TMI Blog2019 (7) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 his testimony before the Court admitted that the version in the purported transcript for demand of bribe was admittedly not there when the actual cassette was played in Court. Thus, there is no evidence to establish demand of bribe at the time of raid. 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 conducting of confidential IMWG Meeting in Chennai in the presence of complainant whose 5 applications were pending. The respondent had witnessed bribe given to Dr. Shyam Aggarwal by the complainant for conspiring to conduct IMWG Meeting in complainant s hotel and permitting him to try to influence members to give NOC to all his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was over the respondent informed him that the proposal of their company for export license could be cleared if he paid him a bribe amount of ₹ 8,00,000/-. Since then the respondent had been threatening him over the phone and during meetings, for payment of the bribe amount as early as possible. He further demanded that part of the illegal gratification be paid at Dubai. 3. During the verification proceedings telephonic conversation was recorded by Trap Laying Officer, Rajesh Chahal on 29th January 2009 to establish the demand of bribe of ₹ 8,00,000/-. According to the prosecution, at about 5:40 P.M., V. Swaminathan made a call from his mobile phone to the mobile of the respondent. The said conversation was recorded in the presence of independent witness with the help of Digital Voice Recorder and the same was heard simultaneously by the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 transaction of the bribe. All the trap team members rushed to Room No.101 of India Palace Guest House. He took the DVR form V. Swaminathan and switched it off. When he entered the room, he found the shadow witness sitting on the sofa, V. Swaminathan on the side bed and the respondent on double bed facing them. He asked the shadow witness to narrate the conversation and transaction of bribe to which the shadow witness stated that after reaching Room 101, V. Swaminathan switched on the DVR and made a call to the respondent from his mobile phone after putting the speaker in on mode. The respondent informed V. Swaminathan that he was reaching the said hotel at about 7:00 P.M. The respondent then entered the room who was introduced by V. Swaminathan to him as AS Narayan Rao. Then after having the conversation regarding the bribe, V. Swam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eet 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. The evidence on record indicated that some preliminary inquiry was conducted by Vineet Aggarwal, SP on receipt of information/complaint but it has neither been registered nor its result/inquiry report has been placed on record. 10. In his cross-examination V. Swaminathan deposed that he might have come to Delhi on 14th January 2009. Vijay Bisht, receptionist of Hotel India Guest House, Delhi produced the record of the hotel and testified that V. Swaminathan had made an entry in the hotel register at about 8:30 P.M. on 14th January 2009 and he stayed in their hotel up to 2nd February 2009 in room number 01 and thereafter shifted to room number 101 on 3rd February 2009. It is clear that he was in Delhi from 14th January 2009 but there is nothing on record to show what necessitated him to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed. 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 file was issued to him for his comment/views and was allegedly pending with him till the date of the search that is 3rd February 2009 and the respondent as the head of the Department of Science Technology, Cabinet Secretariat was supposed to give NOC for the said application, which had been approved by IMWG in its meeting on 9th January 2009. Testimony of DW-2 and minutes dated 29th January 2009 of IMWG dated 9th January 2009 coupled with the deposition of PW-18 shows that approval had been granted unconditionally as regards two cases of the complainant s company whereas as regards Qatar, it was subject to NOC of the Cabinet Secretariat and as regards other cases of UAE and New Caladonia the matter had been postponed by the IMWG itself. Moreover, the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Respondent had cleared the file on 12th January 2009 itself. He further submits that the respondent had filed an application under Section 156 (3) Cr.P.C. with respect to conspiracy between Dr. Shyam Aggarwal, Chairman and V. Swaminathan on 26th August 2010 for corruption and falsely implicating the respondent in the present case. He further submitted that the respondent was a whistle blower who sought to expose his superior officers demanding bribe but was entangled into false criminal prosecution by the SP, CBI in conspiracy and connivance with V. Swaminathan. 18. Learned counsel for the respondent further contends that the demand or acceptance of illegal gratification by the respondent has also not been established by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bare perusal of the evidence on record it is crystal clear that the investigation and prosecution did not only fail to prove the case beyond reasonable doubt but also doctored and manipulated incriminating evidence and thus failed in their duty to conduct impartial investigation without any bias. Reliance is placed upon the decisions of the Supreme Court reported as (1974) 3 SCC 774 Jamuna Chaudhary v. State of Bihar and (2011) 10 SCC 192 Mohd. Imran Khan v. State. He further prays that the failure of the investigating officer and the prosecutor in discharging their duty entitles the respondent to pray for adverse inference to be drawn against the investigation and prosecution under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conducting of confidential IMWG Meeting in Chennai in the presence of complainant whose 5 applications were pending. The respondent had witnessed bribe given to Dr. Shyam Aggarwal by the complainant for conspiring to conduct IMWG Meeting in complainant s hotel and permitting him to try to influence members to give NOC to all his pending applications. Though the DGFT officers informed the IMWG members that arrangements will be made by local DGFT Office at Chennai, however the meeting was sponsored by the complainant. As a matter of fact the testimony of DW-2 who brought the original files from the Cabinet Secretariat reveal that it was decided in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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