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2019 (7) TMI 110

s vehemently contended that since the FSL revealed that the hand-wash, pant pocket wash and wash of the bed-sheet turned pink, it proves beyond reasonable doubt that the bribe amount was indeed accepted by the respondent and the said evidence in itself is sufficient to prove the case of the prosecution beyond reasonable doubt against the respondent. HELD THAT:- V. Swaminathan the complainant deposed that the respondent was representing himself as one Mr. Sachdev and did not disclose his identity which he came to know when he attended the meeting of IMWG at Chennai in January 2009 to make out a case of initial demand. However, these facts were deposed by the complainant for the first time in his testimony before the Court only and thus the learned Trial Court rightly rejected the same being material improvements. Further, the testimony of V. Swaminathan, shadow witness and the TLO Insp. Rajesh Chahal does not establish specific demand of bribe by the respondent during the trap proceedings. The tape recorded conversations exhibited by the prosecution purportedly of the recording of the conversations at the time of trap does not reveal a demand of bribe. The investigating officer in h .....

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t, M/s Titanium Tantalum Products Ltd. was in the business of exporting a large number of items such as pressure vessels, reactors, heat exchangers, columns and parts manufactured out of Titanium, Tantalum, Nickel, Zirconium etc. For the purpose of export of the above-mentioned items export license was required from Director General of Foreign Trade, New Delhi (in short DGFT ). Since number of these items are of dual use that is they can be used for military purpose apart from the civil use, the clearance of a few government agencies such as Cabinet Secretariat is also required to clear the export license from the point of view of National Security. For this purpose, an Inter-Ministerial Working Group (in short IMWG ) was in place which had representatives from number of different agencies. Their company had applied for export license with DGFT in the month of August-September 2008 for making export worth ₹ 4,50,00,000/- to Qatar, UAE. The export license was not received by them even after a lapse of 4-5 months because their proposal was not cleared by the Cabinet Secretariat. On 9th January 2009 the Inter-Ministerial Working Group had a meeting at Chennai. After the meeting .....

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V. Swaminathan. He was instructed not to touch the tainted amount before handing over the same to the respondent. He was further directed to hand over the same to the respondent on specific demand only. Thereafter, V. Swaminathan called him wherein the respondent asked him to meet at India Palace Guest House, Karol Bagh at about 7:00 P.M. S. Shridhar was asked to act as the shadow witness and to remain with V. Swaminathan in order to overhear the conversation and see the transaction of bribe. He was instructed to pass on a signal of transaction of bribe by rubbing his face with both hands. V. Swaminathan was also instructed to give a call to Rajesh Chahal immediately after the transaction of bribe in case the shadow witness could not see him or other team members. 6. On completion of the pre-trap proceedings, Rajesh Chahal along with the trap team members, both witnesses and V. Swaminathan reached Karol Bagh near the hotel where V. Swaminathan was staying at 6:15 P.M. DVR was handed over to V. Swaminathan with the direction to switch the same on before entering the room with the respondent. At about 7:20 P.M., he received a call from V. Swaminathan informing him about the transact .....

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clean glass bottles which were sealed and marked BW and BSW. The recorded conversation was heard and then transferred in an audio cassette after ensuring its blankness. The respondent was arrested on the spot. The tainted bribe amount of ₹ 1,00,000/-, five bottles containing washes, pant of the respondent, piece of blanket and bed sheet, audio cassette were taken into police possession. 8. Vide order dated 2nd April 2014, charge was framed against the respondent for offences punishable under Section 13(1)(d) punishable under Section 13(2) PC Act and vide the impugned judgment learned Trial Court acquitted the respondent. 9. Respondent was acquitted by the Trial Court on the ground that there was nothing on record and no explanation to show why Vineet Aggarwal, SP CBI visited DGFT office to meet Dr. Shyam Aggarwal even before the complaint was filed by V. Swaminathan. First complaint which was actually the first information given by V. Swaminathan to DGFT was not placed on record by the Investigative Agency. No explanation was furnished by the prosecution with respect to the original complaint not being placed on record and why the said complaint was not made the basis of FIR .....

