. The very caption of Section 65-A of the
Evidence Act, read with Sections 59 and 65-B is sufficient
to hold that the special provisions on evidence relating to
electronic records shall be governed by the procedure
prescribed under Section 65-B of the Evidence Act. That is
a complete code in itself. Being a special law, the general
law under Sections 63 and 65 has to yield.”
139. Since, the certificates u/s 65-B of The Indian
Evidence Act have not been filed with respect to CDRs of the
aforementioned mobile phone numbers, therefore, as a result the
call detail records tendered by the witnesses are inadmissible and
cannot be relied upon for any purpose.
140. It is a matter of common knowledge that in the
course of lengthy investigations, some discrepancies are bound to
occur and all the discrepancies are not material, but in the present
case, the case of prosecution suffers from material defects on
almost all the aspects relating to proof of alleged telephonic
conversation. The case of prosecution suffers from such inherent
contradictions and lapses due to which the evidence lead on record
vis-a-vis call recordings can by no means be considered as reliable
and cogent evidence.
141. Therefore, in light of all the above-mentioned
discrepancies including failure of prosecution to identify the
voices of accused, serious contradictions / serious infirmities in
the process of voice sampling during investigation, the fractured
chain of custody of samples and failure of prosecution to establish
usage of alleged mobile phones by accused and their CDRs, the
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inconclusive report of voice identification of expert cannot be
made the basis to hold that accused Radhey Shyam Sharma had
made a demand of ten lakh rupees from accused no. 2 Raj Kishore
Gupta or the voices in the said recordings were of accused no. 1, 2
& 3 respectively.
Generation and Delivery of Cash –
142. As per allegations in the chargesheet, accused no. 3
Lavina Gupta had asked Vinod Raina to arrange cash amount of
Rs. 10 lakhs. As per her instructions, Vinod Raina contacted
Praveen Garg, company secretary and he agreed to arrange the
amount upon taking commission of 3% and he further contacted
Pankaj Jain i.e. CA of M/s Pankaj Sumit and Associates. Pankaj
Jain further agreed to raise a bill of M/s Varun Associates in the
name of M/s Anjani Technoplast along with commission of 2%
over the requisite amount. Accordingly, a cheque of Rs.
11,91,240/- was issued by accused no. 3 Lavina Gupta in favour
of M/s Varun Associates on the pretext of repair of extrusion
machine and the said cheque was deposited in the account of M/s
Varun Associates. Thereafter Praveen Garg collected cash amount
of Rs. 10,56,175/- from PW-13 Pankaj Jain and handed over the
same to Vijay Sharma who in turn handed over the sum of Rs. ten
lakhs to accused Radhey Shyam Sharma.
143. The entire chain of the above-stated sequence of
events is depicted below :
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144. The afore-stated facts show that as per prosecution
version, persons namely Vinod Raina, Praveen Garg, Pankaj Jain
and Vijay Sharma formed an integral part of the chain to connect
payment of sum of rupees ten lakhs by accused Lavina Gupta to
Radhey Shyam Sharma. Therefore, the prosecution examined all
four of them so as to establish a clear chain of sequence of events
for proving that the cash amount of Rs. 10 lakhs was generated at
the instance of accused Lavina Gupta. However, out of the
aforementioned four witnesses, PW-12 Praveen Garg and PW-13
Pankaj Jain did not support the case of prosecution. Both of them
categorically denied having played any part in the process of
generation of cash. PW-12 Praveen Garg categorically denied that
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he had played any role in generation of cash at the instance of
PW-10 Vinod Raina. PW-13 Pankaj Jain deposed that he had no
concern with M/s Varun Associates meaning thereby that it was an
independent firm.
145. PW-14 Varun Kumar Jha deposed that he was
working with PW-13 Pankaj Jain, but he stated that Pankaj Jain
had obtained his photographs and signatures on the account
opening form on the pretext that it was an application for opening
of a saving bank account. However, in his cross-examination the
witness admitted that he had a separate saving bank account in
PNB for the purpose of receiving his salary. PW-14 denied his
signatures on the invoice but neither the sample signatures of
PW-14 were taken during investigation nor the said invoice was
sent to CFSL for comparison of his handwriting. In absence
thereof, the explanation of PW-14 Varun Kumar Jha does not hold
good that he had signed on the account opening form at the
instance of a third person when he was already having a salary
account in another bank.
