1 CBI Vs. Romesh Sharma & Ors. IN THE COURT OF SHRI SANJIV JAIN : PRESIDING OFFICER : MACT- II SOUTH DISTRICT : SAKET COURTS : NEW DELHI In R.C No. : 1/(S)/98/STF/CBI/ND S. C. No. : 55/09 Unique Case ID : 02401R0830112003 Central Bureau of Investigation (CBI) Versus 1. Romesh Sharma S/o Sh. Satyanarayan R/o C-30, Mayfair Garden, New Delhi 2. Harish Mishra S/o Sh. Satya Narayan Mishra R/o 507, Royal Turner Road, Juhu, Mumbai 3. Avtar Singh Ahluwalia S/o Late Sh. B S Ahluwalia R/o Sai Kirpa Behind Sri Krishna Complex, Vasai Road (W), Distt. Thane R.C No. : 1/(S)/98/STF/CBI/ND 1/213
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
1CBI Vs. Romesh Sharma & Ors.
IN THE COURT OF SHRI SANJIV JAIN : PRESIDING OFFICER : MACT II SOUTH DISTRICT : SAKET COURTS : NEW DELHI
the case, recorded the statement of the witnesses and obtained the
specimen signature of Girish Rao Ex.PW70/1 to Ex.PW70/6.
93. PW72 Sh. Jaswinder Singh was present with Inspector Anand
R.C No. : 1/(S)/98/STF/CBI/ND 76/213
77CBI Vs. Romesh Sharma & Ors.
Prakash when the search of the house of Romesh Sharma at C30
Mayfair Garden was taken on the night of 20/21.10.98 in presence of
Romesh Sharma. He stated that a video cassette Ex.PW72/1 was
recovered and it was seized vide memo Ex.PW72/2. However, it was
not sealed.
94. PW73 Sh. Sanjay Kumar, was the Metropolitan Magistrate at Tis
Hazari. He did the TIP of the accused Laxman Singh where he
refused to participate vide proceedings Ex.PW73/11.
95. PW74 Sh. I Hassan was the Inspector STF CBI. He seized the
documents and recorded the statement of witnesses. He collected the
copy of FIR and the charge sheet of the cases FIR 849/98 and FIR
849/98 and FIR 858/98 registered at the police station Hauz Khas
Ex.PW70/1 and PW71/2. He also obtained the copy of transcript of the
conversation Ex.PW74/A having been taken place between Romesh
Sharma and Abu Salem running into 71 pages from the Inspector
Ishwar Singh.
96. Examination of PW75 Sh. Ram Singh was given up by CBI.
R.C No. : 1/(S)/98/STF/CBI/ND 77/213
78CBI Vs. Romesh Sharma & Ors.
97. PW76 Anoop Singh Kumar was the Dy. Commissioner, Income Tax,
Mumbai. He furnished the copy of the income tax returns of H. Suresh
Rao as individual and of Garuda Aviation of the financial year 199495
and 199596 Ex.PW76/1 to Ex.PW76/4 to CBI.
98. PW77 Sh. S S Dagar was the Inspector STF, CBI. He seized the file
of the car from the MLO. He also collected the original cheque
Ex.PW6/18 from Citibank, Parliament Street, cheque Ex.PW6/19 from
Bank of Tokyo, Parliament Street, copy of DDs and recorded the
statement of witnesses.
99. PW78 Sh. K S Nayar was in STF, CBI as DSP. He arrested the
accused Naveen Budhiraja on 18.01.99 from his house.
100.PW79 Sh. A M Thakur was Inspector CBI, STF Mumbai. He
collected the statement of accounts in the name of Garuda Aviation
from September 1993 to December, 1997 running into 27 pages
Ex.PW19/2 and the account of Suresh Rao Ex.PW79/3 from the Chief
Manager, SBI. He also collected cheque no. 948400 of
Rs.1.0 lac Ex.PW60/27 issued from the account of
R.C No. : 1/(S)/98/STF/CBI/ND 78/213
79CBI Vs. Romesh Sharma & Ors.
Harish Chand Mishra Ex.PW79/4.
101.PW80 Sh. H C Samuel was the Lockup Incharge Tis Hazari. He
was handed over the custody of accused Laxman by CBI officer in
muffled face.
102.PW81 Inspector Anand Prakash was the Addl. SHO in the Police
Station Hauz Khas. He on receipt of information at about 2.00 PM on
20.10.98 vide DD no. 30B Ex.PW39/D went to Mayfair Garden
alongwith the SHO and police force to rescue the persons. He stated
that no one met them and from the residents of the locality, they came
to know that the persons confined there were taken away by Romesh
Sharma to his Party office at Mahadev Road. He stated that Inspector
Jasbir Singh Malik also reached there alongwith his staff whom
Inspector Bakshi, SHO PS Hauz Khas asked to go to Mahadev Road
to rescue the persons. He stated that two persons namely H. Suresh
Rao and Rakesh Gupta met him in the police station at about 4.15 /
4.30 PM. One lady officer Neena Devi recorded the FIR. At about
5.00/5.15 PM the FIR was assigned to him alongwith the complaint.
He interrogated H Suresh Rao, went to Mayfair Garden with H Suresh
R.C No. : 1/(S)/98/STF/CBI/ND 79/213
80CBI Vs. Romesh Sharma & Ors.
Rao and Rakesh Gupta where he met Inspector Malik who was with
Romesh Sharma. He seized the Pajero Jeep and Mercedes car vide
memo Ex.PW6/47 and Ex.PW6/48, searched the premises and
recovered three bullet proof jackets, one bag, 28 files of different
properties kept in the bed and 18 video cassettes including that of
Helicopter Ex.PW72/1. He stated that he had viewed the cassette on
which registration number was written. Four registers were also
recovered from the Almirah of the garage including some documents
and 45 rubber stamps which were seized vide memo Ex.PW7/A. He
stated that Suresh Rao remained with them till 9.30 / 9.45 PM. Since
he had complained of body pain, he was sent for medical examination.
He also seized the registers relating to Helicopter and original MOU
Ex.PW6/20. He also went to Jai Mata Di Farm, Chattarpur, Mehrauli
with Romesh Sharma and on the identification of Suresh Rao, he
seized the helicopter vide memo Ex.PW6/56. He also arrested the
accused Vinod Luthra on the night of 23/24.10.98, took Romesh
Sharma to Allahabad on 25.10.98 on remand, obtained his specimen
signatures Ex.PW34/1 to 3 and did the investigation till 06.11.98 i.e. till
the time it was handed over to CBI. He handed over the documents to
CBI vide memo Ex.PW81/2. On being crossexamined he stated that
R.C No. : 1/(S)/98/STF/CBI/ND 80/213
81CBI Vs. Romesh Sharma & Ors.
one Ram Kumar Gupta resident of Yusuf Sarai had joined the
investigation. He stated that he did not see the senior officials i.e.
ACP/DCP on the spot to monitor the investigation nor saw the officials
of Wild Life Protection, Income Tax, FERA, Revenue Intelligence,
Excise during the course of investigation at night. He denied that he
got the video cassette Ex.PW72/2 prepared in respect of helicopter on
the directions of senior officers. He stated that no photographer was
called to take the photographs of helicopter at Jai Mata Di Farm.
He stated that he was the witness in three cases registered
against Romesh Sharma, one on the complaint of Charles Dinkey
Mechrshenas, record on the complaint of Malik and the third one under
Wild Life Protection Act. He also seized the documents concerning the
above case. He denied that he obtained false complaint against the
accused Romesh Sharma. He stated that the documents connected
with the case of complainant Sanjay Sabharwal were also recovered
from there relating to the premises C30 Mayfair Garden and Jai Mata
Di Farm. He denied that he pressurised the complainants to lodge
false complaints against Romesh Sharma.
103.Examination of PW82 H.C. Kishan Pal was given up by CBI.
R.C No. : 1/(S)/98/STF/CBI/ND 81/213
82CBI Vs. Romesh Sharma & Ors.
104.PW83 Sh. Pramod Mud Bhatkal was DSP STF CBI in Mumbai. He
seized the documents from Harish Mishra on 14.11.98.
105.Examination of PW84 Satender Sanghwan, SI Special Cell was
also given up by CBI.
106.PW85 Inspector Ishwar Singh was the Inspector in AntiExtortion
Cell, Crime Branch. He used to process information concerning the
commission of extortion in the office of Crime Branch. He stated that
in the last week of September 1998, an informer gave a tip that men of
Dawood Ibrahim are frequent in Delhi and one of his gangmen known
with the name of Romesh Sharma was using a mobile phone no.
9811197600 with which he used to talk to someone in Dubai and
Pakistan. He had also given two numbers one being operated in
Dubai and other in Pakistan. He stated that in those days, Dawood
Ibrahim used to operate from Dubai and Pakistan. Abu Salem was his
trusted man and used to operate from Dubai. He passed on the
information to senior officers and obtained permission from the
competent authority. He started tapping the aforesaid phone from
01.10.98 to 20.10.98 and recorded its transcript Ex.PW74/3. He then
R.C No. : 1/(S)/98/STF/CBI/ND 82/213
83CBI Vs. Romesh Sharma & Ors.
got registered two cases vide FIR no. 849/98 and 850/98 at the police
station Hauz Khas Ex.PW74/1 and Ex.PW74/2 which were investigated
by the Crime Branch of which charge sheets were filed. He stated that
during the course of investigation, he came to know that mostly the
accused Romesh Sharma had talked to Abu Salem.
In his crossexamination, he stated that he had taken the voice
sample of Romesh Sharma, however, could not obtain the voice
sample of Abu Salem, so he could not compare the voice of Abu
Salem recorded during taping of the phone with any other voice. He
stated that one Ramesh Malik of Lajpat Nagar had complained that he
was criminally intimidated by Abu Salem.
107.PW87 Inspector G.P. Singh, was present when the accused Naveen
Budhiraja was arrested on 18.01.99 vide arrest memo Ex. PW86/1.
108.PW88 Dr. R. Kalanjiam was associated with Shiv Sena, a political
party. In 1998, he was the president of All India Thevar Service
Society, Chennai supported by AI.D.M.K. He stated that he knew
Romesh Sharma since he had floated All India Bhartiya Congress
Party. He had met him through his friend Najimuddin. He wanted to
R.C No. : 1/(S)/98/STF/CBI/ND 83/213
84CBI Vs. Romesh Sharma & Ors.
join his party. He stated that one day before Diwali, in 1998, he had
met Romesh Sharma in Delhi. He went to his party office from his
residence and came back in his car. He stated that there were many
persons in his house. He was declared hostile by the prosecution. He
admitted that in the case FIR802/98, Police Station Hauz Khas, he
had testified in favour of Romesh Sharma as defence witness that he
had stayed in the house of Romesh Sharma at May Fair Garden on the
night of 19/20.10.1998. and the office of his party was at 16, Mahadev
Road. He denied that on 20.10.1998 two persons were taken away by
Romesh Sharma with the help of his gunman Laxman from his
residence to the party office. He admitted that he had given a
statement before the Ld. MM. He admitted that when he reached the
residence of Romesh Sharma from his party office, he found the police
and Romesh Sharma in the custody of police. He was also confronted
with the statement Ex. PW88/1. He was read over the statement Ex.
PW91/1 given to Ld. MM. He stated that at that time the questions put
to him were in Hindi which he could not follow and it was not read over
to him when he signed it nor he was allowed to read. His further
examination was deferred and there after he did not appear in the
witness box.
R.C No. : 1/(S)/98/STF/CBI/ND 84/213
85CBI Vs. Romesh Sharma & Ors.
109.PW89 SI Atul Kumar was posted at the Police Station Lajpat Nagar.
He did the investigation of the Case FIR No.756/98 registered at the
Police Station Lajpat Nagar Ex. PW89/1 and filed the chargesheet
against Romesh Sharma and Ashok Malik placing Abu Salem in
column no.2 as proclaimed offender.
110.PW90 Dr. Prashant Kulshrestha was the Sr. Forensic Doctor in
AIIMS, he proved the MLC of Suresh Rao Ex. PW90/1 prepared by Dr.
Monika Gupta. He admitted that name of the assailant is not
mentioned in the MLC.
111.PW91 brought the statement of Dr. R. Kalinjam, PW88 recorded in
the court of Sh. S.S. Rathi in the case FIR802/98 registered at the
Police Station Hauz Khas Ex. PW91/1.
112.PW92 was the DSP, CBI. On the transfer of investigation to CBI vide
orders Ex. PW92/1 he reregistered the case vide FIR92/2 and did
the investigation. He collected the documents, recorded the statement
of witnesses, viewed the video cassette of helicopter, arrested the
accused Laxman, seized the pistol and cartridges, got conducted his
R.C No. : 1/(S)/98/STF/CBI/ND 85/213
86CBI Vs. Romesh Sharma & Ors.
T.I.P. and filed the chargesheet. He also obtained the specimen
signatures of H. Suresh Rao Ex.PW65/1 to Ex.PW65/4 on
06.01.1999. On being crossexamined he admitted that on the day the
investigation was assigned to him, the helicopter was registered in the
name of Romesh Sharma in the record of Director General Civil
Aviation.
113.PW93 Sh. M.P. Sharma was DSP S.P. Branch, CBI. He had assisted
PW92 in the investigation.
114.PW94 Sh. R.K. Jain was the Government Examiner posted at
Hyderabad. He examined the questioned documents with the
specimen signatures and gave the report Ex. PW94/8 giving the
detailed reasons stating that the writings on the questioned documents
tally with the specimen writings.
115.Accused persons were examined U/s 313 Cr.P.C. wherein they denied
the incriminating evidence against them and pleaded their innocence.
116.Accused Romesh Sharma admitted that Shiv Charan had permitted
R.C No. : 1/(S)/98/STF/CBI/ND 86/213
87CBI Vs. Romesh Sharma & Ors.
All India Bhartiya Congress Committee to use the premises 16,
Mahadev Road, Delhi as its office and that he had been residing at
C30, Mayfair Garden and that he had floated All India Bhartiya
Congress Party in the year 1997 and that Avdesh and Indermani are
his nephews and Avtar Singh is his well wisher. He also admitted that
he had contested election from Phulpur parliamentary constituency
held on 07.05.96 and lost the election. He also admitted that in the
event of purchase of car/helicopter, by a candidate during election
period, its price is not included in the expenses incurred during the
election and in case candidate hires car / helicopter for election
purpose, the hire charges are included in the expenses and that the
candidate was required to maintain account of expenses incurred in
connection with the election and that after the election, he had filed the
accounts of expenses to the District Election Office.
He stated that he had purchased the helicopter with an idea that
it may not reflect in its hire charges in his election expense since the
expense was not to exceed Rs. 4,50,000/. Some of the questions,
he answered that he is not aware. He stated that Lalit Bagla might
have introduced him with H. Suresh Rao in February, 1996 as politician
and Property Dealer. He also admitted that S41, Panchsheel Park is
R.C No. : 1/(S)/98/STF/CBI/ND 87/213
88CBI Vs. Romesh Sharma & Ors.
his office as well as Guest House. He stated that in March, 1996
Suresh Rao had come to his house of his own, stayed there and
proposed that he wanted to sell the above helicopter since he was in
need of money urgently for making payment to some party in Delhi and
during his visits, he had told H. Suresh Rao that he was going to
contest election from Phulpur Parliament constituency and for that
purposes services of helicopter were required. Earlier he quoted the
price as Rs. 60 lacs but after the enquiry he quoted the price as Rs. 30
lacs. He admitted that on 24.03.96 he gave a call to H. Suresh Rao to
send the helicopter to Phulpur. He stated that since he had purchased
the helicopter so there was no necessity to agree that he would pay
Rs. 80,000/ per day as hiring charges for the said helicopter and other
miscellaneous expenses. He denied having received the fax message
either from H. Suresh Rao or Mahender Pujara. He stated that since
the terms for purchase of the helicopter were already finalised by him
and accepted by H. Suresh Rao, there was no occasion for him to tell
H. Suresh Rao that his brother Harish Mishra and Rakesh Gupta would
meet him at Bombay office for finalisation of terms and conditions. He
denied having given any understanding to H. Suresh Rao that pre
dated MOU would be destroyed after the elections were over nor gave
R.C No. : 1/(S)/98/STF/CBI/ND 88/213
89CBI Vs. Romesh Sharma & Ors.
an assurance that helicopter would be returned. He stated that he did
not know whether Suresh Rao had paid Rs. 30,020/ to Central Carrier
Corporation, Mumbai for transportation of helicopter and fuel from
Mumbai to Phulpur or Parsuram and other staff were deputed by H.
