in the court of ms. anju bajaj chandna, special judge …€¦ · sheeted abhishek verma (a1), smt....
TRANSCRIPT
IN THE COURT OF MS. ANJU BAJAJ CHANDNA,SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 67/16 (Old CC No. 03/15)FIR No. RCAC12012A0009CBIACINew DelhiU/s 120 (B) IPC & Sec. 8 and 12 of PC Act, 1988.CBI vs Abhishek Verma & Ors.CNR No. DLND010003502013
Central Bureau of Investigation
vs
1. Abhishek Verma (A1),S/o Late Sh. Srikant Verma,R/o Farm House2, Church Road, Vasant Kunj,New Delhi.
2. Smt. Anca Maria Neacsu (A2),D/o Mr. Mohail Arsene,R/o (1) Farm House2, Church Road, Vasant Kunj, New Delhi.(2) Building 149, Apartment 56, Floor 2, Bahuliului street no. 12, city Ploiesti, country Romania.
3. Gerhard Hoy (A3),S/o Sh. Ernst Hoy,R/o Marketing Liaison Office, New Delhi located at Aman Hotel, Lodhi Road, New Delhi.
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 1 of 53
4. M/s Rheinmetall Air Defence AG of Switzerland(RAD), Birchstrasse, 155post tach CH8050, Zurich, Switzerland. (A4).Through Mr. Gerhard Hoy, Senior Vice President.R/o Marketing Liaison Office, New Delhi located at Aman Hotel, Lodhi Road, New Delhi.
Date of FIR : 05/06/2012.Date of filing of chargesheet: 05/06/2013.Arguments concluded on : 19/04/2017.Date of Order : 26/04/2017.
Appearances
For prosecution: Sh P.K. Dogra, Ld. Senior Public Prosecutor for CBI.For Accused persons: Sh. Maninder Singh Ld. Counsel for A1 and A2.
Sh. Siddharth Aggarwal, Ld. Counsel for A3.Sh. Percival Billimoria, Ld. Senior Counsel with Sh. Vikram Singh, Ld. Counsel for A4.
ORDER ON CHARGE
1. The Central Bureau of Investigation has charge
sheeted Abhishek Verma (A1), Smt. Anca Maria Neacsu (A2),
Mr. Gerhard Hoy (A3) and M/s Rheinmetall Air Defense AG of
Switzerland (RAD) (A4) for the offences punishable u/s 120B
IPC and Section 8 of Prevention of Corruption Act, 1988.
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 2 of 53
2. The case of the prosecution has been that the
investigation was pending vide RC0102009A0019 against M/s
Rheinmetall Air Defense AG of Switzerland (RAD) in the matter
of award of contract by Ordnance Factory Board (OFB) Kolkata,
wherein it was found that huge illegal gratification was paid to
the then Director General of OFB. On the basis of investigation,
blacklisting of RAD was recommended by CBI and while the
matter of blacklisting was under process, accused Abhishek
Verma, assured representatives of RAD to help, by influencing
the public servants of Government of India to stall the process of
blacklisting. On the offer of Abhishek Verma, accused company
RAD agreed and paid an advance of USD 5,30,000 for using his
influence on the public servants and also for payment of illegal
gratification to public servants in India. The money was paid by
transfer to the bank account of M/s Ganton Limited, New York,
USA (a benami company of Abhishek Verma), operated by one
C. Edmonds Allen of USA. The purchase order in respect of
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 3 of 53
aforesaid payment was issued by M/s RAD on 31/05/2010 and
the invoice of the said purchase order has shown the amount as
consultation charges by M/s Ganton Limited USA. The money
was accordingly transferred on 17/02/2011 to the account of
M/s Ganton Limited USA, a private company, incorporated in
USA on 24/03/2005 and was established by Mr. C. Edmonds
Allen at the request of accused Abhishek Verma. In India, M/s
Ganton India private limited, is subsidiary company fully owned
by M/s Ganton Limited USA. Accused Anca Maria Neacsu [wife
of accused Abhishek Verma (A1)] has been the Director of M/s
Ganton Limited USA and also Managing Director of M/s Ganton
India private limited. Accused Gerhard Hoy has been the senior
Vice President for Rheinmetall Defence India (RDI) and Mrs.
Jane James was working as Executive Assistant. Mrs. Jane James
used to arrange meetings, travel arrangements, hotel booking,
etc on behalf of RDI and also used to take care of payments and
correspondences etc. Blacklisting of M/s Rheinmetall Air
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 4 of 53
Defence, Zurich, Switzerland was recommended in the year
2010 and a show cause notice was issued on 04/02/2011.
3. Investigation revealed that accused Abhishek Verma
was associated with accused Gerhard Hoy and other
representatives of M/s Rheinmetall Air Defence since AprilMay
2010. In the beginning of year 2010, accused Abhishek Verma,
accused Anca Maria Neacsu and accused Gerhard Hoy (on
behalf of RAD) hatched a criminal conspiracy with the object to
prevent blacklisting of the company M/s Rheinmetall Air
Defence and various meetings were arranged and held between
them. Mrs. Jane James was asked by accused Gerhard Hoy to
collect the bank details of M/s Ganton Limited USA and the
same were received by her through Email dated 15/02/2011
from accused Abhishek Verma and the details were forwarded to
accused Gerhard Hoy. Also, accused Anca Maria Neacsu has
been facilitating the meetings between accused Gerhard Hoy
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 5 of 53
and accused Abhishek Verma.
4. It is further revealed that in pursuance of conspiracy,
accused Gerhard Hoy alongwith his chief Mr. Bodo Herbert
Garbe discussed the said issue in one of the meeting at the
residence of accused Abhishek Verma during OctoberNovember
2010.
5. It is further the claim of the prosecution that amount
of USD 5,29,982 was received by M/s Ganton Limited USA on
17/02/2011 as per the bank records. Thereafter, between
15/04/2011 to 12/10/2011, total amount of Rs. Two crores
(approximately) has been received in the bank account of M/s
Ganton India private limited. Accused Anca Maria Neacsu has
been the Managing Director as well as authorized signatory of
M/s Ganton India private limited. Mr. Bodo Herbert Garbe, CEO
and Mr. Max Kaufman, Head of International Corporation, RAD
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 6 of 53
visited India on several occasions on being convinced by Mr.