146. Even if the depositions of PW-10 Vinod Raina and
PW-14 Varun Kumar Jha are believed to be correct to the
maximum possible extent, still there is no evidence of connection
inter-se them. The void left due to contradictory depositions of
PW-12 Praveen Garg and PW-13 Pankaj Jain breaks the chain of
events and there is complete lack of continuity in the sequence of
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events so as to make it a complete chain. To make the matters
worse for prosecution, PW-10 Vinod Raina in his cross-
examination admitted that invoice was issued by M/s Varun
Associates. No investigation was conducted to show that either
M/s ATL Pvt. Ltd. did not have an extrusion machine or that no
such work was ever carried out.
147. It is also required to be borne in mind that as per the
case of prosecution, PW-10 Vinod Raina, PW-12 Praveen Garg,
PW-13 Pankaj Jain and PW-14 Varun Kumar Jha knew that thhey
were participating in commission of the activities relating to
generation of cash from cheque for illegal consideration. The said
version brings all these four persons under the umbrella of
accomplices in the scheme of criminal conspiracy so propounded
by the IO.
148. Now, it is no more ‘Res Integra’ that the
investigating officer can cite a person as a prosecution witness
instead of arraying him / her as accused, despite the fact that said
person had actively participated in the commission of an offence.
The Hon’ble Supreme Court had dealt with a similar issue in
Laxmipat Choraria & Ors Vs. State of Maharashtra 1968 AIR 938,
wherein an accused having actively participated in the commission
of criminal conspiracy was made a witness by IO instead of
arraying her as accused. The Hon’ble Apex Court observed that:
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“At the commencement of the trial ‘Ethyl Wong’ was examined
as the first witness and gave a graphic account of the conspiracy
and the parts played by the accused and her own share in the
transactions. Her testimony was clearly that of an accomplice.
Although she could have been prosecuted, she was not arraigned
and it is her testimony which has been the subject of a major part
of the arguments before us……In these appeals it is, however,
admitted that if her evidence is received, it is sufficiently
corroborated both generally and in respect of the three appellants
before us.”
149. The perusal of depositions of PW-10 Vinod Raina,
PW-12 Praveen Garg, PW-13 Pankaj Jain and PW-14 Varun
Kumar Jha shows that they had intentionally participated in the
commission of alleged criminal conspiracy. Therefore, the
statement of PW-10 Vinod Raina and PW-14 Varun Kumar Jha
were infact inculpatory in nature. Thus, their depositions have to
be treated as the testimonies of accomplices in the commission of
offences.
150. In Somasundram @ Somu Vs. State (2020) 7 SCC
722, Hon’ble Supreme Court dealt with evidentiary value of the
statement of an accomplice and held that :
“To summarize, by way of culling out the principles which
emerge on a conspectus of the aforesaid decisions, we would
hold as follows:
The combined result of Sections 133 read with illustration
(b) to Section 114 of Evidence Act is that the Courts have
evolved, as a rule of prudence, the requirement that it would
be unsafe to convict an accused solely based on
uncorroborated testimony of an accomplice. The
corroboration must be in relation to the material particularsCC No. 214/2019
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of the testimony of an accomplice. It is clear that an
accomplice would be familiar with the general outline of the
crime as he would be one who has participated in the same
and therefore, indeed, be familiar with the matter in general
terms. The connecting link between a particular accused and
the crime, is where corroboration of the testimony of an
accomplice would assume crucial significance. The
evidence of an accomplice must point to the involvement of
a particular accused.
It would, no doubt, be sufficient, if his testimony in
conjunction with other relevant evidence unmistakably
makes out the case for convicting an accused.”
Hence, the depositions of PW-10 and PW-14
required corroboration in material particulars.
151. The best corroborative evidence to the hypothesis of
prosecution qua generation of cash was the documentary evidence
of transaction and the resultant banking transactions.
