CENTRAL BUREAU OF INVESTIGATION vs A RAJA & ORS

2024-03-22 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON 14.03.2024.
% PRONOUNCED ON 22.03.2024.
+ CRL.L.P. 185/2018, CRL.M.A. 14255/2023, CRL.M.A. 14256/2023, CRL.M.A.4631/2024, CRL.M.A. 4632/2024
CENTRAL BUREAU OF INVESTIGATION ….. Petitioner
Through: Mr. Sanjay Jain, Sr. Adv. (Sr. Special Public Prosecutor) with Mr. Neeraj Jain, Mr. Ripu Daman Bhardwaj & Mr. Rishi Raj Sharma (Special Public Prosecutors), Mr. Anupam Mishra, Ms. Noor Rampal, Mr. Yuvraj Sharma, Mr. Nishank Tripathi, Ms. Harshita Sukhija, Ms. Palak Jain, Ms. Shreeja Rawat, Mr.Gaurav Kumar Arya, Advs. with Mr. Manoj Kumar, DSP-CBI.
versus

A RAJA & ORS ….. Respondents

Through: Mr. Manu Sharma, Mr. Balaji Subramanian, Mr. Karl Rustomkhan, Mr. Kartikey Masta, Mr. Gyanendra Kumar, Advs. for R-1 & 16.
Mr. Siddharth Luthra, Senior. Adv. with Mr. Kartikeye Dang, Mr. Sahir Seth, Mr. Arjun Varma, Mr. Aashul Agarwal, Mr. Tusharjeet Singh, Advs. for R-2.
Mr. Mukul Rohtagi, Sr. Adv. with Mr. Vijay Aggarwal, Mr. Shivek Trehan, Ms. Rishika Goyal, Mr. Hardik Sharma Mr. Mukul Malik, Mr. Pankush Goyal, Ms. Barkha Rastogi, Mr. Kshitiz Garg, Mr. Puneet Dhawan, Advs. for R-3 to 5, 13 to 15.
Mr. Anshul Sehgal, Mr. Divyanshu Jain, Advs. for R-6.
Ms. Rebecca John Sr. Adv. with Ms. Tarannum Cheema, Mr. Akash Singh, Mr. Akshay N., Advs. for R-7.
Mr. D. P. Singh, Mr. Vikash Kukreti, Mr. Manu Mishra, Ms. Shreya Dutt, Mr. Imaan Khera, Advs. for R-8.
Mr. Sidharth Aggarwal Sr. Adv., with Mohit Kr. Auluck, Mr. Vivek Nagar, Advs. for R-9 & 11.
Mr.Hariharan, Sr. Adv. with Mohit Kr. Auluck, Mr. Vivek Nagar, Advs. for R-10
Ms. Manali Singhal, Mr. Santosh Sachin, Mr. Deepak Singh Rawat, Advs. for R-12.
Ms. Rebecca John Sr. Adv., Dr. Joseph Aristotle, Sr. Adv. with Ms. Tarannum Cheema, Ms. Priya Aristotle, Mr. Ashutosh Singh Rana, Mr. Arun Pandiyan, Mr. Akshay N., Mr. Akash S., Advs. for R-17.

CORAM:
HON’BLE MR. JUSTICE DINESH KUMAR SHARMA

J U D G M E N T

DINESH KUMAR SHARMA, J:
INDEX
Sr No.
Content
Page No.
I.
Brief Facts
3
II.
Submissions of Petitioner/Appellant
6
III.
Submissions of Respondents
16
IV.
Rejoinder Submissions
96
V.
Analysis & Findings
100

1. The present petition has been filed seeking leave to appeal under section 378(2) read with 386 read with 482 of the Code of Criminal Procedure, 19731 against the order dated 21.12.2017 passed by Ld Special Judge CBI Patiala House Court in CC NO. 1/11 (CBI Vs A.Raja & Ors.).
I. I. Brief Facts
2. The briefly stated facts are that a Case bearing no. RC.DAL2009.A.0045 was registered under Section 120-B read with section 420/409/468/471/193 of IPC read with section 7 or in the alternative Section 11/12 and 13(2) read with section 13 (1) (d) of the Prevention of Corruption Act, 1988. The instant case was registered on 21.10.2009 against unknown officials of the Department of Telecommunications (DoT), Government of India, unknown private persons/companies, and others for the offences punishable under various provisions alleging criminal conspiracy and criminal misconduct, in respect of allotment of Letters of Intent (LOI), Unified Access Service (UAS) Licences and spectrum by the Department of Telecommunication.
3. The allegation in brief as levelled in FIR are as under:
(a) The entry fee for the new pan India UAS licences in the year 2008 was kept by Department of Telecommunications (DOT) as Rs.1658 Crore, at which price the Cellular Mobile Telephone Service (CMTS) licences were awarded by DOT after auction in the year 2001. These UAS licences, issued in 2008 were issued on first-come first-serve basis without any competitive bidding.
(b) A press release was issued by DoT on 24.9.2007, which appeared in the newspapers on 25.9.2007, mentioning that the new applications for UAS licences will not be accepted by the DoT after 1.10.2007 till further orders. However applications received up to 25.09.2007 only were considered, which was also against the recommendations of Telecom Regulatory Authority of India (TRAI) that no cap should be placed on the number of Access Service Providers in any service area.
(c) Even First-Come First-Serve policy was implemented by the DoT in a manner which resulted into wrongful gain to certain companies. Further, there are allegations that the suspect officials of DoT had selectively leaked the information to some of the applicants regarding the date of issuance of letter of intent on 10.01.2008. In the letter of intent, an arbitrary condition was incorporated that whosoever deposits the fees (as per conditions in Letters of Intent, i.e. LoIs) first, would be the first to get license. Since some of the applicants, who had this prior information, were ready with the amount and they were able to deposit the fee earlier than others. Thus, the favour was allegedly shown to some applicants by way of leaking the information about the date of issuance of the letter of intent.
(d) Although, the FDI limit was increased from 49% to 74% in December, 2005, but there was no lock-in period or restriction imposed on the sale of equity or issuance of additional equity. As a result of this M/s. Swan Telecom Pvt. Ltd. (A-6), which paid to DoT Rs. 1537 Crore for UAS Licences of 13 circles, offloaded its 45% equity to M/s Etisalat of UAE for Rs. 4200 Crore. Similarly, M/s. Unitech Wireless (Group of 08 companies), which paid to DOT Rs.1658 Crore for UAS Licences of all 22 circles, offloaded its 60% equity to M/s Telenor of Norway for Rs. 6100 Crore. These stakes were sold by the said companies even before the roll out of services by them. The estimated loss to Government by grant of licences to these two companies alone comes to Rs. 7105 Crore. On pro rata basis, the estimated loss for all 122 UAS Licences issued in 2008 was more than Rs. 22000 Crore.
4. After investigation, CBI filed charge sheet in court on 02.04.2011 against twelve accused persons, that is, A-1 to A-12. The supplementary charge sheet was filed on 25.04.2011 against A-13 to A-17. The supplementary charge sheet was ordered to be tagged along with the main charge sheet vide order dated 24.05.2011.