Gerhard Hoy. The hand written note slip was also recovered,
which has been in the handwriting of accused Gerhard Hoy,
wherein amount of USD 5,30,000 and name of accused
Abhishek Verma has been referred as “ABI”.
6. Finally, it is the claim of the prosecution that accused
persons Abhishek Verma, Anca Maria Neacsu with Gerhard Hoy
of RAD have been deeply involved in criminal conspiracy and
pecuniary advantage has been obtained by receiving the amount
through the bank account of M/s Ganton India private limited.
Mr. C. Edmonds Allen of M/s Ganton Limited USA was unaware
and he received Email from accused Abhishek Verma in
February 2011 stating that RAD would be sending Ganton
Limited USA US$ 6 lakhs from Singapore. The said amount was
accordingly received and thereafter transferred to M/s Ganton
India private limited during the period 15/04/2011 to
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 7 of 53
12/10/2011.
7. According to prosecution, in the face of above facts
and circumstances, the offences punishable u/s 120 B IPC and
section 8 of the Prevention of Corruption Act, 1988 has been
committed by accused Abhishek Verma (A1), Anca Maria
Neacsu (A2), Gerhard Hoy (A3) and M/s Rheinmetall Air
Defence AG of Switzerland (RAD) (A4).
8. I have heard Sh. P.K. Dogra, Ld. Senior PP for CBI,
Sh. Maninder Singh, Ld. Counsel for accused Abhishek Verma
(A1) and Anca Maria Neacsu (A2), Sh. Siddharth Aggarwal,
Ld. Counsel for Gerhard Hoy (A3), Sh. Percival Billimoria, Ld.
Senior Counsel for M/s Rheinmetall Air Defence (A4) and
perused the record/documents relied upon by CBI. I have also
examined the written submissions placed on record.
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 8 of 53
9. Ld. Senior PP for CBI has argued in terms of the
chargesheet and submitted that there is ample evidence to raise
grave suspicion against the accused persons for having
committed the offence of criminal conspiracy for taking
gratification to influence public servant by corrupt or illegal
means, thereby to help the company M/s Rheinmetall Air
Defence on the issue of its blacklisting. The Emails exchanged
between the accused persons clearly indicate that such
conspiracy had taken place and gratification in the form of USD
5,30,000 were transferred at the instance of accused Abhishek
Verma.
10. On the other hand, arguing on behalf of accused
Abhishek Verma (A1) and Anca Maria Neacsu (A2), Ld.
Counsel Sh. Maninder Singh submitted that charge has to be
framed only if there is sufficient material on record. If the case
of the prosecution is found to be groundless, the accused
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 9 of 53
persons deserve to be discharged as per Section 239 Cr. PC. The
accused persons have been chargesheeted for the offences of
criminal conspiracy and taking illegal gratification by corrupt or
illegal means in order to influence public servants as punishable
u/s 120B IPC and section 8 of the Prevention of Corruption Act,
1988. The ingredients of the offences are not fulfilled even if
entire version of prosecution is accepted. The facts and the
material relied upon by the prosecution do not form
incriminating evidence against the accused persons and
therefore, offences as alleged are not made out.
11. There is no admissible evidence linking or
connecting accused Abhishek Verma either to Ganton Limited
USA or to Ganton India. Accused Abhishek Verma had no
control over the affairs of above mentioned companies and he
has not been the direct beneficiary of the money so transferred.
The Emails relied upon by prosecution are not linked to accused
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 10 of 53
Abhishek Verma. On the contrary, there is evidence to show the
complicity of C. Edmonds Allen as he has been the director of
Ganton Limited USA and controlling its affairs. He only signed
the invoices and the non disclosure agreement, whereas accused
Abhishek Verma has not been in picture anywhere. CBI has not
directly questioned C. Edmonds Allen pertaining to the present
case and only on the basis of letter of rogatory, the prosecution
seeks to implicate accused persons. Even after the transfer of
money to Ganton limited USA, cheques were being signed by C.
Edmonds Allen in his own favour, which show that the said
amount has been put to his own use. If at all any offence has
been committed, it has been committed by Ganton limited USA
by accepting gratification from RAD and consequently C.
Edmonds Allen is the offender and without implicating him,
accused Abhishek Verma cannot be brought into the sequence of
events by alleging conspiracy.
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 11 of 53
12. The company M/s Ganton Limited USA has been
fully owned and controlled by Mr. C. Edmonds Allen and also
the company in India namely M/s Ganton India private limited.
Accused Anca Maria Neacsu is only one of the Director holding
0.1% equity. Also accused Anca Maria Neacsu has been charged
in her personal capacity without impleading the company as an
accused. Accused Anca Maria Neacsu in her personal capacity
admittedly has not committed any offence. The money transfer
from M/s Ganton Limited USA to its subsidiary company M/s
Ganton India private limited, itself is no offence particularly
when the exact amount USD 5,30,000 was not transferred and
admittedly the money has been transferred on many occasions
much more than USD 5,30,000. The amount allegedly termed
as illegal gratification does not match in any way to the amounts
received by M/s Ganton India, which otherwise have been
receiving the funds from its parent company, therefore, no
criminality can be attached to such transactions.
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 12 of 53
13. Ld. Counsel further contends that criminal
conspiracy is an independent offence and unlawful agreement is
sine qua non to the same. Mere knowledge cannot be made an
independent offence unless the person has deliberately
participated in the chain of events constituting conspiracy. There
is no material on record to show that meetings even if held
between accused Abhishek Verma and representatives of M/s
Rheinmetall Air Defence were on the issue to prevent
blacklisting. Also, there is nothing on record to suggest that
accused Abhishek Verma or his wife accused Mrs. Anca Maria
Neacsu made any promise to the representatives of M/s
Rheinmetall Air Defence to influence public servants to prevent
its blacklisting. The statements of witnesses recorded u/s 161
Cr. PC i.e. PW 5 Smt. Jane James; PW 9 Sh. Sambhajee Lal
Surve and PW 14 Shri Ram Prakash Singh have been pointed
out to stress that no offence against accused Anca Maria Neacsu
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 13 of 53
is disclosed of these statements. It is further submitted that there
has been prior meetings, dealings and transactions between
accused Abhishek Verma and M/s Rheinmetall Air Defence with
respect to Noida project and this fact has been admitted even by
prosecuting agency in the charge sheet (para 16.12). There is no
material to show that accused Anca Maria Neacsu had been
arranging the meetings between accused Abhishek Verma and
officials of RAD for the purposes of preventing their blacklisting.