152. In order to establish the money trail, the cheques
purportedly issued by accused no. 3 were put to PW-10 who
identified the signatures of accused Lavina Gupta on the cheque
Ex. PW7/H. However, none of the said cheques were sent for
comparison to CFSL for a fair conclusion that the signatures on
the same were that of accused no. 3. Nevertheless, mere issuance
of cheque could not establish that it was presented in the bank or
was encashed. The investigating officer could have collected the
invoices for establishing that the cheque so encashed was infact
taken by Pankaj Jain. The prosecution has also not proved the
documents such as cheque returning memos during the trial.
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153. In its endevour to prove the statement of bank
account, prosecution examined PW-27 Sh. Amarjeet, Dy.
Manager, SBI. This witness tendered the copy of statement of
account of M/s ATL Pvt. Ltd. as Ex. PW27/3, but perusal thereof
shows that it is a computer generated printout which has not been
certified as per Banker’s Book Evidence Act.
154. Section 2 (8), 2-A and 4 of the Banker’s Book
Evidence Act deal with admissibility of banking record. They are
reproduced below : –
“2 (8) “certified copy” means when the books of a bank–
(a) are maintained in written form, a copy of any entry in
such books together with a certificate written at the foot of
such copy that it is a true copy of such entry, that such entry
is contained in one of the ordinary books of the bank and
was made in the usual and ordinary course of business and
that such books is still in the custody of the bank, and where
the copy was obtained by mechanical or other process which
in itself ensured the accuracy of the copy, a further
certificate to that effect, but where the book from which such
copy was prepared has been destroyed in the usual course of
the bank’s business after the date on which the copy has been
so prepared, a further certificate to that effect, each such
certificate being dated and subscribed by the principal
accountant or manager of the bank with his name and
official title; and
(b) consists of printouts of data stored in a floppy, disc,
tape or any other electro-magnetic data storage device, a
printout of such entry or a copy of such printout together
with such statements certified in accordance with the
provisions of section 2A.
(c) a printout of any entry in the books of a bank stored in a
micro film, magnetic tape or in any other form of
mechanical or electronic data retrieval mechanism obtained
by a mechanical or other process which in itself ensures theCC No. 214/2019
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accuracy of such printout as a copy of such entry and such
printout contains the certificate in accordance with the
provisions of section 2A.
2-A. Conditions in the printout.– A printout of entry or a
copy of printout referred to in sub-section (8) of section 2
shall be accompanied by the following, namely:–
(a) a certificate to the effect that it is a printout of such entry
or a copy of such printout by the principal accountant or
branch manager;
(b) a certificate by a person in-charge of computer system
containing a brief descriptions of the computer system and
the particulars of–
(A) the safeguards adopted by the system to ensure that data
is entered or any other operation performed only by
authorised persons;
(B) the safeguards adopted to prevent and detect
unauthorised change of data;
(C) the safeguards available to retrieve data that is lost due
to systemic failure or any other reasons;
(D) the manner in which data is transferred from the
system to removable media like floppies, discs, tapes or
other electro-magnetic data storage devices;
(E) the mode of verification in order to ensure that data has
been accurately transferred to such removable media;
(F) the mode of identification of such data storage devices;
(G) the arrangements for the storage and custody of such
storage devices;
(H) the safeguards to prevent and detect any tampering with
the system; and any other factor which will vouch for the
integrity and accuracy of the system.
(c) a further certificate from the person in-charge of the
computer system to the effect that to the best of his
knowledge and belief, such computer system operated
properly at the material time, he was provided with all the
relevant data and the printout in question represents
correctly, or is appropriately derived from, the relevant
data.
4. Mode of proof of entries in bankers’ books.–Subject to
the provisions of this Act, a certified copy of any entry in a
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banker’s book shall in all legal proceedings be received as
prima facie evidence of the existence of such entry, and shall
be admitted as evidence of the matters, transactions and
accounts therein recorded in every case where, and to the
same extent as, the original entry itself is now by law
admissible, but not further or otherwise.”
