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High Court Of Delhi
KARTONGEN KEMI OCH FORVALTNING AB - Appellant
Versus
STATE THROUGH CBI - Respondent
CRI.MISC.(M.) 3938 of 2003
Decided On : 02/04/2004
Indian Penal Code, 1860 - Sections 120B & 161 — Conspiracy and illegal gratification — Evidence of acts, statement of a co-conspirator either under trial or not on trial but outside the period of conspiracy would not be admissible in proof of specific issue of the existence of the conspiracy — Payment of commission to agents, acting much before the purchase of guns, as an agent, is not an illegal gratification.
Sections 120B & 420 - Conspiracy and cheating — Prosecution didnt seek sanction for prosecution of the public servants for the offences — Nowhere alleged by the prosecution even remotely that payment made by AB Bofors by way of commission constituted a bribe to the public servants — Public servants are completely absolved of all the allegations leading to the offences punishable under Section 120B read with Section 420 IPC — Prevention of Corruption Act, 1947, Section 5(2), 5(1)(d).
Section 465 - Charge — Making false documents — Agreement shows payment as commission has been rightly observed by the Special Judge that the purpose for making both these false documents was to give impression that settlement with agents have been made and they have been paid settlement/winding up charges but these documents came to be made during the relevant time — Charge for the offence punishable under Section 465 IPC is thus sustainable.
Evidence Act, 1872 - Sections 63 & 78(6) — Secondary evidence — Photocopies — Originals have not been procured — No evidence collected that the photocopies were taken out from the original documents — Documents are waste paper — Documents not public but commercial — Certified copy cannot be taken to have been proved by way of secondary evidence.
Prevention of Corruption Act, 1947 - Section 5(2) — Criminal misconduct by abusing official position — Conspiracy to cheat the Government by awarding the contract to Bofors — There is no evidence on record to suggest that either Rajiv Gandhi or Bhatnagar used any direct or indirect influence on anybody including Technical Committee of Army Experts or on Negotiating Committee that comprised of seven members or so and all were high officials of the Government of India for the award of the contract to Bofors or as to the price.
Section 5(2) — Criminal misconduct — Abusing official position — Public servants — Prosecution not brought anything on record as to what different role was played by the members of the Negotiating Committee than the role played by Mr. Bhatnagar, thus the element of dishonest intention is utterly wanting.
Section 5(2) & 5(1)(d) — Criminal misconduct — Abusing official position — Public servants — Illegal gratification for awarding the contract in favor of Bofors — Charges for the offences for having entered into a criminal conspiracy with the public servants to cheat the Government of India and having abetted the public servants to commit criminal misconduct by abusing their official position and taken illegal gratification for awarding the contract are quashed.
( 1 ) THE petitioners, M/s A. B. Bofors, S. P. Hinduja, G. P. Hinduja and P. P. Hinduja, have through these petitions challenged the impugned order dated 14. 11. 2002 passed by the learned Special Judge whereby he has charged them for having entered into criminal conspiracy with the public servants late Shri Rajiv Gandhi, Shri S. K. Bhatnagar, Win Chadha, Ottavio Quattrocchi and Bofors President Matin Ardbo to cheat the Government of India inasmuch as that they had agreed to do or caused to be done illegal acts or acts which are legal by illegal means to cause wrongful loss to the Government of India to the tune of SEK 8410. 66 million i. e. Rupees 64 crores for the award of the contract for supply of 410 guns of 155mm and by deceiving the Government of India by fraudulent representation that the said gun and gun system was better in quality and cheaper in price and that no agent or middlemen would be used in the negotiations for the contract and they would reduce the price of the gun to the extent they would otherwise pay to their agents by way of commission and thereby cheated the Government of India. These offences are punishable under Section 120-B/420 IPC.
( 2 ) THE public servants Rajiv Gandhi and S. K. Bhatnagar were also charged for having committed criminal misconduct by abusing their official position so as to gain pecuniary advantages to all of them and having taken illegal gratification for awarding the contract in favour of Bofors. Hinduja Brothers, Bofors, Martin Ardbo and Win Chadha have also been charged for having abetted the public servants to commit such offences. These offences are punishable under Section 5 (2) read with Section 5 (1) (d) of Prevention of Corruption Act, 1947 and Section 161 IPC and Section 165a IPC. AB Bofors has also been charged for the offence punishable under Section 465 IPC for having dishonestly and fraudulently made false documents in the form of agreements between AB Bofors and said agents agreeing to pay money in instalments.
( 3 ) OBSERVATIONS of the learned Special Judge as to charge of public servants having taken illegal gratification/bribe by awarding the contract to Bofors need to be referred as "preface" to this judgment. These are:- "85. . . . . . . no evidence has been collected to show that Indian politicians and/or defence personnel have themselves actually received pay-offs. The prosecution case has been considerably diluted than originally projected. The allegations in the FIR are bribery, criminal conspiracy, cheating, criminal breach of trust and forgery, whereas the charge sheet shows some of the offences only. (order dated 29th August, 2002)
( 4 ) EVEN to the pointed query made by this court as to evidence showing the receipt of bribe money, if any, by the public servants either themselves or through the agents viz Hindujas, Quattrocchi and Win Chadha, Mr. Mukul Rohtagi, learned Additional Solicitor General of India appearing for CBI, candidly and fairly said that till date there was none but CBI is on the trail to gather such evidence. This frank concession goes to the credit of Mr. Rohtagi who though during arguments heavily relied upon the circumstances pointing to the misconduct of public servants by abusing their official position and taking illegal gratification in awarding the contract to Bofors so as to gain pecuniary advantage to Bofors and its agents.
( 5 ) IT is strange that the learned Special Judge considered the allegations contained in the FIR as substantive evidence whereas the FIR is only meant for setting the investigating machinery into motion. However merely on the allegations in the FIR unless supported and corroborated by any material or evidence, documentary, circumstantial or oral, neither charges for penal offences can be framed nor conviction can be based.
( 6 ) RESULT of thirteen long years of investigation by the CBI, a premier Investigating Agency of the country and three years investigative journalism during which
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