Suresh Rao with the truck. He denied having given an envelope
containing blank letter head of Reliance Developers and Investors on
which MOU of hiring of helicopter was to be prepared. He stated that
he had paid full amount to H. Suresh Rao in respect of the sale of
helicopter. He stated that all the papers in respect of the sale of
helicopter were prepared by H. Suresh Rao and the MOU Ex.PW6/20
on 30.03.96 was signed with the mutual consent of his Advocate and
the Advocate of H. Suresh Rao. He stated that after the election it was
to be transported to Delhi. He stated that his men were well behaved
and they had good relations with H. Suresh Rao and his men. They
had arranged their boarding and lodging and were given VIP
treatment. He stated that his men were aware that he had purchased
the helicopter so there was no question of their damaging the
helicopter. He stated that it was agreed that the log book was to be
handed over to him by the technician of Suresh Rao. He stated that it
was the responsibility of H. Suresh Rao to send the helicopter to Delhi.
R.C No. : 1/(S)/98/STF/CBI/ND 89/213
90CBI Vs. Romesh Sharma & Ors.
His relations with Suresh Rao were cordial He stated that Suresh Rao
did not ask him to pay hire charges or return the helicopter however,
had demanded the sale consideration. He denied having links with
underworld Don. He stated that he had relations with politicians and
upper strata of society. He stated that at the time of delivery of
helicopter, H. Suresh Rao had handed over him the necessary
documents. He stated that some of the documents were not given by
him, however, he had assured that they would be given later since they
were mortgaged to someone. He stated that Rakesh Gupta had
visiting terms with him. He had arranged a finance of Rs. 40 lacs for
Rakesh Gupta for his airlines through one of his friend and Rs. 10 lacs
from some person for H. Suresh Rao. He admitted that Suresh Rao
had brought an Advocate at his residence however, denied that R A
Shah had objected the manner as to signing of documents or that he
abused R A Shah or snatched the documents from him. He stated that
H. Suresh Rao had given the documents to him willingly. He denied
that agreement to sell and affidavits had been signed by H. Suresh
Rao out of fear. He stated that it was H. Suresh Rao who got the
affidavit notarised. He stated that he had made the payment to H.
Suresh Rao and did not call Neeraj Bhatia to bring registration
R.C No. : 1/(S)/98/STF/CBI/ND 90/213
91CBI Vs. Romesh Sharma & Ors.
certificate at his residence. He stated that when certificate of
registration was handed over to him by H. Suresh Rao, he introduced a
person Neeraj Bhatia to him and told that he had entered into an
Memorandum of Agreement Ex.PW6/5 with Neeraj Bhatia to sell the
helicopter for Rs. 40 lacs and that some amount was owed by him to
Neeraj Bhatia. He denied that he assured Neeraj Bhatia to pay Rs. 18
lacs. He stated that he had made it clear that when certificate of
airworthiness of helicopter would be given to him, he would make the
balance payment to H. Suresh Rao. He stated that he had made the
entire payment of Rs. 30 Lacs towards the sale consideration of the
helicopter. He stated that H. Suresh Rao had assured him as and
when his engineers would be free he would send them to his Farm
House to reassemble the helicopter. He denied having beaten /
threatened Pappara. He stated that he does not know any person by
the name of Suresh Mishra. He denied that on 20.10.98 Rakesh Gupta
or Suresh Rao had come to his house or such incident took place. He
stated that police had forced him to sign some blank documents. He
denied having snatched the helicopter from Suresh Rao. He stated
that the premises S41 was taken by him on rent and the vehicles were
registered in his name. He stated that he used to make the payment in
R.C No. : 1/(S)/98/STF/CBI/ND 91/213
92CBI Vs. Romesh Sharma & Ors.
installments. He stated that he had given the documents of the
helicopter to Reliance Industries with an understanding that Reliance
Industries may use the said helicopter on hire. He stated that Reliance
company after checking had told him that the helicopter was not useful
for them. He stated that Suresh Rao had informed the insurance
company that the helicopter has been sold to him. He denied having
talked to any person namely Abu Salem or having connection with the
mobile no. 9811197600 or that Laxman Singh was his associate. He
stated that there was no cassette on which the word helicopter was
written. He stated that on 20.10.98, the police officials and other
agencies had raided his house.
He stated that H. Suresh Rao had an intention to get the
helicopter back from him. With that motive, he fabricated the story and
lodged this case. The police officials have testified against him under
the influence of NDA Government as he was having video
clips/cassettes regarding involvement of Ministers of NDA Government
and senior police officers of Crime Investigation Agency. He had also
formed a new party and was in process of exposing corrupt officers
and ministers. He was National General Secretary of Indian Socialist
Party and Lok Dal Party. He remained in Congress from 1984 to 1987,
R.C No. : 1/(S)/98/STF/CBI/ND 92/213
93CBI Vs. Romesh Sharma & Ors.
held several important post and created a new political party in 1987
under the name of All India Bhartiya Congress Party. He had a
political clean image. He had bought the properties lawfully. The idea
to purchase the helicopter was suggested by Suresh Rao in one of the
meetings. He stated that the helicopter was two seater which Suresh
Rao had bought for Rs. 50,000/. He has paid Rs. 30 lacs to Suresh
Rao in installments and he after receiving the entire amount of Rs. 30
lacs got the helicopter registered in his name and handed over the
documents. He stated that it was Suresh Rao who enjoyed a bad
reputation in the circle as he had cheated number of persons. He
stated that it was a blatant conspiracy against him.
117.Accused Harish Mishra stated that he was framed in this case since
he happened to be the brother of Romesh Sharma. CBI wanted him to
become witness against Romesh Sharma and when he refused, he
was framed in this case. He denied having visited to the office of
Suresh Rao. Most of the questions, he answered he does not know.
He stated that payment was made towards the sale of helicopter and
not for the hire charges.
R.C No. : 1/(S)/98/STF/CBI/ND 93/213
94CBI Vs. Romesh Sharma & Ors.
118.He examined Sh. Lalit Kumar Bagla as DW1. He stated that he
knew Romesh Sharma. He deals in sale and purchase of imported
cars. Romesh Sharma had purchased an imported car from him. He
also knew Rakesh Gupta of United India Airways, who knew H. Suresh
Rao of Pushpak Aviation. He stated that Rakesh Gupta had taken Rs.
30 lacs from him. He issued him a cheque which on presentation was
dishonoured. He filed a case and got the money back. He stated that
he never purchased any helicopter nor dealt with H. Suresh Rao. He
stated that two FERA cases are pending against him regarding Hawala
transaction of purchase of a Mercedes car.
119.Accused Avtar Singh Ahluwalia in his statement admitted his
signatures on the GRs. He stated that he had gone to Phulpur for
campaigning in the election of Romesh Sharma. Since the Engineers
received instruction not to bring the helicopter to Mumbai from Ugarsen
Pur, he and his technicians themselves unloaded the helicopter from
the truck and loaded on a truck for Delhi. There, the atmosphere was
cordial. Other questions he answered, he does not know. He stated
that Romesh Sharma had told him that he has purchased the
helicopter. He had also seen the MOU Ex.PW6/20 at Phulpur,
R.C No. : 1/(S)/98/STF/CBI/ND 94/213
95CBI Vs. Romesh Sharma & Ors.
Allahabad. He stated that the helicopter was dismantled on 11.05.96.
He denied having accompanied with the truck. He stated that CBI
wanted him to be an approver which he refused, so he was falsely
implicated in the case.
120.Accused Laxman Singh stated that CBI wanted to make a strong
case against Romesh Sharma, so included his name. He stated that
he did not participate in the TIP since he was shown to the witnesses
prior to his identification. He stated that police had seized the pistol
and cartridges from him but he was having a license for the same. He
denied having threatened H. Suresh Rao or Rakesh Gupta with the
pistol or accompanied them to Mahadev Road in the car of the
accused Romesh Sharma.
121.Accused Manoj stated that he was engaged as a cook by Romesh
Sharma. He used to remain in his bungalow and cook meals for the
employees of H. Suresh Rao and his persons who were campaigning
for Romesh Sharma.
122.Accused Avdesh stated that he was engaged in canvassing in favour
R.C No. : 1/(S)/98/STF/CBI/ND 95/213
96CBI Vs. Romesh Sharma & Ors.
of Romesh Sharma in the election. Romesh Sharma is his uncle.
During canvassing it was conveyed to him that helicopter was
purchased by Romesh Sharma. He stated that he was not present at
the site of transportation of helicopter but his name was included
maliciously by CBI under the influence of H. Suresh Rao. He stated
when CBI came to know that he was nephew of Romesh Sharma, it
falsely included his name and the names of other relatives and friends.
He came to know during canvassing that Romesh Sharma was his
uncle since he had left the village even prior to his birth. He stated that
Romesh Sharma was making speeches in the area during election that
he has purchased the helicopter which Pilots and technicians were
also listening and never objected.
123.Accused Naveen Budhiraja stated that he was not present at the
spot when the helicopter was unloaded. He was in Delhi.
124.Accused Indermani stated that the witnesses who have named him
were the employees of H. Suresh Rao. They have deposed under the
influence of H. Suresh Rao. He stated that he had been canvassing in
the election for Romesh Sharma, therefore, he was named and might
R.C No. : 1/(S)/98/STF/CBI/ND 96/213
97CBI Vs. Romesh Sharma & Ors.
have been known by name however, he was not present when the
helicopter was transported to Delhi. He stated that after canvassing,
he used to return to his village and never stayed at Ugrasenpur. He
stated that the CBI has falsely implicated him being the nephew of
Romesh Sharma. CBI wanted to implicate all the relations of Romesh
Sharma including himself so that no person is left out to do pairvi of
Romesh Sharma.
125.Accused M D Bhojwani stated that he was not present at the spot.
He had gone to Allahabad Railway Station for reservation for Delhi.
He stated that he had signed the MOU as witness. He had remained
at Phulpur for two days in connection with the election of Romesh
Sharma.
126.It is to be mentioned that H. Suresh Rao had filed a suit for
Declaration and Injunction before Hon’ble High Court against Romesh
Sharma and Others in the year 1999 Ex.DX2 praying for cancelling the
MOU dated 14.05.96 and other documents used for the transfer of said
helicopter by declaring that he is the owner of the helicopter and
directing the Director General of Civil Aviation to transfer the helicopter
R.C No. : 1/(S)/98/STF/CBI/ND 97/213
98CBI Vs. Romesh Sharma & Ors.
in his name and also directing the Income Tax Department to remove
the attachment orders in respect of the helicopter.
127.Romesh Sharma contested the suit and denied the averments made
in the plaint vide written statement Ex.DX3. Replication was also filed
by H. Suresh Rao wherein he reiterated the facts as stated in the plaint
vide Ex.DX4. In that suit, following issues were framed vide order
dated 12.01.06 :
1. Whether the suit against defendant no. 3 is maintainable in view of the provisions of Section 293 of the Income Tax Act? OPD
2. Whether the suit of the plaintiff is maintainable in view of the provisions of Section 41(H) of the Specific Relief Act? OPD
3. Whether defendant no.1 had purchased the helicopter bearing registration no. VTEAP Model No. Bell47, G5? OPD
4. Whether the MOU dated 14.05.96 and other documents used for transfer of the helicopter in question were got executed from the plaintiff under pressure or coercion? OPP
R.C No. : 1/(S)/98/STF/CBI/ND 98/213
99CBI Vs. Romesh Sharma & Ors.
5. Whether the plaintiff is entitled to a decree of mandatory injunction directing defendant no.2 to transfer the helicopter in his name? OPP
6. Relief.
128.Matter was thereafter listed for plaintiff evidence. H. Suresh Rao did
not file evidence despite number of opportunities including last and
final opportunity and therefore, his suit was dismissed for want of
evidence vide order dated 11.01.08 by the Hon’ble High Court. The
accused Romesh Sharma placed on record the order sheets of the
proceedings of the civil suit which were exhibited as DX5/1 to DX5/35
(colly.) vide order dated 22.12.11.
129.I have heard the arguments advanced by Learned Special Public
Prosecutor (P.P.) Sh. S K Saxena for CBI, Learned Counsels Sh. Prem
Kumar alongwith Sh. Jaswinder Singh for the accused Romesh
Sharma and Harish Mishra and Sh. S P Kaushal for the other accused
persons.
130.Ld. Special Public Prosecutor has submitted that the accused Romesh
Sharma and the accused Harish Mishra conspired and cheated the
R.C No. : 1/(S)/98/STF/CBI/ND 99/213
100CBI Vs. Romesh Sharma & Ors.
complainant Suresh Rao, PW6 of his helicopter by practicing deception
upon him initially inducing him to give on hire his helicopter and then
by forcibly dispossessing him and then detaining it by force with the
help of the coaccused. They not only deprived him of the helicopter
but also did not pay him his legitimate dues or its price. Learned
Public Prosecutor submitted that vide certificate of registration
Ex.PW2/B1, the helicopter bearing registration no. VTEAP was initially
owned by Pushpak Aviation Pvt. Ltd. It was transferred in the name of
H. Suresh Rao and consequent thereto, the certificate Ex.PW2/C2 was
issued in his name. Ld. Public Prosecutor stated that H. Suresh Rao
had purchased the spare parts of Rs. 38,81,964/ from Summit Aviation
and also spent Rs. 6,21,659/ for its assembly out of which he paid Rs.
23,42,310/ and pledged the helicopter with Summit Aviation as a
collateral security. Ld. Public Prosecutor referred the testimony of
PW85 stating that accused used to make calls at Dubai and Pakistan.
He also placed on record the transcript of the talks which took place
between Romesh Sharma and Abu Salem Ex.PW74/3. Ld. Public
Prosecutor stated that the accused had contested the election from
Phulpur, Allahabad for which the maximum expenditure limit was Rs.
4,50,000/. Ld. Public Prosecutor stated that the helicopter was given
R.C No. : 1/(S)/98/STF/CBI/ND 100/213
101CBI Vs. Romesh Sharma & Ors.
on hire at Rs. 80000/ per day and to that effect a fax Ex.PW6/6 was
sent. The GR receipts show Pushpak Aviation as consignor and
consignee. The MOU Ex.PW6/20 was executed on a stamp paper
purchased on 29.03.96 showing to have been executed on 24.02.96.
Two more MOU/agreements were prepared and the signatures of
PW6 were taken by deception / use of force / coercion. No sale deed
about the sale of helicopter was executed. Only an agreement to sell
was prepared. The affidavit from PW6 regarding full and final
payment on 05.06.96 was obtained by inducing threat. Ld. PP stated
that PW6 had already entered into an agreement with a company at
Kerala for aerial spraying of pesticides and received Rs. 2.0 lacs in
advance but since the helicopter was forcibly retained by the accused,
PW6 could not execute the agreement and also faced the legal
proceedings. Ld. PP stated that initially the helicopter was given on
hire upto 12.04.96 but the period was unilaterally extended by the
accused Romesh Sharma till 09.05.96. The fuel was sent to Mumbai
on 09.05.96, however, when the helicopter was being loaded in a truck
on 11.05.96 for Mumbai, it was off loaded by the accused persons who
arrived there and threatened the crew members with dire
consequences. Ld. PP stated that it was loaded on a truck for Delhi,
R.C No. : 1/(S)/98/STF/CBI/ND 101/213
102CBI Vs. Romesh Sharma & Ors.
which was arranged by the accused Avtar Singh Ahluwalia. Ld. PP
stated that before 11.05.96, the physical possession of helicopter was
PW6 and it was never transferred to Romesh Sharma. Ld. PP stated
that PW7 has corroborated the testimony of PW6 on all material
aspects. Ld. PP stated that when Romesh Sharma had made full and
final payment to PW6 before the transfer of helicopter and if it was
true, there was no reason for him to make part payment of the amount
on 24.06.96 and 16.07.96.