5. The charges in the present case were framed vide order dated 22.10.2012. The prosecution examined 153 witnesses. The statements of the accused persons were recorded under Section 313 Cr.P.C. Ten of the accused persons examined 29 witnesses in their defenses. R-1/A. Raja examined himself under Section 315 Cr.P.C. as DW-1. Sh. R. K. Chandolia/R-3 examined himself as DW-22.
6. After the defense evidence, the prosecution moved an application dated 06.08.2014 for the summoning of five additional witnesses which was allowed vide order dated 19.11.2014. The court after hearing the arguments in detail which continued for around two years finally passed a detailed judgment running into 1552 pages whereby all the accused persons were acquitted.
7. The CBI aggrieved by this is challenging the impugned judgment. The CBI has sought leave to appeal against the judgment of the acquittal dated 21.12.2017.
II. Submissions of Petitioner/Appellant
8. Sh. Sanjay Jain, learned senior counsel/Sr. Special Public Prosecutor submitted that the primary allegation recorded in the charge sheet are following:
(i) Prior relationship of MoC&IT & his P.S. & the Secretary- Telecom with the certain beneficiaries i.e. license allotees.
(ii) Cut-off date of receipt of applications was unilaterally changed by MoC&IT against recommendation/advice.
(iii) First-cum-first serve policy was implemented / tinkered with to cause undue gain to certain companies.
(iv) Licenses were issued on First-cum-first basis without competitive bidding.
(v) Officials of DoT leaked information to the chosen few (beneficiaries) regarding the date of issuance of Lol on 10.01.2008. They knew the condition that whosoever is first to deposit the license fee (as per conditions of LOIs), would be the first to get a license. Since some of the applicants, had prior information, they were ready with the amount and were able to deposit the fee earlier than others, resulting in a reshuffling of priority thereby undue advantage to the chosen few.
(vi) Distribution of LoIs from the Four Counters: Certain Applicants were ready with demand drafts due to prior information resulting in a change of priority.
(vii) Non-revision of the Entry fee for PAN India UAS (Unified Access Services) license fee was kept at Rs. 1658 Cr., the price fetched in 2001, causing a loss of about Rs. 22,000 Cr. to the public exchequer.
(viii) M/ s. Swan Telecom Pvt. Ltd. (A-6), which paid to DoT Rs. 1537 Crore for UAS Licences of 13 circles, offloaded its 45% equity to M/s Etisalat of UAE for Rs. 4200 Crore. Similarly, M/s. Unitech Wireless (Group of 08 companies), which paid to DOT Rs. 1658 Crore for UAS Licences of all 22 circles, offloaded its 60% equity to M/s Telenor of Norway for Rs. 6100 Crore. These stakes were sold by the said companies even before the roll out of services by them.
(ix) Pursuant to above, benefit illegal gratification was received by Kalaignar TV of Rs. 200 Cr. which was returned immediately after Supreme Court order of investigation.
9. Learned senior counsel submits that the impugned judgment is bad in law and facts as the Ld. Trial Court ignored material evidence and circumstances. It was submitted that the irrelevant material was taken into consideration and conclusions drawn were illogical on the basis of surmises and conjectures. Learned senior counsel submitted that defence witnesses have been given undue weightage and the credible witnesses have been disbelieved.
10. Learned senior counsel submitted that for the purpose of the grant of leave to appeal following glaring circumstances/errors are being highlighted. Learned senior counsel made it clear that at this stage only some of the material irregularities are being highlighted and the prosecution deserves its right to argue it in further detail if the leave to appeal is granted. Learned senior counsel highlighted the following material irregularities:
i.) Association/Familiarity between the Accused (Govt. Officials) and Telecom License Applicants M/s. Swan Telecom (DB Group) and M/s. Unitech Wireless (Unitech Group).
ii.) Fixation of cut-off date by officials to convey undue benefit to M/s. Unitech Wireless (Unitech group),
iii.) Violation of “First Come First Serve Policy” & distribution of LOI by Setting up Four Counters to upset priority of applicants.
iv.) Non-revision of entry fee,
v.) Pecuniary benefit received (Money Trail), transfer of Rs. 200 Crore & its return of money immediately after Hon’ble Supreme Court ordered investigation vide order dated 16.12.2010.
A. Association/ previous familiarity between the Accused persons:-
11. Learned senior counsel submitted that in May 2007 A. Raja (A-1) became MOC&IT and RK Chandolia (A-3) became his PS. On 01.01.2008, Siddharatha Behura (A-2) was appointed as Secretary, Telecomm. It was stated that Earlier, when A-1 was MoEF (Minister for Environment and Forest), A-2 was Additional Secretary and A-3 was his PS. It was further submitted that PW-7 who was Additional PS to MoC&IT specifically stated that during his tenure as MoEF, A-1 had given environmental clearances to real estate projects of M/s. DB Realty (DB Group), M/s. Unitech, and many others, and A-1 used to regularly meet the officials of these companies. However, Ld. Trial Court disbelieved A-7 on flimsy grounds i.e., there was no entry in Visitor Register; PW-7 is a man of political inclinations, and no MoEF record placed by the Prosecution.
12. Learned senior counsel submitted that A-3 had rented out his residential house at Safdarjung Development Area, New Delhi to M/s. Associated Hotels Pvt. Ltd. vide Rent Agreement dated 03.03.2009, which is a sister concern of M/s. DB Realty Ltd. However Ld. Trial Court brushed aside the evidence on this point on the ground that this is Ordinary relationship of landlord & tenant, not indicative of conspiracy in itself.
13. Learned senior counsel further submitted that relations between A-1 through Green House Promoters (P) Ltd., was rejected on the premise, Mere familiarity does not mean conspiratorial familiarity. Learned senior counsel submitted that the Ld. Trial Court has fallen into error by rejecting the evidence pertaining relation/association between A-1 and DB Group from before, saying that it may be possible that some officials of DB Group might have got acquainted with family members of A-1 during the process of due diligence of M/s. Green House.
14. Learned senior counsel further submitted that the credible evidence of PW-7 that A-1 used to meet A-17 regularly and other DMK Ministers was rejected on the ground that This is in the realm of speculation only. Learned senior counsel submitted that the observation of the Ld. Trial Court is erroneous.
B. Fixation of cut-off date by officials to convey undue benefit to M/s. Unitech Wireless (Unitech group)
15. Learned senior counsel submitted that on 24.09.2007 a Press Release was issued fixing the Cut-Off Date as 01-10-2007 for receiving UASL, at the behest of A-1, disregarding the note given by DoT officials to the contrary. Learned senior counsel submitted that A-3 handled the processing and communication between A-1 & DoT. It was submitted that the ultimate beneficiary was M/s. Unitech, since their applications were filed on 24.09.2007 and immediately thereafter, the instructions were received by DoT officials from A-1/A-3 to not accept any more Applications, which led to releasing of the Press Release.
16. Learned senior counsel further submitted that on 26-10-2007, A-1 & DoT approached MLJ (Ministry of Law and Justice) for opinion, which gave its opinion on 01.11.2007 that the matter be referred to EGoM (Empowered Group of Ministers). However, it was not done. It was further submitted that despite the advice by DoT officials, no review of the availability of Spectrum (circle-wise) was done. It was further submitted that A-1 vide his communication dated 02.11.2007 to PMO made a wrongful representation of the entire scenario on the process being followed.