155. While dealing with the admissibility of statement of
bank account not certified under the Banker’s Book Evidence Act,
the Hon’ble Delhi High Court in Om Prakash v. Central Bureau of
Investigation 2017 VII AD (Del) 649 held that :
“5.18. A conjoint reading of Section 34 of the Indian
Evidence Act, Sections 2(8), 2A and 4 of the Banker’s
Book Evidence Act and the various pronouncements of the
Supreme Court lead to the conclusion that firstly, the
prosecution is required to lead admissible evidence to prove
the entries in the books of accounts and after having led
admissible evidence link the same with other evidence on
record to prove the guilt of the accused beyond reasonable
doubt. Thus, in case the statements of accounts exhibited on
record are accompanied by certificate as envisaged under
Section 2A of the Bankers’ Books Evidence Act, the
statements of accounts would be admissible in evidence. An
objection as to the person exhibiting the said statements of
account i.e. an objection to the mode of proof and not
admissibility, has to be taken at the time of exhibition of the
documents. Therefore if certified copies of the statements of
accounts have been exhibited as per the requirement of
Section 2A of the Act, the statement of account would be
admissible and in case no objection to the witness proving
the same is taken at the time when the document is exhibited,
the document would be validly read in evidence. However,
if the statements of accounts have been exhibited without the
necessary certificate as contemplated under Section 2A of
the Act, the same being inadmissible in evidence, even in the
absence of an objection taken as to the mode of proof during
trial, this Court cannot read the same in evidence even
though marked as an exhibit.”
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156. Since, the statements of account brought on record
are inadmissible, therefore, it cannot be looked into evidence. As
a result the prosecution has failed to prove the corroborative
evidence for establishing the money trail leading to alleged
generation of cash. The broken chain of oral evidence of witnesses
who as per prosecution’s case were accomplices in criminal
conspiracy without corroboration in material particulars is not
sufficient to discharge the burden of prosecution to prove this limb
of its case beyond reasonable doubt. Hence, the prosecution has
failed to establish beyond reasonable doubt that the cash amount
of Rs. 10 lakhs was generated at the instance of accused no. 3
Lavina Gupta.
Delivery of Money –
157. The third and equally important limb of the
prosecution theory was that PW-9 Vijay Sharma had delivered
cash amount of Rs. 10 lakhs to accused Radhey Shyam Sharma on
27.01.2010. The case of prosecution to this extent rested solely on
the deposition of PW-9 Vijay Sharma. However, he did not
support the case of prosecution in its entirety. In his examination
in chief, the witness categorically denied having handed over or
delivered the aforementioned cash amount to accused Radhey
Shyam Sharma at any point of time.
158. In his cross-examination by ld. PP for CBI, initially
the witness denied having given a statement u/s 164 Cr. PC to the
ld. MM about delivery of cash by him, in his cross-examination
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later on he stated that the aforementioned statement was given
under the threat and coercion of the CBI officials. The above noted
deposition of PW-9 Vijay Sharma does not establish the factum of
delivery of cash to accused Radhey Shyam Sharma.
159. In Vijaya Singh & Anr. Vs. State of Uttarakhand
2024 INSC 905, the Hon’ble Supreme Court held that:
“The jurisprudence concerning a statement under Section
164 CrPC is fairly clear. Such a statement is not considered
as a substantive piece of evidence, as substantive oral
evidence is one which is deposed before the Court and is
subjected to cross-examination. However, Section 157 of
Indian Evidence Act, 1872 makes it clear that a statement
under Section 164 CrPC could be used for both
corroboration and contradiction.”
160. It is pertinent to mentioned that PW-9 Vijay Sharma
in his testimony alleged that he had been given beatings by CBI
officials for compelling him to render a false statement u/s 164 Cr.
PC as per their requirement. Normally a person making such
claims at a belated stage has to be looked upon with suspicion, but
in present case, the above-stated allegation of PW-9 Vijay Sharma
was supported by PW-10 Vinod Raina who had infact supported
the case of prosecution otherwise. In his cross-examination,
PW-10 Vinod Raina deposed that Vijay Sharma had told him that
CBI officials had given beatings to him. As the case may be, the
net result of the entire discussion is that PW-9 Vijay Sharma did
not support the case of prosecution.