14. The proper invoice with respect to the consultation
charges was raised on behalf of M/s Ganton Limited USA and
money was transferred from the account of RAD. Accused
Abhishek Verma never had any control over the affairs of M/s
Ganton Limited USA nor he has been the beneficiary of any such
transactions, so cannot be considered to be a participant of
conspiracy. It is important to note that M/s Ganton Limited USA
has not been impleaded as an accused despite the fact that
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 14 of 53
alleged illegal gratification was directly transferred to it. Ld.
Counsel has relied upon following judgments in support of his
arguments. (1) Union of India vs Prafulla Kumar Samal and
another, (1979) 3 SCC 4; (2) State of M.P. Vs MohanLal Soni,
(2000) 6 SCC 338; (3) Dilawar Balu Kurane vs State of
Maharashtra, (2002) 2 SCC 135; (4) P. Vijayan vs State of
Kerala and another, (2010) 2 SCC 398; (5) Sajjan Kumar vs
Central Bureau of Investigation, (2010) 9 SCC 368; (6)
Shreya Jha vs CBI, 2007 [3] JCC 2318; (7) Rajender Singh
Sachdeva vs State (NCT of Delhi), 2008 [2] JCC 979; (8)
Sailendra Nath Mitra vs The state, AIR 1954 Cal 373; (9)
Kodur Thimma Reddi and Ors vs Unknown, 1957 CriLJ 1091;
(10) K.R. Purushothaman vs State of Kerala, (2005) 12 SCC
631; (11) Sanjiv Kumar etc vs State of Himachal Pradesh, AIR
1999 SCC 782 and (12) Bhikalal Ramjibhai Zaveri vs State of
Maharashtra, AIR 1981 SC 476.
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 15 of 53
15. Arguing on behalf of accused Gerhard Hoy (A3), Ld.
Counsel Sh. Siddharth Aggarwal submitted that applicant has
been the Senior Vice President of Rheinmetall Defence India
(RDI) during the relevant period. There has been commercial
relationship existing between RDI and M/s Ganton India even
prior to the arising of the need to take up the issue of
blacklisting. The blacklisting was recommended in July 2010,
whereas non disclosure agreement (D7) and letter of intent
executed between the two companies are dated 03/05/2010 and
20/04/2010 respectively. It is further contended that ingredients
of Section 8 of Prevention of Corruption Act, 1988 are not made
out in the present case. Nowhere accused persons have named
or even otherwise mentioned any public servant or office to be
induced for the purpose of sorting out the issue of blacklisting.
The money transfer done on 17/02/2011 between RDI can be
on various counts and there is not sufficient evidence to show
that said amount was paid only to get rid of blacklisting. The e
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 16 of 53
mails exchanged between accused Abhishek Verma and Mr. C.
Edmonds Allen have been referred to and it is stressed that
amount actually transferred does not match to the amount
agreed to be paid on behalf of RDI pertaining to this issue. The
case against accused Bodo Herbert Garbe (A5) has already been
quashed by Hon'ble High Court of Delhi and role attributed to
accused Gerhard Hoy (A3) is no different from him. There is no
incriminating material shown by the prosecution to raise
suspicion against accused Gerhard Hoy and therefore, he
deserves to be discharged.
16. Arguing on behalf of RAD, Ld. Senior Counsel Sh.
Percival Billimoria submitted that relationship between Ganton
Limited USA and RAD relates back to February 2010 and it was
a business relationship in nature. Referring to D12 (page 40),
which is a letter from Jeff Kirsch on behalf of Ganton Limited
USA, D12 (page 68), which is a concept note sent thereafter
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 17 of 53
and D48 (pages 493 and 496), which are also
communication/letters), it is stressed that there have been
deliberations with respect to joint venture between the above
mentioned two companies and there is no evidence to show that
amount of USD 5,30,000 has been for payment as illegal
gratification to public servants in India. The ingredients of
Section 8 of the Prevention of Corruption Act, 1988 are not
fulfilled and therefore, the offence alleged is not attracted. The
proper invoice was raised and payment was made through
official banking channel on 17/02/2011 and there is no material
on record to show that this transfer was on account of illegal
gratification to be paid for sorting out the issue of blacklisting.
The judgment of Devan Alias Vasudevan and Etc vs The state
1988 CriLJ 1005, has been referred to explain ingredients of
Section 8 of Prevention of Corruption Act, 1988.
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 18 of 53
17. Speaking about allegations of conspiracy, Ld.
Counsel referred to the judgment of Baliya alias Bal Kishan vs
State of Madhya Pradesh, (2012) 9 SCC 696 and submitted
that there are no circumstances from where the inference of
conspiracy is to be drawn. The prosecution has failed to show
that there has been any agreement between RAD and Ganton
Limited USA to do illegal act by paying gratification to public
servants. The prosecution story is based on assumptions, which
is not permissible under criminal law. There is no evidence to
frame charge against the company RAD.
18. I have given due consideration to the facts and
material placed on record in the light of aforesaid contentions.
19. The law on the question of consideration of charge is
well settled. If the criminal court, on consideration of the
material submitted with the charge sheet finds that a grave
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 19 of 53
suspicion exists about the involvement of the accused in the
crime alleged, it is expected to frame the charge and put the
accused on trial. At such initial stage of the trial, the truth,
veracity and effect of the evidence which the prosecutor
proposes to adduce are not required to be meticulously judged,
nor any weight is to be attached to the probable defence of the
accused.
20. It was held in the case of Union of India vs Prafulla
Kumar Samal and another, (1979) 3 SCC 4 that:
“…..10. Thus, on a consideration of the authoritiesmentioned above, the following principles emerge:
(1) That the Judge while considering the question offraming the charges under section 227 of the Code hasthe undoubted power to sift and weigh the evidence forthe limited purpose of finding out whether or not aprima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclosegrave suspicion against the accused which has not beenproperly explained the Court will be, fully justified inframing a charge and proceeding with the trial.