17. Learned senior counsel in this regard invited the attention of the court to the testimony of PW- 36 (D.S. Mathur), PW 60 (A.K. Srivastava), DW-22 (R.K. Chandolia), DW-1 (A. Raja). Learned senior counsel also invited the attention of the court to the document Ex. PW 36/E.
18. Learned senior counsel submitted that the Ld. Trial Court rejected the prosecution case regarding criminal conspiracy to the effect that there was a change of cut-off date to benefit private entities.
C. Violation of First Come First Served Policy & distribution of LOI by Setting up Four Counters to upset the priority of applicants:-
19. Learned senior counsel submitted that the Rule for UAS License or in general at DoT is “First Come First Serve” for determination of “priority” and “processing” of Applications. It was submitted that however, A-1 made changes in the Draft LOI – stating that the date of payment of fee would be the priority date. Learned counsel submitted that this was objected to by DoT officials. However, A-1 sent a letter to PMO on 26.12.2007 which was a wrongful representation of the entire scenario of the process being followed.
20. Learned senior counsel submitted that A-1, A-2 & A-3 gave directions to DoT officials that correspondence exchanged with PMO are policy directives vide instructions dated 07.01.2008. Learned counsel submitted that opinion of Ld. SG was taken on 07.01.2008 on Draft Press Release, the last para of the opinion reads; However, if more than one applicant complies with LOI condition on the same date, the inter-se seniority would be decided by the date of application. Learned counsel submitted that however this last para was deleted by A-1 & A-2 and a Press Release was issued at 13:47 hrs. on 10.01.2008. It was submitted that the Distribution method was tinkered with by setting-up Four counters. The Four counters opened at 3:30 pm and the stipulation of allotment was whoever pays first would be served first thereby reshuffling of the priority. Learned senior counsel submitted that the parties with prior knowledge of this policy, kept their DDs ready and were benefitted.
21. Learned senior counsel submitted that there are four limbs of prosecution case namely (i) Policy tinkered with, (ii) LOIs para 3 was changed (iii) setting up four counters (iv) allocation process tailored to suit favoured entities who had prior information. In this regard, reliance was placed upon the testimony of PW-62 (A.S. Verma), PW-60 (A.K. Srivastava), PW-36 (D.S. Mathur), PW-110 (Nitin Jain), PW-11 (Nripendra Misra Chairman, TRAI). Learned senior counsel submitted that however, Ld. Trial Court preferred the version given by DW-1 and inter alia held that there was adherence to the first come first policy. Learned senior counsel submitted that there are contradictions in the impugned judgment. Attention was invited to para. 758 to 769. Learned sr. counsel submitted that the court made observation that the policy was not followed, however, it rejected the case of the prosecution that manipulation of policy originated at the instance of A-1.
22. Learned senior counsel submitted that the Ld. Trial Court in Para 798- 800 discussed the case of the prosecution that A-1 had changed the policy regarding priority from the date of application to the time of compliance. However, Ld. Trial Court reached on erroneous conclusion against the material on record on its own hypothesis.
23. Learned senior counsel submitted that Ld. Trial court ignored the credible evidence of PW-42 (Shah Nawaz Alam). Learned senior counsel submitted that the Ld. Trial Court has wrongly disbelieved the testimony of the then Ld. Solicitor General who was examined as PW-102. Learned senior counsel further submitted that by setting up Four Counters the priority was changed and there was also a change of policy which meant the deposit of DDs for issuance of LOIs subverting the First Come First Serve policy.
24. Learned senior counsel has invited the attention of the court to the relevant para of the judgments where the Ld. Trial Court has reached on a conclusion on mere surmises and conjectures. Learned senior counsel further submitted that PW-67 (Ms. Preeti Malhotra) in her testimony clearly indicate prior knowledge about the change of policy. However, the Ld. Court despite noting the same reached on an irrational conclusion.
D. Non-revision of entry fee
25. Learned senior counsel submitted that A-1 recorded a note on 04.12.2007 regarding not revising the entry fee. Learned senior counsel has invited the attention of the court to the Note dated 30.11.2007 by Ms. Manju Madhwan, Member (Finance) PW-86. The attention was also drawn to the letter dated 02.11.2007 from Honble Prime Minister to A-1 seeking revision of entry fee. The attention was also invited to the testimony of PW-36 (D. S. Mathur). Learned senior counsel submitted that the Ld. Trial Court wrongfully supplied reason justifying non-revision & putting blame on prosecution witnesses. Learned senior counsel submitted that DW-1 was blindly followed.
26. Learned senior counsel has invited the attention of the court to para 1609 of the impugned judgment whereby the valid arguments placed by the CBI were rejected summarily by the Ld. Trial Court in para 1610. It has further been submitted that similarly the examination of PW-78 (D. Subba Rao Finance Secy.) has been recorded in para 1614 but Ld. Trial court rejected the testimony of PW-78 (D. Subba Rao Finance Secy.) in para 1624 and termed it as of no use to the prosecution.
27. Learned senior counsel also invited the attention of the court to para 1633 of the impugned judgment whereby the Ld. Trial Court inter alia held that there was no material on record to indicate any insistent assertion or objective analysis by anyone for the need of revision of the entry fee and it was all general talk.
E. Pecuniary benefit received (Money Trail).
28. Learned senior counsel submitted that there are certain relevant dates which are as follows:

29. Learned senior counsel submitted that above said money trail was recorded by the Ld. Trial Court in para 367 of the impugned judgment. Though the Ld. Trial Court recorded this allegation in para 367-370. However, it summarily rejected the allegation and inter alia held that mere familiarity does not mean conspiratorial familiarity. Learned senior counsel submitted that transaction of Rs. 200 Cr. started on 23.12.2008 and ended on 11.08.2009. It was submitted that the money trail was originated from M/s. Dynamix Realty to M/s. Kusegaon Fruits to M/s. Cineyug Films and to M/s Kalaignar TV. Learned senior counsel submitted that the money was returned after the order of Honble Supreme Court on 16.12.2010 and A-1 was summoned by CBI, between the period of 20.12.2010 to 28.02.2011.
30. Learned senior counsel submitted that the Ld. Trial Court rejected the evidence of PW-151 (DSP S. K. Sinha) and in para 1670 rejected the entire case on the ground that mere movement of money at fast or meandering speed does not make a transaction corrupt. Learned senior counsel submitted that the conclusion of the Ld. Trial Court that the return of money after registration of the case was only in the realm of conjectures and remote possibilities is totally erroneous. The attention was invited to para 1717, 1718, and 1719 of the impugned judgment.
31. Learned senior counsel submitted that at the stage of leave to appeal the court is only required to see whether any arguable points have been raised by the prosecution. Learned senior counsel submitted that in State of Maharashtra vs. Sujoy Mangesh Poyarekar2 the Apex Court inter alia held that at the stage of grant of leave the High Court is required to apply its mind to consider whether a prima facie case has been made out or arguable points have been raised. Learned senior counsel submitted that it was further inter alia held at this stage the High Court is not required to examine whether the order of acquittal would or would not be set aside.