Recovery of Gold Jewellery and Cash-
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161. Since, the prosecution failed to prove that accused
Radhey Shyam Sharma had demanded cash of Rs. 10 lakhs which
was delivered to him, therefore, the question of recovery of
jewellery alleged to have been purchased from the said cash
amount becomes irrelevant. Nevertheless as the said aspect was
argued at length, I shall proceed to examine and discuss the same
as well.
162. The case of prosecution is that on 28.04.2010, a
search was conducted at the premises of accused Radhey Shyam
Sharma, but nothing incriminating was found during the said
search. It is further alleged that subsequently accused Radhey
Shyam Sharma was arrested and he made disclosure that the
jewellery purchased from Tanishq Jewellers was kept in his
garage. As a consequence thereto, a raid was conducted at the same
residence of accused Radhey Shyam Sharma on 30.04.2010 and
on this occasion a suitcase with a numerical lock of ‘000’ was
found. Upon opening it, jewellery of the worth of Rs. 9.75 lakhs
and cash of Rs. 25,000/- were found in it.
163. Accused Radhey Shyam Sharma took a plea that the
aforementioned jewellery was not recovered from his residence at
Panchkuian Road, Delhi but it was taken away from his wife on
28.04.2010 from his residence at Gurugram, Haryana. Although
the ownership of recovered jewellery and its recovery is not
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disputed, but the date, place and manner of recovery of said
jewellery has been denied by accused Radhey Shyam Sharma.
164. It is pertinent to mention that the IO did not file the
search memo relating to the search conducted at residence of
accused Radhey Shyam Sharma on 28.04.2010 alongwith
chargesheet. It has not been averred as to who all had witnessed
the said search on 28.04.2010 nor any witness of the said search
proceedings was cited in the list of prosecution witnesses.
Ultimately, the prosecution did not examine any witness who had
conducted the said search or had participated in it. There is
complete silence as to which parts of the house were searched by
the team of CBI officials on 28.04.2010. The site plan of the
searched premises i.e. on 28.04.2010 and 30.04.2010 was not
prepared by the IO. It has not been shown whether the garage was
a part of the house of accused Radhey Shyam Sharma or not.
There is no explanation regarding the following aspects i.e.:
(i) whether the said garage was searched on
28.04.2010?
(ii) if it was not searched, then the reasons for not
searching it on that occasion?
(iii) if at all it was searched, then why the said
briefcase was not discovered?
The answers to above referred questions ought to
have been given in the chargesheet and deposition of the IO. The
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absence thereof raises questions qua the authenticity and manner
of search.
165. As per case of prosecution, accused Radhey Shyam
Sharma made a disclosure statement on 30.04.2010 which led to
recovery of jewellery from a garage in his house at Panchkuian
Road, Delhi, but IO did not file the arrest memo of accused Radhey
Shyam Sharma on record. The accused Radhey Shyam Sharma
was admittedly interrogated at length on 28.04.2010 and he
alongwith his wife remained present in the office of CBI on
29.04.2010 as well. As per deposition of IO, the detailed
examination of accused Radhey Shyam Sharma was conducted on
28.04.2010. This fact also dents the case of prosecution that
recovery of jewellery on 30.04.2010 was effected in pursuance of
disclosure of accused Radhey Shyam Sharma.
166. As far as allegations qua recovery of Rs. 25,000/-
from the garage of accused Radhey Shyam Sharma is concerned,
the investigating officer did not collect any material to link the said
amount with the alleged delivery of ten lakh rupees.
167. All these facts and the eerie silence of investigating
agency qua material aspects relating to alleged discovery of
jewellery and cash of Rs.25,000/- creates serious doubts vis-Ã -vis
the alleged manner of recovery of jewellery.
The ld. PP for CBI had vehemently argued that
accused Radhey Shyam Sharma did not intimate the purchase of
jewellery to his department. In this context, as stated earlier
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accused Radhey Shyam Sharma admitted that his wife had
purchased the jewellery from Tanishq Jewellers. However, he
contended that even as per PW-2 Tapan Kumar Satpati (who was
examined by prosecution to prove his service record) such
intimations are sent to the parent department and not to the office
of deputation. PW-2 in his cross-examination further stated that
as per practice in Ministry of Home Affairs, the APR, returns
regarding movable properties and intimations regarding loan does
not form part of the service book. He further stated that additional
documents such as intimations given by accused available with
vigilance department had not been forwarded to CBI. He further
admitted that the complete service record of accused must be in
his parent department. Even if the aforementioned aspects of
deposition of PW-2 Tapan Kumar Satpati are ignored in totality,
the fact that accused did not give intimation only tantamounts to
violation of service rules which by itself does not attach culpability
to him.