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 20 of 53
(3) The test to determine a prima facie case wouldnaturally depend upon the facts of each case and it isdifficult to lay down a rule of universal application. Byand large however if two views are equally possible andthe Judge is satisfied that the evidence produced beforehim while giving rise to some suspicion but not gravesuspicion against the accused, he will be fully within hisright to discharge the accused.
(4) That in exercising his jurisdiction under section 227of the Code the Judge which under the present Code is asenior and experienced Judge cannot act merely as aPost office or a mouthpiece of the prosecution, but hasto consider the broad probabilities of the case, the totaleffect of the evidence and the documents producedbefore the Court, any basic infirmities appearing in thecase and so on. This however does not mean that theJudge should make a roving enquiry into the pros andcons of the matter and weigh the evidence as if he wasconducting a trial.
….”
21. It was held in the case of Niranjan Singh Karam
Singh Punjabi vs Jitendra Bhimraj Bijjaya, (1990), 4 SCC 76,
that,
at the time of framing charges having regard to section227 and 228 Cr. PC, the court is required to evaluate thematerial and documents on record with a view offinding out if the fact emerging therefrom taken at theirface value disclose the existence of all the ingredientsconstituting the alleged offence. The court may for thislimited purpose to sift the evidence, as it cannot beexpected even at the initial stage to accept all that the
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 21 of 53
prosecution states as gospel truth even if it is opposed tocommon sense or broad probabilities of the case.
22. It was also held in the case of P. Vijayan vs State of
Kerala and another, (2010) 2 SCC 398 that,
“….
10. Before considering the merits of the claim of boththe parties, it is useful to refer Section 227 of the Codeof Criminal Procedure, 1973, which reads as under:
"227. Discharge.If, upon consideration of the record ofthe case and the documents submitted therewith, andafter hearing the submissions of the accused and theprosecution in this behalf, the Judge considers that thereis not sufficient ground for proceeding against theaccused, he shall discharge the accused and record hisreasons for so doing."
If two views are possible and one of them gives rise tosuspicion only, as distinguished from grave suspicion,the Trial Judge will be empowered to discharge theaccused and at this stage he is not to see whether thetrial will end in conviction or acquittal. Further, thewords "not sufficient ground for proceeding against theaccused" clearly show that the Judge is not a mere PostOffice to frame the charge at the behest of theprosecution, but has to exercise his judicial mind to thefacts of the case in order to determine whether a casefor trial has been made out by the prosecution. Inassessing this fact, it is not necessary for the Court toenter into the pros and cons of the matter or into a
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 22 of 53
weighing and balancing of evidence and probabilitieswhich is really the function of the Court, after the trialstarts.
…..
23. The scope of Section 227 of the Code was considered
by Apex Court in the case of State of Bihar vs Ramesh Singh
(1977) 4 SCC 39, wherein it was observed that:
"4 ... Strong suspicion against the accused, if the matterremains in the region of suspicion, cannot take the placeof proof of his guilt at the conclusion of the trial. But atthe initial stage if there is a strong suspicion which leadsthe Court to think that there is ground for presumingthat the accused has committed an offence then it is notopen to the Court to say that there is no sufficientground for proceeding against the accused. Thepresumption of the guilt of the accused which is to bedrawn at the initial stage is not in the sense of the lawgoverning the trial of criminal cases in France where theaccused is presumed to be guilty unless the contrary isproved. But it is only for the purpose of deciding primafacie whether the Court should proceed with the trial ornot. If the evidence which the Prosecutor proposes toadduce to prove the guilt of the accused even if fullyaccepted before it is challenged in crossexamination orrebutted by the defence evidence, if any, cannot showthat the accused committed the offence, then there willbe no sufficient ground for proceeding with the trial.
.... "
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 23 of 53
This Court has thus held that whereas strong suspicion maynot take the place of the proof at the trial stage, yet it may besufficient for the satisfaction of the Trial Judge in order toframe a charge against the accused.
24. The prosecution has alleged commission of offences
punishable u/s 120B IPC and section 8 of the Prevention of
Corruption Act, 1988 against the accused persons.
25. Firstly, it is essential to understand the definition
and concept of section 8 of the Prevention of Corruption Act,
1988:
8. Taking gratification, in order, by corrupt or illegalmeans, to influence public servant.—Whoever acceptsor obtains, or agrees to accept, or attempts to obtain, fromany person, for himself or for any other person, anygratification whatever as a motive or reward for inducing,by corrupt or illegal means, any public servant, whethernamed or otherwise, to do or to forbear to do any officialact, or in the exercise of the official functions of suchpublic servant to show favour or disfavour to any person,or to render or attempt to render any service or disserviceto any person with the Central Government or any StateGovernment or Parliament or the Legislature of any Stateor with any local authority, corporation or Governmentcompany referred to in clause (c) of section 2, or with anypublic servant, whether named or otherwise, shall bepunishable with imprisonment for a term which shall be
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 24 of 53
not less than six months but which may extend to fiveyears and shall also be liable to fine.
26. The ingredients of the offence are:
(a) That the accused accepted or obtained, or agreed to
accept, or attempted to obtain, from someone;
(b) for himself or for some other person;
(c) any gratification whatever,
(d) as a motive or reward for inducing by corrupt or illegal
means any public servant to do or forbear to do any
official act or to show favour or render any service to any
of the persons specified in the section.
27. It is, therefore, clear that acceptance or obtaining or
even the attempt to obtain illegal gratification as a motive or
reward for inducing public servant by corrupt or illegal means,
constitute the offence. It is not necessary that the person who
receives the gratification should have succeeded in inducing the
public servant or even have attempted to induce the public
servant. The receipt of gratification for the purposes of inducing
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 25 of 53
public servant by corrupt or illegal means will complete the
offence. It is, however, necessary that accused should have
animus or intent at the time he receives gratification that same
is for the purpose of inducing public servant and such intention
can be gathered or inferred from the material placed on record.
28. In the present case, prosecution is therefore,
required to show by way of sufficient material on record that
accused Abhishek Verma in pursuance to the criminal conspiracy
accepted illegal gratification for the purposes of preventing
blacklisting of company M/s Rheinmetall Air Defence by
influencing public servants. The prosecution has relied upon
various Emails exchanged between accused persons i.e.
Abhishek Verma, Anca Maria Neacsu, Gerhard Hoy and other
officials of M/s Rheinmetall Air Defence. For accused Abhishek
Verma prosecution relies upon Emails exchanged with C.