32. Learned senior counsel has further relied upon Brijesh Singh vs State of UP and Others3. Learned senior counsel submitted that the Apex Court in this case inter alia held that the High Court at the stage of leave to appeal must set forth its reasons, indicating at least in brief, an application of mind to the nature of the evidence and the findings which have been arrived at.
III. Submissions of Respondents
Submissions on behalf of Respondent No. 1/A. Raja
33. Sh. Manu Sharma, learned counsel for respondent no. 1 submitted that his submissions are confined to the point that whether CBI has made out a case for grant of leave to appeal. Learned counsel submitted that the Ld. Trial Court has delivered a detailed judgment with an exhaustive analysis of the material and most liberal view has been taken of all the witnesses and no evidence has been discarded for hyper-technical reasons. Learned counsel submitted that by no stretch of the imagination, the impugned judgment be called prima facie perverse. Learned counsel therefore submitted that the leave to appeal may not be granted. In regard to the fixation of entry fees, learned counsel submitted that CBI has not even contended that the fixation of entry fees was a result of conspiracy. It was further submitted that ten companies got licenses at the same entry fees and therefore it is an absurd theory that there will be a conspiracy with two of them to benefit all ten. Learned counsel submitted that the licenses issued just one year earlier were also at the same price.
34. Learned counsel further submitted that the Learned Senior Public Prosecutor quoted the judgment of the Ld. Trial Court and gave a misleading view. Similarly, learned counsel submitted that the stray sentences from the Telecom Regulatory Authority of India4 recommendation were relied upon by CBI without placing proper context. It was submitted that TRAIs own communications to CBI were suppressed in this regard.
35. Learned counsel submitted that TRAI in its letter dated 26.05.2008 [Ex PW-11/W] recommended the same entry fee as was taken from the fourth cellular operator for grant of CMSP/UAS license in the year 2001. Learned counsel submitted that further TRAI in its letter dated 20.08.2011 [Ex PW-131/DB] inter alia stated that it is against this background that TRAI did not recommend in August 2007, auction methodology nor did it recommend any increases in the entry fees for new players by way of indexation or otherwise.
36. Learned counsel has invited the attention of the court to the testimony of PW-36 and Ex PW 36/C-2 to emphasis the point that there was a detailed discussion in the DoT on TRAI recommendations. The attention was also invited to DoT file Ex PW36/A-3 and Ex PW-36/DP. Learned counsel submitted that even the Honble Prime Minister in Lok Sabha on 24.02.2011 stated that there was nothing wrong in the telecom policy. The reference was made to Ex PW-66/DA. The attention was also invited to the Tenth Five Year Plan, Ex PW-36/DG-1 & DG-2 to emphasis that revenue generation should not be a major determinant of the macro policy governing the sector. Learned counsel submitted that in fact the policy was that Spectrum policy needs to be promotional in nature and revenue considerations play a second role.
37. Learned counsel submitted that the Ld. Trial Court in para 1529 to 1633 considered the evidence of all the relevant PWs and rejected the case of the prosecution on the ground that selective reliance was placed on para 7.39 of the 2003 recommendations and para 2.78 of the 2007 recommendations.
38. Learned counsel submitted that the Ld. Trial Judge has taken all the relevant material into consideration. Learned counsel further submitted that the National telecom policy was framed by the Central Government. Ld. Counsel described the entire background of the telecomm policy right from 1994.
39. Learned counsel submitted that TRAI confirmed the existing entry fee and invited the attention to document Ex PW92/DE. It was submitted that between the period 2004 to 2007, 51 UAS licenses were granted based on the same UASL guidelines with same entry fee as in 2008. It was submitted that the revised UASL guidelines were issued and reference was made to TRAI regarding cap on number of service providers and review of license terms and conditions.
40. Learned counsel submitted that in April 2007 DoT decided that further processing of pending UASL applications as well as new applications will be carried out after receipt of TRAI recommendation. It was further submitted that R-1 assumed charge on 15/16.05.2007 as MoCIT. The TRAI recommendation were received on 28.08.2007 and accepted by DoT on 17.10.2007. Learned counsel submitted that vide communication dated 26.05.2008 TRAI reiterated no increase in entry fee. The attention was also invited to D-821 which is letter from TRAI to IO dated 20.08.2011.
41. Learned counsel submitted that regarding the relationship between the accused persons the only testimony lead by the prosecution is PW-7. Learned counsel submitted that this has been rightly rejected by the Ld. Trial Court for the reasons as contained in para 355 to 365 of the impugned judgment.
42. Learned counsel submitted that the testimony of PW-7 has been rightly rejected. In regard to the relation between R-1 and Kalaignar TV. Learned counsel submitted that the arguments advanced before this court are contrary to the case in the Ld. Trial Court.
43. Learned counsel submitted that it is a settled case that the prosecution must come with a definite case. Learned counsel submitted that no evidence was lead in the Ld. Trial Court to prove the relationship between R-1 and Kalaignar TV. Attention was invited to para 1709-1710 of the impugned judgment. In respect to the relationship through Green House Promoters. Ld. Counsel submitted that the Ld. Trial Court has correctly appreciated the evidence in this regard in para 367-375. In regard to the transaction of Rs. 200 Cr. Learned counsel submitted that in order to make out a case under Section 7 PCA, it must be shown that the public servant accepted or obtained illegal gratification, for himself or for any other person. Reliance has been placed upon N. Vijayakumar v. State of Tamil Nadu5.
44. Learned counsel submitted that in the present case there is no proof of demand for or by R-1 for illegal gratification of any amount from any person. It was submitted that the prosecution has not lead any evidence in this regard.
45. In regard to the fixation of the cut-off date, learned counsel submitted that the case of the prosecution has no legs to stand. It has been submitted that the Ld .Trial Court has rightly disbelieved the testimony of PW-60. The attention has been invited to para387, 395, 425, 426, 431, 438 of impugned judgment. Learned counsel submitted that Respondent no.1 has clearly explained the circumstances under which the decision was taken and version is consistent with the file movement register and has not been challenged in cross examination.
46. Learned counsel has also submitted that the CBI has failed to explain how fixation of cut-off date of 01.010.2007 would be of benefit to Unitech. Learned counsel submitted that there is not material on the record that why A-1 or A-3 should favour the Unitech. Learned counsel has placed reliance upon State vs. Sameer6.
47. In respect of the scope of jurisdiction to be exercised at the stage of leave to appeal, learned counsel for the respondent submitted that the order of acquittal cannot be reversed merely if a contrary view is possible. However, the re-appreciation of evidence and coming to its own conclusion by the Appellate Court is not circumscribed by any limitation. Reliance can be placed upon CBI v. Shyam Bihari & Ors.7.