Ld. PP stated that the accused Harish Mishra was party to the
conspiracy with Romesh Sharma in acquiring the helicopter by illegal
means. He had signed the first MOU and made part payment from his
account. If the helicopter was scheduled to be sent to Delhi as claimed
by the accused, then why B G Pappara would hire a truck from Shere
Punjab for sending the helicopter to Mumbai. Ld. PP stated that facts
and circumstances show that the helicopter was taken on hire and the
agreement to sell was executed by the accused persons to limit the
election expenses, otherwise, Election Commission could have
disqualified him for exceeding the financial limit.
Ld. PP stated that in the election speeches, the accused had
spoken that he has purchased the helicopter and it would be used for
R.C No. : 1/(S)/98/STF/CBI/ND 102/213
103CBI Vs. Romesh Sharma & Ors.
the people of Phulpur, then there was no purpose in taking the
helicopter to Delhi. Ld. P.P stated that statement of accounts of the
accused Romesh Sharma and Harish Mishra show that there was
negligible balance in their accounts. In these circumstances, there
could be no bonafide basis to enter into such an agreement for
purchase of helicopter. Ld. PP stated that his intention was dishonest
to grab the helicopter by illegal means. He threatened PW6 and
others with dire consequences to forget about the helicopter claiming
that it was his property. Even otherwise, he did not pay Rs. 18 lacs to
Neeraj Bhatia when he got the registration certificate from him who
had estimated the cost of helicopter as Rs. 40 lacs when he got the
registration certificate as a collateral security. Ld. Counsel stated that
whenever PW6 tried to contact the accused with regard to return the
helicopter or make payment of his dues, he was threatened by
Romesh Sharma through Irfan Goga and others for which he lodged
the report at the police station Santa Cruz with PW47 Suresh Mishra.
Ld. PP stated that when the helicopter was taken to Delhi after
unloading and then loading in another truck hired for transporting it to
Delhi, no intimation was sent to the Director Aviation. Ld. PP stated
that when PW6 alongwith PW7 came at the house of the accused at
R.C No. : 1/(S)/98/STF/CBI/ND 103/213
104CBI Vs. Romesh Sharma & Ors.
Mayfair Garden, they were threatened and were taken to 16, Mahadev
Road at the point of pistol in the possession of Laxman Singh, his
muscle man. The car and the jeep were recovered from the
possession of accused alongwith the cassette of helicopter. Ld. PP
stated that the accused had contacted Reliance Industries and given
papers showing his intention to sell the helicopter. Facts and
circumstances show that he had illegally taken the possession of the
helicopter without paying full and final consideration. Ld. Public
Prosecutor stated that the accused did not dispute their signatures on
the documents. Ld. PP stated that intention of the accused from the
beginning was to grab the helicopter and not to purchase which fact is
evident from the documents Ex.PW6/6 i.e. the fax message,
of fuel, Ex.PW6/14 MOU, GRs Ex.PW6/11 and Ex.PW6/12 on which
consignor and consignee were mentioned as Pushpak Aviation not
Romesh Sharma, letter of B G Pappara Ex.PW6/16 informing Civil
Aviation that helicopter was given on contract and the agreement with
Ibrahim for spraying pesticides in Kerala. Ld. PP stated that Harish
Mishra, Bhojwani and other accused persons were party to the criminal
conspiracy with the accused Romesh Sharma.
R.C No. : 1/(S)/98/STF/CBI/ND 104/213
105CBI Vs. Romesh Sharma & Ors.
131.On the other hand, Ld. counsel Sh. Prem Kumar for the accused
Romesh Sharma and Harish Mishra has contended that the
controversy in this case between the accused and the complainant is
of civil nature as is indicative from the facts that accused Romesh
Sharma had purchased the helicopter from the complainant for the
value of Rs.30.00 lacs and has even paid Rs.12.0 lacs towards the sale
price on different occasions; that the present case has been concocted
to coerce the accused and to accelerate the remaining payment; that
the other coaccused persons have been falsely implicated in this
case; that there is no evidence to show that the accused Romesh
Sharma and the coaccused persons had entered into conspiracy to
forcibly take the possession of the helicopter in order to deprive the
complainant of its legitimate dues; that the incident of snatching the
helicopter forcibly is concocted; that the helicopter was in possession
of the accused Romesh Sharma as he had purchased it; that there is
no evidence regarding the terms of hire agreement and even the
alleged fax message vide which the terms were sent and settled has
not been procured and produced; Ld. Counsel submitted that the
golden rule of criminal jurisprudence is that there should be reasonable
certainty to connect the accused with the crime. Ld. Counsel stated
R.C No. : 1/(S)/98/STF/CBI/ND 105/213
106CBI Vs. Romesh Sharma & Ors.
that the accused had a political career of about 35 years. He remained
in custody for about 13 years although it is a case of unfair
investigation by CBI. Ld. Counsel referred the case of Ran Bahadur
Vs. State of UP AIR 2000 SC 1209 and State of West Bengal Vs.
Shew Mangal Singh AIR 1981 SC 1917 to contend that the prosecution
has to prove the guilt beyond reasonable doubt which it failed.
Ld. counsel contended that there is delay of about 900 days in
registration of the case as the alleged incident of snatching happened
on 11.05.96, while the FIR in this case has been registered in the
month of October, 1998. No explanation was given for delay. He
placed reliance on the case State of AP Vs. Madhu Sudan (2008) 15
SCC 582, Dilawar Singh Vs. State of Delhi 2007 Cri.L.J. 4709 (i),
Kishan Singh Vs. Gurpal AIR 2010 SC 3624 to contend that delay must
be sufficiently explained. Ld. Counsel stated that the complainant
belongs to an upper strata of society. His father was in the business of
aviation. He used to move in High Society. He had contacts with
influential persons. The helicopter was registered in the name of the
accused in the record of Director of Civil Aviation in 1996 but challenge
to that effect was made by the complainant in a civil suit filed in 1999
which also failed when the complainant did not lead evidence. Ld.
R.C No. : 1/(S)/98/STF/CBI/ND 106/213
107CBI Vs. Romesh Sharma & Ors.
Counsel stated that the Civil Court decides the civil rights in respect of
movable / immovable property and it brings finality in regard to the right
of the parties. Ld. Counsel stated that the helicopter is still with the
accused. Ld. Counsel stated that the case was registered at the police
station Hauz Khas on 20.10.98 and it was transferred to CBI to end the
political career of the accused. There was no written contract of hire.
The MOU was for the sale of helicopter. Part consideration was paid
on 27.03.96. The complainant had purchased the helicopter in 1994
i.e. after 24 years for Rs. 50,000/ in accidental condition. He made it
airworthy by spending Rs. 38 lacs. Before entering into MOU with the
accused, he had entered into agreement with two more persons, thus
concealed the vital information from the accused. He had pledged the
certificate of registration with Neeraj Bhatia of Summit Aviation as a
collateral security.
Ld. counsel stated that the hiring expenses were allegedly Rs.
13 lacs and its cost was Rs. 30 lacs. No sensible person would pay
the hire charges of Rs. 13 lacs for hiring a helicopter for 30 days when
its cost was Rs. 30 lacs. There is nothing to indicate that there was
threat from the side of the accused when the MOU was entered into
nor there was anything in writing that the MOU would not be acted
R.C No. : 1/(S)/98/STF/CBI/ND 107/213
108CBI Vs. Romesh Sharma & Ors.
upon after the election. Ld. Counsel referred the provisions of Section
23 of the Contract Act and submitted that the complainant himself was
guilty of cheating the Authorities by showing that it was sold out and
not given on hire.
Ld. counsel stated that when there is documentary evidence on
record i.e. Agreement to sell, Affidavit as to the sale of helicopter by
PW6 and receipt of full and final consideration from the accused and a
letter written by Girish Rao to the insurance company as to the sale of
helicopter, the oral testimony does not have any meaning. The
prosecution did not file any proof as to the receipt of fax message sent
by PW8 to the accused Romesh Sharma giving the terms and
condition of hiring of helicopter, nor any safeguard was taken by the
complainant to ensure that the MOU shall not be acted upon. The
complainant did not mention the fact in the MOU that the helicopter
was pledged as collateral security with Summit Aviation. Ld. Counsel
stated that when the maximum limit prescribed for incurring the
expenditure on election was Rs. 4.5 lacs why a person would take the
helicopter on hire. The prosecution did not file any document to show
that the value of the helicopter was Rs.70 lacs although in the MOU
Ex.PW6/5 with Summit Aviation the value of the helicopter was shown
R.C No. : 1/(S)/98/STF/CBI/ND 108/213
109CBI Vs. Romesh Sharma & Ors.
as Rs.40 lacs. That being the position, the figure of Rs. 30 lacs as
appearing in the MOU appeared to be reasonable.
Ld. counsel stated that on 20.10.98, more than 350 policemen
came in the house of the accused. It was a preplanned move. The
accused was floating a party at Mahadev Road and he was implicated
for scoring a political vendetta. It assumes importance as earlier a
report was lodged by the complainant in the police station Greater
Kailash PartI, New Delhi but no action was taken by the police on the
report. There was no threat from Dawood Ibrahim at the time of MOU.
Irfan Goga had allegedly threatened the complainant over telephone in
1998 for which report was lodged at the police station Santa Cruz in
April, 1998 so why Irfan Goga / Dawood Ibrahim were not made
accused in the present case.
Ld. counsel stated that the accused persons have been charged
for criminal conspiracy for the period from March, 1996 to October,
1998. The question arises who were the conspirators in 1996 when the
helicopter was allegedly taken on hire. In this case, no confession of
the coaccused was recorded nor there was any recovery from them or
at their instance. Ld. Counsel referred the case of Kali Ram Vs. State
2010 VI AD (Delhi) 45 to contend that there should be evidence of
R.C No. : 1/(S)/98/STF/CBI/ND 109/213
110CBI Vs. Romesh Sharma & Ors.
conspiracy and some object behind that conspiracy. Ld. Counsel
stated that when the agreement was entered into on 30.03.96, there
was no fraudulent/dishonest intention/undue influence. It was
genuinely executed. Harish Mishra had taken the MOU since he was
already in Mumbai. He paid Rs. 3.0 lacs. The signatures of PW6 on
the MOU were not obtained by threat, so he was not a party to the
conspiracy. He was not involved in any other incident so, how
conspiracy/cheating was done by him as alleged in the Charge. He
was not the party of second MOU dated 30.03.96.
As to the incident dated 05.06.96 that there was an atmosphere
of terror, Ld. Counsel contended that all the documents i.e. log book,
insurance etc. were given by PW6. PW18 did not say that the
registration certificate was taken from him by threats. PW6 had come
alongwith his counsel in Delhi with the affidavit on a Stamp Paper
which he got prepared in Mumbai. So no case U/s 386 IPC is made
out. The helicopter came at the farm house on 14.05.96 and its
possession with the accused was lawful. No case U/s 365/506 IPC is
made out as there was no abduction or wrongful confinement of PW6
or danger to the life of PW6. Ld. Counsel also referred the allegations
levelled in the FIR and the Civil Suit filed in the High Court. Ld.
R.C No. : 1/(S)/98/STF/CBI/ND 110/213
111CBI Vs. Romesh Sharma & Ors.
Counsel submitted that the registration of helicopter clinches the issue
that Romesh Sharma was the owner of the helicopter. The story of
hiring was imaginary and after thought. Ld. Counsel contended that
any contract entered voluntarily is a primary evidence. If the amount is
not received as per contract, it would be a case of civil liability as any
breach of contract entails civil action. Ld. Counsel stated that facts
and circumstances and the documents placed on record go to show
that Romesh Sharma wanted to purchase the helicopter and not to
take on hire. As provided under Aircraft Rules, there should be pure
and clear sale of helicopter which was there in the present case. The
accused in election speeches had openly spoken that he has
purchased the helicopter and would use for the people. Ld. Counsel
stated that Resjudicata U/s 11 CPC is applicable in the present case.
Ld. Counsel referred the case of Daya Sapra Vs. Vishnu Dutt Sharma
2008 II AD (Delhi) 84 to contend that the judgment of the Civil Court is
binding on the Criminal Court. Ld. Counsel stated that the Civil Court
has dismissed the suit containing similar allegations, so no cause of
action lies before the Criminal Court. Reliance was also placed of the
case K G Premshankar Vs. Inspector of Police AIR 2002 SC 3372 and
Gulab Chand Sharma Vs. H P Sharma ILR (1974) I Delhi 190. Ld.
R.C No. : 1/(S)/98/STF/CBI/ND 111/213
112CBI Vs. Romesh Sharma & Ors.
Counsel referred the Sections 40, 43 and 13 of the Evidence Act to
contend that once a finding has come from the Civil Court, the matter
cannot be reagitated. DGCA has already declined the request of
Suresh Rao to change its ownership. Ld. Counsel stated that the
information was to the extent that Romesh Sharma was beating two
persons, why DRI, Wild Life, Income Tax Officers and Police from the
Police Station Kalka Ji came in the house of the accused and searched
his house for the whole night. Ld. Counsel stated that CBI had already
ceased of the matter as it was enquiring about the helicopter even prior
to the alleged incident. Ld. Counsel stated that Suresh Rao was made
puppet by the Government to score its political vendetta and it was a
larger conspiracy of the Government to end the political career of the
accused Romesh Sharma. Ld. Counsel stated that after the MOU, any
entry in the GR showing consignor and consignee as Pushpak Aviation
becomes irrelevant. Reliance was also placed on the case Gulab
Chand sharma Vs. H P Sharma ILR (1974) I Delhi 190, Andhra
Pradesh Wakf Board Vs. Syed Jalauddin Sha AIR 2005 Andhra
Pradesh 54, Abdul Majid Khan Vs. Tukaram & Another AIR 1927,
Nagpur 359, Lakshman Govind and Another Vs. Amrit Gopal & Others
ILR 24 Bombay 691, Maroli Laxman Koshi Vs. Jagannathdas
R.C No. : 1/(S)/98/STF/CBI/ND 112/213
113CBI Vs. Romesh Sharma & Ors.
Lachmandas Gadewal AIR 1939 Nagpur 12 and Dilavar Singh Vs.
State of Delhi 2007 Cri.L.J. 4709 (1).
132.Learned Counsel then summed up his arguments with the following
submissions :
i) There is no proof whatsoever that there was any contract for hiring of the helicopter between Suresh Rao and Romesh Sharma.
ii) MOU for sale of the helicopter was entered into between Suresh Rao and Romesh Sharma twice i.e. on 27.03.1996 and 30.03.1996. The complainant Suresh Rao has not given any reason whatsoever to show how he got persuaded by simple or empty assurance.
iii) Complainant Suresh Rao did not obtain any safe guard in the form of any writing from the accused Romesh Sharma to ensure that MOUs entered into between Suresh Rao and accused Romesh Sharma are not acted upon.
iv) Suresh Rao had already entered into MOU with Summit Aviation for sale of the helicopter and did not disclose this fact to the accused Romesh Sharma.
v) Complainant Suresh Rao had kept the registration certificate of the helicopter with Summit Aviation as a collateral security apart from entering into the MOU. This fact was also not disclosed by
R.C No. : 1/(S)/98/STF/CBI/ND 113/213
114CBI Vs. Romesh Sharma & Ors.