168. There is no other evidence to substantiate or prove
the allegations that a sum of Rs. Ten lakhs was given to accused
Radhey Shyam Sharma by accused Raj Kishore Gupta and Lavina
Gupta. Therefore, it has to be said that the prosecution has failed
to prove that a sum of Rs. 10 lakhs was delivered to accused
Radhey Shyam Sharma at the instance of accused no. 2 & 3 and
the recovered jewellery had been purchased from the said
amount.
Use of Cars –
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169. There is no doubt that use of vehicle belonging to
another tantamounts to obtainment of favour. It has already been
held above that accused Radhey Shyam Sharma being a public
servant was involved in the process in which accused no. 2 & 3
were interested. The prosecution had to establish beyond
reasonable doubt that accused Radhey Shyam Sharma had used
and utilized the cars belonging to accused no. 2 & 3 for his
personal use from time to time. In order to prove the above-
mentioned allegations, the prosecution examined three witnesses
who were the drivers of M/s ATL Pvt. Ltd. i.e. PW-21 Prem Singh,
PW-22 Ravi Diwan and PW-23 Neer Kumar.
170. PW-21 Prem Singh admitted that he had worked as
driver in M/s ATL Pvt. Ltd, but he turned hostile and did not
support the case of prosecution. He denied the particulars of his
statement recorded u/s 161 Cr. PC i.e. Ex. PW21/PX1. He
categorically denied having taken accused Radhey Shyam Sharma
to Haridwar. He also stated that he had not disclosed the identities
of persons who had travelled with him for going to Haridwar to
the IO. He failed to identify handwriting of the persons who had
made entries in log books Ex. PW21/1. As per case of prosecution,
the specimen voice sample of PW-21 was also collected by IO
during investigation, but in his examination in chief the witness
denied his voice sample Ex. PW21/3. The IO did not examine any
person for identifying the voice of PW-21 Prem Singh during
investigation in compliance of law laid down in Ram Singh Vs.
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Col. Ram Singh (supra). At the cost of repetition, it is reiterated
that earlier it has already been held that the aforementioned
telephonic conversations are inadmissible in evidence. Therefore,
the testimony of PW-21 i.e. hostile witness did not help the case
of prosecution in any manner.
171. PW-22 Ravi Diwan also turned hostile and he too
did not support the prosecution version. He deposed that he was
working in M/s Anjani Technoplast and CBI had taken him to the
office of CBI. He had signed on the entry dated 04.02.2010, but it
was made by HR Manager namely Ashok Panda. Perusal of the
aforementioned entry at point A to A1 in Ex. PW21/1 shows that
it does not bear reference of the name of person who had used the
car on that occasion. In his cross-examination, the witness stated
that he could not tell whether all travel related entries were duly
recorded in the log book as made by HR of the company. Since
PW-22 did not specifically depose that he had taken accused
Radhey Shyam Sharma in the car, and the entry of log book
identified by him also did not bear any reference of said accused,
so it cannot be assumed that the said car was used by accused
Radhey Shyam Sharma on the given occasions.
172. The third prosecution witness examined in this
context was PW-23 Neer Kumar. He also deposed that he was
working in M/s Anjani Technoplast Pvt. Ltd as a driver, but he
stated that no log book with respect to Honda City Car bearing no.
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DL-4CR-9071 was ever prepared. He denied the contents of entry
in the log book of the said car Ex. PW23/1 at page no. 11 and stated
that he did not know who had made the said entry. In his
examination in chief, PW-23 stated that he had never taken
accused Radhey Shyam Sharma in the car nor he had taken any
other person at the instance of accused Radhey Shyam Sharma.