48. Learned counsel for the respondent consistently stated that even at this stage, the High Court is required to examine the matter at length and cannot pass cryptic order. Reliance has been placed upon CBI v. Shyam (supra). Learned counsel for the respondent further submitted that in Jafarudheen & Ors. V. State of Kerala8, while relying upon the Murugesan vs. State (Supra) Apex Court inter alia held that in cases where the conclusion is not a possible view then only the High Court can interfere and reverse the acquittal. In Murugesan vs. State (supra) the distinction from that of possible view to erroneous view or wrong view has duly been explained. Learned counsel also relied upon Hakeem Khan v. State of M.P. 2025 (2017) 5 SCC 719, to emphasise that the verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Learned counsel for the respondents has also relied upon the State of Odisha v. Banabihari Mohapatra & Anr.9 in which the judgment of Sadhu Saran Singh V. State of U.P.10 was quoted wherein, it was inter alia held that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. It was further inter alia held that the Appellate Court has interfered only when there is perversity.
49. Learned counsel for the respondent stated that reliance placed upon the CBI over the Sujoy Mangesh Poyarekar (Supra) is misconceived. Learned counsel for the respondent further submitted that the Apex Court in this case inter alia held that in deciding the question of whether requisite leave should or should not be granted, the High Court must apply its mind, considering whether a prima facie case has been made out or arguable points have been raised and not whether the order of the acquittal would or would not be set aside.
50. Learned counsel for the respondent has submitted that in Sujoy Mangesh Poyarekar (supra), the judgment of Sita Ram Vs. State of U.P.11 was cited with the approval wherein it was held that though the right of appeal is more or less a universal requirement of the guarantee of life and liberty rooted in the concept that men are fallible, judges are men and making assurance doubly sure, before irrevocable deprivation of life or liberty comes to pass, a full-scale re-examination of the facts and the law is made an integral part of fundamental fairness or procedure. However, the legislature in its wisdom has made a distinction in regard to the order of the acquittal and under Section 378 (3), it was inter alia laid down that appeal can be heard on the merits only after the leave is granted in cases of acquittal.
51. Learned counsel for the respondent has submitted that in Sujoy Mangesh Poyarekar (supra), the Apex Court inter alia held that the appellate Court must consider the relevant material, sworn testimonies of prosecution witnesses and record reasons why leave sought by the State should not be granted and the order of acquittal recorded by the trial Court should not be disturbed. Learned counsel for the respondent has submitted that the leave can only be granted not only if the arguable points have been raised but at the same time, the leave can be granted only if the material on record discloses deeper scrutiny and re-appreciation, review or reconsideration of evidence and only in such cases, the appellate Court must grant leave as sought and decide the appeal on merits.
52. Learned counsel for the respondents have laid great emphasis on the point that even in Sujoy Mangesh Poyarekar (supra), case, the reliance was placed upon Chandrappa & Ors. vs. State of Karnataka (Supra), in which the general principles regarding the power of the appellate Court in dealing with an appeal against an order of acquittal were laid down.
53. Learned counsel for the respondents have cited numerous judgments of the jurisdiction of the Court while entertaining an order of acquittal. However, I consider that those judgments are not relevant at this stage as this Court as of now is not hearing the appeal. Learned counsel for the respondents have also cited numerous judgments where leave to appeal was refused. However, the same are also distinguishable on the facts and circumstances of the case.
54. Sh. Manu Sharma, learned counsel for the respondent No.1, has submitted that the prosecution can succeed by substantially proving the story it alleged. Learned counsel reiterated that the prosecution has stood its own legs and it cannot take advantage of the weakness of the defense. The reliance has been placed upon Bhagiragh Vs. State of M.P.12. Learned counsel submitted that there is no evidence of demand of illegal gratification therefore, no inferential deduction of culpability/guilt of a public servant under Section 7 and 13(1)(d) read with Section 13 (2) of Prevention of Corruption Act, 1988 can be laid down. Reliance has been placed upon Neeraj Dutta v. State (Government of NCT of Delhi)13. Learned counsel has also submitted that Section 20 of the Act deals with the legal presumption that can be drawn only if it is proved during the trial the accused had accepted or agreed to accept any gratification. The reliance has been placed upon Neeraj Dutta (supra) so as to buttress his point that there is no evidence as to the demand or acceptance of illegal gratification.
Submissions of Respondent No. 2/ Siddharth Behura
55. Mr. Siddharth Luthra, learned senior counsel for respondent no.2/Siddharth Behura submitted that while dealing with an appeal against acquittal under Section 378 Cr. P.C. the court has to bear in mind that the acquittal of the accused further strengthens the presumption of innocence.
56. Learned senior counsel has also submitted that the appellate court is required to consider that whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record. Learned senior counsel submitted that if the advantage with the learned trial court is that the testimony is recorded by him and therefore the trial judge is in a better position to appreciate the evidence. Reliance has been placed upon H.D. Sundara v. State of Karnataka14.
57. Learned senior counsel submitted that leave to appeal can be granted only if there is any perversity in the order of the learned trial court or a substantial error in the view taken by the trial court. Learned senior counsel submitted that leave can also be granted if the acquittal was illegal, unwarranted or contrary to law. Learned senior counsel submitted that there is no material on the record to grant leave in the present case.
58. Learned senior counsel submitted that respondent no.2 in his capacity as the Secretary (Telecom), Government of India did no wrong, and all allegations qua him are false, imaginary, and baseless. Learned counsel submitted that the submissions made by the CBI are fallacious and ill-founded.
59. Learned senior counsel submitted that the order of the acquittal can only be set aside if the approach of the lower court is vitiated with the manifest illegality or the decision is perverse and the trial court has committed a manifest error of law and ignored material evidence on record. Reliance has been placed upon State of Goa Vs. Sanjay Thakran and Another15, Sawant Singh and other Vs. State of Rajasthan16, “State of Rajasthan Vs. Sohanlal17.
60. Learned senior counsel submitted that the provision regarding leave to appeal is in order to ensure that no frivolous appeals are filed and it is a provision so as to ensure an equity. Learned senior counsel submitted that leave to appeal can be granted only when there is an absolute assurance of the guilt on the basis of evidence on record. It has been further submitted that while deciding the issue regarding leave to appeal the High court is required to pass a speaking order showing application of mind. Reliance has been placed upon State of Rajasthan vs. Chanda Alias Chandkori and others18, Goyal Enterprises vs. State of Jharkhand19, State of Punjab vs. Bhag Singh20 and State of Orissa vs. Dhaniram Luhar21.
61. Learned senior counsel submitted that the order of the learned trial court does not call for any interference. In regard to the prior acquaintance, learned senior counsel invited the attention of the court to para 366 of the judgment and submitted that the finding of the learned trial court is just and proper in this regard. Learned senior counsel also invited the attention of the court to pages 3 and 9 of the testimony of PW 7 Aseerwatham Achary recorded on 19.12.2011 to buttress his point. Learned senior further counsel submitted that there is no documentary or oral evidence that Respondent No.2 ever knew the alleged beneficiaries.
62. Learned senior counsel also invited the attention of the court to the statement of respondent no.2 recorded under Section 313 Cr.P.C. where he has categorically stated that he had not seen, met, known or heard of Shahid Balwa, Vinod Goenka and Sanjay Chandra. Learned senior counsel submitted that the testimony of PW7 has rightly been disbelieved by the learned trial court. The attention has been invited to para 1742 of the impugned judgment in this regard.