Suresh Rao to the accused Romesh Sharma.
vi) The fact that he had to pay about Rs.18,00,000/ to Summit Aviation was also not disclosed by Suresh Rao to Romesh Sharma.
vii) If it was a hiring contract then it was cheating the election commission because the expenses far exceed the limit of the election expenses. If it is sale of helicopter then it is not at all cheating the election commission. Hence sale through MOU is a genuine sale of the helicopter.
viii) Complainant Suresh Rao is making a false assertion that the value of the helicopter was Rs.70,00,000/. Nothing has been brought on record that the value of the helicopter could be Rs.70,00,000/ particularly when it was an old helicopter purchased in 1970 and the helicopter even met with an accident. The helicopter was purchased by Suresh Rao only for Rs.50,000/. Moreover the MOU entered by complainant Suresh Rao with Summit Aviation shows its value to be Rs.40,00,000/. Thus its value could be anywhere between Rs.30,00,000/ to Rs.35,00,000/ and hence the description of the sale price of Rs.30,00,000/ in the two MOUs executed with Romesh Sharma show that the said price was the genuine price and not Rs.70,00.000/ as is sought to be made out by the complainant in his oral deposition.
ix) The complainant has not brought anything on record to show that so called fax message was actually received by Romesh Sharma hence Suresh Rao has made a false statement that the
R.C No. : 1/(S)/98/STF/CBI/ND 114/213
115CBI Vs. Romesh Sharma & Ors.
terms of hiring were faxed to Romesh Sharma.
x) Suresh Rao did not talk of his own complicity in the matter. Such a character cannot be believed. Suresh Rao cannot be believed for the reason that action is highly belated for having filed the complaint after 947 days of the alleged incident.
xi) PW6 is an expert in aviation line and preparing documents of transfer. How he could have executed documents of sale not once but twice and doing everything for making it legally executable but not getting executed a document of hiring in his favour.
xii) Suresh Rao was not getting anything in writing as per his statement in his own favour but executing everything against him. He was not apprehending anything what will happen if Romesh Sharma decides to act upon the alleged MOU.
133.Ld. counsel Sh. S P Kaushal contended that the accused M. D.
Bhojwani did not enter into criminal conspiracy with the accused
Romesh Sharma; no overt act can be attributed to him with regard to
the incident of 11.05.1996 as he has not been named in the FIR; his
signature on the MOU as witness does not suggest any complicity with
the accused in this case; the act of the accused persons Avtar Singh
Ahluwalia, Manoj, Naveen Budhiraja, Avdesh and Indermani and
others as to the incident of 11.05.1996 was bonafide and exempted
R.C No. : 1/(S)/98/STF/CBI/ND 115/213
116CBI Vs. Romesh Sharma & Ors.
under the General Exception under section 79 IPC as they believed
bonafide and in good faith the statement of accused Romesh Sharma
made during his election campaign that he has purchased the
helicopter for the services of the people of his constituency; there is no
deception and no knowledge can be attributed to them; that the
accused persons have been named out of memory as they used to be
present with the accused in the election campaign; that the accused
were not named in the complaint Ex.PW6/46; No TIP of the accused
persons was got conducted, nor their photographs were shown for
identification; Ld. Counsel argued that it was a case of political rivalry.
A raid was conducted in the house of the accused Romesh Sharma on
20.10.98. His entire house was ransacked and number of cases were
registered involving him and his relations. Ld. Counsel stated that
there was no evidence of conspiracy in Mumbai and other parts of the
country as stated in the Charge. Ld. Counsel contended that there are
material contradictions in the testimony of prosecution witnesses as to
the presence of persons on the spot on 11.05.96 or whether they were
armed with weapons or not. Ld. Counsel stated that there was no
evidence of conspiracy against them prior to 11.05.96. Documents
placed on record show that the helicopter was sold to Romesh Sharma
R.C No. : 1/(S)/98/STF/CBI/ND 116/213
117CBI Vs. Romesh Sharma & Ors.
and its ownership was also transferred in his name. Ld. Counsel
stated that when the helicopter was loaded, there was no threat to any
of the crew members. Everyone was free to move. No report was
lodged by any of the crew members when the helicopter was allegedly
detained. Name of Abu Salem or Dawood came later. There was a
delay of 863 days in lodging the FIR. Ld. Counsel stated that the
witnesses were the employees of PW6 and were the interested
witnesses. There was no confinement or extortion or fear on 11.05.96.
As per the agreement with the plantation company, the helicopter was
to be taken to Kerala, so why it was being taken to Mumbai. No
lathi/danda/weapon was recovered from the possession of accused
persons. Police met the accused persons for the first time on or after
16.11.98. PW14 has stated that he had informed Suresh Rao about
the incident but no report was lodged. This itself shows that helicopter
was not given on hire but it was sold to Romesh Sharma.
For accused Laxman, it was contended that the accused was
only a guard at Mayfair Garden. None of the witnesses i.e. PW6,
PW7, PW42 and PW67 said about the presence of accused Laxman
at Mayfair Garden. The prosecution did not examine SI Ravinder Gill.
PW42 was posted as SHO at Police Station Kalkaji and not at Hauz
R.C No. : 1/(S)/98/STF/CBI/ND 117/213
118CBI Vs. Romesh Sharma & Ors.
Khas or Cannaught Place. So what made him conduct the raid at Hauz
Khas or Mahadev Road. There were no instructions from the senior
police officials. The accused had simply done his duty and provided
protection to his master accused Romesh Sharma; that he was having
a licensed pistol; however, no intention can be attributed to him that he
has committed any offence in this case punishable under section 120B
or 365 or 506 IPC. He was not arrested from the place of incident. He
was arrested on 29.12.98. Ld. Counsel argued that accused Romesh
Sharma was in valid possession of helicopter. The crew members had
advance programme to leave the station.
Ld. Counsel stated that the accused Manoj and Naveen
Budhiraja have been falsely implicated in this case, they had no
knowledge or intention which can be imputed for commission of
offence of conspiracy.
134.Ld. Special Public Prosecutor in rebuttal argued that the accused
Romesh Sharma was contesting the election and did not want the hire
charges to be included in the election expenses, so to circumvent the
same, he induced PW6 to enter into the MOU, so that he might not be
disqualified from the election. His intention was to grab the helicopter.
R.C No. : 1/(S)/98/STF/CBI/ND 118/213
119CBI Vs. Romesh Sharma & Ors.
The intention is to be seen from the circumstances. PW6 could have
not sold the helicopter to Romesh Sharma, even if he had intended
because he had pledged the helicopter as collateral security with
Summit Aviation. Even otherwise, the statement of account of
Romesh Sharma shows that he did not have sufficient funds to
purchase the helicopter. He had given a bald statement that he had
made the entire payment to PW6. His intention was not to purchase
but to deprive its possession from PW6. No findings have come from
the Civil Court that the helicopter in question belonged to Romesh
Sharma, so principle of resjudiceta is not applicable. PW6 had a
constructive possession of the helicopter but the accused by use of
force and threats took away the helicopter. There was no act of due
care and caution by the accused persons. As to holding of TIP, Ld. PP
stated that the accused and the witnesses remained at Phulpur for
about 40 days and very well knew one another. The links of the
accused with Dawood Ibrahim are established as two more cases were
registered against him by the police. The transcript of accused
Romesh Sharma with Abu Salem also corroborates this fact. Ld. PP
stated that the delay was due to the fact that the complainant was
under fear. Ld. PP stated that the delay in FIR does not give immunity
R.C No. : 1/(S)/98/STF/CBI/ND 119/213
120CBI Vs. Romesh Sharma & Ors.
to the offender, if the facts appeal to judicial conscience. Reliance was
placed on the case Hridaya Ranjan Pd. Verma Vs. State of Bihar 2000
Cri.L.J. 2983, V. Y. Jose & Anr. Vs. State of Gujarat I (2009) CCR 246
(SC) where the distinction between the pure contractual dispute of civil
nature and offence of cheating was discussed.
135.I have bestowed my thoughtful consideration on the contentions
raised on behalf of both the sides and have gone through the
statements of witnesses and the documents on record. In order to
appreciate the evidence, it will be convenient to split the events in
sequence as under :
Ownership of the Helicopter and its use :
136.It emerges from the testimony of the prosecution witnesses namely
PW1, PW2, PW40, PW6 and PW44 and the documents that PW6
was in the business of Aviation in the name and style of Pushpak
Aviation Pvt. Ltd. for a long time. Pushpak Aviation owned a helicopter
Bell 47 G5 in the year 1970 vide registration no. Ex. PW2/C1. PW6
and PW44 were inducted as Directors in the company on or about
R.C No. : 1/(S)/98/STF/CBI/ND 120/213
121CBI Vs. Romesh Sharma & Ors.
199394. In 1988, it met with an accident and was severely damaged.
PW6 purchased the helicopter from Pushpak Aviation in the year 1994
for Rs. 50,000/. He then moved an application to DGCA for transfer of
its ownership in his name and the ownership was transferred in his
name vide registration certificate Ex.PW2/A5 on 19.09.94.
137.To make it airworthy, PW6 purchased spare parts worth Rs. 40 lacs
from PW18. He made part payment to PW18 and for a balance
payment of Rs. 18 lacs, he entered into a Memorandum of Agreement
Ex.PW6/5 on 20.11.95 with Summit Aviation of which PW18 was the
Managing Director. He pledged his original certificate of registration
Ex.PW2/A5 with it. When the MOU was entered into, the value of the
helicopter was determined as Rs. 40 lacs and it was executed for
securing the due amount as a collateral security.
138.The helicopter became airworthiness in 1995 and to that effect PW6
obtained the airworthiness certificate Ex.PW1/1 on 27.12.95 which was
valid till 27.01.97. Since PW6 was not having a nonschedule
operator’s permit for leasing the helicopter and the company Pushpak
Aviation was having the same, he entered into an agreement with
R.C No. : 1/(S)/98/STF/CBI/ND 121/213
122CBI Vs. Romesh Sharma & Ors.
Pushpak Aviation for leasing out the said helicopter. The company
used to engage freelance pilots on commission basis for a particular
job. It also had permanent technical staff which included PW9 Sh. B
R Pappara Senior Technician, PW15 Sh. Tukaram Technician, Sh.
Verma and Sh. Dutta, helpers. According to PW44, the helicopter
remained available with Pushpak Aviation for services which included
film shooting, charter, electioneering and aerial spraying on plantation.
PW26 was the General Manager of Erry Sons Maliyalam Ltd. a
plantation company. He has stated that in May/June prior to advent of
Monsoon, they take the services of helicopter from Pushpak Aviation
and Garuda Aviation for spraying chemicals on rubber plantation to
prevent growth of bacterias. He placed on record the correspondence
Ex.PW26/A in this regard and stated that Ibrahim Associates PW28
was the local agent of Pushpak Aviation. In 1996 his company had
contacted the aviation company to take the services of helicopter for
spraying chemicals on the rubber plantation to which the company
responded vide letter Ex.PW26/B1 and also wrote a letter Ex.PW26/B2
dated 22.01.96 confirming the proposal and the terms and conditions.
On 25.03.96 PW26 sent a letter to PW28 Ex.PW26/B4 giving the
schedule and the area for aerial spraying from 22.04.96 to 17.05.96
R.C No. : 1/(S)/98/STF/CBI/ND 122/213
123CBI Vs. Romesh Sharma & Ors.
and paid an advance. An agreement was also entered into vide
Ex.PW6/24B2. PW9 had also contacted PW28 showing his intention
to visit the places at Kerala vide letter dated 12.02.96 Ex.PW28/B. The
correspondence between Pushpak Aviation and Ibrahim Associates
shows that the spraying work was to be completed by the last week of
April or the first half week of May 1996. PW6 could not honour his
commitment and vide letter dated 11.05.96 it was communicated to the
company by PW44 that the helicopter was being despatched on
11.05.96 from Phulpur to Mumbai and it would be immediately
transported to Kerala en route Mumbai and would reach by 17.05.96.
Pushpak Aviation could not execute the agreement and wrote a letter
dated 16.05.96 Ex.PW6/24B to PW28 that due to unforeseen
circumstances beyond their control that after electioneering in UP, the
helicopter was impounded by the High Politician and unauthorisedly
removed to Delhi and that the helicopter has also suffered damages
due to mishandling by unauthorised persons during transportation and
unloading at Delhi, they would not be in a position to make the
helicopter available for this season. The company then initiated a legal
action against Pushpak Aviation for recovery of dues. PW26 sent a
fax on 23.05.96 for refund of advance and also sent a legal notice.
R.C No. : 1/(S)/98/STF/CBI/ND 123/213
124CBI Vs. Romesh Sharma & Ors.
PW28 sent a letter dated 30.05.96 Ex.PW6/24 B(4) to refund the
advance. On 25.01.97 he received a letter from Garuda Aviation as to
the adjustment of advance. The aforesaid amount was adjusted and
the matter was settled.
Election of Romesh Sharma and matters relating to helicopter :
139.Testimony of PW3, PW4 and PW5 show that the accused Romesh
Sharma contested the election in 1996 from 55 Phulpur constituency,
Allahabad as an independent candidate. The general elections to Lok
Sabha were announced on 19.03.96 but the actual notification was
issued on 27.03.96. As per the letter Ex.PW3/B, the maximum limit of
election expenditure for a contesting candidate at that time was Rs.
4,50,000/. According to PW3, from the date, the election was notified
till it was complete, the candidate had to maintain an account in a
proforma prescribed by the Commission and file all the documents to
the District Election Office within one month from the date of
declaration of result. He proved the press release Ex.PW3/A1, Gazette
Notification Ex.PW3/A2, Form containing the result of election
Ex.PW3/A3. According to PW3, Romesh Sharma had given an
R.C No. : 1/(S)/98/STF/CBI/ND 124/213
125CBI Vs. Romesh Sharma & Ors.
affidavit of expenditure Ex.PW3/B2 on 09.06.96 and the details
Ex.PW3/B1. Perusal of it reveals that he had used the helicopter in the
election and paid the charges for fuel etc. According to PW4, in the
event of purchase of car/helicopter during the period of election, the
price of the vehicle is not included in the expenses and only the
amount spent on diesel/salary of driver is included in the expenses.
The accused has admitted to have knowledge of this fact. PW3 has
stated that the election was held on 07.05.96 and the result was
declared on 11.05.96 in which the accused Romesh Sharma got
defeat.
140.It has come in the testimony of PW6 that he was introduced to the
accused Romesh Sharma as politician/property dealer by Lalit Bagla
DW1 and PW7 Rakesh Gupta of United India Airways during his visit
in Delhi in February, 1996 at their office at S41, Panchsheel Park. He
was accompanied by his Marketing Executive Mahender Pujara PW8.
PW7, the Managing Director of United India Airways has corroborated
his testimony as to the meeting of PW6 and PW8 with the accused
Romesh Sharma. Their testimony do not reveal that any talk as to the
purchase/hiring of helicopter took place between PW6 and the
R.C No. : 1/(S)/98/STF/CBI/ND 125/213
126CBI Vs. Romesh Sharma & Ors.
accused Romesh Sharma in February, 1996.
141.Testimony of PW6 further reveals that in March, 1996 during his visit
at the house of the accused, the accused expressed his desire to
contest the election and take the services of his helicopter for that
purpose and also enquired about its cost which was Rs. 70 lacs. On
24.03.96 evening, he received a telephone call from the accused
asking him to send the helicopter to Phulpur whom he asked to enter
into an agreement of hiring with him on the terms and conditions
mutually agreeable. PW6 has stated that after the negotiations, rates
were settled as Rs. 80,000/ per day as hiring charges and other
miscellaneous expenses. PW6 then asked PW8 to send the hiring
terms by fax. PW8 has stated that on the asking of PW6, he sent a
fax message Ex.PW6/6 on 24.03.96 to Romesh Sharma mentioning
the terms and conditions as stated by PW6. Perusal of it reveals that it
was sent at about 10.15 PM on the fax no. 6852828 from the fax no.
