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2017 (8) TMI 388
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....'the PC Act') was registered by the CBI, AC-1, New Delhi being RCAC 2012 A0001 against the respondent herein along with other officials of the Central Excise Department, Delhi for obtaining illegal gratification by corrupt and illegal means owing to their alleged role in a raid in Delhi. (b) The chargesheet dated 29.02.2012 was filed in the Court of Special Judge, Patiala House Court, New Delhi for framing of charges wherein it was alleged that on 28.12.2011, a team of officials of Central Excise, Delhi-I, lead by Lallan Ojha, Superintendent, conducted an illegal raid at the premises of Dilip Aggarwal and Anand Aggarwal at Najafgarh Road, New Delhi. It was further alleged in the chargesheet that the respondent herein through one Hemant Gandhi (private person) negotiated with the owners of the premises for illegal gratification in lieu of not taking any action against them and finalized the bribe amount of Rs. 60 lakhs to be paid to the above named private person. The private person was in regular touch with the owners of the premises and received Rs. 20 lakhs in cash along with a cheque of Rs. 20 lakhs as security for the remaining amount from them. Further, the private person w....
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....e in the form of intercepted telephonic conversation, viz., Call No. 51 wherein the amount of "Six Zero" was referred which clearly proves his involvement in the crime and the High Court erred in law in considering that vide Call No. 51 final bribe amount was conveyed to the respondent-accused. 7) Learned counsel further contended that apart from prima facie evidence, there were appropriate and sufficient evidence against the respondent-accused and in all likelihood the quashing of criminal proceeding qua the respondent-accused would severally affect the ongoing trial against other accused. He further contended that the High Court completely lost sight of the fact that the respondent-accused was in constant touch with co-accused Hemant Gandhi who was updating him with every development during and after the raid through Lallan Ojha-Superintendent, which prima facie establishes his involvement in the entire conspiracy. Learned counsel finally contended that the evidence in the form of intercepted calls clearly indicating "Six Zero" and "Mission Successful", deposition of prosecution witnesses, involvement of a private person in the raid and recovery of bribe amount in cash and in ....
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....ation by illegal and corrupt means through Hemant Gandhi. 12) It is the case of the prosecution that on 28.12.2011, a team of officials of the Central Excise Department led by Lallan Ojha, Superintendent, conducted an illegal raid at the premises of Dilip Aggarwal and Anand Aggarwal at 71/7, A-4, First Floor, Najafgarh Road Industrial Area, New Delhi. Further, Lallan Ojha, in conspiracy with respondent herein and Hemant Gandhi and others negotiated with the owners of the premises for illegal gratification in lieu of not taking any action against them and finalized the bribe amount of Rs. 60 lakhs to be paid by them through the private person. The factum of the said raid was telephonically conveyed by Lallan Ojha to the respondent herein through Hemant Gandhi. Hemant Gandhi was in regular touch with the owners of the premises and received a huge amount of Rs. 20 lakhs in cash along with a cheque signed by Anand Aggarwal for Rs. 20 lakhs as security for the remaining amount of illegal gratification. Hemant Gandhi also spoke to Lallan Ojha and the respondent herein for some concession in the amount. 13) The investigation further revealed that as per the intercepted conversations....
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....time they went there HG They reached there at 7.30, (Abusive Language) Kapoor They reached at 7.30 and when they entered HG ... at Sharp 10.30 Kapoor Ok, they are telling huge recovery. HG They have recovered the material of about four crore from inside Kapoor Now the work is fit. HG Yes, but it was not deserving, deal has been made for six zeroes, this is the figure. Don't tell it to Bhai Sahab also, don't tell this to anyone. Kapoor Ok HG No one should learn about this because only I know this figure and Lallu knows. Even that Muchhad (man with moustache) does not know. Kapoor No, no we will not talk with them in this regard. HG Yes, I mean his CHA also does not know the figure. Kapoor Yes HG If it comes out immediately, deal has been made for sixty, will given tomorrow. Kapoor Ok, Ok, Ok. HG Then take.... I did not come in picture anywhere. Kapoor Yes. HG I did not come in picture Kapoor Very good, very good. HG They have made direct all the post deal. Kapoor Yes, it is good. HG He was talking with me continuously. I said you should do there. Kap....
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.... Ok HG Yes Sir. Call No. 48 was made by Hemant Gandhi on 28.12.2011 after the completion of the alleged illegal raid. It is also evident from the call that Mahender Kapoor-Superintendent also had the knowledge of the alleged raid and Hemant Gandhi informed him that the raid was successful and that they have recovered a lot of goods worth about four crores from inside the premises. Further, during the call, Hemant Gandhi told Mahender Kapoor that this figure should not be disclosed to anyone as the same is known only to him and Lallan Ojha. Even Hemant Gandhi asked Mahender Kapoor to not to inform this thing to 'Muchhad' i.e., the respondent-herein to which Mahender Kapoor replied in affirmative and maintained that this should not even be shared with anyone. Hemant Gandhi also informed him that an amount of Rs. 60 lakhs has been fixed for the deal without him (Hemant Gandhi) being in picture. He further admits that this information about the premises was given by him only. It is also on record that for the first time the words 'mission successful' and 'six zeroes' have been used in this call between the Mahender Kapoor and Hemant Gandhi. 15) A bare ....
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....the members of the raiding team informed about the same to him. Further, during the alleged conversation in Call No. 51, it has also been noticed that Hemant Gandhi has used three more figures 'eight', 'fifteen' and 'six' which makes the conversation ambiguous and beyond any comprehension and it does not make out any logical understanding of the actual conversation between the parties making it. Hence, no adverse inference can be drawn against the respondent herein with regard to the same. 17) The statements under Section 164 of the Code also do not implicate the respondent herein in the present case as the witnesses have retracted from their statements. Further, on the contrary, the said witnesses have deposed that the aforesaid statements under Sections 161 and 164 were obtained under threat of arrest and false implication in the case and therefore are not voluntary. Admittedly, the statements of Lallan Ojha as well as the respondent herein are not on record. Even from the statement made by Ms. Rekha Rani (PW-6)-PS to the respondent herein, it can be easily seen that Hemant Gandhi was a frequent visitor to the office of the respondent herein. Several times, PW-6 connected his ....
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....s. The object behind the conspiracy is to achieve the ultimate aim of conspiracy. For a charge of conspiracy means knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do. 20) At this stage, it would be appropriate to quote a decision of this Court in Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao (2012) 9 SCC 512 wherein it was held as under:- "24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means,....
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....xtendable only to an offence under Section 7 and not to those under Sections 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasised, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder. Hence, the proof of....