63. Learned senior counsel submitted that respondent no.2 was appointed Secretary in the MoCIT through a due administrative process and was in full knowledge of the then Hon’ble PM with whom he had worked for a duration longer than he worked with R-1. Learned senior counsel submitted that respondent no.2 earlier also worked with Dr. Manmohan Singh, from May 1992 to October 1994. Learned senior counsel submitted that any appointment of Additional Secretary and above is done by the Appointment Committee of Cabinet (ACC) which is chaired by the Prime Minister and the Cabinet Secretary as Secretary to the Cabinet recommends the names and same is approved by the Prime Minister. The career profile and reason for the appointment of respondent no.2 have been proved by DW5/Mr. S. Basu, Under Secretary, DOPT, North Block and DW6/Mr. Lalit Sharma, Under Secretary, Department of Industrial Policy & Promotion (DIPP), Govt. of India.
64. Learned senior counsel submitted that respondent no.2 was appointed as Secretary MoCIT on 31.12.2007 and prior to this even he was not aware of his order of appointment nor his concurrence was sought for appointment as Secretary (T). Learned senior counsel submitted that it was the conscious decision of the then Prime Minister to appoint respondent no.2 as Secretary (T) and any theory of previous familiarity of conspiracy is liable to be rejected out rightly. Learned senior counsel also referred to question no.1718 of the statement under Section 313 Cr.P.C. in this regard.
65. In regard to the change in the first come-first serve Policy, the learned senior counsel submitted that the learned trial court has rightly disbelieved PW-60 A. K. Srivastava in this regard. Learned senior counsel submitted that in fact Mr. A. K. Srivastava has improved upon his earlier statement under Section 161 Cr.P.C. dated 06.12.2010 after the arrest of respondent no.2. It has been further submitted that the alleged meeting on 07.01.2008 as stated by PW60 has rightly been contradicted by PW77 K. Sridhara, Member (T) in his evidence recorded on 10.12.2012.
66. Learned senior counsel submitted that note of PW60 Ex.PW60/L did not mention about any such meeting or any such oral direction given to him in any meeting wherein he was directed to put up a note accordingly. Learned senior counsel referred to the Manual of Office Procedure and Conduct Rules to which PW60 was bound. Learned senior counsel invited the attention of the court to the testimony of PW-60/A. K. Srivastava recorded on 12.09.2012 and 14.09.2012.
67. Learned senior counsel submitted that in fact, the story of the alleged meeting dated 07.01.2008 was concocted after the arrest of respondent no.2 as the prosecution did not have any material at all against respondent no.2. Learned senior counsel submitted that the purpose of getting such an improvement from PW-60 AK Srivastava by CBI was to show that prior to D-7 being put up to Respondent No.2 on 07.01.2008, he became aware that no decision on changed FCFS had been taken in DoT but FCFS as contained in letter of 26.12.2007 written by MoCIT to PM was to be treated as policy directive on licensing matters. Learned senior counsel submitted that in fact respondent no.2 had gone by the note, Ex.PW60L/23 as approved by M(T), wherein it is recorded that the said policy had been decided in DoT and a letter written to the PM on 26.12.2007 which were well before Respondent No.2 joined the Department. Learned senior counsel submitted that in this regard question no.1150 was put which was denied by R-2.
68. Learned senior counsel submitted that the Minister is entitled to make any policy decision and a bureaucrat is duty bound to implement the same. Learned senior counsel submitted that DoT’s policy of FCFS was approved by respondent no.1, MoCIT, prior to joining of Respondent No.2, as reflected clearly by PW-60 in his Note dated 07.01.2008. Learned senior counsel in regard to the Press release invited the attention of the court to para 911 to 914 of the impugned judgment and submitted that the learned trial court has rightly rejected this theory. Learned senior counsel further submitted that in fact respondent no.2 withdrew the file D-7 on 07.01.2008 after M(T) had seen it and before it was sent to MoCIT because, in the intervening period, it occurred to Respondent No.2 that there could be an administrative problem in determining the inter se seniority of applicants if more than one applicant complied with LOI conditions on the same date.
69. Learned senior counsel submitted that with this bona fide belief, respondent no.2 put a condition that if more than one applicant complied with LOI conditions on the same day, the inter-se seniority would be determined by the date of application. Learned senior counsel submitted that the learned trial court in para 911 of the impugned judgment has rightly held that if this condition was deleted by respondent no.1 then respondent no.2 cannot be stated to be in conspiracy with R-1. In respect of setting up four counters for the distribution of LOIs, learned senior counsel submitted that respondent no.2 had no role in the distribution of LOIs through the four counters scheme. Learned senior counsel invited the attention of the court to para 918, 928 & 957 of the impugned judgment and submitted that everything was done in this regard by PW60 A. K. Srivastava and to avoid responsibility, he introduced the role of respondent no.3 by way of oral statements, contrary to the official record. The attention was also invited to para 1771 to 1776 of the impugned judgment. The attention was also invited to the testimony of PW77 K. Sridhara recorded on 11.12.2012.
70. Learned senior counsel submitted that as per documentary evidence Respondent No.2 had signed Note Ex PW-52/A only after the same was signed by PW-77 and therefore Respondent No.2 did not see the Note on 10.01.2008. In this regard, the testimony of PW62/A.S. Verma recorded on 19.09.2012 and testimony of PW123/M.N. Manickam recorded on 14.05.2013 and the testimony of PW110/Nitin Jain recorded on 21.03.2013 was relied upon.
71. Learned senior counsel submitted that the process of setting up of four counters was initiated by a note on page 30/N recorded by PW88 R.K. Gupta and it came to R-2 only for information. Learned senior counsel also invited the attention of the court to question no. 1167 and 1174 of the statement of respondent no.2 recorded under Section 313 Cr.P.C. Learned senior counsel submitted that the order of the learned trial court that R-2 had no role in this is correct and calls for no interference. In respect of the “Cut-Off date” & “Non-Revision of entry fee” Learned senior counsel submitted that these issues pertain to the period before R-2 even joined the telecom department.
72. Learned senior counsel submitted that the issue of the Cut-Off date was decided on 25.09.2007 and it never came up before R-2 after 01.01.2008. In respect of the money trail also, the learned senior counsel submitted that this allegation came up for the first time in the Supplementary Chargesheet dated 25.04.2011. Learned senior counsel submitted that the trial court in para 1816 to 1819 has rightly rejected the case of the prosecution in this regard. Learned senior counsel submitted that the rigors of Section 10 of the Evidence Act will not be applicable or attracted in the present case. Reliance has been placed upon Kher Singh vs. State22.
73. Learned senior counsel submitted that R-2 was not a conspirator and he was not aware that spectrum was inadequate even for applicants up to 25.09.2007 and also that spectrum was available only for one licensee in the Delhi service area. Learned senior counsel submitted that the file regarding the availability of spectrum was never put up before him. In this regard, the reference was made to the testimony of PW60 recorded on 12.09.2012. Learned senior counsel submitted that therefore R-2 could not have been a part of any conspiracy in this regard. It has been further submitted that the finding of the learned trial court is categorical, absolute and beyond any iota of doubt and the impugned order is well-reasoned on the correct appreciation of facts, law and available evidence on record. Learned senior counsel submitted that therefore leave may not be granted. Learned senior counsel invited the attention of the court to the entire career graph of the R-2 to show that he had always been an upright officer and had discharged several important responsibilities in his career without any stigma.