Edmonds Allen (Director of M/s Ganton Limited USA). The
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 26 of 53
prosecution further relies upon the statements of witnesses
recorded u/s 161 Cr. PC and also to a hand written slip allegedly
written by Gerhard Hoy containing amount of USD 5,30,000 and
name of accused Abhishek Verma has been referred as “ABI”.
Also the bank records showing transfer of USD 5,29,982 from
the account of M/s Rheinmetall Air Defence to M/s Ganton
Limited USA and funds transfer from M/s Ganton Limited USA
to M/s Ganton India private limited have been relied upon to
show the acceptance of illegal gratification.
29. The Email dated 08/09/2010 allegedly sent by
Abhishek Verma to C. Edmonds Allen reads as follows:
“Has been charge sheeted in a corruption case of CBI inIndia last month. Copy she will send you via Skype to CG.They are on the verge of being blacklisted and we aretrying to help them. So this does not take place. Thesituation for RH is quite fluid and their future inIndia is uncertain. If they are blacklisted then we arenot sure if RAD is blacklisted or the entire RH groupis blacklisted from every deal in India. Moreover, RHbrought Denel, South Africa last year which too isblacklisted since 2003. This move wasn't appreciatedby the MOD in India. Chairman is coming to India on
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 27 of 53
the 30th September. I will be meeting him. I will alsobe meeting Gerhard Hoy tomorrow Thursday evening.I shall let you know how to proceed in the light of all theabove. Regarding other vendors you mentioned belowplease not that a separate mail follows by the week.”
30. The Email dated 15/02/2011 sent by Abhishek
Verma to C. Edmonds Allen reads as follows:
“Dear Ed,Rheinmetall Germany will be wiring $600,000 to GantonUSA this week. Need an invoice for services rendered.Will explain via Skype which invoice to prepare.Kindly call me, I am available on Skype now.Thanks.”
31. The Email dated 23/03/2011 sent by Abhishek
Verma to gili@gantonlimited.com reads as follows:
“ Dear GiliRheinmetall Germany received an invitation to submitRFP for flycatcher radars $1.5billion. See attached. I waswith Gerhard Hoy last night for dinner at home. He gaveme this document. They will most probably beblacklisted by the time they are ready to bid. We aretrying to prevent that from happening. However lookfor other vendors who can participate in thisprogram thru us. Thru a contact I am trying to get moredetails of this program by sunday. RegardsCC: Sam you comments on petential companies to target.CC: Amarjit – findout more from bud and sachu.”
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 28 of 53
32. The Email dated 18/04/2011 sent by C. Edmonds
Allen to Abhishek Verma reads as follows:
“Got it.Eva Herzigova wrote:Dear Ed,You will recall Rheinmetall Germany sentUS$539,000 in February 2011 to Ganton USA as“consultancy payments”.These amounts were to be paid to some people inIndia for “job well done”. These payments in Indiawere to be paid by us and balance margin (profit)was to be kept by us.However job in India was delayed due to reasonsbeyond our control as the control is with theGovt/Military, so the payments to those people alsoare delayed in India. Thus we are holding on to thefunds.After a while Rheinmetall started panicking andwanted their funds back but I didn't want to give itback because the job in India is 3/4 done and if thejob is done completely and Rhenmetall doesn't paythen – we are fucked because those powerful people willdemand from us their pound of share for the work done. Ifwe don't pay these people in India it could seriously affectall our other military programs in India coz its the samegroup of people here.Thereafter I told Rhenmetall that because funds weretransferred by them to Ganton from UBS Switzerland andsender was: Rheinmetall Air Defense, the JP Chase bankgot suspicious and reported the matter to FINCENWashington DC thus the funds are frozen and cannot besent back to UBS Bank Zurich in March.To make them believe I gave them a tipex + cut paste jobof an actual FINCEN letter of March 2011 stating theabove.Today you have to tell him:
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 29 of 53
a) Funds can be conditionally released however we need tohave proper documentation (besides what they gave us inFebruary 2011)b) if the funds have to go back they can't be sent back toUBS Zurich as it will look suspicious as the funds came tous as consultancy payments from UBS Zurich from RHMaccount. So sending them back to the same place is out ofthe question. c) If and when we do sent the funds back to them toanother subsidiary of RHM in any part of the world, thenit will have to be NON swiss jurisdiction and it will haveto be shown as being sent for another transaction asadvance and not as refund of consultancy payments sentto Ganton.Basically we don't want to pay these monies back to RHMbecause our people in India who we are taking favoursfrom would be upset however we can't say this to RHMbut this is the internal situation as you know. Please don't give him any documents or letters orundertakings of any kind. Just now the balance ofconvenience is in our favour, however if letters oracknowledgment signed then it would tilt in their favour. Regards.”
33. The Email dated 18/04/2011 sent by C. Edmonds
Allen to Abhishek Verma reads as follows:
“My understanding is that the work there was about 3/4done and now Mr. Kaufmann has asked that the funds bereturned as he understands that the work being donecannot be completed and may not have been started. I do not have the details on this so I would appreciate anupdate.We have a problem with the bank explaining why we tooka fee (on which we have to pay income tax) and are nowreturning it to the same party. Mr. Kaufmann and I are
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 30 of 53
discussing how to send it back and he proposed a companyin Hong Kong. I was trying to figure out how muchwithholding we would have to make on a transmittal toHK. I have explained that we are able to send moneywithout withholding to India because it is capital for thesubsidiary.Please explain the status in India and I will check with thebank which was asking a lot of questions because of thesize of the wire. My banker is on vacation and cannot runinterference. I will be here until 7 or so. I am finishing taxes and filing.I am on Skype if you wish to call me before the meeting fora private Chat.”
34. The Email dated 30/06/2011 sent by Abhishek
Verma to C. Edmonds Allen reads as follows:
“When I met Gerhard Hoy ten days back, we reached anunderstanding that we will give them cash very slowly inIndia in Indian Rupees and small installments for theirexpenses in India with officials and for their paymentstowards baksheesh. As this cash would be unaccounted itwon't pass through their books. Therefore, it is going to be better for us for our cashflowin we pay on their behalf in small trickles spread over ayear or so. This month of July I plan to give them $50,000 equivalentin rupees in cash in Delhi.Therefore, kindly transfer $50,000 on Rheinmetallaccount and another $30,000 for July payroll andbusiness expenses to Ganton India as share capital. Totalof $80,000.If you could remit these funds, they would get to India byMonday or Tuesday which would be great as we can sendout payments next week. In the meanwhile kindly send out an email reply to Max
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 31 of 53
Kauffman with BCC to me, saying that, as agreed with MrHoy the process of documentation has been arranged andyou will receive the first set of documents in July. Regards. Sent from my iPad.”
