IN THE COURT OF XIII ADDITIONAL SPECIAL JUDGE FOR CBI CASES, CHENNAI.

PRESENT: THIRU.A.K.MEHBUB ALIKHAN, B.L.M., L.L.M., P.G.D.PM/IR. XIIII ADDITIONAL SPECIAL JUDGE FOR CBI CASES

Friday  the 30^th day of September, 2022.

( CBI/ACB/CHENNAI/RC/11/A/2012)

C.C.NO.51 of 2012

The  State by

Addl.S.P., .SPE CBI, ACB, ChennaI   ….. Complainant

Vs

1) C.Rajan

S/o Late M.Chinnadurai

Additional Director General,DRI

R/O

C-3, GPRA Quarters,

No.25, Haddows Road,     Chennai – 600 006.

Permanent Address:

SharonRose,

Next to Cald Well Colony, Tuticorin – 628 008.

2. M.Murugesan,

S/o Late M.Munusamy,

Driver

Office of the Zonal Directorate of DRI, Chennai

(On Contract basis worked in DRI, from Cusoms, Chennai)

R/O

No.3/6, Revnue Quarters,

Anna Nagar,

Chenai -40

Permanent Address:

No.132, Housing Board,

Behind Nehru Park,

P.H. Road,

Chennai – 600 084.                           …Accused 1 and 2

Date of occurrence	06.03.2012
Date of filing of Charge Sheet	14.12.2012
Date of taken on file	18.12.2012
Date of first appearance of the accused	08.01.2013
Date of commencement of examination of witnesses	21.07.2015
Date of last hearing	23.09.2022
Date of Judgment	30.09.2022

Charges framed against Mr.C.Rajan, Accused No. 1 

120-B IPC r/w Sections 7, 13(2) r/w 13 (1) (d) of the Prevention of Corruption Act.

Charges framed against Mr.M.Murugesan, Accused No.2

120-B IPC r/w Sections 7, 13(2) r/w 13 (1) (d) of the Prevention of Corruption Act.

Answer of the accused for the charges:

Pleaded not guilty.

Learned Special Public Prosecutor for the Complainant.        :  Smt.S.Ananthi

Learned Advocates for the accused No.1:      :  Mr.D. Jayasingh

Learned Advocates for the accused2:              :  Mr.R.Srinivas

CASE SUMMARY

(As per the Hon’ble High Court’s Circular in R.O.C.No.814/2020/RG/F1 & P.Dis.No.36/2021, dated 07.04.2021.

Sl. No.	Description	Date
i	Period of remand of the accused	from 07.03.2012 to 20.04.2012
ii	Date of filing of the complaint/final report in the Court:	14.12.2012
iii	Date of committal of the case to the Court of Sessions:	Made from Hon’ble Principal  Special Court for CBI cases,18.12.2012
iv	Date of questioning of the accused under Section 228/ 240/246/251 of the Code of Criminal Procedure, 1973, as the case may be:	18.05.2015
v	Filing of all  miscellaneous petitions and their results including the results on challenge before  superior Courts; except routine petitions under Section 317 of the Code:	1.               . Crl.M.P. 121 0F 2013- Petition under section 239 for discharge filed by A2-dismissed 2.               Crl.M.P. No.6586 of 2022 – Petition undersection 294 Cr.P.C. filed by A2- allowed.
vi	Date of  examination in-chief and cross examination of witnesses

 

	Name of the  Witnesses	Date of Chief Examination	Date of Cross Examination
	PW1- Mr.B.K.Mahanta	21.07.2015	21.07.2015
	PW2 – Tmt. Jane K.Nathaniel	19.08.2015	19.08.2015
	PW3 – Mr.Ubaithullah	03.11.2015	01.12.2015
	PW4- Mr. Stanlin Joseph	03.03.2016	09.03.2016
	PW5- Mr.Selvam	02.09.2016	05.04.2017
	PW6- Mr.P.V.K.Rajasekhar	12.09.2017	12.11.2017
	PW7- Smt. Grace Alice Thomas	12.12.2017	12.12.2017
	PW8- Mr.Meghraj C Jain	12.12.2017	12.12.2017
	PW9 – Mr G. Pannerselvam	18.12.2017	18.12.2017
	PW10- Mrs.Anjali Narayanan	02.01.2018	02.01.2018
	PW11-Mrs. Meenakshi	02.01.2018	02.01.2018
	PW12-Mr. M.Arun Kanth	02.01.2018	02.01.2018
	PW13- Mr.R.Santhanakrishnan	17.01.2018	17.01.2018
	PW14- Mr.M.Muruganandan	08.02.2018	19.03.2018
	PW15- Mr.T.Prabakar	09.05.2018	09.05.2018
	PW16- Mr.M.Mohamad Ibrahim	20.06.2018	No cross
	PW17- Mr.K.Engineer	12.07.2018	12.08.2018
	PW18-Mr.C.Vijay	22.10.2018	22.10.2018
	PW19- Mr. Mohanavelu	27.02.2019	27.02.2019
	PW20-  Mr.Vijeyakumar Raja	26.07.2019	No Cross
	PW21-Mr.M.Elangovan	08.08.2019	No cross
	PW22- Dr.A.Kannan	08.08.2019	08.08.2019
	PW23- Mr.N.R.Rajkumar	29.08.2019	No Cross
	PW24- Mr.A.Manimaran	24.09.2019	No Cross
	PW25-Mr.N.Chakrapani	24.09.2019	No cross
	PW26- Mr.A.S.Michael	24.09.2019	24.09.2019
	PW27-Tmt.Kalarani	24.09.2019	No Cross
	PW28-  Mr. G.M.K. Guru	24.09.2019	24.09.2019
	PW29- Mr.C.S.Moni	26.09.2019	26.09.2019
	PW30-Mr.M.Krishna	13.11.2019	No Cross
	PW31-Mr.L.S.Padma Kumar	28.11.2019	28.11.2019
	PW32-Mr.S.Vellai Pandi	13.08.2021	02.09.2021
vii	Date of examination of the accused under Section 313 of the Code:	Accused No.1 on 28.02.2022 & Accused No. 2 on  02.03.2022
viii	—-	—
ix	Details of abscondence of an accused and his appearance/production, as the case may be:	NIL
x	Grant of stay by superior courts and the results thereof:	Nil.

Findings of the Judge:

This  case came  up before this court  for final hearing  on 23.09.2022  in the

presence of Smt. S.Ananthi,  Learned Special Public Prosecutor for Prosecution/CBI and Mr. D.Jayasingh, learned counsel appearing for the accused A1,   Mr. R.Srinivas, learned counsel appearing for the accused A2  and upon hearing both sides arguments and on perusing the oral and documentary evidence and having stood over for consideration till this date, this court delivers the following:

 JUDGMENT

This is  a case  registered under Section 120-B Indian Penal Code  r/w Sections 7, 13(2) r/w 13 (1) (d) of the Prevention of Corruption Act.

1. This case arose out of the final report filed by the Complainant – CBI against

Mr. C. Rajan (A1) and Mr.M.Murugesan (A2),  that they both had conspired and that

A1 had demanded an illegal gratification of Rs.10,00,000/- and an Apple i-Pad from the Defacto complainant and that A2 had accepted  a sum of Rs.2,00,000/ and the Apple i-Pad as advance on 06.03.2012  from Mr. Ubaidullah, on behalf of A1 and thereby they  both have committed offences punishable under Section 120-B of Indian Penal Code (hereinafter referred as IPC) and Sections 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act (hereinafter referred as PC Act).

2. This Court took cognizance and issued summons to the   On theirappearance, copies as required under section 207 Cr.P.C. were furnished to them.
3. Thereafter this Court, on finding that sufficient materials were available forproceeding further, framed distinct charges under section 120-B IPC r/w Sections 7 and 13(2) r/w 13(1)(d) of the PC Act against A1 and A2 on 18.05.2015.  On questioning about the charges, both the accused pleaded not guilty and claimed to be tried.
4. Accordingly, summons were issued to the prosecution witnesses and out of the

35 listed witnesses, 32 witnesses were examined as PW1 to PW32 and Exhibits P1 to Ex.P84 and MO1 to MO12 were marked by the prosecution.

5.      On the side of A2, Ex.P85 was marked under Section 294 Cr.P.C.
6. The Case of the Prosecution:

i). Gensis:

6. C.Rajan (A1) was working as Additional Director General of Chennai Zoneof the Directorate of Revenue Intelligence (DRI) and Mr. M.Murugesan(A2) was his driver. Earlier A1 was working in Air Customs, Sea Customs and other departments in various positions and A2 was his driver during his earlier postings, the details of which are found in Ex.P65. When A1 was transfered and posted as Additional Director General in DRI, he had requested the Commissioner of Customs to send A2 as Driver on loan basis through the letter dated 5.4.2010 under Ex.P66 (Attested copy of the letter as produced by Mr. Chakrabani-PW25) and accordingly A2 was sent on loan basis for 6 months as per the office order dated 16.4.2010 in Ex. P67 and the same was acknowledged by the letter in Ex.P68.  Ex. P69 is the statement showing the vacancy positions and working strength of various posts of DRI Department in Chennai, Hyderabad, Vizag, Trichy and Tuticorin.  As on 5.4.2010,  there were no vacancies of Drivers in  Chennai.   According to the prosecution, A1 had requested A2 to be sent as driver because he was very close to him,  even though there were no vacancies of driver post at that time as found in Ex.P69.   Since then, A2 had been driving the official car of A1 with registration number TN-09-AM-6262 till the date of his arrest.   Mr. N.R.Rajkumar (PW23) was incharge of the government vehicles and had produced log book Ex.P70 for the said official car.
7. The Directorate of Revenue Intelligence upon getting intelligence inputs about violation of Customs duty, had conducted raids in the premises of M/s.Abi Sathya Enterprises and M/s. Pulkit International for violation of declaration and under declaration of the goods and have also conducted search in M/s.Hansum India Electronics Pvt Ltd in the year 2010. During the search conducted at the office premises of Stalin Joseph (PW4), Director of M/s.Hansum India Electronics Pvt

Ltd, the DRI had seized certain documents including the cheque books (Ex.P10 and

Ex.P11) and pass book found in the name of Mr. Super King Myatzin, a person of

Indian origin settled in Myanmar and his bank accounts namely N.R.E account

No.04641040000283 and NRO account No.04641050000175 with Kotak Mahindra Bank, Second Line Beach branch, Chennai  were frozen.

8. P.V.K Rajasekhar (PW6) had conducted search with DRI team at thepremises of M/s. Hansum India Electronics Pvt Limited and had issued summons to

Kotak Mahindra Bank, Mr. Stalin Joseph (PW4) and Mr. A.S. Michael (PW26).

Further, he had sent letters under Ex. P36 and Ex. P37 requesting M/s.  ICICI Ltd and

M/s. Kotak Mahindra Bank to freeze the accounts of M/s. Hansum India Electronics

Pvt Limited and Mr. Super King Myatzin respectively. The authorized signatory of M/s Hansum India Electronics Pvt Ltd had sent representations to DRI under Ex.P16 and Ex.P17 to defreeze their accounts.   Mr. A.S. Michael (PW26),  one of the Directors of the said Company had filed writ petitions in Ex.20, EX.P21, Ex.P22 in the Hon’ble High Court, Madras against the DRI and had obtained orders in Ex.P23 to defreeze the accounts of  the said entity.   So,  based on the orders of the Hon’ble High Court  in WP. No. 26176 and 26177 of 2012,  PW6 had written to the Bank to defreeze the account of M/s Hansum India Electronics Pvt Ltd and had also recieved an acknowledgment from the bank. These documents are marked as Ex.P31 to Ex.P39. Similarly, Mr. Santhanakrishnan (PW13) had produced the documents relating to the official proceedings of the DRI against M/s. Abi Sathya Enterprises, and summons issued to M/s. ICICI Bank and the reply from the bank and the same are marked as  Ex.P41 to Ex. P43.     Further, Mr. Muruganandan (PW14), who was part of the team that conducted search and seizure at A.S Shipping Agencies and at M/s. Hansum India Electronics Pvt Ltd., had seized the documents relating to those entities and has also identified the counter affidavits filed on behalf of the respondents in Writ Petition No.25324 of 2010 in the Hon’ble Court, Madras which are marked as Ex.P44 to P47.