74. Learned senior counsel submitted that in the Code of Criminal Procedure, 1861 in Section 407 there was no provision for appeal in case of acquittal. However, in 1872, Section 272 was introduced appeal against acquittal was introduced with the discretion of the local government. Learned senior counsel submitted that in 1882, the same provision was followed. Learned senior counsel submitted that however in 1898, the Code was amended and it was provided in addition to the discretion of the State Government to file an appeal against acquittal, Complainant was also given the right to file an appeal against acquittal to the High court upon grant of special leave to appeal. In this regard the reference was made to Empress of India vs. Gayadin23, Emperor v. Ram Adhin Singh24; Sheo Swarup v. King-Emperor25; Surajpal Singh v. State26. Learned senior counsel invited the attention of the court to the 41st Law Commission report and Joint Committee Report 27 dated 04.11.1972.
75. Learned senior counsel submitted that finally in 1973, Section 378 subsection 3 was introduced making it mandatory to obtain leave to file an appeal against acquittal. Learned senior counsel invited the attention of the court to the rules of Delhi High Court Rules including Rule 1(1), Part E, Chapter 25 DHC Rules, Rules 1(2) Part E, Chapter 25 DHC Rules, Rule 1(3), Part E, Chapter 25 and Rule 1(4), Part E, Chapter 25 DHC Rules.
76. Learned senior counsel also invited the attention of the court to the CBI Manual, 2005. Learned senior counsel submitted that in para 23.7 of the Manual, it was provided that while filing an appeal the department must take into account the view of the learned trial court regarding the credibility of the witness besides the other facts. Para 23.8 of the manual also provides that only in a case of real & substantial injustice, the appeal may be preferred. Learned senior counsel submitted that CBI manual is binding as held in Vineet Narain vs. Union of India28 & CBI vs. Ashok Kumar Aggarwal29.
77. Learned senior counsel submitted that the order of acquittal can be set aside only if the same is illegal, perverse & without jurisdiction. Reference has been made to CBI vs. Shyam Bihari30, Central Bureau of Investigation vs. Darshan Pal Singh31 & State of Odisha vs. Debasis Dixit32. Learned senior counsel further submitted that the presumption of innocence is strengthened upon acquittal by the Trial Court, hence the High Court ought not to interfere in the same. Reliance has been placed upon Surajpal Singh vs. State33; Aher Raja Khima vs. State of Saurashtra34& Ghurey Lal vs. State of U.P.35.
78. Learned senior counsel submitted that the High Court is only required to examine that the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record & if the view is possible, the HC should not overturn the acquittal on the ground of other possible views. Learned senior counsel submitted that the high court is required to interfere only if it comes to a finding that the only conclusion on the basis of evidence on record was, the guilt of the accused beyond a reasonable doubt. Reliance has been placed upon H.D. Sundara vs. State of Karnataka36, Chandrappa & Ors. vs. State of Karnataka37, Babu vs. State of Kerala38.
79. Learned senior counsel submitted that this court is required to pass a speaking order while deciding the question of leave to appeal. Learned senior counsel submitted that the present appeal is an abuse of arbitrary power and has invited the attention to the impugned judgment indicating selective use of official notes, defective investigation and evasive approach on part of CBI.
80. Learned senior counsel submitted that the learned trial court has appreciated the evidence of all the material evidence on record. Learned senior counsel submitted that in the Aid Memoire filed by the CBI, there is no material against respondent no.2.
81. Sh. Siddharth Luthra, learned senior counsel for respondent No.2 has submitted that initially in the Code of Criminal Procedure, 1872, there was no provision for appeal in case of acquittal except on behalf of the government by the public prosecutor or other officers specially and generally appointed this behalf. Learned senior counsel has submitted that the provision was altered only to the effect that an appeal against acquittal shall be filed only in respect of certain carefully selected cases. Learned senior counsel has cited the judgment of Empress of India v. Gayadin39, wherein it was held that the power given to the Central Government by Section 72 of the Cr. PC are of an exceptional and unusual character and should be most sparingly enforced in respect of pure decisions of facts. Learned senior counsel has submitted that the appeal against the acquittal was allowed only in cases where, through the incompetence, stupidity or perversity of a subordinate tribunal, such unreasonable or distorted conclusions have been drawn from the evidence as to produce a positive miscarriage of justice. Learned senior counsel has submitted that therefore if we look back into the legislative history appeal against the acquittal is permissible only in exceptional cases.
82. Learned senior counsel has invited the attention of the Court to Section 417 of the Criminal Code of Procedure, 1882 wherein the Local Government was empowered to direct the public prosecutor to present an appeal in the High Court against an order of acquittal. Learned senior counsel has submitted that in the Parliamentary debate held on 02.03.1882, a motion was moved for omission of Section 417. However, the motion was defeated as it was assured that the power conferred by the law on the government had not been abused. Learned senior counsel for the respondent No.2 cited the judgment in Queen-Empres v. Prag Dat40, wherein the Court inter alia held that in appeal either against acquittal or conviction, the appellant has to satisfy the Court that there does exist some good and strong ground apparent upon the record for interfering with the deliberate determination by a judge.
83. Learned senior counsel referred to the abstract of the proceedings on the council of Governor General of India, Laws and Regulations, 1882, wherein it was mentioned by Honble Maharaj Jyotender Mohan Tagore that this provision was initially not in the Indian Court. It was pointed out that the trial court had the best means of coming to the right decisions as to whether an accused person was guilty or not. It was argued that a person who was pronounced innocent, it would not be just to allow an appeal against such acquittal. It was argued that this power would employ a want of sufficient confidence in the magistracy which could not be conducive to the administration of justice in the criminal courts of this country.
84. Learned senior counsel has cited Emperor vs. Ramadhin Singh41, wherein it was inter alia held that an appeal from an acquittal is an extraordinary remedy and the right to appeal received a statutory recognition for the first time in the year 1872. Learned senior counsel has submitted that in this case there was a change in the judicial outlook as it was inter alia held that the rules and limitations affecting appeal from acquittal are on a par with those relating to appeals from convictions. Learned senior counsel has submitted that Empress of India v. Gayadin (surpa) was also diluted. However, learned senior counsel submitted that the Court in Surajpal Singh V. State42 for the first time inter alia held that the presumption of innocence is strengthened as the trial court had the he advantage of seeing the witnesses and hearing their evidence. Learned senior counsel submitted that in Aher Raja Khima v. State of Saurashtra43, the court explained the doctrine of compelling reasons.
85. Learned senior counsel has submitted that Section 378 (3) Cr. PC as it stands today was recommended by the Joint Committee in its Report dated 11.04.1972 as the committee was given to understand that in some cases, this executive power to file the appeal against an order of acquittal was exercised arbitrarily and therefore in order to check against the arbitrary action in this regard, the committee provided appeal to be entertained only if the High Court grants leave.