91228073440 mentioning the hire charges, insurance charges,
transportation charges and air tickets for their staff total amounting to
Rs. 13 lacs. Crossexamination of these witnesses on this aspect is
conspicuous by its absence. Although the accused denied having
R.C No. : 1/(S)/98/STF/CBI/ND 126/213
127CBI Vs. Romesh Sharma & Ors.
received the fax message but it was held in the case of Bal Kishan
(Supra) that if there is no crossexamination on this aspect, the
evidence shall be deemed to have been admitted. It has further come
in the testimony of PW6 that the accused had told him on telephone
that his brother accused Harish Mishra and PW7 would contact him at
his Mumbai office for finalisation of hiring terms confirming the receipt
of fax message and asked him to despatch the helicopter. PW6 vide
letter Ex.PW6/7 dated 25.03.96 making reference to his telephonic
conversation regarding charter/hire of helicopter also reiterated the
terms as stated in the fax and informed that it would be positioned on
28.03.96 and would be available for operation from 29.03.96 to
12.04.96. PW6 has stated that on 25.03.96 accused Harish Mishra
came to his office and enquired as to whether the helicopter was
despatched to Phulpur. He told the accused that the transport was
being arranged. DGCA was informed regarding despatch of helicopter
to Phulpur and transit insurance was got done. PW9 corroborated this
fact and proved the Journey log book Ex.PW6/29, Engine log book
Ex.PW6/30, Aircraft log book Ex.PW6/31 and the Aircraft station
apparatus log book Ex.PW6/34. He has stated that the helicopter was
dismantled, packed and loaded in a truck on 26.03.96. The Machines
R.C No. : 1/(S)/98/STF/CBI/ND 127/213
128CBI Vs. Romesh Sharma & Ors.
were unloaded at Phulpur on 29.03.96 and assembled on the same
day near the bungalow of Romesh Sharma and information to that
effect was sent to the Director Airworthiness vide Ex.PW6/15 and
Ex.PW6/16. PW6 has stated that the accused Harish Mishra had also
sent his man who accompanied with the truck to Phulpur. PW9 has
stated that Suresh Rao had told him that helicopter would fly there upto
12.04.96 and thereafter, it would proceed to Kerala for undertaking an
aerial spray contract on rubber plantation. Perusal of the information
Ex.PW6/16 reveals that the helicopter had gone out on outstation
contract for flying at Phulpur Allahabad by road transport and it would
remain till 12.04.96. The correspondence placed with Mesco Airlines
Ltd. dated 07.08.96 also goes to show that the hire charges at that time
were Rs. 72,000/ per day. PW6 has stated that Rs. 17,000/ were
incurred towards transit insurance policy Ex.PW6/8, Rs. 50,000/
towards purchase of fuel and two trucks were engaged from Central
Courier Corporations for transportation of helicopter and fuel for Rs.
30,030/ vide receipt Ex.PW6/13 and GRs Ex.PW6/11 and Ex.PW6/12
wherein on the GR Pushpak Aviation was shown as Consignor and the
Consignee.
R.C No. : 1/(S)/98/STF/CBI/ND 128/213
129CBI Vs. Romesh Sharma & Ors.
142.It has come in the evidence of PW7 that on 26.03.96 at about 7.00
PM he was called by Romesh Sharma and told that his brother Harish
Mishra would see him at the airport at Mumbai on 27.03.96 as he was
hiring helicopter from PW6 who probably had despatched it on
26.03.96 and also asked him to go with Harish Mishra to the office of
PW6 to prepare a hiring agreement giving an envelope containing
blank letter head of Reliance Developers and Investors on which the
MOU of hiring was to be prepared. He has stated that on 27.03.96 he
was received at the Airport by Harish Mishra. From there they went to
the office of PW6 where Romesh Sharma talked to PW6 over phone
requiring PW6 to draw an MOU for sale of helicopter instead of hiring
so that the hiring charges might not be reflected in the election
expenses and also assured that MOU would be destroyed after the
election would be over. He stated that initially PW6 was reluctant but
then acceded to his request and agreed to draw an MOU telling that he
has no option since he has already despatched the helicopter.
Testimony of PW6 reveals that on a letter head of Reliance
Developers an MOU Ex.PW6/14 was prepared in duplicate on which
accused Harish Mishra and he signed. He gave one copy to Harish
Mishra and retained the other. Harish Mishra paid him Rs. 1.0 lac in
R.C No. : 1/(S)/98/STF/CBI/ND 129/213
130CBI Vs. Romesh Sharma & Ors.
cash and handed over Rs. 2.0 lacs to PW32 towards hire charges.
Perusal of the agreement would show that it was predated purporting
to be executed on 24.02.96. The total consideration was fixed as Rs.
30 lacs. As per the terms, on despatch Rs. 3.0 lacs were paid, Rs.7.0
lacs would be paid on or before 29.03.96 and the balance of Rs. 20
lacs would be paid before the commencement of first flight and the
transfer of ownership would be effected only after the payment of full
and final amount. The accused Harish Mishra at no stage disputed his
signatures on the aforesaid predated agreement. The elections were
announced on 19.03.96. It is difficult to visualise from these facts as to
what prompted the accused enter into a predated MOU showing the
date of execution as 24.02.96.
143.It has further come in the testimony of PW6 that after departure of
the helicopter he telephoned Romesh Sharma to make further
payment towards the hire charges. Accused Romesh Sharma asked
him to come to Delhi on 30.03.96. PW6 went to Delhi. He received
three cheques of Rs. 1.0 lac each Ex.PW6/17 to 19. Accused Romesh
Sharma produced another MOU Ex.PW6/20 on a stamp paper to sign
and when he questioned, he answered that the earlier MOU was not a
R.C No. : 1/(S)/98/STF/CBI/ND 130/213
131CBI Vs. Romesh Sharma & Ors.
legal document and might be objected by the Election Commission as
it was not on a stamp paper. He then signed the agreement in the
presence of M D Bhojwani and Sansar Chand and then left for Mumbai
on 30.03.96 by air. He proved the air tickets Ex.PW6/22 and
Ex.PW6/23. PW30 Sansar Chand who used to do the political work of
Romesh Sharma also corroborated this fact that the agreement
Ex.PW6/20 was executed on 30.03.96 on which he and M D Bhojwani
had signed as witnesses. Perusal of MOU Ex.PW6/20 reveals that the
MOU was entered showing the date of its execution as 24.02.96,
although the stamp paper was purchased on 29.03.96 from PW13 and
the agreement Ex.PW6/20 did not have the reference of earlier MOU
Ex.PW6/14 which was executed on the letter head. PW27 who was
the Secretary of Romesh Sharma has also admitted to have typed it on
that day. Question now arises, as per the earlier MOU Rs. 3.0 lacs
were shown to have been paid and the said MOU was shown to be
executed on 24.02.96 so why on the same day i.e. 24.02.96 vide MOU
Ex.PW6/20, the payment was shown as Rs. 8.0 lacs. The fact of the
matter is that no payment was made on 24.02.96 by the accused which
date was shown on the above MOUs. The cheques and the statement
of accounts produced by PW35, PW36, PW37, PW43, PW51,
R.C No. : 1/(S)/98/STF/CBI/ND 131/213
132CBI Vs. Romesh Sharma & Ors.
PW53, PW54 and PW61 also show that before 27.03.96 no payment
was made to PW6 and only Rs. 6.0 lacs were paid till 30.03.96. PW6
has also filed the Ledger accounts duly audited Ex.PW6/41 maintained
by Garuda Aviation visavis the transaction with the accused Romesh
Sharma showing the aforesaid payment towards the hire charges and
not towards the sale consideration. Even the correspondence placed
on record and the testimony of PW9 show that the helicopter was
given on hire and was not sold to the accused Romesh Sharma. As is
apparent from the record that the maximum expenses to be incurred in
election by a candidate was limited upto Rs. 4.5 lacs but the charges
itself for hire of the helicopter would be around Rs. 13 lacs.
Transportation of Helicopter from Phulpur to Mumbai which did not
happen :
144.Testimony of PW3 shows that the election at Phulpur Constituency
was held on 07.05.96 and the result was declared on 11.05.96. PW9
on 10.05.96 sent a fax to PW6 that Romesh Sharma has not reached
Allahabad and the arrangements to despatch the machine and to start
the work of spraying at Kerala was at stake. PW9 sent a fax to Girish
R.C No. : 1/(S)/98/STF/CBI/ND 132/213
133CBI Vs. Romesh Sharma & Ors.
Rao PW44 on 10.05.96 vide Ex.PW9/2 that he has booked a road
carrier to carry the helicopter and requested him to arrange transit
insurance. On 11.05.96 a Truck bearing no. MH 04 C 5333 vide GR
No. 3862 from SherePunjab Roadways Allahabad reached there.
145.Perusal of the documents would show that in the Log book, last entry
of flying the helicopter was shown upto 07.05.96 vide Ex.PW9/14. The
flight commenced from 30.03.96 at Ugarsen Pur vide entry
Ex.PW11/A. The entry Ex.PW9/8 on the log book of Aircraft reflects
that the helicopter was partially dismantled on 11.05.96 for road
transportation to Mumbai. The testimony of PW21, the Prop. of Azad
Golden Roadlines shows that the truck was provided to PW25, the
Proprietor of SherePunjab on 11.05.96 for transportation of helicopter
from Ugarsen Pur to Mumbai at 8.33 AM. PW23 was the driver on the
said truck with PW24 as Cleaner. The truck was parked in front of
house of the accused Romesh Sharma where the helicopter was
loaded. Fuel and spare parts had already been sent to Mumbai in
another truck on 09.05.96 as is evident from the testimony of PW9
who sent it vide GR Ex.PW9/1.
R.C No. : 1/(S)/98/STF/CBI/ND 133/213
134CBI Vs. Romesh Sharma & Ors.
Transportation of helicopter from Phulpur to Delhi :
146.The testimony of the witnesses PW9, PW14, PW15, PW19 PW21,
PW22, PW23 and PW24 and the documents and the GR/LR reveal
that when the truck was loaded from Mumbai to Phulpur, the consignor
and the consignee of the helicopter were Pushpak Aviation. The
transit insurance was from Mumbai to Phulpur and not for Delhi. In
order to transport the helicopter from Phulpur to Mumbai after the
election, PW9 had requested PW6 to arrange transit insurance. The
helicopter during the election remained in the physical possession of
crew members / technicians of PW6 and it was never parted with.
They made all the relevant entries in the log book/journey book of the
helicopter. On the programme given by PW44, arrangement was
made to take the helicopter to Kerala en route Mumbai. PW9 had
arranged two trucks from SherePunjab Roadways. On 09.05.96, in
one of the truck, fuel and spare parts were sent. On 11.05.96 the other
truck of SherePunjab came at Ugarsen Pur in front of the bungalow
of Romesh Sharma where the helicopter was parked. PW9 and his
crew members dismantled the helicopter and got it loaded for carrying
to Mumbai. When it was being loaded, none of the persons objected.
R.C No. : 1/(S)/98/STF/CBI/ND 134/213
135CBI Vs. Romesh Sharma & Ors.
The testimony of the witnesses and the record further show that the
accused Avtar Singh Ahluwalia, M. D. Bhojwani, Avdesh, Indermani,
Manoj and Naveen Budhiraja used to campaign for the accused
Romesh Sharma in the election. Avtar Singh was an old friend of
Romesh Sharma. M.D. Bhojwani was his neighbour and had arranged
the food and lodging for the persons who had campaigned for Romesh
Sharma in the election. Avdesh and Indermani were the nephew of
Romesh Sharma. The accused persons in their statements recorded
U/s 313 Cr.P.C. have also admitted to have campaigned for the
accused Romesh Sharma in the election. The testimony of PW9 and
other crew members reveal that when they were tying the parts of the
helicopter, none of the accused persons objected. After some time,
the accused persons alongwith some more persons came in two
vehicles armed with lathis and weapons. They got down from the
vehicles and threatened that helicopter would not be taken to Mumbai
and it would go to Delhi as instructed by Romesh Sharma. They were
more in numbers and also climbed on the truck to unload the
helicopter. They also threatened them to remain in Bungalow and to
accompany them to Delhi with the truck. When the truck driver told
them that he did not have the permit to go to Delhi, accused Avtar
R.C No. : 1/(S)/98/STF/CBI/ND 135/213
136CBI Vs. Romesh Sharma & Ors.
Singh Ahluwalia arranged another truck and brought it there. The
helicopter was unloaded from the truck and loaded in another truck
arranged by Avtar Singh Ahluwalia. It was escorted from Phulpur to
Delhi by 34 vehicles. When PW14 went to STD booth at Hotel Yatrik,
Allahabad and told the incident to PW29, he advised him to lodge the
complaint but his wife intervened and told him that the accused had a
great influence at Allahabad as there had already been incident of arm
clash in the election. Their testimony show that the accused persons
took law in their hands, got unloaded the dismantled helicopter from
the truck and took it to Delhi by use of force, though the record
indicates that the constructive/physical possession of the truck was
with PW6/his men.
Transfer of Ownership in the name of Romesh Sharma and assembly of
Helicopter at his Farm House :
147.The testimony of PW6 shows that on 11.05.96 he was informed by
PW9 that the henchmen of accused Romesh Sharma off loaded the
helicopter from the truck and tried to take captive the Engineers and
R.C No. : 1/(S)/98/STF/CBI/ND 136/213
137CBI Vs. Romesh Sharma & Ors.
threatened them that they have been instructed by the accused
Romesh Sharma to take the helicopter to Delhi. On 12.05.96, he
telephoned Romesh Sharma who told him not to worry and asked him
to come to Delhi on 14.05.96 stating that by that time the helicopter
would also reach Delhi. On 14.05.96 he reached Delhi via air ticket
Ex.PW6/25, went to the house of the accused at Mayfair Garden and
enquired to which the accused told him that helicopter is his property
and it is in his possession. After few hours when he again asked him
to return his helicopter and make payment towards the hire charges,
the accused told him to forget about the helicopter as the same has
become his property now and at the most he would be entitled to the
payment relating to the helicopter. On 15.05.96 he again requested the
accused to return the helicopter and make payment towards the hire
charges but the accused did not budge and threatened that he was
connected with Dawood Ibrahim and his associates and if he did not
follow his instructions, he would face dire consequences and also
scared him of his proximity with Abu Salem and Irfan Goga. He was
scared and thought to recover whatever money he could get. The
accused gave him a demand draft of Rs. 2.0 lacs Ex.PW6/26. He
returned to Mumbai on 15.05.96 via air ticket Ex.PW6/27. After some
R.C No. : 1/(S)/98/STF/CBI/ND 137/213
138CBI Vs. Romesh Sharma & Ors.
time, he again telephoned Romesh Sharma who asked him to bring
the original documents of helicopter alongwith an affidavit required for
its transfer and told that he would make the payment thereafter. He
discussed the matter with his Advocate R A Shah PW10 as to what
should be his course of action which should be as per law. He got
prepared the affidavit Ex.PW2/A3 and came to Delhi on 04.06.96 with
the affidavit and the log books. R A Shah came on 05.06.96. Both of
them went to Mayfair Garden where they met Rakesh Gupta PW7.
Accused Romesh Sharma was also with his Advocate Mahesh Gupta
PW17. Mahesh Gupta was writing something on a document who left
thereafter. Accused Romesh Sharma then asked him to sign an
agreement to sell Ex.PW6/33. PW6 has stated that his Advocate
(PW10) had also advised him to take the payment first and then sign
the documents but the accused got furious, snatched the documents
from PW6, took him in a room and reminded of his connection with
Dawood Ibrahim gang. PW6 got scared of him and signed the
affidavit on which his Advocate (PW10) also signed.