9. The Seizure mahazars, summons issued to the Directors of M/s. Hansum India Electronics Pvt Ltd, and many other records connected with the said entity were seized by the DRI and the same were identified by Mr. Stanlin Joseph (PW4) in his evidence and are marked as Ex.P7, Ex.P8, Ex.P9, Ex.P10, Ex.P11, Ex.P12 and

Ex.P13.  PW4 has also identified the documents furnished by Mr. Super King Myatzin while opening the NRE and NRO accounts with Kotak Mahindra Bank as Ex.P18 and Ex.P19.  Later, PW4 had taken over the company from PW26 as per the take over agreement under Ex.P46.

10. Super King Myatzin (not examined) had authorized his relative Shri. Stalin

Joseph (PW4) to take necessary action to get his bank accounts de-freezed.

Accordingly,  Mr.Stalin Joseph (PW4) had given a representation to  the office of the

Additional Director General of DRI along with the authorisation letter of  Mr.Super King Myatzin on 22.02.2012 (Ex.P14).

11. Meenakshi, Havildar (PW11) had recieved the said letter and had shown itto Mr. Arun kanth (PW12), who wanted to meet the person who had given that letter. When she pointed him to Mr. Stalin Joseph standing far away and when PW12 called him to speak, he had left without listening.  Mr. Mohammed Ibrahim (PW 16)) was shown the said letter by Ms.Meenakshi (PW11) and he had asked her to give it to Ms. Anjali Narayanan (PW10), the then Personal Secretary to ADG, DRI  as it was addressed to ADG, DRI.  In turn Ms. Anjali Narayanan (PW10), had placed the letter with annexures (Ex.P14) to Mr.C.Rajan (A1), ADG, DRI.  Mr. Prabakar (PW15) had recieved the said letter and placed it before Mr. Mohammed Ibrahim (PW16) for further proceedings as his senior intelligence officer Mr. Muruganantham (PW14) was on leave on that day.
12. ii) Circumstances leading to the filing of Complaint:
13. Since no action was taken on his representation given under Ex.P14, Mr.Stalin Joseph (PW4) had met his friend Mr. Farook Ubaidullah  (PW3) around 11 am on 2.3.2012 and sought his help to get the accounts of Mr.SuperKing Myatzin defreezed, as he has contacts in the DRI.  That the said Mr.Farook  Ubaidullah (PW3) had visited DRI’s office  around 2.30 p.m on 03.03.2012  to meet Mr.C.Rajan (A1) but was not able to meet him as he was busy.    A1 had informed Mr. Engineer, Additional Director General  (PW17), over intercom that PW3 had visited the office and had asked him to instruct Mr.Arun Kanth (PW12) to meet PW3 and enquire about the purpose of his visit.  Accordingly, PW17 had instructed PW12 and he had met PW3 on that day.  PW3 had informed PW12,  that he wanted to meet A1 only and since he could not meet him on that day he would meet A1 the next day (i.e. on 4.3.2012) in his quarters and had asked him to inform A1 to make a call if he did not want to meet him and that if he did not get the call from A1 he would meet him the next day morning.   Later, when PW17 went to discuss some official matters with A1, PW12 had gone with him and had informed A1 about his conversation with PW3 but A1 did not show any reaction.   Panneerselvam (PW9) had seen Ubaidullah (PW3) at

DRI’s office on 3.3.2012 and had seen Mr.Arun kanth (PW12) taking him to A1’s

Cabin and after 5 minutes, PW3 left the office.

13. As PW3 did not receive any call from A1 informing him not to come, he had gone to the GPRA quarters the next day morning i.e. on 04.03.2012 at 7.00 a.m. and had met A1 and had requested him to defreeze  the accounts of  Super King Myatzin.  That A1 had informed PW3 that the said Mr.Super King Myatzin would be detained under COFEPOSA and had demanded Rs.10,00,000/- and an Apple i-Pad for not doing so and to defreeze the two accounts of Mr.Super King Myatzin.  He had asked PW3 to take Rs.2,00,000/- for himself  and to pay Rs.2,00,000/- and the Apple i-Pad as advance. A1 had further informed PW3 not to contact him regarding this matter but to contact his driver Mr.Murugesan (A2). Hence, PW3 informed his friend Mr.Stalin Joseph (PW4) about the demand made by A1, who in turn had informed his relative Mr.Super King Myatzin about this. Mr.Super King Myatzin was not ready to give any bribe and wanted to take suitable action as per law.

iii) Lodging of the complaint and investigation:

14. Stalin Joseph (PW4) informed PW3 about this decision and they decided tolodge a complaint with the CBI. PW3 called A2 and informed him about the discussion he had with A1 earlier and wanted to know what to do further. A2 had told him that he would contact him once he get the message from A1.  Thereafter, A2 had called PW3 in the morning of 5.3.2012 and had informed him to bring the ‘matter’ as demanded by A1 to the gate of GPRA quarters the next day morning (i.e. on 6.3.2012.)  Thereafter, PW3 lodged the complaint (Ex.P4) on 05.03.2012 at 2.45

p.m. with the CBI.    Mr.Arunachalam, D.I.G. and Head of the Branch (not examined) received the said complaint and instructed Mr.C.S Moni, the then Deputy Superintendent of Police (PW29) to conduct a discreet enquiry and to submit a verification report to him. Accordingly, Mr.C.S. Moni (PW29) had discussed about the complaint with PW3 and had conducted the discreet enquiry and found from his sources that Mr.Rajan(A1) was not enjoying good reputation during the relevant period and that Mr. Murugesan(A2) used to demand and collect illegal gratifications and hand over the same to Mr. Rajan(A1).  Later Mr.C.S.Moni (PW29) prepared the verification report  Ex.P76 at 09.30 p.m. and submitted the same to the DIG at 09.45 p.m. on 05.03.2012.  On reciept of the verification report, Mr. Arunachalam, DIG had directed the registration of the FIR under Ex. P78, in RC MA1 2012 A 0011 at 10.30 p.m. on 05.03.2012 against A1 and A2 under sections 120B IPC and Sections 7 and 13(2) r/w 13(1)(d) of the PC Act and had deputed Mr.Padma Kumar (PW31) to take further action in that matter.

15. Padmakumar, Additional SP (PW31) perused the complaint (Ex.P4),verification report (Ex.P76) and the FIR (Ex.P78) and enquired the defacto complainant PW3 present there and made arrangements for conducting the trap proceedings. He asked PW3 and PW4 to make arrangements for the amount and the Apple i-Pad and  to come to the CBI office  at 6.00 am on the next day i.e.

06.03.2012. Thereafter, he contacted the CVO of Southern Railways and the HR of Bank of Baroda to depute persons to be the independent witnesses for the trap proceedings the next morning. He formed a team consisting of Mr. Moni (PW29),

Mr. Manivannan and  Mr. Prabakaran – Inspectors of Police, Mr. Ramalingam and Mr.Sivakumar – Constables (all these 4 persons not examined as witnesses) and asked them to be present in the office by 5.00 am on 6.3.2012.   Mr. Stalin Joseph (PW4) arranged for the money demanded and he also purchased  the Apple i-Pad from the

M/s. Easy Cell City belonging to Mr. Meghraj Jain (PW8) on 5.3.2012 in the name of Mr.Ubaidullah (PW3) under the invoice Ex.P5.

16. On 06.03.202 at 6.00 am, the defacto complainant Mr. Ubaidullah (PW3), Mr..Stalin Joseph (PW4) and Mr. Selvam (PW5) and Mr.Sivalingam (not examined), persons deputed by their respective offices and the above named team members assembled in the room of Mr. Padmakumar (PW31) and he read over the complaint to all and commenced the trap proceedings. The amount of Rs.2,00,000/- (MO1) and the Apple i-Pad (MO2) were handed over to Mr. Padmakumar (PW31) by Mr.Ubaidullah (PW3). Later, PW31 gave necessary instructions to the witnesses and others present there and Mr. Ramalingam (not examined) prepared the sodium carbonate solution and demonstrated the Phenolphthalein test to the witnesses. Thereafter, the tainted currency (MO1)  and the Apple i-Pad (MO2) were put inside the Adyar Anandha Bhavan plastic cover (MO3) and were handed over to Mr.

Ubaidullah (PW3) with instructions not to touch the amount and the Apple i-Pad until it was handed over to A2 as  demanded by the accused.  The trap kit was made ready by Mr.Sivakumar (not examined) and Mr.Selvam (PW5) was asked to accompany PW3  to hear the conversation between A2 and PW3. Mr. Padmakumar (PW31) recorded all this in the Entrustment Mahazar Ex.P6 prepared by him and the team left for the trap.  Later, PW3 alone went in his car into the compound of GPRA

Quarters to meet A2 as instructed by him the previous day. A2 had come to meet PW3 in front of GPRA quarters and had informed him  that the time was not conducive to receive the amount  as there was too much of crowd and informed  PW3 to come to the DRI office in the evening at 4.30 p.m.  Therefore, the first trap was unsuccessful.   Mr.Ubaidullah (PW3) returned to the office of the CBI and informed this to PW31. Thereafter, a Mahazar (Ex.P7) was prepared by PW31 noting what had happened till then. Later, the independent witnesses and the CBI team waited in the

CBI office but Mr. Stalin Joseph (PW4) sought permission and left for his house. Thereafter, Mr.Ubaidullah (PW3) informed PW31 that A2  had contacted him and asked him to come to the Church in T.T.K. road, opposite to the Music Academy before 6.30 p.m.  So the trap team went to the said church at 5.30 p.m., took positions in appropriate places and waited there.  Mr.Ubaidullah (PW3)  went near the gate of the Church, called and informed about his presence to  A2 over phone  and A2  came out of the church  building and  met Mr.Ubaidullah (PW3) and at that time PW3 handed over the plastic cover to A2 who recieved it and took it to the Car.  A2 had informed PW3 that  he had brought Mrs. Rosy Rajan (A1’s wife) to the Church and that A1 was  in his office and that he would hand over the cover to him later.  The trap team was split and one team followed the Car to the quarters,   while the other including PW31 and others went straight away to the DRI office and waited there.

Later around 7.50 p.m.,  A1 and A2 left the office in the official car  and reached GPRA quarters and the car was parked in front of the building where A1’s residence is situated.  PW31 and his team followed the car till Sastry Bhavan and left the car inside the campus of Sastry Bhavan and proceeded to the GPRA quarters by foot.  By that time, A1 and A2 had climbed the stairs to reach A1’s house in the 2nd floor. A2 was carrying Adyar Ananda Bhavan plastic cover and a brief case. When the trap team went near the car of A1,   A1 saw them through the perforations of the wall and came  down the stairs with A2. He appeared to be tense and angry and shouted at A2. When PW31 asked A1 why he was agitated, he replied that A2 had received the plastic cover from someone and pretended not to know about it. A1 then asked A2  to throw the plastic cover into the front seat of the car and A2 did as directed.

Thereafter, PW31 asked them to go to A1’s residence and instructed Mr.Moni, D.S.P.

(PW29) to recover the plastic cover from the front seat of the car and hand it over to Mr. Selvam (PW5) who carried it to the residence of A1 with the team members. At the residence of A1, Mr. Sivakumar (not examined) prepared sodium carbonate solution in a clean glasses.  PW31 asked  A2  to dip  the fingers of both his hands separately and both the solutions turned pink. The said solutions were separately stored and sealed (MO 5 and MO 6) and similarly he had asked A1 to dip the fingers of both his hands and those solution alsoturned pink and they were stored separately and sealed (MO 7 and MO 8). Later, Mr. Ramalingam (not examined) got the cotton swab  from the front seat of the car which also turned pink on testing and the said solution was also separately stored and sealed (MO 9).   PW31 then prepared the

Recovery Mahazar (Ex.P24) recording all these facts and arrested A2 at 12.30 a.m. on

07.03.2012 under the arrest memo Ex.P27 and arrested A1 at 12.45 a.m. on 07.03.2012 under the arrest memo Ex.P28.  He conducted the search in the residence of the A1 and  asked  another team under Mr. Roy Alexander (not examined) to conduct search at the residence of A2.  Ex.P.25 is the rough sketch prepared by PW31. The Search list prepared at the residence of A1 is Ex.P29 and  the inventory prepared by him is Ex.P30.  The search list prepared by Mr.Roy Alexander (not examined) at the residence of A2 is Ex.P79.  Both the accused were sent to remand.