35. On examining the contents of Email dated
08/09/2010, it is clear that accused Abhishek Verma have
written to C. Edmond Allen (Director of M/s Ganton Limited
USA) informing him about the probable blacklisting of M/s
Rheinmetall Air Defense. Vide Email dated 15/02/2011,
accused Abhishek Verma has informed C. Edmond Allen about
M/s Rheinmetall Air Defense paying US$ 6 lakhs to M/s Ganton
Limited USA and asked for invoice for services rendered.
36. Email dated 23/03/2011 sent by accused Abhishek
Verma shows that he has been trying to prevent the probable
blacklisting of M/s Rheinmetall Air Defense.
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 32 of 53
37. Further, Email dated 18/04/2011 shows that the
amount sent by M/s Rheinmetall, Germany in February 2011 to
M/s Ganton Limited USA were to be paid to 'some people in
India for job well done' and balance margin was to be kept by
accused Abhishek Verma. It is also stated in the said Emails that
job in India has been delayed due to the reasons beyond his
control. The Email also mentions that M/s Rheinmetall Air
Defense started asking for the return of the payment. Email
dated 30/06/2011 shows that there has been understanding
between accused Abhishek Verma and accused Gerhard Hoy (on
behalf of M/s Rheinmetall Air Defense) that payment would be
returned by way of installments slowly/gradually.
38. However, in all the above Emails there is no
mention that any public servant is being influenced by accused
Abhishek Verma to prevent blacklisting of M/s Rheinmetall Air
Defense or that any illegal gratification is to be paid to any
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 33 of 53
public servant out of the amount USD 5,30,000 received from
M/s Rheinmetall, Germany or that the said amount is to be paid
to any public servant as a motive or reward for showing favour.
Although, it appears that there has been involvement of accused
Abhishek Verma in helping out M/s Rheinmetall Air Defense on
the issue of their blacklisting but it is nowhere visible that it is
done through inducing any public servant by corrupt or illegal
means. In any of the above Emails, accused Abhishek Verma has
not named or otherwise specified 'some people in India' to
whom the payments were to be made for the “job well done”,
therefore, the acts of accused Abhishek Verma cannot be linked
or covered within the ambit or definition of Section 8 of the
Prevention of Corruption Act, 1988.
39. The contents of remaining Emails relied upon by
prosecution show that there has been several meetings held
between accused persons Abhishek Verma, Anca Maria Neacsu
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 34 of 53
and Gerhard Hoy but there is no material to suggest the specific
purpose of the said meetings. According to the statement of Mrs.
Jane James (Executive Assistant of M/s Rheinmetall Air
Defense) recorded u/s 161 Cr. PC, there has been meetings
between accused persons for Noida project and on the matter of
Short Range Surface to Air Missile (SRSAM). These Emails
cannot be considered as evidence indicating that the meetings
were held between accused persons Abhishek Verma, Anca
Maria Neacsu and Gerhard Hoy for the purposes of preventing
blacklisting of M/s Rheinmetall Air Defence or that any such
matter was even discussed between them at that point of time.
There is no material which can show that accused Abhishek
Verma even discussed with the representatives of M/s
Rheinmetall Air Defence about inducing any public servant for
the purposes of preventing blacklisting of the company. No
witness of the prosecution could state anything about this issue.
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 35 of 53
40. It is also important to note the statement of witness
Sambhajee Lal Surve recorded u/s 161 Cr. PC, wherein he stated
that he advised Mr. Hoy that it would be futile even to think that
blacklisting process could be stopped or reversed. The witness,
although, stated that he got the impression that Mr. Hoy was
willing to put influence through Ministry of Defence or using
political entity to reverse the matter of M/s Rheinmetall Air
Defence but the witness has nowhere stated that any such efforts
were made nor he named accused Abhishek Verma or his wife
Ms. Anca Maria Neacsu for having discussed this matter with
accused Gerhard Hoy. Similarly, no witness of prosecution has
stated that meetings held between accused persons were for the
purposes of even discussing the issue of blacklisting. The factum
of meetings between accused Abhishek Verma, accused Gerhard
Hoy and Mr. Bodo Herbert Garbe on behalf of M/s Rheninmetall
Air Defence, itself constitute no offence when admittedly they
were associated otherwise also even prior to the arising of
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 36 of 53
matter in question.
41. To constitute a conspiracy, meeting of minds of two
or more persons for doing an illegal act or an act by illegal
means is the first and primary condition and it is not necessary
that all the conspirators must know each and every detail of the
conspiracy. Neither is it necessary that every one of the
conspirators takes active part in the commission of each and
every conspiratorial acts. The agreement amongst the
conspirators can be inferred by necessary implication. In most of
the cases, the conspiracies are proved by the circumstantial
evidence, as the conspiracy is seldom an open affair. The
existence of conspiracy and its objects are usually deduced from
the circumstances of the case and the conduct of the accused
involved in the conspiracy. Criminal conspiracy is an
independent offence in the Penal Code. The unlawful agreement
is sine qua non for constituting offence under the Penal Code
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 37 of 53
and not an accomplishment. Conspiracy consists of the scheme
or adjustment between two or more persons which may be
express or implied or partly express or partly implied.
42. In "Shivanarayan v. State of Maharashtra", AIR
1980 Supreme Court 439, it was held that
"It is manifest that a conspiracy is always hatched insecrecy and it is impossible to adduce direct evidence ofthe same. The offence can be only proved largely from theinferences drawn from acts or illegal omission committedby the conspirators in pursuance of a common design."