148.PW7 corroborated the testimony of PW6 on all material aspects. He
has stated that on 11.05.96 he received a call from PW6 that the
R.C No. : 1/(S)/98/STF/CBI/ND 138/213
139CBI Vs. Romesh Sharma & Ors.
helicopter was forcibly taken by the men of Romesh Sharma. He was
called by Suresh Rao to come at the house of the accused Romesh
Sharma on 05.06.96 to sort out the matter. PW17, the Advocate of
Romesh Sharma was having a draft of agreement. PW17 discussed it
with Romesh Sharma and on the suggestions of Romesh Sharma, he
made some changes and thereafter he left. The agreement after
corrections remained with the accused Romesh Sharma.
149.PW10 also corroborated the testimony of PW6. He has stated that
on knowing from PW6 that the accused was neither returning the
helicopter nor paying the hire charges, he advised PW6 to take legal
action. He was told by PW6 that the accused had asked him to forget
about the helicopter and sign the documents. He again advised him to
take action but PW6 told him that he was scared of the accused and
would do whatever the accused wanted him to do. He asked him to
come to Delhi on 05.06.96 as PW6 wanted to execute some
documents, which he wanted to show to him before signing. He came
to Delhi via air ticket Ex.PW6/35 and went with PW6 to the house of
accused where PW17 also came whom the accused asked to make
corrections in the agreement . PW17 left after making corrections in
R.C No. : 1/(S)/98/STF/CBI/ND 139/213
140CBI Vs. Romesh Sharma & Ors.
the agreement. PW17 has stated that the agreement Ex.PW6/33 was
drafted by him on 14.05.96 on the instructions of accused Romesh
Sharma after seeing the earlier MOUs Ex.PW6/14 and Ex.PW6/20. On
receipt of call from Romesh Sharma, he went to his house where PW6
and PW10 were present. They wanted to discuss something about
the agreement as they had some reservations. After discussion, he
made some corrections in the agreement Ex.PW6/33, however, the
said agreement was not signed by the parties in his presence.
150.Testimony of PW6 further shows that the accused wanted to see the
documents. When his Advocate PW10 objected and advised that they
should part with the agreement only on receiving the payment, the
accused got angry and abused PW10, snatched the documents from
him (PW6). He then called V K Luthra. When Luthra put the
documents on the table, the accused got furious. He scolded and beat
Luthra. He (PW6) and PW10 got scared. The accused then lifted
him to his office chamber where he reminded him of his connection
with Dawood Ibrahim and his associates and threatened that in case
he would not sign the document, he would kill him. He has stated that
from the office chamber, accused brought him to the place where his
R.C No. : 1/(S)/98/STF/CBI/ND 140/213
141CBI Vs. Romesh Sharma & Ors.
Advocate (PW10) was sitting. He asked him to sign the documents
and the agreement. In these circumstances, he had no choice but to
sign the documents. His Advocate PW10 also signed on the affidavit
as witness. PW6 has stated that the certificate of registration was
with PW18 which fact has also come in the testimony of PW18 who
had taken it as a collateral security against the payment of the spare
parts of the helicopter vide Memorandum of Agreement Ex.PW6/5.
PW6 has stated that when he told this fact to the accused, he told him
to ask Neeraj Bhatia PW18 to bring the certificate to his house. PW6
then requested PW18 to bring the certificate of registration, who after
some time came with the certificate. The accused then asked him to
hand over the certificate of registration stating that he has purchased
the helicopter. When PW18 told the accused that Rs. 18 lacs were
due to him towards the cost of spare parts and that PW6 has already
entered into an agreement with him and showed the accused the
agreement Ex.PW6/5, the accused told PW18 that he would make the
payment of Rs. 18 lacs. On his assurance, PW18 handed over the
certificate of registration Ex.PW2/A5 to the accused on which he also
signed as it was one of the requirement for its transfer. However, no
money was paid by the accused to PW18 on that day or thereafter.
R.C No. : 1/(S)/98/STF/CBI/ND 141/213
142CBI Vs. Romesh Sharma & Ors.
PW6 has stated that on the assurance given by him to the accused
that they would not lodge any report with the police, they flew out via
air ticket Ex.PW6/35. The accused in his statement has also admitted
of his entering into the agreement Ex.PW6/33, taking in the affidavit
and log books from PW6 and receiving the registration certificate from
PW18 on 05.06.96.
151.I have seen the agreement Ex.PW6/33. It is shown to have been
executed on 14.05.96 bearing the signature of the accused and PW6
containing some corrections. The handwriting Expert report
Ex.PW94/8 also proves the signatures of the accused on the
agreement. In para 4 of the said agreement, it has been agreed that
the purchaser shall pay to the seller balance sale consideration of Rs.
18 lacs upon execution of documents of transfer. The said agreement
was not witnessed by anyone nor was got attested from anyone. The
testimony of witnesses show that the said agreement was signed by
the parties not on 14.05.96, the day of its execution but on 05.06.96. It
also finds a reference of an MOU dated 24.02.96 Ex.PW6/20. The
said agreement to sell is contrary to the facts containing in the affidavit
Ex.PW2/A3 wherein it was written that the helicopter has a clear title
R.C No. : 1/(S)/98/STF/CBI/ND 142/213
143CBI Vs. Romesh Sharma & Ors.
and PW6 has received the sale proceeds towards the helicopter in full
and final. The affidavit also bears the date of 05.06.96 and the
signature of PW6. The record shows that the accused had paid Rs. 8
lacs only by that time. The affidavit has an attestation of a Notary
Public although PW6 has stated that he did not go to any Advocate or
the Notary Public for its attestation. Record shows that V K Luthra
had identified PW6 Suresh Rao and it was attested by PW12. PW12
has also admitted this fact in his testimony that the executant PW6
and the witness PW10 were not present when he attested the affidavit.
152.It has come in the testimony of PW1 that for change of ownership,
original certificate of registration duly endorsed on its reverse by the
previous owner alongwith an affidavit by the previous owner that he
has received the consideration in full and an application in Form CA28
from the owner, is required. In this case, the accused with the
application had submitted all these documents on the basis of which
the ownership was transferred in his name vide certificate Ex.PW2/D.
The accused had also requested to issue change of the first page of
the Journey log book which request was also allowed and the first
page was issued on 02.07.96 vide letter Ex.PW2/A16.
R.C No. : 1/(S)/98/STF/CBI/ND 143/213
144CBI Vs. Romesh Sharma & Ors.
153.Testimony of PW6 and the documents i.e. the cheques and the
statement of accounts would show that after the transfer of the
helicopter, the accused Romesh Sharma made part payment of Rs. 1.0
Lac on 17.06.96 vide receipt Ex.PW6/36, Rs. 1.0 lac on 24.06.96
through the accused Harish Mishra vide receipt Ex.PW6/37, Rs. 1.0
Lac on 05.07.96 vide receipt Ex.PW6/38 and Rs. 1.0 Lac on 16.07.96
vide receipt Ex.PW6/39.
154.On the manner of execution of documents by PW6, the testimony of
PW7 and PW10 is cogent and consistent. Nothing can be inferred
from their testimony that they have deposed at the behest of PW6 to
falsely implicate the accused. It has also come in the testimony of
PW18 that till date he did not get the amount of Rs. 18 lacs, although
his Director Major Gaonkar had regularly asked the accused to make
the payment.
Assembly of the Helicopter at Jai Mata Di Farm House at Chattarpur,
New Delhi :
155.It has come in the evidence of PW6 that the accused Romesh
R.C No. : 1/(S)/98/STF/CBI/ND 144/213
145CBI Vs. Romesh Sharma & Ors.
Sharma had asked him to send his Engineers to the Farm House to
assemble the helicopters stating that he would make the payment
thereafter. His Engineer PW9 and his brother PW44 came to Delhi
on 24.06.96, of whose, the air tickets were arranged by Harish Mishra.
PW9 also stated that on 24.06.96, he came with PW44 at the
instance of PW6 and met the accused. He stated that since the
helicopter was not maintained during the period from 11.05.96 to
26.06.96, he had to take some clarifications from the Director,
Airworthiness, Mumbai as his permission was required. When he told
the accused Romesh Sharma that he was advised by Director
Airworthiness to remain in touch, the accused got annoyed, caught
hold of his collar and hit on his face. He sustained injuries on his lips
and bled. He stated that Romesh Sharma also threatened him that if
he did not cooperate, he would get his legs cut. When PW44
requested the accused not to hit PW9, accused Romesh Sharma also
punched him. He stated that after obtaining permission, he with the
help of two technicians assembled the helicopter and made entry in
the log book given by the accused Romesh Sharma. He stated that he
did not lodge the report since he was frightened. PW44 also deposed
on these lines and stated that he was also assaulted. He stated that
R.C No. : 1/(S)/98/STF/CBI/ND 145/213
146CBI Vs. Romesh Sharma & Ors.
he did not make further payment of insurance and had written to the
insurance company vide letter Ex.PW6/DA that the helicopter was sold
to Romesh Sharma, so that the further premium could be paid by the
accused.
156.It was argued by Ld. Counsel for the accused persons that the story
of hiring the helicopter was concocted by PW6, who was made puppet
by CBI which investigated the matter on the directions of the
Government which had political vendetta against the accused as the
accused wanted to expose the corrupt ministers of the Government.
Ld. Counsel stated that the MOUs Ex.PW6/14, Ex.PW6/20 and the
agreement to sell Ex.PW6/33, affidavit Ex.PW2/A3 and the payments
made by the accused go to show that the helicopter was purchased by
the accused and was not taken on hire. It failed to explain as to why
the accused would pay Rs. 13 lacs as hire charges to PW6 when the
cost of the helicopter was Rs. 30 lacs. Ld. Counsel further argued that
PW6 at no stage produced the hire agreement and the entries made
in the ledger do not bear the signature of the accused at the point of
time. Ld. Counsel referred the provisions of Section 91 of the
Evidence Act to contend that when there are written documents, the
R.C No. : 1/(S)/98/STF/CBI/ND 146/213
147CBI Vs. Romesh Sharma & Ors.
oral testimony does not have any meaning. The aforesaid agreements
clearly show that the helicopter was sold to the accused by PW6 and
was not given on hire. Ld. Counsel stated that if PW6 had to take any
dues from the accused, he would have filed a civil suit for recovery of
the said amount. Ld. Counsel stated that the dispute, if any is of civil
nature and no criminality can be fastened on the accused persons.
157.Ld. Counsel further contended that the PW6 had filed a suit for
Declaration and Mandatory Injunction before Hon’ble High Court which
suit was dismissed by Hon’ble High Court for want of evidence. Ld.
Counsel stated that the matter in the Civil Suit and the allegations in
the present case directly or substantially are the same. Finding has
already come from the Civil Court which is binding on the Criminal
Court as to the title. Ld. Counsel referred the provisions of Section
4042 of the Evidence Act and the case titled Veer Prakash Sharma
Vs. Anil Kumar Agarwal & Anr. JT 2007 (10) SC 57, Joseph Zacharia
Vs. Joseph Kuriakose AIR 1992 Kerala 103, Bishnudeo Narain Vs.
Seogeni Rai AIR (38) 1951, SC 280, Ramadoss Vs. Muniammal AIR
1965 Madras 452, Indian Oil Corporation Vs. M/s NEPC India Ltd.,
Criminal Appeal No. 833 of 2002 decided on 20.07.06 by Hon’ble
R.C No. : 1/(S)/98/STF/CBI/ND 147/213
148CBI Vs. Romesh Sharma & Ors.
Supreme Court, Roop Kumar Vs. Mohan Thadani AIR 2003 SC 2418,
K G Premshankar Vs. Inspector of Police AIR 2002 SC 3372, Kishan
Singh (D) Vs. Gurpal Singh AIR 2010 SC 3624, Daya Sapra Vs.
Vishnu Dutt Sharma 2008 II AD (Delhi) 84 and Ramesh Chand Gupta
Vs. Union of India 2009 (2) JCC 826 to contend that no case of
cheating is made out against the accused.
158.In order to appreciate the rival stand, it would be useful to notice the
statutory provisions. Section 420 IPC provides punishment for
cheating and dishonestly inducing delivery of property. To constitute an
offence under section 420 IPC, following ingredients must exist:
i) That the representation made by the accused was false;
ii) That the accused knew that the representation was false at the
very time when he made it;
iii) That the accused made the false representation with the
dishonest intention of deceiving the person to whom it was
made; and
iv) That the accused thereby induced that person to deliver any
property or to do or to omit to do something which he would
otherwise not have done or omitted.
R.C No. : 1/(S)/98/STF/CBI/ND 148/213
149CBI Vs. Romesh Sharma & Ors.
159.It was held in the case of Hridaya Ranjan Prasad Verma and Others
Vs. State of Bihar (2000) 4 SCC 168 that in determining the question,
it has to be kept in mind that the distinction between mere breach of
contract and the offence of cheating is a fine one. It depends upon the
intention of the accused at the time of inducement which may be
judged by his subsequent conduct. Mere breach of contract cannot
give rise to criminal prosecution for cheating unless fraudulent or
dishonest intention is shown right at the beginning of the transaction,
that is the time when the offence is said to have been committed.
Therefore, it is the intention which is the gist of the offence.
160.The above observations were reiterated in the case of Indian Oil
Corporation (Supra). In the case of Joseph Zacharia (Supra) there
were allegations of undue influence and coercion and the party had
sufficient time and opportunity to dispute the validity of agreement but
did not take any action. It was held that the agreement was not vitiated
by undue influence or coercion. In the case of Bishnudeo (Supra), it
was held that though pleas of undue influence and coercion may
overlap in part in some cases, they are separable categories in law
and must be separately pleaded. In the case of Ramadoss (Supra), it
R.C No. : 1/(S)/98/STF/CBI/ND 149/213
150CBI Vs. Romesh Sharma & Ors.
was held that it is only where a fraudulent representation leads to
discovery of property, which is dishonestly retained, then the
ingredients of Section 415 IPC are established. Otherwise, every
debtor who repudiates his civil liability, on some false pretext or the
other, would be guilty of cheating and that is not the law. In the case of
Indian Oil Corporation (Supra), it was held that a given set of facts
may make out purely a civil wrong or purely a criminal offence or civil
wrong as well as criminal offence. The criminal proceedings are not a
cut short of other remedies, if the matter is essentially of civil nature.
The intention of the person who induces the victim of his
representation and not the nature of the transaction is paramount.
161.From the above proposition of law, it is clear that it is only where a
dishonest misrepresentation or fraudulent representation leads to
delivery of property or dishonestly retention of property, the ingredients
of Section 415 IPC are established. Otherwise, every person who
repudiates his civil liability on some false pretext or other would be
guilty of cheating and that is not the law. It is the intention of the
person who induces the victim by his representation and not the nature
of the transaction which would be decisive. The intention of the
R.C No. : 1/(S)/98/STF/CBI/ND 150/213
151CBI Vs. Romesh Sharma & Ors.
accused may be inferred from his subsequent conduct also.
162.Section 91 of Evidence Act relates to evidence of terms of contract,
grants and other disposition of properties reduced in the form of
document. It merely forbids proving the contents of a writing otherwise
then by writing itself. In the case of Roop Kumar Vs. Mohan Thadani
AIR 2003 SC 2418 it was held that when a jural act is embodied in a
single memorial, all other utterance of the parties on the topic are
legally immaterial for the purpose of determining what are the terms of
their act. This rule is based upon an assumed intention on the part of
contracting parties, evidenced by the existence of written contract to
place themselves above the uncertainties of oral evidence and on a
disinclination of the Courts to defeat this object. It is likewise a general
and most inflexible rule that wherever written instruments are adopted ,
either by requirement of law or by contract of parties to be their
repositories and memories of truth, any other evidence is excluded
from being used either in a substitute from such instruments to
contradict or alter them.
