9911796707
TMI Blog2017 (8) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was in regular touch with the officials of the Excise Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 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 cheque clearly prove the involvement of the respondent-accused and the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution 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 received from Special Unit, CBI, Delhi, the respondent herein was in regular touch with Hema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Kapoor Yes, yes HG He was asking about guarantee, I said he will not annoy you dear. Kapoor Yes, yes HG He is saying for tomorrow.... he is ill also, saying that wil given tomorrow. Kapoor Yes, yes HG Should do, I said you can see. Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 perusal of the above call, prima facie, shows that Mahender Kapoor was actually the man behind the raid who was guiding Hemant Gandhi about the manner in which Lallan Ojha should proceed for ensuring the payment of the agreed amount such as by preparing seizure memo etc. It is also clear from the above that after the raid Hemant Gandhi was afraid of the respondent-herein and does not want to meet him. In this view of the matter, we are of the opinion that Call No. 48 does not implicate respondent herein with regard to the settlement of illegal gratification in lieu of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 call to the respondent herein but in her deposition she clearly mentioned that earlier he used to call on the landline number of the office but for the last 5-6 months he was meeting the respondent herein personally in his office. Though the said deposition proves the nearness of that particular private person with the respondent herein but it cannot be inferred that the private person was in constant touch with the respondent and was apprising him about every development before, during and after the alleged raid. The claim of his nearness to the respondent herein is baseles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 demand has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the PC Act which is absent in the case at hand. 23) It was contended by learned counsel for the appellant-State that the High Court exceeded its jurisdiction while quashing the order of charge passed by the Special Court, CBI Cases. The legal position is well settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime because of its out of the context conversation. In view of the above, we are of the considered opinion that Call Nos. 48 and 51, heavily relied upon by the prosecution, lack object and purpose to prove the complicity of the respondent herein in the crime. Conclusion: 25) In view of the above, we are of the considered opinion that vide Call Nos. 48 and 51, the prosecution is not able to prove the guilt of the respondent herein in the alleged raid. There is no material evidence on record in order to bring home the charge of conspiracy against the respondent. There is no direct or circumstantial evidence to prove that the respondent has demanded any illegal gratification and has accepted or obtained any such illegal gratification. Further, the premises that was alleged to be raided was neither a manufacturing unit nor packing or repacking activity was carried out there and hence no case of central excise could have been made out which could grant any jurisdiction to the respondent to do some favour or disfavor in the discharge of his official functions. The High Court was well within its powers while quashing the order framing charge as there was no material on record to connect ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