173. It is alleged that specimen voice of PW-23 Neer
Kumar was also taken during investigation. The said witness in his
deposition also stated that he did not recognize voice which was
played in the court. PW-23 also did not support the case of
prosecution and was cross-examined by ld. PP for CBI. In his
cross-examination by ld. PP for CBI, he denied having visited
places such as Agra, Jaipur, Lucknow, Dehradoon, Mussoorie and
Khatu Shyam Mandir. He also denied having knowledge that the
residence of accused Radhey Shyam Sharma was at Panchkuian
Road, Delhi and specifically denied that he had gone to pick or
drop him at the said address. He denied the contents of his
statement recorded u/s 161 Cr. PC Ex. PW23/PX1. Rather, in his
cross-examination he stated that he was beaten up by CBI officials
and was threatened during investigation. He also stated that he did
not understand the contents of log book being an illiterate person.
Therefore, PW-23 Neer Kumar also did not support the
prosecution’s case.
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174. Besides the aforementioned three witnesses who
were working as drivers in the office of M/s Anjani Technoplast
Pvt. Ltd., prosecution did not examine any other witness to
establish usage of cars belonging to M/s ATL Pvt. Ltd by accused
Radhey Shyam Sharma. Even the entries in the log books
exhibited on record as Ex. PW21/1, Ex. PW21/2 and Ex. PW23/1
have not been proved in accordance with law.
175. Accordingly, it has to be said that prosecution has
failed to prove the allegations that accused Radhey Shyam Sharma
had used the cars pertaining to M/s Anjani Technoplast Pvt. Ltd.
Conclusion:
176. In view of the aforementioned discussion,
considering the numerous contradictions in the investigation
which have been highlighted above, brings the manner and method
of investigation conducted by the IO under the spotlight. As held
above, admittedly during investigation the IO came to conclusion
that accused Radhey Shyam Sharma had not shared any input with
either accused Raj Kishore Gupta or Lavina Gupta. This fact
makes one wonder as to why accused Raj Kishore Gupta and
Lavina Gupta would offer huge amount of money to accused
Radhey Shyam Sharma? It is also not disputed that accused Raj
Kishore Gupta and Lavina Gupta were the complainants / whistle
blowers with respect to tender relating to procurement of defence
equipments in the Ministry of Home Affairs, wherein, M/s S. M.
Group had procured favourable trial report by wrongful means. It
CC No. 214/2019
CBI Vs. Radhey Shyam Sharma Page no. 125 of 129
is also mentioned in the chargesheet that the said tender was
scrapped on the basis of complaint made by accused no. 2 Raj
Kishore Gupta. It is also stated in the chargesheet that an FIR no.
11/2010 was registered in Anti-Corruption Branch, GNCTD on
11.03.2010 on the basis of a CD which as per deposition of IO was
sent by accused Raj Kishore Gupta. However, the IO of the case
merged the said FIR with the present case. His cross-examination
reveals that he had not received any order from the superior
authority for merger of both the FIR’s. It is also an admitted fact
that the FIR no. 11/2010 related to allegations vis-a-vis tender
process which was unconnected with the present case and
ultimately the IO gave clean chit to all the accused and suspects of
the aforementioned FIR without divulging the basis or material
collected by him with respect to it. The fact that the FIR no.
11/2010 was registered on 11.03.2010 i.e. prior to the registration
of the FIR in the present case as well as the manner in which
investigation of this case was conducted raises serious doubts qua
the authenticity of investigation vis-Ã -vis recording of statements
of witnesses, disclosure statements of accused and recovery of
documents and other articles. It has to be said that the possibility
of these accused being implicated on account of them being
whistle blowers cannot be ruled out.
177. The prosecution has failed to discharge its onus to
prove the essential elements required for establishing the guilt of
accused persons beyond reasonable doubt. It has failed to prove
beyond reasonable doubt that accused Radhey Shyam Sharma had
CC No. 214/2019
CBI Vs. Radhey Shyam Sharma Page no. 126 of 129
made a demand of Rs. 10 lakhs from accused Raj Kishore Gupta
& Lavina Gupta. It has also failed to prove beyond doubt that the
afore-stated amount was generated in cash or it was delivered to
accused Radhey Shyam Sharma. The prosecution also failed to
establish that accused Radhey Shyam Sharma had used the cars
belonging to M/s ATL Pvt. Ltd. or its directors i.e. Raj Kishore
Gupta and Lavina Gupta. Since the prosecution failed to prove the
alleged transactions, therefore, the question of abetment of said
transactions which constitute the offences does not arise. In
nutshell, the prosecution has also failed to prove the existence of
criminal conspiracy to commit offences u/s 11 & 12 of the
Prevention of Corruption Act, 1988.