Thereafter, investigation was handed over to Mr.S.Vellai Pandi ( PW32 ) by DIG Arunachalam.  Mr. S.Vellai Pandi (PW32) had conducted further investigation in this case and examined the witnesses listed in the final report and  recorded their statements and received various documents from them. He had sent the sealed bottles with the solutions in MO5 to MO9 for chemical analysis to the Forensic Department. Mrs. Kalarani (PW27) had conducted the chemical analysis and found that all the solutions tested positive for the presence of Phenolphthalein and Sodium Carbonate and issued the Report Ex.P71. Similarly, the mobile phones (MO10 and MO11) of both the accused seized during the investigation were sent for forensic examination to the Forensic Department, Hyderabad and Mr. Krishna (PW30) had examined them and gave the Report Ex.P77 and the data found in those mobile phones was given in the DVD  (MO 12)

17. K. Sridhar (neither cited nor examined as a witness) had obtained Mobile

No.7845309605 from TATA Tele Services Ltd, by filing application forms under Ex.P48 and Ex.P49. Mr. C. Vijay, Dy.Manager, TATA Tele Services (PW18) has furnished the call details of that number with certificate under section 65B of the Evidence Act under Ex.P50 and Ex.P51.   He has also produced Ex.P46 and Ex.P49 to the I.O. (PW32).  Mr.Ubaidullah (PW3) has claimed that the said Mr.Sridhar had worked as his driver 5 years back and that he had paid for the sim card and has been using the said number after he left the job.

18. Elangovan (PW21) is the son of A2. He had applied for a job in Mobis

India Ltd (Hyundai) and was appointed as Trainee II and thereafter was promoted. The bio-data and application submitted by him to Hyundai company and the appointment letter, probation and promotion letters are marked as Ex.P59, Ex.P60 and Ex.P61. The documents relating to his appointment and promotion were handed over to the CBI by Mr. Guru (PW28) under Ex.73. In the interview assessment letter Ex.P74 there is an endorsement “Recommended as JE Trainee II, ( Requested by Sea

Port Customs Commissioner) Check for salary & Joining date.”   The said Elangovan

(PW21) had bought the sim card with No. 98411-48138 and had given to his father for his use. Mr. Vijaykumar Raja (PW20), the executive of Aircell Cellular Ltd has produced the call details of the said number in Ex.P58 with certificate under Sec. 65B of the Evidence Act.

19. Similarly, Mr. Kannan (PW22), former officer of BSNL had given the calldetails of mobile No.94442-67830 used by PW3 in Ex.P62 and the call details of

Mobile No.94440-05223 used by A1 in Ex.P63 along with the certificate under Sec. 65B of the Evidence Act.

20. During the investigation, Mr. Vellai Pandi (PW32) has seized the mobile phoneof Mr.Engineer (PW17) under Ex.P81 (the said mobile phone was neither produced nor marked by the prosecution) and No reason is given by the I.O. for seizing this mobile phone.  He has also seized the mobile phone of A1 from his wife under

Ex.P80 and has obtained the receipt memos under Ex.P82 to Ex.P83 from Mr.Mohanavelu (PW19), the then Manager of Kotak Mahindra Bank who produced the account opening form and other KYC documents submitted by Mr. Super King Myatzin at the time of opening of the NRE and NRO accounts. The investigting officer PW32 had examined Mr. Super King Myatzin and recorded his statement under section 161(3) Cr.P.C and had received the copies of his passport and P.I.O card under Ex.P84.

21. Grace Alice Thomas (PW7) is the secretary of Women’s Fellowship of CSI Church Mylapore and knows Mrs. Rosy Rajan wife of Rajan (A1). They usually conduct special prayers for the members and one such  special prayer was conducted at  5.30. pm on 6.3.2012 and Mrs. Rosy Rajan had participated in the said programme.
22. G.A.Suryakumar, inspector of police (neither cited nor examined) hadconducted search at the office premises of DRI and had prepared the search list Ex.P85. This document was marked by A2 under section 294 Cr.P.C., since it was not marked by the prosecution.
23. After completing the investigation and collection of evidence Mr.Vellai Pandi(PW32) has filed the final report against these accused after obtaining requisite sanction from the competent appropriate authorities.

The prosecution closed its evidence with these witnesses dispensing with the others.

1. Questioning of the Accused under section 313(1)(b) of Cr.P.C.:
2. The accused were examined under section 313(1)(b) Cr.P.C. about the incriminating circumstances that appear against them. Both the accused denied complicity to the offences. While A2 did not file any separate statement under section 313(1)(b),  A1 filed a separate statement.  Though initially the accused claimed to have witnesses on their side later they did not examine any witness.  But Ex. D1 the visiting card of PW3, Ex.D2 the office order by PW6, forming a team for the investigation and search of the premises of M/s Abi Sathya Enterprises, Ex.D3 the particulars and photos of the Directors of M/s Hansum India Electronics Pvt Ltd contained in Ex.P9 and Ex.D4 the copies of the show cause notices and orders passed in respect of  M/s Abi Sathya Enterprises were marked as defence documents during cross examination of the relevant proseuction witnesses.
3. In his statement, A1 has stated that he had unearthed large scale customs duty evasion, malpractices and other monetary frauds by big corporates like M/s. Hyundai Motors Ltd and M/s. JSW Steels running into crores of rupees and had initiated action against them.  He had issued show cause notice dated 22.2.2012 to M/s JSW Steels for suspected duty evasion of Rs.302 crores but he was pressurised to recall the notice and to keep the same in abeyance.  But he did not accede to the said illegal interference.  So, at the instance of the big corporates, the FIR was filed by the DIG Mr. Arunachalam and his subordinates PW29, PW31 and PW32 by using the services of PW3 and PW4 who were involved in various offences under the Customs Act, COFEPOSA, passport fraud etc and against whom A1 had taken legal actions earlier.   P14 which is the basis for the prosecution case is not genuine and is created for the purpose of this case. A1 has no power to detain Mr. Super King Myatzin or to defreeze the bank accounts.   A1 is known for his honesty, integrity and selfless service.   Mr.Murugesan (A2 ) had suffered head injury in an accident and he is incapable to commit any offence and is an unfortunate victim. The entire case is fabricated by misusing the CBI and A1 has prayed for acquittal.

Heard the elaborate arguments of both sides.

III. Discussion and Analysis:

The point for determination in this case is

 “Whether the prosecution has proved the guilt of the accused A1 and A2 beyond reasonable doubt?”

26. The learned Special Public Prosecutor argued that the prosecution has proved the demand by A1 and acceptance of the bribe amount by A2 on behalf of A1 and that there is sufficient proof that the tainted money and the Apple i-Pad were recovered from the car of A1 and the fingers of both the accused had tested positive for Phenolphthalin and thus the prosecution has proved the guilt of both the accused for the offences they are charged. Thus contending, she prayed for conviction.  Per contra, the learned counsel for the defence,  argued that there are material contradictions that clearly disprove the case of the prosecution which has miserably failed to establish the demand or acceptance and that the entire trap proceedings including the recovery was not done as claimed and all the documents have been fabricated later.  They further argued that the entire case is fabricated to remove A1 from the investigation of large scale customs duty evasion and other  misdeeds of the big corporates by conniving with the persons with criminal background.
27. At this juncture, it is relevant to note that, though as many as 32 witnesses were examined and 85 documents were marked by the prosecution, the material witnesses and documents that are relevant to decide the point alone need be discussed. The other relate the facts that are not relevant to the point for determination  and to those that are admitted.
28. This court finds that there is no dispute that Mr.Rajan had worked in different capacities in various departments before he was transfered to DRI and that A2 also worked with him and that A1 had requested him on loan basis. Similarly, it is also admitted that DRI had conducted searches in the offices of  M/s Hansum India Electronics Pvt Ltd and other  places and seized several documents and had the bank accounts of M/s Hansum India Electronics Pvt Ltd and that of Mr. Super King Myatzin freezed. So this court need not discuss the evidence and the documents relating to these facts and instead concentrate on the evidence that is relied upon by the parties on the contentious issues.

  i). Sanction for prosecution:

29. In this regard, the prosecution has examined PW1 and PW2 to prove that appropriate sanction was obtained under Ex.P1 and Ex.P2 to prosecute these accused. Since, A1 was the Additional Director General of DRI, the Hon’ble President of India is the competent person and he has accorded sanction to prosecute him. PW1 had authenticated the same under the ‘Government of India Authentication (Order and other Transaction) Rules, 2002’.  Similarly, PW2- the Commissioner of Customs is the competent authority in respect of A2 and has accorded sanction to prosecute him. Ex.P3 is the covering letter by which the sanction order under Ex.P2 was communicated to the CBI. No serious infirmities were elicited from the cross examination of these witnesses.  But questions relating to the authority of A1 to defreeze the bank account and detain any person under COFEPOSA were asked to PW2 for which she has categorically stated that the said powers to defreeze bank accounts are available only to the adjudicating authorities namely Commissioner, Joint Commissioner, Assistant Commissioner of Customs and that A1, who was the Additional Director General, DRI at that time had no powers to defreeze the bank accounts. Similarly, she has also categorically stated that A1 had no power to detain any one under COFEPOSA. No serious objections have been raised regarding the grant of sanction for prosecution in this case and this Court comes to a considered opinion that both the sanction orders were passed after proper application of mind and there are no infirmities that affects them and as such  they are valid.
30. ii) Meeting between PW3 and PW4:
31. This case has originated from the meeting between Mr. Stalin Joseph (PW4) and Mr. Ubaidullah (PW3) said to have taken place on 02.03.2012 between 11.am and 12 noon below the residence of Mr. Ubaidullah (PW3) at Pudupet, Chennai. Both Mr. Ubaidullah (PW3) and Mr. Stalin Joseph (PW4) have stated in their evidence that PW4 informed PW3 about the freezing of bank accounts of Mr.Superking Myatzin during the raid conducted by D.R.I. in 2010 and sought his help to defreeze the said accounts.  The learned defence counsel raised serious doubts about this alleged meeting and contended that no meeting could have taken place as claimed. He relied on the evidence of Mr. Kannan (PW22), the  executive of the BSNL, service provider of the mobile phone No. 94442-67830 used by PW3 and its call records marked as Ex.P62.  He invited the court’s attention to the tower locations mentioned in the said call records starting from 8.00 am to 6.45 pm on 2.3.2012.   The tower locations show that the mobile of PW3 was in Pudupet in the morning by 6.00 am and then at

Nammalverpet at 6.32 am.   It is found to have travelled to East Tambaram, Mahindra City, Paranur, Karunkuzhi and Mamandur and had returned to Mount Road only after 6.41 p.m.  The tower locations for a period from 8.51 am to 3.02 pm are not found, but it shows that he was at Mamandur at 3.57 pm and at S.P. Koil at 4.04 pm.    In fact, PW22 has categorically admitted that the said mobile phone has been located in all these places as per the tower locations noted in Ex.P62.   Hence it could be arrived that the person carrying the said mobile phone had travelled to these locations on

2.3.2012 and that he was away from Chennai city.

31. The learned counsel further contended that though PW3 during cross examinations has replied evasively that he does not remember whether he went to these places on that day or not,  has categorically admitted that he carried his mobile phone with No. 94442-67830 with him always and he never left his phone at home. Therefore, it can be inferred that he was the one who had travelled to these places on 2.3.2012.  Thus, his evidence clubbed with the tower locations available in Ex.P22 according to the defence, clearly establish that PW3 could not have been available at his residence or even within the Chennai city,  particularly between 11 am and 12 noon on 02.03.2012.
32. On the other hand learned Special Public Prosecutor contended that there is every possibility that PW3 could have came back to his house in the intervening peirod between 11 and 12 noon and thereafter again visited those places after noon as the tower locations are not found during this period.  Of course, there is a possibility that he could have  returned to Chennai in between but there is also a possibility that he did not do so.   The missing tower locations for the period 8.51 am to 3.02 p.m. creates doubt regarding this.  But considering the distance between these places and specifically the tower locations found in Ex.P62 around this time, it is hard to accept the contention of the Special Public Prosecutor.  Further it is held by the Hon’ble High Court, Madras in State Represented by Inspector of Police, CBI ACB, Chennai Vs S. Tamilarasan and Ors. (MANU/TN/1598/2018), that

“if two views are possible, the one favouring the accused would merit acceptance”.