86. Learned senior counsel for the respondent No.2 has relied upon the judgment of Emperor V. Ram Adhin Singh (Supra), wherein it was inter alia held as under:
18. In an appeal from an order of acquittal it ought to be remembered that there is always a presumption in favour of the innocence of the accused. This presumption very materially affects the question of onus, which except within a limited range of cases lies upon the Crown, and where the finding of the subordinate tribunal is in favour of the accused, the burden lies upon the prosecution to prove that the finding, reached by the Court below, was not justified by the evidence. Where the evidence against the accused is too scanty or insufficient to support the charge, the finding of the Court below cannot be displaced. Again, where the case is somewhere on the border line or very near it and it was possible for the Court, upon a balance of probabilities, to hold a person guilty or not guilty, the reversal of the order of acquittal is not only undesirable and. inexpedient but is calculated to cause a miscarriage of justice. Where however the balance of evidence is distinctly against the accused or where material evidence has been misappreciated, overlooked or ignored, this Court is bound to step in as much in the interest of the administration of justice as of the public generally. Certain principles, therefore have been laid’ down by this Court indicating the course which should be followed for the adjudication of the Government appeals. In Empress v. Gayadin [1882] 4 All. 148 Straight, J., is reported to have observed:
It is not because a Judge or a Magistrate has taken a view of a case in which Government does not coincide, and has acquitted accused persons, that an appeal from his decision must necessarily prevail, or that this Court should be called upon to disturb the ordinary course of justice, by putting in force the arbitrary powers conferred on it by Section 272. The doing so should be limited to those instances in which the lower Court has so obstinately blundered and gone wrong as to produce a result mischievous at once to the administration of justice and the interests of the public.

87. Reliance was also placed upon Surajpal Singh V. State (Supra), in this case, an additional test was laid down that the order of acquittal can only be reversed only for very substantial and compelling reasons. Learned senior counsel submitted that the Court while passing an order in the question of leave to appeal is required to pass a speaking order indicating reasons in such case. The reliance has also been placed upon State of Himachal Pradesh v. Manoj Kumar alias Chhotu44. Learned senior counsel further relied upon State of Madya Pradesh v. Giriraj Dubey45 to emphasize that the High Court is required to oblige to assign reasons. Learned senior counsel has submitted that in State of Madhya Pradesh v. Giriraj Dubey (supra) with judgment Sujoy Mangesh Poyarekar (Supra) was discussed in detail and it was inter alia held that the material on the record must disclose the necessity of deeper scrutiny and re-appreciation, review or reconsideration of evidence for grant of leave to appeal.
88. Learned senior counsel submitted that besides these, there has to be strong and compelling reasons. However, there can be a slight difference in detailing such reasons, in cases where the leave to appeal is granted or leave to appeal is refused. In cases where the leave to appeal is refused, in fact, all the windows are closed. Therefore, the court at this stage cannot pass cryptic and unreasoned orders. Learned senior counsel relied upon the State of Punjab v. Bhag Singh46, wherein the High Court refused to grant leave without giving any reasons at all. In this case, the Apex Court inter alia held that the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind.
89. Learned senior counsel has also relied upon CBI v. Shyam Bihari & Ors. (supra). Learned senior counsel relied upon CBI v. Darshan Pal Singh47, wherein it was held that the impugned judgment of acquittal contains cogent and valid reasons, and cannot be set aside. It was further inter alia held that such an order of acquittal can be set aside only if the same is illegal, perverse and without jurisdiction. Learned senior counsel has submitted that while filing an appeal against an order of acquittal, the government should exercise this jurisdiction with circumspection, only in cases of public importance or where there has been a miscarriage of justice or in a case of a very grave nature. Reliance has been placed upon the State of Odisha (vigilance) v. Debasis Dixit48.
90. Learned senior counsel further relied upon State v. Laxman49 wherein it was held that if two views are plausible, the appellate court should not reverse a judgment of acquittal by the trial court, merely because another view is possible. Learned senior counsel further submitted that it is also a settled proposition that if there is a possibility of another view being reasonably plausible, then the view which favours the accused should be adopted unless the High Court returns a definite conclusion that the findings recorded by the trial court are perverse and against the weight of the evidence on record.
91. Learned counsel further relied upon State v. Anil Bhardwaj50 and State V. Vicky51 to substantiate his points that the order of acquittal can be set aside only when there are strong and compelling reasons. Learned senior counsel has submitted that in the present case, the learned Trial Court has rightly given credence to the defence witnesses and placed reliance upon Dudh Nath Pandey v. State of Uttar Pradesh (supra).
92. Learned senior counsel has submitted that in State (Govt. of NCT of Delhi) v. Jitender Kumar and Anr.52. Leave to appeal was rejected by the Division Bench of this Court. The Division Bench also placed reliance upon State v. Wasim & Anr.53 and inter alia held that the story of the prosecution is totally unreliable. Learned counsel submitted that in the present case also, the prosecution witnesses were totally unreliable and there is no ground to interfere in the well-reasoned judgment of the learned trial Court.
93. Learned senior counsel also referred to the CBI Manual 23.3 of Chapter 23 of the CBI Manual and submitted that in Vineet Narain v. UOI54, it was inter alia held that the CBI manual based on statutory provisions of the Cr.P.C. provides essential guidelines for the function and the CBI should adhere scrupulously to the provisions of the manual in relation to its investigating functions like raids, seizures and arrests. Learned senior counsel submitted that this view is reiterated by the Supreme Court in the CBI v. Ashok Kumar Aggarwal55.
Submissions of Respondent No. 3/ R.K. Chandolia
94. Mr. Vijay Aggarwal, learned counsel for respondent no.3 has submitted that the learned trial court has passed the well-reasoned order after correct appreciation of the evidence. Learned counsel has submitted that in the present case day-to-day trial spanning over a period of 7 years was conducted. Learned counsel has read in detail the relevant para 344 to 366, para 367-376, Para 1284-1286, Para 377-546, Para 915-961, Para 1529-1543, Para 1634-1643 from the impugned judgment.
95. Learned counsel has submitted that respondent no.3 had also filed detailed written submissions at the time of final arguments covering all the above circumstances raised by the CBI. Learned counsel has placed on record detailed arguments comparing the submissions made by the CBI seeking leave to appeal and the evidence on record to show that the learned trial court had correctly appreciated the evidence on record and as such the judgment under challenge suffers from no infirmity or perversity. Learned counsel referred in detail to the relevant paras of the judgment and the final written submissions filed by him before the learned trial court.
96. Learned counsel also submitted that all incriminating circumstances were not put to the accused persons/ Respondent and the defence taken by the Respondent was not rebutted by the prosecution, which was obligatory on the part of the prosecution. Reliance has been upon Parminder Kaur v. State of Punjab56, Jai Prakash Tiwari v. State of Madhya Pradesh57, Reena Hazarika v. State of Assam58. Learned counsel submitted that if an accused takes a defence after the prosecution evidence is closed, the Court is duty bound under Section 313(4) to consider the same. Learned counsel submitted that he has already filed a detailed reply dated 28.02.2019 to the subject appeal raising several grounds on which the present leave to appeal deserves to be dismissed. Learned counsel submitted that the Impugned judgement has been passed after conducting day to day trial and the impugned judgment suffers fr