163.In the case of K G Prem Shankar Vs. Inspector of Police AIR 2002
R.C No. : 1/(S)/98/STF/CBI/ND 151/213
152CBI Vs. Romesh Sharma & Ors.
SC 3372 it was held that (i) the previous judgment which is final can be
relied upon as provided U/s 40 to 43 of the Evidence Act; (ii) in Civil
Suits between the same parties principle of resjudicata may apply; (iii)
in a criminal case Section 300 Cr.P.C. makes a provision that once a
person is convicted or acquitted, he may not be tried again for the
same offence if the conditions mentioned therein are satisfied; (iv) if
the criminal case and the civil proceedings are for the same cause,
judgment of Civil Court would be relevant if conditions of any of the
sections 40 to 43 are satisfied but it cannot be said that the same
amounted to conclusive except as provided in Section 41. Section 41
provides, which judgment would be conclusive proof of what is stated
therein. The Court has to decide to what extent, it is binding or
conclusive with regard to the matter decided therein. It was held in the
case of M/s Karamchand Ganga Pershad Vs. Union of India AIR
1971 SC 1244 that it is well established principle of law that the
decisions of Civil Courts are binding on the Criminal Courts. The
converse is not true. The simultaneous proceedings of a civil and
criminal case is permissible. In the case of Daya Sapra (Supra), the
case of Jaeger Co. Ltd. Vs. Jaeger (1929) 46 RPC 336 was referred
where it was held that every judgment is conclusive proof as against
R.C No. : 1/(S)/98/STF/CBI/ND 152/213
153CBI Vs. Romesh Sharma & Ors.
the parties and privies of facts directly in issue in the case actually
decided in the Court and appearing from the judgment itself to be the
ground on which it was based. The principles laid down in K G
Premshankar (Supra) case were also followed in the case of Ramesh
Chand (Supra).
164.Here, the question is as to whether the civil suit dismissed simplicitor
for want of evidence binds a Criminal Court even if the parties were the
same and the matter directly or substantially in the issue was the
same. In the Civil Suit filed by PW6, after framing the issues, no
evidence was led by PW6 and the suit was dismissed simplicitor for
want of evidence. There was no finding on merit from the Civil Court
between the parties that the helicopter in question was legally
purchased by the accused or the agreement or the MOUs or the
documents used for transfer of the helicopter were not got executed
from PW6 under undue influence or coercion. That being the position,
it cannot be said that the matter directly or substantially has been
decided by the Court of competent jurisdiction and it has attained its
finality. It was simplicitor a dismissal and therefore, would not operate
as resjudicata on this Court. Section 41 of the Evidence Act is also
R.C No. : 1/(S)/98/STF/CBI/ND 153/213
154CBI Vs. Romesh Sharma & Ors.
inapplicable here. The criminal case in the present case was
registered in the year 1998 and the Civil Suit was instituted in the year
1999.
165.As regards the applicability of Section 91 of the Evidence Act, it is to
be seen under what circumstances the aforesaid MOUs and the
affidavit were executed by PW6. After the verbal communication
between the parties, the fax message was sent by PW8 to the
accused mentioning the terms and conditions of hire of the helicopter.
Another letter was written by PW6 to the accused reiterating the terms
and conditions of hire. The first MOU i.e. PW6/14 was executed after
the helicopter was despatched. The correspondence made by PW9
with the Director Aviation shows that the helicopter was sent to Phulpur
on contract upto 15.04.96 which was extended till 07.05.96. PW6 had
also entered into an agreement with PW26 and PW28 for sending the
helicopter for spraying the chemicals on rubber plantation in Kerala
and had received an advance. The MOUs Ex.PW6/14 and Ex.PW6/20
were executed predated. The testimony PW6, PW7, PW8, PW9,
PW11 and PW14 and the entries in the Account books of Garuda
Aviation Ex.PW6/41 show that the helicopter in question was given on
R.C No. : 1/(S)/98/STF/CBI/ND 154/213
155CBI Vs. Romesh Sharma & Ors.
hire only. PW6 had already an agreement with PW18 where the cost
of the helicopter was estimated as Rs. 40 lacs. There appears no
basis as to why should PW6 sell the helicopter at the price of Rs. 30
lacs to the accused Romesh Sharma. There were repeated
assurances from the accused that after the election, the helicopter
would be returned and the hire charges would be paid and that the
agreement/MOUs had been executed just as a smoke screen to
camouflage the election expenses, for which the limit of expenses was
fixed as Rs. 4.5 lacs by the Election Commission. The part payments
were made by the accused either by him or through Harish Mishra, his
brother even after the agreement Ex.PW6/33 and the affidavit
Ex.PW2/A3. The accused had promised PW18 to pay Rs. 18 lacs but
did not pay anything. PW18 recovered the amount from PW6 by filing
a case.
166.As regards contention, why the accused would pay Rs. 13 lacs
towards the hire charges when the cost of the helicopter was Rs. 30
lacs, the record shows that when PW6 entered into an MOU with
PW18 and pledged the registration certificate as a collateral security,
he had estimated the value of the helicopter as Rs. 40 lacs. The
R.C No. : 1/(S)/98/STF/CBI/ND 155/213
156CBI Vs. Romesh Sharma & Ors.
helicopter further required recurring maintenance and operation which
work in normal circumstances is done by the Aviation company. To
avoid recurring expenses of maintenance, operation and other running
expenses, generally, it seems reasonable for a person to go for hiring
of the aircraft. Facts and circumstances show that PW6 never agreed
to sell the helicopter to the accused Romesh Sharma for Rs. 30 lacs.
167.Facts and circumstances further show that there was no transit
insurance from Phulpur to Delhi. There were instructions to the crew
members and technicians from PW6 that the helicopter after the
election was to be taken to Kerala en route Mumbai for undertaking
another work. There was no obstruction/resistance from the accused
Romesh Sharma when the fuel and spare parts of helicopter were sent
to Mumbai on 09.05.96. It was PW9 who arranged the truck for
carrying the helicopter to Mumbai and when it was being tied, PW9
and others were obstructed by the accused persons who came in two
vehicles armed with lathis. They were threatened with dire
consequences. Accused Avtar Singh hired another truck for carrying
the helicopter to Delhi which was escorted by 45 vehicles. The
accused Romesh Sharma on every occasion had assured PW6 that
R.C No. : 1/(S)/98/STF/CBI/ND 156/213
157CBI Vs. Romesh Sharma & Ors.
the helicopter was taken on hire to hoodwink the election expenses.
When the helicopter was finally taken to Delhi, even then the accused
did not tell PW6 that it has become his property. When PW6 came at
the house of the accused on 14.05.96, the accused made his
dishonest intention clear that the helicopter has become his property
and threatened him with dire consequences that he was the man of
Dawood Ibrahim. He had further threatened that if PW6 would not
follow his instructions, he would eliminate him. The accused had
further told him to come with the original documents, log books and the
affidavit. The accused on 05.06.96 by extending threats to PW6 and
PW10, obtained the signatures of PW6 on the agreement Ex.PW6/33
and an affidavit Ex.PW2/A3 interalia that he has received the full
consideration from the accused though fact of the matter was that even
at that time he had to pay Rs. 22 lacs to PW6. The bank account of
the accused Romesh Sharma and Harish Mishra showed negligible
balance which also cast doubt as to the intention or the capacity of the
accused Romesh Sharma to purchase the helicopter.
168.It is no doubt true that PW6 had executed all the documents of sale
but the above facts make it abundantly clear that the aforesaid
R.C No. : 1/(S)/98/STF/CBI/ND 157/213
158CBI Vs. Romesh Sharma & Ors.
documents were not executed voluntarily by PW6 but were obtained
by using force, fraud, coercion and imminent threats to PW6.
169.I am of the view that the case of the accused is not covered under
Section 91 of the Evidence Act. The oral evidence is relevant and has
direct bearing on this case and it will also have precedence on the
documents / MOUs executed by PW6. A bare look at Section 90 of
the Indian Penal Code states the circumstances when consent ceases
to be valid consent and is vitiated. Section90 provides: ‘A consent is
not such a consent as it intended by any section of this Code, if the
consent is given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act knows, or has
reason to believe, that the consent was given in consequence of such
fear or misconception.’
170.That is to say, that the parties should be ad idem, i.e. must be of the
same intention concerning the matter agreed upon. If consent is
obtained by coercion, undue influence, fraud, misrepresentation or
mistake, the very contract is vitiated.
171.Testimony of PW6 clearly shows that his consent to enter into MOU
R.C No. : 1/(S)/98/STF/CBI/ND 158/213
159CBI Vs. Romesh Sharma & Ors.
Ex.PW6/14 and Ex.PW6/20 was obtained by dishonest mis
representation by the accused. The agreement to sell Ex.PW6/33 and
the affidavit Ex.PW2/A3 were obtained by extending threats / coercion
by terrorising him by the accused Romesh Sharma by the names of
Dawood Ibrahim and his associates and his connection with them.
172.Dishonest intention of accused Romesh Sharma is also clear from the
facts that during elections speeches he had allured the people of
Phulpur that he has purchased the helicopter for them and it would be
used for them. But after the election, he never used it for the people of
Phulpur as claimed by him in the election speeches. He immediately
directed his men to take the helicopter to Delhi and also contacted
PW45 and PW64, the senior persons of Reliance Industries giving
the papers of the helicopter for the use of Reliance Industries or for its
sale. The testimony of the witnesses show that those papers were
handed over by PW45 and PW64 to CBI during the investigation.
Facts and circumstances further show that the intention of accused
Romesh Sharma was to grab the helicopter by using all illegal means
by giving allurement to PW6 and later by extending threats that he
was the man of underworld Don and coerced him to execute the
R.C No. : 1/(S)/98/STF/CBI/ND 159/213
160CBI Vs. Romesh Sharma & Ors.
documents purporting to have sold the helicopter, though it was given
on hire and agreed PW6 to admit having been received full and final
consideration and got the ownership transferred in his name, though
he had to pay substantial amount in respect of the helicopter either to
PW6 or PW18, the Proprietor of Summit Aviation and also got him
threatened from Irfan Goga and Abu Salem not to lodge report with the
police.
173.Facts and circumstances further show that it was not a case of civil
dispute rather the act and the subsequent conduct of the accused
establish that the accused had a dishonest intention to cheat and he
succeeded in accomplishing it.
174.From the aforesaid facts and circumstances it is clear that the
helicopter was taken on hire but the accused Romesh Sharma and
Harish Mishra dishonestly induced PW6 to enter into an MOU of sale
making him believe that the said MOU was being entered to hoodwink
the election expenses as the maximum limit for incurring the expenses
by an independent candidate was Rs. 4.5 lacs and the said MOU
would be destroyed after the election would be over. Subsequent
R.C No. : 1/(S)/98/STF/CBI/ND 160/213
161CBI Vs. Romesh Sharma & Ors.
conduct of Romesh Sharma and Harish Mishra also go to show that
the said MOU Ex.PW6/20 was entered into on 30.03.96 when the
helicopter had already left for Phulpur. The testimony of PW6 further
goes to show that another agreement Ex.PW6/33 was prepared on
15.05.96 regarding sale when the helicopter instead of sending to
Mumbai was brought at Delhi by the men of Romesh Sharma. The
correction in the MOU Ex.PW6/33 was made by the Advocate of
Romesh Sharma PW17 Sh. Mahesh Gupta when PW6 and his
Advocate PW10 were called by the accused Romesh Sharma at his
residence at Mayfair Garden on 05.06.96. In the affidavit Ex.PW2/A3
given by PW6, it was got written that he has received full and final
payment towards the helicopter. Record shows that after the said
agreement and affidavit, further payment was made by the accused
Romesh Sharma and Harish Mishra by cheque, draft or cash. The
testimony of PW18 also shows that Rs. 18 lacs were yet to be paid by
the accused to him. It is difficult to comprehend as to why a person
would sell helicopter for Rs. 30 lacs when in an agreement earlier
executed with Summit Aviation Ex.PW6/5 the price of Rs. 40 lacs was
offered by Summit Aviation for the said helicopter.
R.C No. : 1/(S)/98/STF/CBI/ND 161/213
162CBI Vs. Romesh Sharma & Ors.
175.On appreciation of the evidences, it is clear that accused had at the
very outset dishonest intention to cheat by making into believe his
representations which were false to his knowledge with intent to cause
wrongful gain or wrongful loss.
176.It will not be out of place to mention here from the sequence of events
that Romesh Sharma was not alone in cheating PW6 but there was a
definite conspiracy between him and his brother, Harish Mishra, who
from the outset was party in getting the signature of PW6 on the MOU
on 27.03.1996 Ex. PW6/14 when he knew that MOU was not for hiring
but for sale making deceitfully PW6 believe that it was a sham MOU
and also he advanced part consideration towards the charges which at
that time PW6 was made to believe was towards hiring of the
helicopter. He sent his men to accompany the truck loaded with
helicopter from Mumbai to Phulpur to ensure its safe transportation to
further the intention of the accused Romesh Sharma to take
possession of the helicopter though constructively possession
continued with PW6. He paid part consideration to PW6 even after
the transfer of registration of helicopter in favour of the accused which
registration was done on the basis of the affidavit Ex.PW2/A3 which
R.C No. : 1/(S)/98/STF/CBI/ND 162/213
163CBI Vs. Romesh Sharma & Ors.
PW6 was made to sign and deliver under physical threat by the
accused, Romesh Sharma that he has received the entire
consideration for sale of the helicopter.
177.From the aforesaid, I am of the view that the accused Romesh
Sharma has committed the offence of cheating by playing fraud on the
person of PW6 by dishonestly inducing him to enter into the MOU and
subsequently retained its possession after obtaining an affidavit from
PW6 that he has received full and final payment from the accused,
though the helicopter was given on hire and the accused had to make
payment for the same. So far as the accused Harish Mishra is
concerned, he is also guilty of having cheated PW6 to further the
dishonest intention of the accused Romesh Sharma to grab the
helicopter by hook or crook. Thus, the ingredients of the offence
punishable U/s 420 IPC stand proved against the accused persons
namely Romesh Sharma and Harish Mishra.
178.Now, coming to the incident of dacoity which allegedly occurred
on 11.05.96, Ld. Counsel argued that the accused persons were under
the belief that the helicopter was purchased by the accused Romesh
R.C No. : 1/(S)/98/STF/CBI/ND 163/213
164CBI Vs. Romesh Sharma & Ors.
Sharma and further the accused during the election speeches had also
spoken that he has purchased the helicopter for the people of Phulpur
and would use it for them, so, under this bonafide belief, the helicopter
was taken to Delhi being the property of the accused Romesh Sharma
and thus were justified in law in preventing his helicopter to be taken
from Phulpur to Mumbai and their action was covered under the
general exception containing in Section 79 IPC. They did not commit
robbery and the question of dacoity did not arise.
179.For an offence under section 395 IPC which provides punishment for
dacoity, following ingredients must exist:
a) That the robbery was committed or attempted;
b) That five or more persons committed or attempted to commit
robbery; or aiding such commission or attempt; or that the whole
number of persons committing or attempting to commit robbery
was five or more.
c) That such persons were acting conjointly.
d) In robbery, there is either theft or extortion. Theft is robbery if in
order to the committing of the theft or in carrying away or
attempting to carry away property obtained by theft, the
R.C No. : 1/(S)/98/STF/CBI/ND 164/213
165CBI Vs. Romesh Sharma & Ors.
offender, for that end, voluntarily causes or attempts to cause to
any person death or hurt or wrongful restraint, or fear of instant
death or of instant hurt or of instant wrongful restraint. Extortion
is robbery if the offencer, at the time of committing the extortion,
is in the presence of the person put in fear, and commits the
extortion by putting that person in fear of instant death, or
instant hurt, or of instant wrongful restraint to that person or to
some other person, and, by so putting in fear, induces the
person so put in fear then and there to deliver up the thing
extorted.