Therefore  this court has to accept the contention of the accused that the claim of PW3 and PW4 that they met between 11 am to 12 noon on 02.03.2012 at the former’s house and that they discussed about the defreezing of the bank accounts cannot possibly be true.

 iii) Demand and Acceptance:

(a) Meeting of PW3 with A1 on 3.3.2012:

33. In this case, the prosecution has claimed that there are two instances of demand, firstly by the A1 on 4.3.2012 directly to PW3 and  secondly by A2 to PW3 over phone on 5.3.2012.  It has to be found if the prosecution has proved these demands.  In this case, the defacto complainant PW3 has categorically stated that he went to the office of A1 on 03.03.2012 but was not able to meet him and he met only Mr. Arun Kanth (PW12) who asked him about the purpose of his visit and to whom he informed that he can only discuss it with A1 and left the office leaving the message that he would meet A1 the next day at his residence.  He has stated that he told PW12 to ask A1 to inform him (PW3) if he would not be available on the next day and that if A1 did not make any call,  he would go and meet him.
34. This evidence of PW3 has to be weighed against the complaint Ex.P4, which was given by him to the D.I.G. Mr.Arunachalam (not examined) on 05.03.2012 at 2.45 p.m.  In the said complaint written by PW3 himself,  he has mentioned that he met A1 in his office and A1 asked him to come to his residence the next day, thereby clearly indicating that PW3 had met A1 directly in his office.  This  is contradictory to the oral evidence of PW3.  It is true that the FIR cannot be an encyclopedia and one cannot expect minutest details in it. Considering this, the contradiction shall be kept aside for a moment to be considered later and the other evidence available in this regard be considered first.  From the evidence available, this court finds that the evidence of Mr.Panneerselvam (PW9), Mr.Arun kanth (PW12) and Mr. Engineer (PW17) are very much relevant.  It is found that PW9 has claimed that PW3 came to the office between 4 to 4.15 pm on 3.3.2012 and he took him to Mr. Arun Kanth (PW12) and that they both went inside the cabin of A1 and stayed there for about 5 minutes and PW3 left the office thereafter.   So PW9 did not know what transpired between them. In contradiction to this, PW17 has claimed that A1 had called him over intercom and asked him to instruct PW12 to meet PW3 who was waiting in the office and that he had  informed PW12 accordingly.  He had even stated that he heard PW12 informing A1 about his conversation with  PW3, when he went inside his cabin to discuss official matter. Admittedly, PW17 never saw PW3 and he never interacted with him.   So, from the evidence of PW3, PW9 and PW17, it is found that

Mr. Arun Kanth (PW12) is the  person who had taken him (PW3) to A1’s cabin or spoke to him upon the instructions of A1 on 3.3.2012. Thus PW12 is the competent person to speak about this fact.  Whereas, PW12 has not spoken anything about the alleged visit of PW3 or meeting him on 3.3.2012 in the DRI office as claimed by the other witnesses named above. On the contrary, he has spoken only about the visit of Mr.Stalin Joseph (PW4) on 20.2.2012 and the handing over of the letter under Ex.P14 for defreezing the accounts. The fact that PW12 who is the only person to corroborate the evidence of PW3 about his alleged visit to DRI office on 3.3.2012 and information about his proposed meeting with A1 on 4.3.2012 has not stated anything about the same clearly creates grave suspicion on the claim of PW3 that he visited the office of DRI on 3.3.2012. That too when he himself has given contradictory statements about his meeting with A1 in the Complaint Ex.P4 and in his evidence before this court. This being so, this court has to necessarily decide that the alleged visit of PW3 to the DRI office to meet either PW12 or A1 as claimed by him is not proved by the prosecution.

• Meeting with A1 on 4.3.2012:

35. It is the case of PW3 that he met A1 on 4.3.2012 around 7 am in front of his quarters and that he demanded a sum of Rs. 10,00,000/- and an Apple i-Pad to defreeze the bank accounts of Mr. Super King Myatzin. It is admitted that there was no one else when such a conversation took place.  So there is no other evidence except that of PW3 in this regard.  It is at this juncture, that the contention of the learned counsel for the accused becomes pertinent. He argued that PW3 is a man of criminal antecedents and his evidence cannot be believed.  PW2, the Commissioner of Customs has stated in her evidence that several cases were pending against PW3 for various offences. Even PW3 himself has admitted that he had been detained twice under COFEPOSA and that he had been arrrested for using fake passport and that many criminal cases were filed against him under the Customs Act.  It is to be noted that some of the cases are filed by the DRI and there could be some animosity against A1.  But as rightly argued by the learned PP, mere previous enmity cannot be a ground to dismiss the evidence of a witness but the court must consider his evidence with caution and look for corroboration as held by the Hon’ble Supreme Court in State of U.P Vs Zakaullah (AIR 1998 SC 1474).  Keeping this in mind this court proceeds to appreciate the evidence available on record.
36. In this case, there is no evidence to corroborate PW3 in this regard. However, the prosecution has claimed that PW3 had contacted A1 over mobile phone on

04.03.2012 and that he had sent a message: “Ennai nambungal sir” (typed in English).  This phone call and the message is claimed to have been made from the mobile No. No.78453-09605.  In fact the evidence of  PW18 and PW22,  the officers of the mobile service providers and the call records Ex.P50 and Ex.P63 show that there were calls from this number to the mobile number 94440-05222 of A1 and also an SMS sent from this number on 3.3.2012.  The evidence of  PW30, the forensic expert and his report in Ex.P77 also shows that the message, “Ennai nambungal sir” was sent to A1’s mobile  from the said number. In this regard it is to be noted that this mobile number 78453-09605 is not in the name of PW3 but in the name of Mr. Sridhar as found from the evidence of PW18 and Ex.P49, the subscriber application form and the photo ID  card submitted at the time of getting the sim card. It is true that  PW3 has claimed that the said Sridhar was his driver some 5 years back and he bought him the sim card and when he left the job, PW3 retained the sim card and has been using this number. He even went to extent of stating that he is using this number as advised by the customs officers not to use the number in his name.  This clearly vouches for the criminality of PW3.  But the interesting point which this court cannot ignore is that he has admitted in his cross examination that the said Sridhar was having a phone and a sim card when he joined as a driver and that PW3 did not pay for the sim card used by him. So again there is contradictions in the evidence of PW3 regarding the purchase of sim card in the name of Sridhar. The prosecution has not chosen to examine the said Mr. Sridhar to clear the doubt about who used this sim card at the relevant period.  Similarly, PW3 has categorically admitted that he does not know to type in english, whereas the SMS “Ennai Nambugal Sir” is in english. It is also admitted by PW3 that he got the message typed by some other person but it is not revealed as to who typed the saidmessage. Yet another aspect that creates doubt on this claim is that the call record of this mobile number does not show the tower locations.  If the tower locations of this mobile is available it can atleast be assumed that the said number was used by PW3 by corelating the location of the mobile phone and that of PW3 during the relevant time.  But PW18 has categorically stated that he could not give the tower location from the details available in Ex.P50.  It is pertinent to note that he has admitted that, had the CBI asked for the tower location the company would have provided the same.  Thereby, it is clear that the CBI had not asked for the details of the tower location and hence it cannot be concluded that the said phone number was used by PW3 at that time or that he sent the message to A1.

37. In addition to this, this Court has to take into consideration that Ex.P77, the forensic report of A1’s mobile No.74440-00522 shows that several messages mostly regarding information about the customs violation, religious messages and spam messages were received on his mobile phone, more particulary there are several messages from unknown numbers too. Further, there is every possibility that this message could be for some one who wanted to believe some information about some violations.  Therefore, when it is not proved by the prosecution that the mobile No.78453-09605 was used by PW3 during the relevant period and that the said message was not sent by him, it is unsafe to believe the claim of PW3 considering his criminal background.  Therefore, this Court is not in a position to believe the evidence of prosecution in this regard that PW3 called or sent SMS/message to A1 from the said mobile. Moreover, the message “Ennai Nambugal Sir”  cannot lead to the inference that there was demand by A1 to PW3.  At the most, it would show the desperate attempt of PW3 to make A1 believe him.

Thus, as discussed above, the prosecution has failed to establish that PW3 had contacted or met A1 on the morning of 4.3.2012 and there is no evidence to show that he demanded money and Apple i-Pad from PW3 as claimed by him.

• Demand by A2 on 5.3.2012:

38. It is the case of the prosecution that A2 had called PW3 on the morning of

5.3.2012 from his mobile and asked him to bring the items mentioned by A1 to the GPRA quarters around 8.30 am on 6.3.2012.   It is to be noted that the complaint under Ex.P4 was filed at 2.45 p.m. on 05.03.2012 and in the said complaint,  it has been categorically stated that A2 called PW3 on his phone and asked him to bring the bribe amount and i-pad to the entrance of GPRA quarters at 8.30 am the next day. Again there is no corroborative evidence to this claim of PW3 and so the prosecution has relied upon the call records of PW3 in Ex.P62 and that of A2 in Ex.P58 to extablish that there were exchange of calls between them.   From the perusal of the call records of mobile phone No.98411-48138 used by A2 (standing in the name of Mr.Elangovan (PW21), son of Mr. Murugesan (A2)) it is found that that no call was made  on 05.03.2012 in the morning, more particularly prior to 2.45 pm, the time of filing of the complaint under Ex.P4. Of course, the call records show that there was exchange of calls between PW3 and A2 only after 4.54 p.m.

39. In this regard, the Learned Public Prosecutor vehemently argued that minorcontradictions and embelishments need not be considered by the Court, more particularly when there is a time gap between the recording of statements and  giving evidence in the Court. She relied upon the decision of the Hon’ble Supreme Court in

Shajaha @ Shajahan Ismail Mohd. Shaikh Vs State of Maharashtra (2022

LiveLaw (SC) 596) holding as,

“It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses.  It is necessary to remember that a judge does not preside over a criminal trial merely to see that no innocent man is punished.  A judge also presides to see that a guilty man does not escape”  .

She further argued that the call records show that several calls were made between them subsequently and there is no explanation by the accused.  So it is proved that such contact would have been only regarding the handing over of bribe and nothing else.   It is true that minor contradictions, embelishments or improvements that do not affect the basis of the case need not be considered by this Court. It is also true that the call records reveal that there were several calls of various durations between PW3 and A2.   But, it is the specific case of the prosecution that the complaint Ex.P4 was lodged after A2 asked PW3 to bring the bribe money and the prosecution has relied only on the call records of A2 and PW3 to corroborate this.  But as mentioned above, the call records clearly show that there was no call between them earlier on that day, prior to the lodging of the complaint.  Therefore, the claim that A2 contacted PW3 in the morning of 5.3.2022 asking him to bring the money and i-Pad to the quarters cannot be true as mentioned in the complaint  and is belied.  This also creates suspicion about the circumstances under which the complaint was filed considering the criminal antecedents of PW3.  The calls that are found to be made subsequently cannot be considered as for ‘demand’ when the prosecution has failed to establish and prove the original demand  alleged to have been made by A1 on 4.3.2012 and by  A2 on 5.3.2012.

Thus, from the discussion above, this court is of the considered opinion that the prosecution has not established the demand said to have been made by either A1 or A2 in this case.