178. As regards the allegation of criminal conspiracy, it
has to be noted that the Hon’ble Apex Court in the decision
reported as Esher Singh v. State of A.P. 2004) 11 SCC 585,
reiterating the principle laid down in V.C. Shukla v. State (Delhi
Admn.) (1980) 2 SCC 665 held that:
“We are aware of the fact that direct independent evidence
of criminal conspiracy may not ordinarily and is generally
not available and its existence invariably is a matter of
inference except as rare exceptions. The inferences are
normally deduced from acts of parties in pursuance of a
purpose in common between the conspirators. This Court
in V.C. Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665 :
1980 SCC (Cri) 561] held that to prove criminal conspiracy
there must be evidence, direct or circumstantial, to show that
there was an agreement between two or more persons to
commit an offence. There must be a meeting of minds
resulting in ultimate decision taken by the conspirators
regarding the commission of an offence and where the
factum of conspiracy is sought to be inferred from
circumstances, the prosecution has to show that theCC No. 214/2019
CBI Vs. Radhey Shyam Sharma Page no. 127 of 129
circumstances give rise to a conclusive or irresistible
inference of an agreement between two or more persons to
commit an offence. As in all other criminal offences, the
prosecution has to discharge its onus of proving the case
against the accused beyond reasonable doubt. The
circumstances in a case, when taken together on their face
value, should indicate the meeting of minds between the
conspirators for the intended object of committing an illegal
act or an act which is not illegal, by illegal means. A few bits
here and a few bits there on which the prosecution relies
cannot be held to be adequate for connecting the accused
with the commission of the crime of criminal conspiracy. It
has to be shown that all means adopted and illegal acts done
were in furtherance of the object of conspiracy hatched. The
circumstances relied on for the purposes of drawing an
inference should be prior in point of time than the actual
commission of the offence in furtherance of the alleged
conspiracy.”
As mentioned above, the prosecution has failed to
prove the allegations constituting commission of offences u/s 11
and 12 of The Prevention of Corruption Act, 1988 against all
accused. The court cannot rely upon few bits and pieces of
material which does not lead to inference of hatching of criminal
conspiracy by all or any of them. Thus, it has to be concluded that
prosecution has failed to prove that all or any of the accused had
committed the offence of criminal conspiracy.
179. As a result, since the prosecution has failed to
establish the guilt of any of the accused persons beyond reasonable
doubt, therefore, accused no. 1 Radhey Shyam Sharma is acquitted
of the charge of having committed offences u/s 120-B r/w section
11 & 12 of The Prevention of Corruption Act, 1988 and u/s 11 of
The Prevention of Corruption Act, 1988. Accused no. 2 Raj
Kishore Gupta & accused no. 3 Lavina Gupta are also acquitted of
CC No. 214/2019
CBI Vs. Radhey Shyam Sharma Page no. 128 of 129
the charge of having committed offences u/s 120-B r/w section 11
& 12 of The Prevention of Corruption Act, 1988 and u/s 12 of The
Prevention of Corruption Act, 1988 respectively.
180. All accused have furnished bail bonds and surety
bonds u/s 437-A Cr.PC. The said bail bonds/ surety bonds shall
remain in force for a period of six months.
181. File be consigned to record room after due
compliance.
Announced in open (SUSHANT CHANGOTRA)
court on 19.03.2026 Special Judge (PC Act) CBI
Rouse Avenue Courts,
New Delhi/19.03.2026
Digitally signed
by SUSHANT
SUSHANT CHANGOTRA
CHANGOTRA Date:
2026.03.19
17:36:32 +0530
CC No. 214/2019
CBI Vs. Radhey Shyam Sharma Page no. 129 of 129
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