43. In the case of State of Maharashtra and Others vs
Som Nath Thapa and Others, (1996) 4 SCC 659, it was held that
“To establish a charge of conspiracy knowledge aboutindulgence in either an illegal act or a legal act by illegalmeans is necessary. In some cases, intent of unlawful usebeing made of the goods or services in question may beinferred from the knowledge itself. This apart, theprosecution has not to establish that particular unlawfuluse was intended, so long as the goods or service inquestion could not be put to any lawful use. Finally,when the ultimate offence consists of a chain of actions,it would not be necessary for the prosecution toestablish, to bring home the charge of conspiracy, thateach of the conspirators had the knowledge of what thecollaborator would do, so long as it is known that thecollaborator would put the goods or service to an
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 38 of 53
unlawful use.”
44. The conspiracy consist of scheme or adjustment
between two or more persons, which may be expressed or
implied or partly expressed or partly implied. Mere knowledge,
even discussion, of the plan would not perse constitute
conspiracy. Also, suspicion cannot take place of legal proof and
prosecution is required to show chain of circumstances showing
agreement between the conspirators. The circumstances should
not be capable of any other inference or conclusion.
45. Taking into account the facts and events of present
case, I find that there is no circumstance showing criminal
conspiracy between the accused persons. Holding of meetings at
various places itself constitute no offence unless it is shown that
same were for some illegal purpose. Nothing incriminating can
be discerned from the factum of meetings held between accused
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 39 of 53
persons over the period 201011. I, therefore, conclude that
there is no evidence on record showing conspiracy or further any
effort made by accused Abhishek Verma or his wife accused
Anca Maria Neacsu to influence any public servant or public
office to prevent blacklisting of M/s Rheinmetall Air Defence.
46. Coming to the issue of money transfer, as per the
case of CBI, the money was transferred to the bank account of
M/s Ganton Limited USA. The company is fully owned and
controlled by one C. Edmonds Allen of USA. The account is
maintained with JP Morgan Chase Bank, San Antonio, Texas,
USA. The invoice about said payment shows that same was
raised as consultation charges and money was transferred on
17/02/2011 from the account of RAD at UBS Zurich to the
account of M/s Ganton Limited USA. Even if the version of the
prosecution is assumed as truthful, there is no explanation or
justification as to why the company M/s Ganton Limited USA
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 40 of 53
and its controlling officials have not been impleaded as accused
in the chargesheet. It is the case of CBI that illegal gratification
has been exchanged between two companies M/s Rheinmetall
Air Defense and M/s Ganton Limited USA and subsequently
transferred to M/s Ganton India private limited. It is further
interesting to note that even M/s Ganton India private limited
has not been impleaded as an accused. The chain of conspiracy
and acceptance of illegal gratification is not consistent and
without participation of the aforesaid companies the offence
could not have been committed by other accused. The
prosecution has also failed to show that the payment of USD
5,29,982 is illegal gratification and meant for influencing public
servants. There has been no direct transfer of money either to
accused Abhishek Verma or to Anca Maria Neacsu and therefore,
impleading them in their personal capacity as accused is without
any justification. There is no explanation as to how M/s Ganton
Limited USA can be deleted from the chain of conspiracy, when
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 41 of 53
admittedly the payment of illegal gratification was directly and
firstly accepted by M/s Ganton Limited USA.
47. If at all any offence has been committed, it is firstly
committed by Ganton limited USA by accepting gratification
from RAD. C. Edmonds Allen is the sole shareholder of Ganton
limited USA and without implicating the company and C.
Edmonds Allen, the liability that too criminal cannot be
attributed to accused Abhishek Verma in his personal capacity.
The money credited to the account of Ganton Limited USA was
at the disposal of C. Edmonds Allen and it is clear that he has
been using the same as per his own wishes. If story of
Prosecution is believed, C. Edmonds Allen is an integral and
inseparable part of the conspiracy, rather he is actual executor of
the same and if he has not been impleaded as an accused and he
has not committed any offence, no other person can be said to
have committed the offence, even by utilizing the said funds. It
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 42 of 53
is also important to note that Emails otherwise are not
admissible since no proper certificate u/s 65B of Indian Evidence
Act is accompanied with the said emails. The requirements of
statutory provision of Section 65B Indian Evidence Act as
elaborated in Hon'ble Supreme Court judgment Anvar P.V. vs.
P.K. Basheer, (2014) 10 SCC 473 are nowhere visible with
respect to evidence relied upon.
48. The transfer of money from M/s Ganton Limited USA
to M/s Ganton India private limited itself is no offence as
admittedly M/s Ganton India is the subsidiary company of M/s
Ganton Limited USA and money has been transferred on various
occasions otherwise also. There is no evidence on record to show
that illegal gratification received on 17/02/2011 was as such
transferred to M/s Ganton India private limited. There is no
parameter to differentiate the funds coming to Ganton India
from Ganton limited USA and there is no material to show that
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 43 of 53
money transferred to Ganton India is illegal.
49. With respect to Ms. Anca Maria Neacsu the concept
of “Alter Ego” has also not been properly understood and
applied. It is the case of prosecution itself that expenditures
were done from the account of M/s Ganton India private limited
through authorized signatory Ram Prakash Singh. The company
M/s Ganton India private limited had other directors also
besides accused Anca Maria Neacsu. Neither the authorized
signatory nor other directors have been impleaded as accused
despite the fact that expenditures could not have been done by
accused Anca Maria Neacsu exclusively without involvement of
the company and its authorized officials.
50. There is no dispute that a company is liable to be
prosecuted and punished for criminal offence. The generally
accepted modern rule is that a corporation may be subject to
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 44 of 53
indictment or other criminal process, although the criminal act is
committed through its agent.
51. When a person which is a company commits an
offence, then certain categories of persons in charge as well as
the company would be deemed to be liable for the offences.
Thus, the statutory intendment is absolutely plain. As is
perceptible, the provision makes the functionaries and the
companies to be liable and that is by deeming fiction. A deeming
fiction has its own signification. No doubt, a corporate entity is
an artificial person which acts through its officers, directors,
managing director, chairman etc. If such company commits an
offence involving mens rea, it would normally be the intent and
action of that individual who would act on behalf of the
company. It would be more so, when the criminal act is that of
conspiracy. However, at the same time, it is the cardinal
principle of criminal jurisprudence that there is no vicarious
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 45 of 53
liability unless the statute specifically provides so. When the
company is the offender, vicarious liability of the Directors
cannot be imputed automatically, in the absence of any statutory
provision to this effect.