1. iv) Trap Proceedings:

(a) Entrustment Mahazar:

40  In this case, Mr. Padmakumar (PW31)  is the trap laying officer and has prepared the entrustment mahazar and had conducted the trap proceedings  and has arrested A1 and A2.  In order to witness the trap proceedings, he had required CVO of Southern Railways and HR of Bank of Baroda for deputing persons to be the witness for trap proceedings. Acordingly, Mr. Selvam (PW5) and Mr. Sivalingam (not examined) are said to have been deputed by their respective departments. As per the evidence of PW3 the trap proceedings commenced as early as 5.30 am on 6.3.2012. and the Entrustment Mahazar (Ex.P6) is said to have been prepared by PW31 at 6.00 am and concluded at 7.55 am on 06.03.2012.  The Learned Counsel for the accused argued that this Entrustment Mahazar (Ex.P6) could not have been prepared on the said date and time and claimed that it must have been prepared much later on the next day after conducting search and seizure in the office of DRI.   In support of his claim, he relied upon the evidence of PW31, wherein he has stated that while preparing

Ex.P6, Entrustment Mahazar on 06.03.2012, he  had with him only the complaint (Ex.P4), the  F.I.R (Ex.P78) and the verification report (Ex.P76) submitted by PW29. From the perusal of these 3 documents, it is clear that there is no mention about any hard disk that was seized from the office of Mr. Stalin Joseph (PW4) in any of these documents.  Particularly, in Ex.P4 filed by PW3, it is not mentioned that one hard disk of a specific description was seized from the office of PW4. But the details of account numbers of two cheque books alone are mentioned  in the complaint.

Furthermore, there is no mention that A2 asked PW3 to give the bribe amount and iPad specifically in “Adyar Ananda Bhavan plastic cover bag”, so as to make it appear as a sweet box.  It is not clear from where did PW31 get these details of the “Adyar Ananda Bhavan plastic cover bag” and “hard disk” which were not mentioned in any of the documents under Ex.P4, P76 and P78. Though the Learned Public Prosecutor argued that it would have been informed by PW3 and PW4 when they were enquired by PW3 after the case was handed over to him by the D.I.G., PW31 has not stated in his evidence that he got this information either from PW3 or from PW4 while preparing Ex.P6 Entrustment Mahazar. On the other hand, the learned defence counsel invited the attention of this court to Ex.P85, the search list prepared by the CBI officials after the search at the DRI office on 07.03.2012.  This document was not marked by the prosecution but it was marked by the defence under Section 294 Cr.P.C. and this is not disputed by the prosecution.  In Ex.P85, it is found that the details of hard disk are mentioned.   Similarly the “Adyar Anand Bhavan plastic cover bag” is mentioned for the first time by PW3 only in his statement under Section 161(3) Cr.P.C. recorded later.  Therefore, the defence contended that this detail about the ‘hard disk’ and ‘Adyar Ananda Bhavan plastic cover bag’  that came to light much later could not have been mentioned in the Ex.P6 if it was really prepared on the early morning of 6.3.2012 as claimed.  He asserted that it should have been prepared only after Ex.P85 and after 161(3) statement was recorded and not at any time earlier to these.

41. It was further contended by the Counsel for the defence that, in the Entrustment

Mahazar Ex.P6, currency notes alone are said to have been kept inside the Adyar Ananda Bhavan cover after smearing them with phenolphthalein powder.  Whereas, in the Recovery Mahazar under Ex.P24, it is claimed that the i-pad with cover cord and invoice was taken out from the said cover on 7.3.2012.   He argued that how the i-pad, its cord and invoice were found in the Adyar Ananda Bhavan plastic cover, when they were not kept inside it at the time of preparation of Entrustment Mahazar

(Ex.P6),  has not been explained by the prosecution. Replying to this,  the Learned Public Prosecutor referred to para 1 of page 8 of the Entrustment Mahazar (Ex.P6), wherein it is menioned as, “Apple i-pad W534 32GB WIFI 3G Black bearing IME

No.0012923009703892  as demanded by Sri.C.Rajan was also produced by

Mr.Ubaidullah (PW3) and has also produced an invoice of Easy Cell City, P.H.road, Chennai  in respect of i-pad  in the name of Ubaidullah”.  She further argued that when there is  clear mention about the i-pad and the invoice being handed over by

PW3 in the Entrustment Mahazar (Ex.P6), the inadvertent mistake as admitted by PW31 and PW32 about the non mentioning that it was kept inside the cover be ignored by this Court. It is no doubt true that Ex.P6 contains the fact of handing over of the i-pad and invoice by Mr.Ubaidullah (PW3) to the Trap Laying Officer PW31, but the important fact that it was smeared with  Phenolphthalein powder  and that it was kept inside the Adyar Anandha Bhavan plastic cover along with the currency notes is not mentioned in Ex.P6.  In the same page (pg. 8) of Ex.P6 at para 5, it is clearly mentioned that “2 bundles of Rs. 1000 notes smeared with  Phenolphthalein powder were kept in the plastic cover of Adyar Anandha Bhavan by Mr..Ramalingam (PC) and immediately it was given to the complainant Mr.Ubaidullah (PW3). But, there is no mention about  he placing of i-paid, its cord and invoice inside the Adyar

Ananda Bhavan plastic cover at the time of handing it over to Mr.Ubaidullah (PW3).

When there is no acceptable evidence that the Apple i-Pad was kept inside the said cover when it was handed over to PW3 it is a mystery as to how it came out of the said cover later.  This contradiction and the missing link cannot be ignored as trivial or as an inadvertance, but it is vital to this case. This mystery gains importance in the circumstances of the facts as revealed by the prosecution evidence that the trap was not successful on the morning of 6.3.2012 and that the entire team returned to the CBI office at 9.00 a.m.   It is pertinent to note that PW5, the trap witness, has stated that the entire trap team except Stalin Joseph (PW4) were in the CBI office throughout the day till they left  for the Church opposite to the Music Academy in the evening. Whereas, PW3 has stated that after returning to the CBI office, he went home and slept through and came back only in the evening.  PW31 also has stated that PW3 had briefly left for his house, but PW5 has categorically stated that PW3 and himself followed the CBI officers throughout the day. This is against the evidence of both PW3 and PW31.  Further, it is not clear as to who was having the Adyar Ananda Bhavan plastic cover after the first attempt failed. Nothing is available in this case to show that the said cover with the tainted money was kept under safe custody till it was handed over to PW3 in the evening. PW31 has simply stated that PW3 went to his house briefly but the specific details are not given by PW31. So there is no evidence as to when the Apple i-Pad and the accessories were placed inside the bag  and the lack of explanation as to where the said cover was during the period between the 1st (failed) trap in the morning and the 2^nd trap in the evening casts a shadow on the sanctity of the entire entrustment proceedings.

(b) Failed Trap:

42. The prosecution case is that PW3 went to meet A2 at 8.30 am on

6.3.2012 in front of the main gate of GPRA quarters but he did not receive the cover stating that there is too much crowd and had asked him to come to office by 4.00 pm that day and thus the trap attempt failed.  In this case the only witnes who is claimed to be present throughout the entire proceedings from the preparation of entrustment mahazar till the arrest of the accused is Mr. Selvam (PW5). But he was treated as hostile by the prosecution. This court is aware that it is settled proposition that just because a witness has been treated as hostile,  his evidence cannot be rejected in total and that his evidence has to be appreciated with caution and any portion of the evidence which supports either prosecution’s case or that of the defence has to be considered by the Court. This contention was also put forth by the Learned Public

Prosecutor by referring to the decision of the Hon’ble Madras High Court in Kalyani

Vs State in Crl. A. (MD)No. 630/2007 dated 14.9.2018 wherein the Hon’ble High

Court has held as follows:

“Under section 154 of Indian Evidence Act, the entire evidence of the witness who turned hostile need not be eschewed in toto. The reliable portion of his evidence which is corroborated by the other witnesses can be considered by the Court”

43. It is important to note that it is admitted by PW31 that nobody accompanied

PW3 when he went to meet A2 to hand over the cover. As per the Ex.P6 Entrustment Mahazar, Mr.Selvam (PW5) was directed to accompany PW3 but later PW31 had instructed him not to accompany PW3 as it would create suspicion to A2.  But when PW5 was examined on 02.09.2016, he has clearly stated that PW31, the trap laying officer instructed Mr. Sivalingam, another independent witness (not examined) to accompany PW3 so as to hear the conversation that takes place between PW3 and A2 while handing over the cover and has also stated that Sivalingam and PW3 went to the GPRA quarters in the morning while he went with PW31 to the other side to observe the happenings. At this point of time, the prosecution treated him as hostile and he fainted in the witness box and was sent for treatement. Later, he was examined on 10.3.2017 after a long gap of about 7 months and was cross examined by the

Public Prosecutor.  He had accepted all the suggestions made by the Public Prosecutor regarding his statements given under Section 161(3) Cr.P.C.  It is pertinent to note that at the beginning of the cross examination by Public Prosecutor, PW5 has clearly stated that he could not recollect what he deposed before this Court on 02.09.2016 as he had giddiness due to high blood pressure. The learned public prosecutor, at that point of time, must  have fairly  tested whether PW5  is ready to depose the facts as stated by him before the CBI and after such ascertainment, must have examined him in chief and if he even then did not support the case of prosecution, he should have been treated as  hostile, more so, when he has categorically stated that he does not remember what was stated by him on the earlier day in the Court. Anyhow, the learned public prosecutor continued to treat him as hostile and had elicited answers by suggesting the facts stated in his 161(3) statement.

 

Whereas, in his cross examination on behalf of the accused, PW5 has clearly stated that ‘what he stated in the chief examination is true’ and the relevant portion of his evidence is produced below:

” I deposed (on) in 02.09.2016 before fainting was the truth.” (sic)

44. He has also categorically admitted that after getting summons from the Court,he contacted the Special Public Prosecutor on 10.03.2017 and discussed the case with him and was shown his statement u/s 161(3) Cr.P.C. Therefore, it is clear that he had deposed after going through his statement u/s 161(3) Cr.P.C and has conveniently stated all that is mentioned therein, as suggesed by Public Prosecutor in crossexamination.  He has clearly stated that Mr.Ubaidullah (PW3) was all along with the CBI officer and that he moved along with them. Whereas, PW3 has categorically stated  that he went to his house and came only in the evening. Therefore, this Mr.Selvam (PW5) who has given contradictory statements, both in chief as well as cross examination cannot be considered as a reliable witness. The prosecution has not chosen to examine any other trap proceeding witnesses namely Mr.Sivalingam or the other trap team members,  in order to corrobrate the evidence of PW3, PW5 or

PW31. There is no reason given by the prosecution for not examining the said Mr.Sivalingam  or the other trap team members, even though, Mr.Selvam (PW5) who is the only trap witness examined by prosecution was treated as hostile and has become unreliable for the reasons stated above. Even if his evidence is considered as reliable, it does not corroborate the evidence of PW3 as PW3’s evidence is that he alone went to meet A2 that morning.

45. Therefore, again there are too many versions as to what actually happened on that day. It is also curious that the prosecution did not choose to examine the other independent witness, Mr. Sivalingam to clear the air of doubt. Anyhow it is clear that no one accompanied PW3 and his evidence alone is available as to what happened during his alleged meeting with A2.  Though the other witnesses have stated that they were standing away on the opposite side and observed them speaking they could not have overheard what was spoken between them.
46. It is pertinent to note that PW3 had informed the CBI team that A2 asked him to come to the office by 4.00pm. This was also recorded in Ex.P7, the Mahazar prepared by PW31 after the failed trap at 9.30 am.  Admittedly, PW3 has left for his house and slept over without caring about the said appointment at 4.00 pm, when the whole CBI team was waiting for him to come.  Further, the evidence of PW3 is that, after waking up he saw the missed calls and when he contacted A2, he told him to come to the Church by 6.30 pm.  This conduct of PW3 of sleeping and coming back leisurely when the entire team of the CBI and independent witnesses were waiting is quite unnatural of the behaviour of a genuine complainant.  If he had really been told by A2 to come to the office by 4 p.m. he would not have slept so carelessly when officials were anxiously waiting in the office. This surely creates the doubt about what transpired between PW3 and A2 when there is no corroborative evidence to support the claim of PW3, keeping in mind his criminal background. Therefore, in these circumstances this court cannot believe that PW3 had spoken to A2 about the bribe and that he asked him to come later.