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bout his identity only when he attended the meeting of IMWG at Chennai in January 2009. Thereafter, he stated that he had met him earlier also but at that time he represented himself as on Mr. Sachdev . These facts have not been mentioned in the complaint filed by V. Swaminathan and have only been stated for the first time in his deposition before the court. 13. A perusal of the testimonies of V. Swaminathan, the shadow witness and TLO Inspector Rajesh Chahal does not establish specific demand of bribe by the respondent on 2nd February 2009 during the trap proceedings. The voluntary acceptance and recovery of tainted money from the possession of the respondent also remains doubtful. 14. The motive for demand of illegal gratification has not been established. As per the charge-sheet, application of V. Swaminathan was approved by the IMWG subject to NOC from the Cabinet Secretariat and it was alleged that NOC was pending in the office of the respondent. It was further the case of the prosecution that the documents pertaining to the license of M/s Titanium Tentalum Products Ltd. Chennai, for export to Qatar were received in the office of the respondent on 25th September 2008 and the f .....

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be since the file with respect to grant of NOC for export of SCOMET items to Qatar by M/s Titanium Tantalum Products limited was pending with the respondent. This fact was proved by the testimony of Ignaci Arulanandu who has stated that documents relating to export license of M/s Titanium Tantalum Products Ltd. was recovered from the room of the respondent and NOC was pending on the day of the search. 17. Ld. Counsel for the respondent contends that no motive on behalf of the respondent for acceptance of bribe has been established. The respondent was not the final authority as his proposal and note for NOC had to be approved by his senior officials namely Additional/ Special Secretary, Cabinet Secretary. He further submits that on the date of the incident that is 2nd February 2009 the respondent went to meet V. Swaminathan at Hotel India Palace Guest House, Karol Bagh as he had contacted him that his CEO Mr. Ramesh Aiyar wanted to meet him to seek advice on Dr. Shyam Aggarwal, Chairman demanding bribe from V. Swaminathan. Bhagirath Jha (DW-2), Under Secretary (Legal), Cabinet Secretariat produced the official records in his deposition before the trial court which showed that the Re .....

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ed by the prosecution to establish demand, the contents of which were found to be missing when the audio tape was played in court. Audio cassette Q2 had no incriminating evidence in it and audio cassette Q3 could not be played in court due to the heavy background noise in it. 19. Learned counsel also submitted that recovery of tainted money was not made from Respondent by Trap Team leading to doubt on voluntary acceptance and factum of demand. Reliance is placed upon the decisions of the Supreme Court reported as (2017) 8 SCC 136 Mukhtiar Singh v. State of Punjab, (2016) 12 SCC 150 V. Sejappa v. State, 2009 (3) SCC 779 C.M. Girish Babu v. CBI and (2013) 14 SCC 153 State of Punjab v. Madan Mohan Lal Verma. The phenolphthalein test coming positive cannot be given undue weightage in the present case as the powdered currency notes were went in the hands of multiple people. That as such even if the respondent shook hands with any of these witnesses the alleged powder is bound to be transmitted to the hands of the respondent. Reliance is placed upon the decision of the Supreme Court reported as (2015) 11 SCC 314 C Sukumaran v. State of Kerala. 20. Learned counsel submitted that from the .....

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, there is no evidence to establish demand of bribe at the time of raid. 23. Though it is the case of the prosecution that the file for approval of the case of V. Swaminathan was pending before the respondent, however the respondent produced DW-2 who brought the minutes dated 29th January, 2009 of IMWG and also the deposition of PW-18 shows that approval for two cases of the complainant company had been granted unconditionally on 9th January, 2009 wherein the respondent had no role to play and as regards third file relating to Qatar it was subject to NOC of the Cabinet Secretariat in which decision making process the respondent was not the final authority. It also assured that the Note dated 12th January, 2009 prepared by the respondent had already been put up before the senior officers i.e. Additional Secretary and the Special Secretary. 24. Case of the respondent in his statement under Section 313 Cr.P.C. was that he was innocent and falsely implicated at the instance of Dr. Shyam Aggarwal, Chairman of IMWG who was known to Vineet Aggarwal S.P. CBI and in conspiracy with the complainant, this corruption case was foisted on the respondent. The respondent had strongly objected to c .....

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