52. In Aneeta Hada vs Godfather Travels and Tours
(P) Ltd, (2012) 5 SCC 661, the court noted that if a group of
persons that guide the business of the company have the
criminal intent, that would be imputed to the body corporate
and it is in this backdrop, Section 141 of the Negotiable
Instruments Act has to be understood such a position is,
therefore, because of statutory intendment making it a deeming
fiction. Here also, the principle of “alter ego”, was applied only
in one direction namely where a group of persons that guide the
business had criminal intent, that is to be imputed to the body
corporate and not the vice versa. Otherwise, there has to be a
specific act attributed to the Director or any other person
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 46 of 53
allegedly in control and management of the company, to the
effect that such a person was responsible for the acts committed
by or on behalf of the company.
53. In the case of Maksud Saiyed vs State of Gujarat
and ors, (2008) 5 SCC 668 it has been observed that, where a
jurisdiction is exercised on a complaint petition filed in terms of
Section 156(3) or Section 200 of the Code of Criminal
Procedure, the Magistrate is required to apply his mind. Indian
Penal Code does not contain any provision for attaching
vicarious liability on the part of the Managing Director or the
Directors of the Company when the accused is the Company.
The learned Magistrate failed to pose unto himself the correct
question viz. as to whether the complaint petition, even if given
face value and taken to be correct in its entirety, would lead to
the conclusion that the respondents herein were personally
liable for any offence. The Bank is a body corporate. Vicarious
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 47 of 53
liability of the Managing Director and Director would arise
provided any provision exists in that behalf in the statute.
Statutes indisputably must contain provision fixing such
vicarious liabilities. Even for the said purpose, it is obligatory on
the part of the complainant to make requisite allegations which
would attract the provisions constituting vicarious liability.
54. Coming to the case in hand, even if prosecution
version is believed, the illegal gratification was first received by
M/s Ganton Limited USA and then transferred to M/s Ganton
India and funds were spent on the instructions of accused Anca
Maria Neacsu (A2) (Managing Director). She has been
impleaded in her personal capacity on the basis that she availed
the benefit in ultimate analysis. However, without acceptance of
gratification firstly by M/s Ganton Limited USA and
subsequently by Ganton India, accused Anca Maria Neacsu could
not have been in a position to avail or spend the funds. She has
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 48 of 53
not been directly involved in transfer of funds from M/s Ganton
Limited USA to M/s Ganton India. She only spent the amount
placed at the disposal of her company by the parent company,
which cannot itself constitute any offence. The money trail is
broken when companies M/s Ganton Limited USA and M/s
Ganton India have not been impleaded as accused. Moreover, no
witness has stated that funds transferred to M/s Ganton India
were the same as illegal gratification from M/s Rheinmetall Air
Defense. If the amount of USD 5,30,000 is termed as illegal
gratification, it is received by M/s Ganton Limited USA but the
same has not been impleaded as an accused. The transfer of
funds after receiving has been the sole and exclusive prerogative
of M/s Ganton Limited USA. If M/s Ganton Limited USA has
committed no offence, M/s Ganton India or its Directors cannot
be said to have commit any offence. Merely by receiving funds
from its parent company and further making the expenditure
therefrom, M/s Ganton India or its Directors cannot become
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 49 of 53
offendors. There is nothing on record to suggest that M/s
Ganton India or its Directors were knowing the source from
where the funds were credited to the account of M/s Ganton
Limited USA.
55. It is the statement of Mr. C. Edmonds Allen
(recorded on letter of rogatory) that accused Abhishek Verma
eventually told him via telephone and Emails that US$ 6 lakhs
was to get M/s Rheinmetall Air Defence of the blacklisting but
this statement is not corroborated by the Email contents and
otherwise, not admissible being hearsay. The Director of M/s
Ganton Limited USA Mr. C. Edmonds Allen never joined or
attended any meeting or deliberations held between accused
Abhishek Verma and accused Gerhard Hoy of M/s Rheinmetall
Air Defense. It is also contrary to the stand taken by CBI that Mr.
C. Edmonds Allen was not knowing anything about the money
transfer.
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 50 of 53
56. In view of above observations and stated legal
positions, it is not possible to implead accused Anca Maria
Neacsu (A2) as an accused in her personal capacity when
alleged offence has been attributed to her in the capacity of
Director of M/s Ganton India private limited that too without
impleading the company in question. Also, the company M/s
Rheinmetall Air Defence and accused Gerhard Hoy cannot be
roped in for criminal conspiracy nor the money transaction can
be termed as illegal gratification. Nowhere the discussion about
involvement of public servant or public office is shown during
the meetings of the accused. Minus any promise to influence
public servant, the offence described u/s 8 of Prevention of
Corruption Act, 1988, is not made out. If private persons,
deliberate to solve some issue and even exchange money for this
purpose, Section 8 of the Prevention of Corruption Act, 1988 is
not attracted. I, therefore, come to the conclusion that there is
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 51 of 53
no evidence against company M/s Rheinmetall Air Defence
(A4) and its Senior Vice President Gerhard Hoy (A3) to show
that illegal gratification of USD 5,29,982 has been paid on
account of influencing public servants through accused Abhishek
Verma (A1) for the purpose of preventing blacklisting of the
company. Nothing incriminating is found in the entire material
relied upon by the prosecution and there is no prima facie
evidence to substantiate the version of the prosecution.
57. The facts and evidence relied upon by the
prosecution do not lead to the conclusion that the offence u/s 8
of the Prevention of Corruption Act, 1988 has been committed
by the accused persons in conspiracy. In view of aforesaid
discussions, I conclude that material on record does not suggest
that prima facie case is made out against any of the accused and
therefore, they deserve to be discharged. Accordingly, all the
accused persons are discharged from this case. Their bail bonds
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 52 of 53
are canceled and sureties are discharged.
58. Let compliance to section 437A Cr. PC be done by all
accused persons. The open NBWs ordered against accused
Gerhard Hoy (A3) are cancelled and he is permitted to furnish
his bail bond u/s 437A through his authorized Counsel.
59. Ahlmad is directed to page and bookmark the file
forthwith so as to enable digitization of the entire record.
60. File be consigned to record room.
Announced in the open court (Anju Bajaj Chandna)on 26/04/2017. Special Judge (PC Act) (CBI)6
Patiala House Court, New Delhi
CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge Page 53 of 53