(c) Final Trap:

47. After coming back from ‘sleep’ and contacting A2, PW3 claims that he was told by A2 to come to the Church opposite Music Academy before 6.30 p.m. and the same was informed to PW31. Accordingly, they left for the Church and waited there from 5.30pm.  It is the case of the prosecution that A2 was called by PW3 around 6

p.m. and he came out to the main gate, received the cover, looked inside it and went to the car.  In this regard, it is the admitted case that PW3 alone went near A2 and handed over the cover.  Again, no one had accompanied him, but they have witnessed the happening from some distance. The CBI team had not apprehended A2

immediately after he is said to have received the cover. It is claimed that since the target was A1 and that as he was not there at that time, they waited the amount to reach him.

48. It is in this context the evidence of the call records of PW3 gains importance. The prosecution has claimed that the call records show that A2 had regularly contacted PW3 on the evening of 5.3.2012 and on 6.3.2012 and this corroborates the claim of PW3 that he was asked to come to the Church. No doubt, the Ex.P62 call record shows that there were exchange of calls on various occasions between A2 and PW3. However, the transcripts of those calls were not produced by the prosecution but it wants the court to presume that the calls were only related to the demand raised by A1.  But when it is already discussed and found that there is no proof of demand by A1 or A2 on earlier occasions, this court cannot presume that these calls were only in relation to such demand and mode of payment. Further, it is also brought to the knowledge of this court that Ex.P62 does contain the tower locations of the mobile phone used by PW3 who has admitted that he always carried his phone with him. When the tower locations of his mobile phone for several other calls are mentioned, the tower location, particularly when the call was made to A2 at the Church in TTK road is conspicuosly absent. No tower location is given for the call that was made at 18.02  hrs on 6.3.2012. The next tower location available is ‘CIT Colony 3’ at 18.15 hrs. PW22 has stated that sometimes the tower location may fail. The fact that all the other tower locations are available except the crucial one definitely creates a doubt as to whether he was really present at TTK Road as claimed.  This court cannot but accept the contention of the defence that infact PW3 would have never gone to the Church and met A2 at the said time as claimed by him and since it could be found out from the tower location of his mobile, that particular entry alone has purposely been deleted. The absence of the one particular tower location that is crucial casts doubt on the claim of the prosecution and there is every probability that PW3 would not have gone to the Church in TTK Road and that the tower location entry could have been deleted. The evidence of Mrs. Grace (PW7), the Church Secretary stating that Mrs. Rosy Rajan (wife of A1) was present in the church on 6.3.2012 has no consequence and it  does not help the prosecution to prove that PW3 was present there at that time. At the most, it could prove the presence of A2 at the said Church. When there is no evidence of demand and no other independent evidence to corroborate the claim of PW3,  his evidence cannot be trusted in this regard in view of the missing tower location in Ex.P62.
49. There are also other contradictions that create doubt about the presence of PW3 at the said Church, particularly, between the statements of the witnesses as to from where they started to the Church. While PW5 has stated that they all went to the Church from the CBI office, PW3 has stated that he went to the residence of PW31 at KK  Nagar and left for the church from there.  PW31 has also admitted that they started from KK Nagar quarters.  So, again there is no clear evidence as to how the second trap proceedings were conducted. As already stated, except PW5 who was treated as hostile, no other witness who had participated in the trap proceedings was examined by the prosecution. Therefore this court is of the opinion that it is not safe to conclude that PW3 was present or handed over the cover to A2 at the church, as claimed by him, in the absence of corroboration by any other reliable evidence.

(d) Recovery :

50. That being so, the prosecution has contended that the team lead by PW31went to the DRI office and waited there for A2 to reach after dropping A1’s wife at the quarters and that when the car came and picked up A1 and started to the quarters, the team followed the car till Sastry Bhavan. While A1’s car went into the GPRA quarters, the CBI team parked their car inside Sastry Bhavan and went to the GPRA quarters by foot.   Further, the evidence of prosecution is that A1 and A2 got down from the car parked in front of A1’s residential building and A2 was carrying the brief case and the Adyar Anandha Bhavan plastic cover and climbed the stairs to reach the residence of A1 in the second floor. On seeing the CBI team members standing near his car, through the perforations,  A1 had hurriedly come down. Thus, it is evident that they both had not entered the house. Further, PW31 has stated that, A1was “looking tense and angry and shouted at Sri. Murugesan in a loud voice”. PW31 has further stated that when he asked A1 why he was agitated, A1 had replied that Mr. Murugesan (A2) had received the plastic cover from some one pretending not to know about the same.  PW31 has also stated that A1 asked Mr.Murugesan (A2) to throw the plastic cover ‘into the front seat of the car’ which A2 did.   The learned defence councel argued that this contention of the prosecution is baseless and no such occurence took place.  He further argued that the cover could not have been thrown into the locked car from outside as claimed by PW31 and the entire thing is stage managed and manipulated.  Per contra, the learned Public Prosecutor argued that though the doors of the car were locked,  the windows were open and the cover was thrown into the front seat through the window.
51. In this regard, the Court thinks it important and appropriate to consider theevidence of PW31 as well as other witnesses in this regard and find out whether it is possibly true.  It is the specific evidence of PW31 that both A1 and  A2 came down after seeing the team members.  It is also admitted that the team  members were standing near the car.  The relevant portion of his evidence is,

“On seeing this, he hurriedly came down along with Sri Murugesan and came to the car near which I was standing along with the trap team and independent witnesses.  Sri. Rajan came near the car looking very tense and angry and shouted at Sri.

Murugesan in a loud voice.”

52. From this evidence it can be safely concluded that A1 knew that these peoplehave come there to trap him. Else, he would not have come down agitated and tensed as claimed by PW31.  Further, it is to be noted that PW31 has stated that A1 had specifically told A2 to “throw the plastic cover into the front seat of the car”.  It has to be considered whether any person with ordinary prudence would believe this evidence of PW31, for it is unbelievable that any person who sees a team of members that has come to trap him and standing near his car, would  ask his driver to throw the cover containing the bribe money “into the front seat of the car”. The probable and natural behaviour would be that he would ask the driver to throw the cover somewhere else so as to avoid being caught and not “into the front seat of the Car”. Throwing the tainted money into his own car, that too in the close proximity of the CBI officers is not at all believable.
53. Further, even as per the Recovery Mahazar Ex.P24, A1 was not at the Church or inside the car when it is said to have been handed over to A2. The cover containing the tainted money was actually in transit from 07.55 a.m. till about 6.30 pm when it allegedly got transferred to A2. The money is claimed to be in transit again in A1’s car from 06.45 p.m. till about 07.50 p.m. What happened after A1 got into his car in the evening by 07.50 p.m. is not mentioned in the Recovery Mahazar. Further, in the entire Recovery Mahazar, it is not stated that either A1 or A2 handled the currency notes at any point of time. But the only thing that is stated in the Recovery Mahazar is that they tested positive for Phenolphthalein when their fingers were dipped in the solution.  Similarly, the prosecution has stated that PW29 took cotton swab from the front seat of the car and eventually that too turned pink while tested for Phenolphthalein.  But how Phenolphthalein came into contact with the front seat of the car is not explained by the prosecution. It is not the case of the prosecution that phenolphthalein powder was smeared on the outside of the cover  so that it would have come into contact with the front seat of the Car when it was kept there immediately after receiving. Otherwise, there is no possibility for the front seat to test positive for phenolphthalein.
54. The learned Public Prosecutor attempted to convince this court that the notes might have strewn on the front seat when the cover was thrown by A2. But this cannot be true because PW5 has clearly stated that the cover was, as intact as it was wrapped in the morning when it was recovered from the car. Therefore, the only possible reason how the front seat of the car tested positive for phenolphthalein would be that it was stage managed by the CBI.   Thus, the manner in which the entire trap has taken place raises more questions than they seek to answer.
55. It is pertinent to note that in Kanakaraj Vs State through DSP V&AC (2012 SCC OnLine Mad 2324) the Hon’ble High Court of Madras after considering the facts and evidence available in that case that is similar to that of this case, has held asunder,

“It gives room for a strong suspecion regarding the genuineness of trap.  It can even probablize the theory that the entire trap can be a stage managed show, especially in the light of the explanation offered by the first accused”

Therefore from the evidence available in this case, this court is of the firm opinion that the entire episode of trap proceedings including the recovery is not believable and appears that it was stage managed by the CBI to falsely implicate A1 as  claimed by him.

1. v) Presumption:
2. The learned Public Prosecutor contended that both A1 and A2 had tested positive for Phenolphthalein and it is also proved by the evidence of PW27 and her report under Ex.P77 and that this clearly proves acceptance and recovery. The Learned Public Prosecutor further vehemently argued that the presumption under section 20 of the PC Act has to be invoked and as no explanation is given by the accused as to how their hands came into contact with the tainted money, they have to be held to have committed the offences under section 7 and 13 of the PC Act.  She also relied upon the decision of the Hon’ble Supreme Court in  Narsinga Rao Vs State of AP (AIR 2001 SC 318: (2001) 1 SCC 691). In the said decision the Hon’ble

Supreme Court has held as follows:

“14. When the sub-section deals with legal presumption, it is to be understood as in terrarium i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing orforbearing to do any official act etc.,”

Similarly, another decision of the Hon’ble Supreme Court in State of Gujarat

Vs Navinbhai Chandrakant Joshi (AIR 2018 SC 3345) was cited by the learned Public Prosecutor, wherein it was held that the presumption under section 20 of the PC Act is rebuttable and that the accused has to offer an explanation to rebut the presumption.

57. On the other hand, the learned counsel for the accused argued that the presumption under section 20 of the PC Act can be invoked only when there is proof of demand and acceptance and further that mere recovery of tainted money alone is not sufficient to establish the guilt under section 7 of the PC Act. It was further argued that the defence has to prove its case only based on preponderance of probabilities.  They referred to the decision of the Hon’ble Supreme Court in Jayaraj Vs State of AP ((2014) 13 SCC 55), in which the Hon’ble Supreme Court has held as under:

“9.  In so far as the presumption permissible to be drawn under Section 20 of the Act isconcerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d) (i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis ofwhich the legal presumption Under Section 20 can be drawn are wholly absent.”

Similarly in  Abbas Vs State of Kerala ((2001) 10 SCC 103) it was held that

“It is well settled that he is not required to prove his defence beyond a reasonable doubt but onlyby preponderance of probabilities”.

58. Thus, from the above decisions it is clear that it is settled proposition that the presumption under section 20 of the PC Act can be invoked only when the

foundational facts of  demand by the accused are proved in a given case. In this case, as already discussed and held there is absolutely no evidence to show that there was demand. Even as per the evidence of PW31, when A1 was asked why he was agitated, he has categorially stated that “Sri. Murugesan had received the plastic cover from someone”.  This clearly shows that he never expected or knew from where the cover came to the hands of A2. This conduct of the accused is admissible under section 8 of the Evidence Act and it clearly proves that he did not demand money or i-Pad.

In this regard the decision of our Hon’ble Madras High Court in State

Represented by Inspector of Police, CBI ACB, Chennai Vs S. Tamilarasan and Ors. (MANU/TN/1598/2018), which was rendered in a similar set of facts is to be considered.  In the said decision, the Hon’ble High Court has held that,

“At that time, Tamilarasan [A1] seems to have asked Senthil Kumar [PW2] as to how the money came there [emphasis supplied]. This is a conduct of the first accused which is indeed very relevant under Section 8 of the Indian Evidence Act, 1872, to show that he himself was not aware as to how the money came there.”

59. In this case also Mr.Rajan (A1) is said to have been found angry and shouting at

Mr.Murugesan (A2) that he had received the cover from someone and this conduct of

A1 shows that he was not aware of the same. Further, from the evidence available  as discussed above, it is clear that  there is  no proof or evidence to show that A1 had demanded money or i-Pad from PW3. Similarly, it is also already held that there is no evidence that PW3 met A2 either at the gate of GPRA quarters or in front of the Church as claimed by him and so there is no sufficient evidence to prove that the bribe money was demanded or accepted by A2 either.  Further, the criminal antecedents of PW3 and PW4 are also proved and it is found that their evidence cannot be relied without corroboration.

60. It is settled propostion that mere recovery of the tainted money is not sufficient to prove the offence under sections 7 and 13(2) r/w 13 (1) (d) of the PC Act and to initiate presumption under section 20 of the PC Act against the accused, there should be definite proof to show the demand and acceptance. The Hon’ble High court of

Madras in Vasudevan Vs State represented by Insp. Of Police (2022 SCC OnLine

Mad 649)  held that

“mere recovery and possession of the currency notes will not bring home the offence under Section 7 of the Act and consequently the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage also cannot be held to be proved.”

This view is also held by the Hon’ble Supreme Court in  M.R. Purushotham Vs State of Karnataka ( (2015) 3 SCC 247.

61. As discussed supra, the prosecution in this cases has not proved thefoundational facts viz, the demand and acceptance of the money and the i-Pad by the accused beyond reasonable doubt. Hence it is held that the presumption under section 20 of the PC Act cannot be invoked against these accused as has been consistently held by the superior courts.
62. Conclusion:
63. In this case, the specific defence taken by A1 is that he has been targeted by the big corporates for having issued notices to them for large scale duty evasions. In this regard, it is relevant to note that he had filed W.P No.22373 and 22374 of 2012 before the Hon’ble Madras High Court against the Union of India and others including the CBI and the defacto complainant herein. In the said case, reported as Rajan Vs Union of India and Others (MANU/TN/2765/2013), Hon’ble High Court in its order dated 20.12.2013 has directed the first respondent therein to conduct a detailed enquiry about the situation under which this case has been filed against A1. In this regard, the learned PP argued that mere previous enmity of the defacto complainant cannot be the sole ground to jettison his evidence and the fact that he has given the complaint itself shows that he is aggrieved and that this cannot be a ground to reject his evidence.  In her support, she relied upon the decision of the Hon’ble Supreme Court in State of U.P Vs Zakaullah (AIR 1998 SC 1474).  As held therein, it is but true that the evidence of a witness cannot be thrown away just because there is previous enmity but at the same time, it is also held that this requires the court to scrutinize it with greater care.  Thus in this case, this court has only considered the evidence of PW3 with greater care and has not outrightly rejected the same.  On the whole, the evidence of PW3 is found to be unbelievable considering the other evidence and documents available in this case. This court cannot be oblivious of the fact that there is nothing to corroborate his evidence but on the other hand the available evidence clearly contradicts his version and so this court has concluded that his evidence is unbelievable.
64. The cumulative analysis of the evidence available in this case shows that the contradictions that glare on the face and go to the very root of this case cannot be ignored and that the prosecution has miserably failed to prove the guilt of the accused.
65. Therefore, this Court is of the considered opinion that there is absolutely no material to show that there was any demand  or acceptance of bribe by A1 or by A2 on behalf of A1 and tthat the prosecution has failed to prove the guilt of both A1 and

A2 under sections 120-B IPC r/w sections 7 and 13(2) r/w 13 (1) (d) of the

Prevention of Corruption Act.  This point is dertermined accordingly. V. Result:

In the result, Rajan-A1 and Murugesan-A2 are found not guilty for the offences under Section 120-B IPC r/w Sections 7 and 13(2) r/w 13(1)(d) of the PC Act and they both are acquitted under Section 248(1) Cr.P.C.

The bail bonds executed by them shall stand cancelled.

1. Appendix:

The MO1 series currency notes of Rs.1000/- denomination, MO2 the Apple iPad  W534 32GB WIFI 3G Black bearing IME No.0012923009703892  are to be

directed to returned to the defacto complainant after the expiry of the appeal period.

MO-10, Nokia Mobile  phone bearing IMEI No.358245/03/445337/2  one sim card, MSD card (1GB) Cellone the ICC ID No.89916480624420611341 and M0-11- Nokia mobile phone bearing IMEI No.35153040492123, one MSD card (8GB) are directed to be returned to the respective  accused after the expiry of the appeal period.   The other materials objects viz.MO3, MO4, MO5,MO6, MO7, MO8, MO9  and MO12 are directed to be destroyed after the expiry of the appeal time.

Note: MO1 series Rs.1,000/-  denominations are directed to be handed over to the defacto complainant (PW3) along with a copy of the Panchanama to be prepared in duplicate, so that he can exchange the demonetised notes under Specified Bank Notes (Deposit of old currency notes) Rules 2007  with the Reservc Bank of India,Chennai.

Dictated to the steno typist, taken down and typed  by him, corrected and pronounced by me in the open court this the  30^th day of September 2022.

XIII Additional Special Judge

for CBI Cases, Chennai

Witnesses examined on the side of the Prosecution 

 

• W.1 Mr.B.K.Mahanta, Under Secretary, Central Board of Excise and Customs, Department of Revenue, New Delhi.
• W.2 Tmt.Jane K Nathaniel, Commissioner of Customs, Chennai.
• W.3 Mr.F.Ubaithullah, Businessman.
• W.4 Mr.Stalin Joseph, Businessman.
• W.5 Mr.C.Selvam, Senior Divisional Engineer-Coordination, Southern Railway, Madurai.
• W.6 Mr.P.V.K.Rajasekhar, Joint Director, Directorate of General of GST Intelligence at Rajaji Bhavan, Chennai.
• W.7 Smt.Grace Alice Thomas, Asst. Head. Master, Presidency Higher Secondary School, Egmore, Chennai.
• W.8 Mr.Meghraj C Jain, Businessman.
• W.9 Mr.G.Pannerselvam, Head Havildar, DRI, Chennai.
• W.10 Mrs.Anjali Narayanan, PA to ADG, DRI, Chennai.
• W.11 Mrs.C.Meenakshi, Lower Division Clerk, DRI, Chennai.
• W.12 Mr.M.Arun Kanth, Joint Commissioner, GST, Cochin.
• W.13 Mr.R.Santhanakrishnan, Assistant Director, (Retd) DRI, Chennai.
• W.14 Mr.Muruganandan, Asst. Commissioner of GST and Central Excise at Coimbatore.
• W.15 Mr.T.Prabakar, Deputy Commissioner of Customs, DRI, Chennai.
• W.16 Mr.M.Mohamed Ibrahim, Superintendent of GST & Central Excise, Chennai.
• W.17 Mr.K.Engineer, Commissioner of Central Tax, Tirupathi GST Commissionerate
• W.18 Mr.C.Vijay, Dy.Manager in TATA Tele Services Ltd., Chennai.
• W.19 Mr.Mohanavelu, Deputy Vice President in Equitas Small Finance Bank, Chennai.
• W.20 Mr.Vijeyakumar Raja, Executive in Air Cell Cellular Ltd., Chennai.
• W.21 Mr.M.Elangovan, Clearing and forwarding agent, in International Shipping and Clearing Agency.
• W.22 Dr.A.Kannan, BSNL (Retired Officer)
• W.23 Mr.N.R.Rajkumar, Superintendent of GST & Central Excise, Chennai. 24 P.W.24 Mr.Manimaran, Additional Director at Directorate of General of System and Data Management, Bengaluru Zonal Unit.
• W.25 Mr.N.Chakrapani, Chief Accounts Officer at Customs House, Chennai.
• W.26 Mr.A.S.Michael, Businessmen.
• W.27 Tmt.Kalarani, Joint Director (Retd), forensic department, Chennai.
• W.28 Mr.G.M.K.Guru, General Manager (HR) (Retired) at Hyundai Mobis.
• W.29 Mri.C.S.Moni, Addl. Superintendent of Police, CBI, EOB, Mumbai.
• W.30 Mr.M.Krishna, Assistant Director in Central Forensic Science Laboratory, Hyderabad.
• W.31 Mr.L.S.Padma Kumar, Superintendent of Police (retired)
• W.32 Mr.S.Vellai Pandi, Superintendent of Police, (Retired.)

Defence side witness:Nil

Exhibits marked on the side of the Prosecution

Sl.No       Ex.Ps                Date         Description

• P.1 03.12.2012 Sanction Order issued by the Hon’ble President of

India to prosecute  C.Rajan (A1)  (Original)

• P.2 07.11.2012 Sanction order issued by the Commissioner of

Customs to prosecute M. M.Murugesan  (Original)

• P.3 07.11.2012 Covering letter sent by Mr.A.Manimaran, Deputy Commissioner of Customs (CIU),Chennai to the Superintendent of Police, CBI, Chennai enclosing the sanction order to prosectute Mr.M. Murugesan  Driver. (Original)
• P.4 05.03.2012 Complaint against  C.Rajan and Murugesan filed by

F.Ubaidullah (Original)

• P.5 05.03.2012 Purchase bill of Apple ipad 2 32GB WIFI 3G Black for Rs.39,500/- issued by Easy Cell City (Original)
• P.6 06.03.2012 Entrustment Mahazar prepared in the office of the Mr.L.S.Padmakumar ASP/CBI (5 sheets)
• P.7 06.03.2012 Mahazar prepared by Mr.L.S.Padmakumar ASP/CBI (1 sheet)
• P.8 21.10.2010 Search Mahazar issued in the presence of witness Mr.S.Selvaraj Chennai and Mr.A.Thiruvengadam

Chennai in the place of M/s.Hansum India Electronics Pvt Ltd., at 11.45 hours

• P.9 Memorandum and Article of Association of

M/s.Hansum India Electronics Pvt. Ltd., (Original) (Booklet)

• P.10 Cheque Book A/c No.04641040000283 (000002 to

000025)  issued to Shri Super King MyatzinMyatzin by Kodak Mahindra Bank  (Original)

• P.11 Cheque Book A/c No A/c No.04641050000175

(000001 to 000025) issued to Shri Super King Myatzin by Kodak Mahindra Bank (Original)

• P.12 21.10.2010 Copy of summon  issued to  Mr.Stalin Joseph,

Director, M/s Hansum India Limited by the D.R.I.

• P.13 26.03.2011 Show cause notice  issued to M/s.Abi Sathya

Enterprises Chennai, by the D.R.I. intimating about initiation of adjudication proceedings (36 sheets)

• P.14 22.02.2012 Letter from Mr.Stalin Joseph  to Additional Director General, DRI, Chennai regarding authorization  made by Shri. Superking Myatzin to defreeze the account (4 sheets)
• P.15 23.10.2010 Letter issued by Kotak Mahindra Bank to Hansum India Electronics Pvt Ltd., regarding receipt of notice from statutory authority to defreeze the accounts.
• P.16 25.10.2010 letter issued by Hansum India Electronics Pvt Ltd., to Additional Director General to with draw the intimation to Kotak Mahindra Bank regarding freezing of bank accounts (1 sheet)
• P.17 02.11.2010 letter issued by Hansum India Electronics Pvt Ltd., to Additional Director General, D.R.I. to with draw the intimation to Kotak Mahindra Bankand ICICI Bak regarding freezing of bank accounts (1 sheet)
• P.18 Kotak Mahindra Bank A/c opening Application with

Details  of  Mr.Superking Myatzin (4 sheets)

 

• P.19 NRI Account opening form of Kotak Mahindra Bank issued to Mr.Superking Myatzin(18 sheets)
• P.20   -11-2010 Affidavit of Mr.A.S.Michael in WP No. 25324/2010 to issue a Writ of mandamus or any other appropriate Writ, or directions in the nature of  Writ directing in second Respondent to furnish a copy of the communication sent by the D.R.I.,Chennai.
• P.21 18-11-2010 Affidavit of Mr.A.S.Michael in the W.P.

No.26176/2010 before the High Court, Madras  to quash the proceedings of the D.RI. dated 22.10.2010 in DRI.F.No.VIII/48/48/2010-DRI C20.

• P.22    -11-2020 Affidavit of Mr.A.S.Michael in the W.P.

No.26177/2010 before the High Court, Madras  to quash the proceedings of the D.RI. dated 22.10.2010 in DRI.F.No.VIII/48/48/2010-DRI C20.

• P.23 23.11.2010 Common Order of Hon’ble High Court in WP 26176 and 26177 of 2010 freezing the bank accounts of M/s.Hansum India Electronics Pvt Ltd. with Kodak Mahindra Bank and ICICI Bank. (Original)
• P.24 07.03.2012 Recovery Mahazar drawn at the residence of

Mr.C.Rajan (Original) (2 sheets)

• P.25 06.03.2012 Rough sketch (Original- 1 sheet)
• P.26 06.03.2012 Specimen metal seal impression used for sealing the bottles containing hand washes and car seat cover washes(2 sheets)
• P.27 07.03.2012 Arrest cum Inspection cum Personal Search memo of Mr.P.Murugesan (A2) (1 sheet)
• P.28 07.03.2012 Arrest cum Inspection cum Personal Search memo of Mr.C.Rajan (A1) (1 sheet)
• P.29 7.03.2012 Search list details of property seized by Police Officer (CBI/ACB/Chennai) (3 sheets)
• P.30 6.03.2012 details of Inventory prepared in RC 11 of 2011

(Original) (5 sheets)

• P.31 21.10.2010 Seizure Mahazar in the presence of witness of S.Selvaraj and A.Thiruvengadam for search in the place of M/s Hansum India Electronics Private

Limited, Chennai on 21.10.2010

• P.32 Summons U/s 108 Customs Act 1962, issued to the

Manager Kotak Mahindra by DRI, Chennai (1 sheet)

• P.33 25.10.2010 Summons issued by Shri. Santhanakrishnan, SIO,DRI to Stalin Joseph for his appearance at DRI Office to give evidence and to produce the documents.
• P.34 Summons issued to Mr.A.S.Michael, Director of  M/s.

Handsum India Electronics (P) Ltd Chennai issued by

Directorate of Revenue Intelligence

• P.35 3.11.2010 Summon issued to Stalin Joseph , Director of M/s.

Hansum India Electronics (P) Ltd Chennai by Mr. N.Muruganandam, DRI, to give evidence and to produce the documents.

• P.36 26.11.2010 Letter from Mr.P.V.K.Rajasekhar, Assistant Director DRI, Chennai to the Manager, ICICI Limited, Kilpauk Branch, Chennai-10 enclosing the order of the Hon’ble Madras High Court Regarding  de-freezing of account of Hansum India Pvt Ltd., (1 sheet)
• P.37 26.11.2010 Letter issued by Mr.P.V.K.Rajasekar, Assistant Director, DRI, Chennai to Manager,  Kotak Mahendra Bank  for compliance of the common order of the Hon’ble High Court  Madras in WP 26176 and 26177 (1 sheet)
• P.38 23.11.2010 Common Order of the Hon’ble High Court order copy in WP Nos.26176 and 26177 of 2010 and in miscellaneous petitions 1, 2, and 0 & 2 of 2010 (3 sheets)
• Ex,.P.39 11.2010 Letter issued by Kotak Mahendra Bank to

Mr.P.V.K.Rajasekhar Assistant Director, DRI stating that accounts were defreezed as per the orders of the Hon’ble High Court, Madras

• P.40 26.03.2011 Show cause notice issued by Directorate of Revenue Intelligence to Abi Sathya Enterprises intimating initiation of adjudication proceedings.
• P.41 22.10.2010 Summons U/s 108 of Customs Act 1962, issued to the

Manager Kotak Mahendra Bank to produce the

documents and details of documents  with regard to the  accounts of M/s.Hansum India Pvt Ltd

• P.42 25.10.2010 Summons issued U/s 108 of Customs Act 1962 by Santhanakrishnan (PW13) to the Manager of ICICI Bank Kilpauk branch to give evidence and to produce documents  with regard to the  accounts of M/s.Hansum India Pvt Ltd.,
• P.43 25.10.2010 Reply Letter issued by Mrs.Lilly Navamani Leema Rose, Branch Service and Compliance Manager of ICICI Bank to Senior Intelligence Officer, DRI, Chennai (29 sheets)
• P.44 21.10.20l0 Seizure Mahazar issued by DRI in the presence of witness Mr.V.Jaga and Shri V.Jayakumar in the  place M/s A.S.Shipping Agencies Private Limited Container Freight Station, Numbal.
• P.45 25.10.2010 Seizure Mahazar issued by DRI in the presence of witness Mr.V.Jaga and Shri V.Jayakumar in the  place M/s A.S.Shipping Agencies Private Limited Container Freight Station, Numbal.
• P.46 30.03.2010 Copy of Take over agreement between M/s.Hansum

India  represented by Mr.Stalin Joseph, Assignor and M/s. Hansum India Electronics Private Limited represented by Mr.A.S.Michael Assignee  (5 sheets)

• P.47 Counter affidavit filed on behalf of all the

Respondents in W.P.No.25324/2010 filed by

M/s.Hansum India Electronics India Private Limited, (10 sheets)

• P.48 27.04.2012 Letter of the Nodal Officer, TATA Teleservices

Limited  to ASP/CBI/ACB enclosing the call details of mobile No. 78453-09605, subscriber details, customer application form along with the photo of the subscriber and certificate under 65B(4) (c) of the Indian evidence Act(1 sheet)

• P.49 Prepaid customer Application From of TATA

Teleservices Pvt Ltd., ( 2 sheets)

• P.50 22.10.2018 TATA Tele Services Limited Call details of the mobile

No7845309605   for the period from 1.2.2012 to

 

7.3.2012(14 sheets)

• P.51 22.10.2018 Certificate issued under section 65B Indian Evidence Act by the  TATA Tele Services Limited for the call details of mobile No.7845309605( 1 sheet)
• P.52 Copy of Passport of Superking Myatzin (6 sheets) issued by Union of Mynmar.
• P.53 Account statement          of          NRE     Account

No.04641040000283 and NRO Account No

04641050000175 of Mr.Superking Myatzin for the period from 1.10.2010 till 6-3-2012 (2 sheets)

• P.54 25.10.2010 Covering Letter issued by Kotak Mahindra Bank Ltd to Mr.Santhana Krishnan, Directorate of Revenue Intelligence enclosing account statement , account opening forms an KYC norms of Mr.Superking Myatzin.
• P.55 Account opening form non-individuals (New customer

account) in Kotak Mahindra (Bank entire book)

(Original) (45 sheets)

• P.56 Statement of accounts of M/s Hansum India Electronics (P) Ltd vide account No 04642180000351 for the period 1.10.2010 till 6.3.2012 (28 sheets).
• P.57 22.10.2010 Summon u/s 108 of Customs Act 1962 issued to the Manager, Kodak Mahindra Bank, issued by the Senior Intelligence Officer,DRI, Chennai to adduce evidence and produce documents in respect of M/s.Hansum India , Chennai. (8 sheets)
• P.58 30.04.2012 Call details of mobile number 9841148138 for the period from 1.2.2012 to 7.3.2012 along with the certificate u/s. 65B(2)(C) of Indian Evidence Act (Original) (6 sheets) + covering letter and acknolwedged by CBI.
• P.59 Curriculam Vitae of Mr.M.Elangovan (2 sheets)
• P.60 14.06.2008 Employment application form of Mr.Elangovan submitted to Hyundai Mobis India Limited (2 sheets)
• P.61 25.06.2008 Letter of appointment issued by Hyundia Mobis

Limited  to Mr. N.Elangovan (8 sheets)

• P.62 01.05.2012 Call details of mobile Nos. 94442-67830 and 9444005222 (Original) (31 sheets)
• P.63 01.05.2012 Certificate under section 65B (4) (C) of the Indian Evidence Act  issued by   Deputy General Manager BSNL regarding the Call details of mobile number 94440-05222
• P.64 Log book pertaining to vehicle No. TN-09-AM-6262

(Ambassador Car)  used by C.Rajan (A1)  entire book (Original)

• P.65 02.04.2012 Details of  postings held by   Mr.C.Rajan ADG, DRI (A1) and M.Murugesan Driver (A2) (14 sheets)
• P.66 05.04.2010 Copy of Letter sent by Mr.Rajan (A1) to

Commissioner of Customs, Chennai requesting to post one driver on loan basis (1 sheet)

• P.67 16.04.2010 Office order No.123/2010 regarding the postings of Mr.Murugesan (A2) MV driver (Special Grade) in the

Directorate of Revenue Intelligence, Chennai (1 sheet)

• P.68 30.03.2012 Letter issued by Mr.K.Engineer Additional Director DRI, Chennai to Mr.B. Sureshbabu, Additional Commissioner of Customs ( P & V) intimating that Murugesan (A2)  worked in the Directorate  of Revenue Intelligence as driver till his arrest by the CBI. (Original)
• P.69 16.04.2012 Details of  Vacancy position in D.R.I. (Original)
• P.70 31.03.2010 Dissolution Deed executed at Chennai between Mr.A.S.Michael Stalin Joseph, H.Suresh, Meena bai for Hansum India Electronics Pvt Ltd., (3 sheets)
• P.71 26.03.2012 Report issued by Forensic Science Department regarding the Phenolphthalein Test conducted

(Original) (2 sheets).

• P.72 14.03.2012 Letter issued by Hon’ble  Principal Special Judge for CBI Cases, Chennai addressed to the Director, Tamil

Nadu Forensic Science Laboratory, Chennai regarding

Chemical Analysis report of  5 sealed bottles  (1 sheet)

• P.73 28.03.2012 Receipt Memo handed over by G.M.K.Guru, HR, Mobis India Limited and taken over by ASP/CBI regarding job details of M.Elangovan (Original)
• P.74 19.06.2008 Interview assessment sheet of Mr.N.Elangovan (1 sheet)
• P.75 21.07.2008 Joining letter, probation declared letter and promotion letter of Mr.N.Elangovan (5 sheets)
• P.76 05.03.2012 Verification Report submitted by C.S.Moni (PW29)
• P.77 30.04.2012 Examination Report along with Annexure of mobile phone Nokio model No.5130C-2 (105 sheets and 1 DVD)
• P.78 05.03.2012 First Information Report against the accused A1 and A2 in RC 11/A/2012  including verification report ( 11 sheets)
• P.79 07.3.2012 Search list in respect of the search conducted in the residence of Murugesan in the presence of  witness Mr.Balaji, Mr.R.Rajeshkumar. (Original)
• P.80 10.03.2012 Seizure Memorandum issued by Mrs.Sasirekha Sambhasivam for the seizure of mobile No.9444005222 from Mrs.Rosy Rajan W/o. Rajan

(Original)

• P.81 11.03.2012 Receipt memo of mobile phone E72 IMEA

No.351513040492123 collected from Mr.K.Engineer

• P.82 28.03.2012 Receipt memo issued Mr.P.Mohanavelu Branch Manager, Kotak Mahindra Bank by Mr.S.Vellaipandi ASP/CBI (1 sheet)
• P.83 28.0.2013 Receipt memo collected from Mr.P.Mohanavelu Branch Manager, Kotak Mahindra Bank by

Mr.S.Vellaipandi ASP/CBI (1 sheet)

• P.84 14.04.2012 Receipt memo handed over by Superking Myatzin and

taken over by Mr.S.Vellaipandi ASP/CBI/ACB

(Original)

• P85 07.03.2012 Search list – details of property seized by Police Officers Acting under the Provisions of Section 103 or 165 of Criminal Procedure Code (4 sheets).

(Document produced by prosecution and marked by

 

Defence side Exhibits :

SL.No .	Ex.No	Date	Description of the document
1.	Ex.D.1		Visiting Card of Hairun Consultancy Services run Mr.Ubaidhulla (PW3)  (Original)
2.	Ex.D.2	26.10.2010	Office  Note  issued by P.V.K.Rajasekar, Asst Director, DRI,Chennai.
3	Ex.D.3		Particulars of Directors of Hansum India Electronics Private Limited, Chennai and Photos  including Stanlin Joseph (PW4).
4	Ex.D.4	30.01.2018	Central Public Information Officer, Office of the Principal Commissioner of Customs, sent the copy of the documents required to A1 under the Right to Information

Material Objects  marked on the side of the prosecution:

1. Thousand Rupees Notes (200 numbers)
2. Apple i-pad W534 32GB WIFI 3G Black bearing IME No.0012923009703892 and Cord
3. Adayar Ananda bhavan Plastic Cover
4. Green colour plastic cover
5. One bottle containing solution
6. One bottle containing solution
7. One bottle containing solution
8. One bottle containing solution
9. One bottle containing solution
10. Mobile phone Make Nokia IMEI No.358245/03/445337/2 (Q1-ME) one SIM card of Cellone the ICC ID No.89916480624420611341 MSD Card              (1GB capacity)
11. Mobile Phone Make Nokia IMEI No. 351513040492123, one MSD card

(8 GB)

12 . DVD containing soft copy audio files, images, music;

               Material Objects on  the side of the defence: Nil

XIII Additional Special Judge for CBI Cases, Chenna