180.PW9 has stated that on 11.05.96 the helicopter was dismantled and
the parts were loaded in the truck. When the machine and the parts
were being tied, two vehicles loads of people appeared. They were
about 15 persons who surrounded the truck. Some of them were
carrying guns and most of them were having lathis. Those persons
shouted and threatened them that the helicopter cannot be taken to
Mumbai, it has to be taken to Delhi as per the orders of Romesh
Sharma and the staff including Engineers and Pilot have to accompany
the truck to Delhi. They started pulling down the parts loaded in the
R.C No. : 1/(S)/98/STF/CBI/ND 165/213
166CBI Vs. Romesh Sharma & Ors.
truck. They were aggressive and more in numbers with arms and if
resisted they would have been physically harmed. He stated that the
driver of the truck refused to go to Delhi because he was not having
permit for going to Delhi which fact is also evident from the testimony
of PW23. PW9 has stated that he advised those persons that they
would help them in unloading the parts and machine safely. He stated
that accused Ahluwalia, Bhojwani, Budhiraja, Manoj, Advdesh and
Indermani were part of the group. He identified them correctly stating
that he knew the accused persons since they were working as a team
for election purpose with them. He stated that those persons unloaded
the parts and machine on to the ground and thereafter, the empty truck
left the spot which fact has also come in testimony of PW21 who
arranged the truck. PW9 has stated that his brother B P Pappara
removed the documents i.e. log books from the truck which they
brought to Mumbai. Since they were told not to leave the bungalow,
and had apprehension about their safety since they were threatened to
be taken to Delhi forcibly, they decided to leave the place one by one.
Captain Demose left on the pretext of buying a cigarette. He then left
in a car and went to Allahabad where he met Captain Demose at Hotel
Yatrik. They decided to leave Allahabad and cancelled their earlier
R.C No. : 1/(S)/98/STF/CBI/ND 166/213
167CBI Vs. Romesh Sharma & Ors.
tickets. PW9 has stated that they did not report the matter to the
police because they were more concerned about their safety given the
fact that Romesh Sharma had large clout in the area. From Lucknow
they telephoned to H Suresh Rao. They reached Mumbai on 12.05.96.
However, the other staff reached Mumbai on 14.05.96. He denied that
no threat was given by any of the accused persons. PW14 Wing
Commander Demose also deposed on the lines of PW9. He has
stated that after dismantling when they were tying the parts and the
machine on the truck, two vehicles loaded with 1015 people arrived at
the spot. They shouted loudly not to take or carry the helicopter to
Kerala but asked them to take it to Delhi. Some were armed with
lathis. Some of the persons climbed on the truck and started untying
and unloading the helicopter. They were very unruly. They
apprehended physical assault from those persons in case they tried to
stop them. He stated that accomplishes of the accused unloaded the
parts of the helicopter from the truck. He identified the accused Avtar
Singh Ahluwalia, Bhojwani, Avdesh, Manoj, Naveen Budhiraja and
Indermani and stated that they were amongst those persons. He has
stated that they were shouting menacingly. The accused Avtar Singh
had asked him to stay in Bungalow as he was going to arrange another
R.C No. : 1/(S)/98/STF/CBI/ND 167/213
168CBI Vs. Romesh Sharma & Ors.
truck. They required him not to leave the Bungalow without their
permission. In these circumstances, he left the place on the pretext of
buying cigarette and reached Allahabad. He went to a STD booth
where he met PW29, Mr. Shukla who advised him to write a
complaint. But Mrs. Shukla intervened and advised him not to do so
as it would create trouble for him since he was in the territory of
Romesh Sharma. She also feared arms clash between the supporters
of Romesh Sharma and the other party. PW15 also deposed on the
lines of PW9 and PW14 and stated that there were 1015 persons of
Romesh Sharma who came and unloaded the helicopter saying that
they have instructions to send the truck to Delhi. PW15 identified the
accused Avtar Singh and M.D. Bhojwani amongst those persons
stating that the accused M.D. Bhojwani used to arrange their catering.
181.PW23 and 24 who were driver and cleaner on the truck which was
hired from SherePunjab have stated that after the helicopter was
loaded, 2025 persons came, raised a noise and required them to take
the helicopter to Delhi and not to Mumbai. When they said that they
were not having permit for Delhi, 2025 persons threatened the
persons who had loaded the helicopter in the truck and asked them to
R.C No. : 1/(S)/98/STF/CBI/ND 168/213
169CBI Vs. Romesh Sharma & Ors.
take the truck to Delhi. PW23 has stated that due to fear he
telephoned PW21 who asked him to unload the helicopter and come
there. PW24 has stated that the helicopter was loaded at about 11.00
AM. 2025 persons came there and told them that the helicopter would
be taken to Delhi and not to Mumbai. They also threatened them with
dire consequences. He stated that the helicopter was unloaded by
those 2025 persons which they took about 10 hours to load.
182.PW19 who was the Munshi of Azad Forwarding Agency has stated
that the dismantled helicopter was taken in the truck on behalf of
Romesh Sharma from Ugarsen Pur to Delhi at Mayfair Garden, via
number UP 70 9771 on which PW22 was the driver. Accused Avtar
Singh had booked the truck and paid the fare in advance. PW22 also
corroborated his testimony and stated that on 11.05.96, he was handed
over the GRs. Avtar Singh Ahluwalia was there. He has stated that a
truck was standing there on which helicopter parts and machine had
been loaded. Thereafter, the parts and the machine were removed
from the truck and loaded in his truck. 810 persons present there
helped him to unload the helicopter and load it in his truck. 34 car/jeep
escorted their truck. On 12.05.96 they reached Delhi and stopped the
R.C No. : 1/(S)/98/STF/CBI/ND 169/213
170CBI Vs. Romesh Sharma & Ors.
truck in a Farm House where the helicopter was unloaded.
183.In the instant case, PW23 and PW24 did not say that those persons
had not threatened them to unload the helicopter or to take it to Delhi.
It is not the case that PW23 or PW24 knew the accused persons from
before or were interested in their false implication. Had this sort of
incident not taken place, PW23 and PW24 would have not deposed
about this incident of threat, use of force for taking away the helicopter
from Phulpur to Delhi. Although no recovery of any weapon was
effected from accused persons but it is also to be seen that the case
was registered after about two years of incident, so in these
circumstances, it was not practicable for the investigating agency to
seize the lathis.
184.Facts and circumstances show that the accused persons were armed
with lathis. They were more than five in number. They were present at
the place of the commission of the crime with arms/lathies, carried
away forcibly the dismantled helicopter, possession of which they
obtained by force by putting PW9 and his crew members in fear of
hurt or wrongful restrain so as to take the physical possession of
R.C No. : 1/(S)/98/STF/CBI/ND 170/213
171CBI Vs. Romesh Sharma & Ors.
helicopter from the crew members etc. on the directions of the accused
Romesh Sharma. The act of the accused persons amounted to
dacoity in respect of the said helicopter which was owned and
possessed by PW6 by creating terror at the place of occurrence and
by using force against the crew members of PW6 who were in charge
of the said helicopter at Phulpur and forcibly taking possession thereof
for its transportation to Delhi instead of Mumbai.
185.Regarding the applicability or otherwise of Section 79 of Indian Penal
Code, the word “good faith” has been defined U/s 52 of IPC as
“Nothing is said to be done or believed in good faith which is done or
believed without due care and attention”. PW9 has stated that he had
heard the accused Romesh Sharma speaking to the public at large
during the election speeches that the helicopter was purchased by him
and would remain in the village for the local use of the farmers. When
he made enquiry from PW6, he replied in negative regarding the claim
of the accused Romesh Sharma. PW6 also telephoned the accused
Romesh Sharma and enquired about this fact who told him that it was
only an election gimmick to attract the people and after the election he
would return the helicopter. There is no evidence and circumstance on
R.C No. : 1/(S)/98/STF/CBI/ND 171/213
172CBI Vs. Romesh Sharma & Ors.
record except bald and uncorroborated statement of accused persons
to substantiate their versions. No prudent person on earth can believe
such a bald statement until and unless he makes enqiry and finds it to
be correct. It was held in the case of Harbhajan Singh Vs. State of
Punjab 1966 Cr.L.J. 82 that simple belief or actual belief by itself is not
enough. Appellant mush show that the belief in the impugned
statement has rational basis and was not just a bald simple belief.
186.In the present case, the accused Romesh Sharma, whose statement
the accused claimed to have believed in good faith, was himself the
accused of playing deception upon the complainant (PW6). It has
come in the testimony of PW6 that MOU Ex.PW6/20 was executed on
a stamp paper dated 29.03.96 purporting to be entered predated i.e.
on 24.02.96, on the assurance given by the accused Romesh Sharma
that it was just a document on paper never agreed to be acted upon
just to camouflage the election expenses and it would be destroyed
after the election would be over. It was also signed by the accused
M.D. Bhojwani. It is also to be noted that earlier an MOU Ex.PW6/14
was written on the letter head of Reliance Developers and Investors
which also bears the date 24.02.96 but it does not bear the signatures
R.C No. : 1/(S)/98/STF/CBI/ND 172/213
173CBI Vs. Romesh Sharma & Ors.
of the accused M D Bhojwani. It goes to show that no MOU as alleged
was entered into between Romesh Sharma and PW6 on 24.02.96. It
is also significant to note that the accused persons were armed with
lathis when the machine and its parts were being loaded by the men of
PW6. They threatened PW9 and others to take the helicopter to
Delhi and forced them to accompany. They took the law in their hands
and never reported the matter to the police, 45 vehicles also escorted
with the helicopter. Had they been under bonafide belief, they would
not have acted in such a manner and taken law in their hands. The
facts and circumstances show that they under the directions of the
accused Romesh Sharma illegally and unlawfully took the possession
of helicopter from PW9 and others and took it to Delhi. This very act
on the part of the accused shows that their action was not in good faith
and thus they cannot claim immunity from their criminal liability.
187.During the course of arguments, it was contended by Ld. Counsel for
the accused persons that no TIP of the accused persons was held, the
accused were not named in the FIR and they were arrested after about
2 ½ years of the incident. I find this contention sans merit since it has
come in the testimony of PW9 and other witnesses that the above
R.C No. : 1/(S)/98/STF/CBI/ND 173/213
174CBI Vs. Romesh Sharma & Ors.
accused persons had campaigned for the accused Romesh Sharma in
the election and remained with PW9 and his crew members for about
40 days which was the sufficient period when PW9 and his crew
members/technicians could know the accused persons well. It is not
the case that PW9 and others had a glimpse of the accused persons.
They have specifically named the accused persons in their testimony
and identified them correctly. Although the accused have stated that
they were not present at the time of incident but no such suggestions
came in the crossexamination. It was held in the case of Dana Yadav
@ Dalhu Vs. State of Bihar 2002 JT (7) page 68 that if the accused is
well known to the prosecution witnesses from before, no test
identification is called for. It would be meaningless and shall be the
waste of public time to hold the same.
Keeping in view the facts of the present case, it can safely be
said that not conducting of TIP by the investigating agency is not at all
fatal to the case of the prosecution.
188.It was contended by Ld. Counsel for the accused persons that the
prosecution witnesses namely PW9, PW14 and PW15 were the
employees of PW6 and were the interested witnesses. On going
R.C No. : 1/(S)/98/STF/CBI/ND 174/213
175CBI Vs. Romesh Sharma & Ors.
through their testimony, I find that they were subjected to anvil of cross
examination but their testimony remained intrinsically worth believing.
Their testimony stand corroborated from PW23 and PW24. Further,
there is no evidence to show that PW9 and others were interested in
their false implication or they had enemity with those persons. In the
case of Daulat Ram Sadhram Teli Vs. State of Chattisgarh 2009
AIR SCW 6273 it was held that merely because eye witnesses are
family members of the deceased, their evidence cannot be perse
discarded. When there is allegation of interestedness, the same has to
be established. It would not by itself be sufficient to discard their
evidence straightway unless it is proved that their evidence suffers
from serious infirmities which raises considerable doubt in the mind of
the Court (See State of Gujarat Vs. Nagin bhai Dhula Bhai Patel AIR
1983 SC 839). In the present case, the testimony of the prosecution
witnesses remained consistent and cogent.
189.As regards contradictions, some of the witnesses have stated that
they were 2025 persons and some said that they were 1015 persons,
testimony of PW9 and PW14 would show that there were about 15
persons who came in two vehicles. They were armed with lathis and
R.C No. : 1/(S)/98/STF/CBI/ND 175/213
176CBI Vs. Romesh Sharma & Ors.
threatened them. They also pressurised them to remain in Bungalow
and accompany them to Delhi with the helicopter. There minor
contradictions do not appear to be material to have bearing on the
outcome of the case. It was held in the case of Siddiqua Vs. NCB
137 (2007) DLT 500 that a small contradiction here and there could not
make the testimonies of the witnesses doubtful. Minor discrepancies
are very natural to occur. The Court has to consider the entire
evidence as has been adduced before it and then come to the
conclusion. Minute details of incidents with the passage of time go out
of memory. It is not as if a video tape is replayed on the mental
screen. Sometimes the witness cannot anticipate the occurrence
which so often has an element of surprise. It was held in the case of
Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat AIR 1983 SC
753 that no value is to be pinned with minor and insignificant
contradictions.
190.In the case of Krishna Mochi & Ors. Vs. State of Bihar & Ors. 2002
(2) CC Cases (SC) 58 it was held that : It is the duty of the Court to
separate grain from chaff – when chaff can be separated from grain, it
could be open to the Court to convict the accused notwithstanding that
R.C No. : 1/(S)/98/STF/CBI/ND 176/213
177CBI Vs. Romesh Sharma & Ors.
evidence is found difficult to prove guilt of other accused persons –
falsehood of particular material witness or material particular would not
seclude it from the beginning to end – the maxim Falsus in
uno falsus in omnibus’ has no application in India and the
witnesses cannot be branded as liar”.
191.In the light of above facts, I am of the considered view that the
prosecution has successfully proved the ingredients of the offence
punishable U/s 395 IPC against the accused persons namely Avtar
Singh Ahluwalia, Naveen Budhiraja, M D Bhojwani, Manoj, Indermani
and Avdesh.
192.The other substantive charges against the accused Romesh Sharma
are that he had committed offence of extortion against PW6 by putting
him under the fear of death/grievous hurt, forcing him to put his
signature on the agreement purported to be dated 14.05.1996 to sell
the helicopter and on the affidavit dated 05.06.1996 as deponent
showing the sale of the said helicopter to him and receiving of
payment/sale proceeds in full and final from him and dishonestly
inducing him to deliver the aforesaid documents being the property
and the valuable security to him.
R.C No. : 1/(S)/98/STF/CBI/ND 177/213
178CBI Vs. Romesh Sharma & Ors.
193.Section 383 defines extortion for which punishment is prescribed
under section 384 and the aggravated form of extortion is punishable
under sections 385 and 386.
194.To constitute an aggravated offence of extortion punishable under
section 386 IPC, the following ingredients must exist :
a) The extortioner put the complainant or any other person in fear
of death or of grievous hurt;
b) The extortioner did so intentionally.
195.The offence of extortion u/s 383 consists in intentionally putting a
person in fear of injury to himself or another; or dishonestly inducing
the person so put in fear to deliver to any person, property or valuable
security.
196.Testimony of PW6 shows that when he was informed by his crew
members PW9 and PW14 that the helicopter was taken away to Delhi
from Phulpur by use of force by the men of the accused Romesh
Sharma, he contacted the accused Romesh Sharma on phone who
asked him to come to Delhi saying that by the time the helicopter would
R.C No. : 1/(S)/98/STF/CBI/ND 178/213
179CBI Vs. Romesh Sharma & Ors.
also reach Delhi. On 14.05.1996 he reached Delhi and contacted the
accused and enquired to which the accused told him that the helicopter
is his property and it is in his possession. When he asked him to
return his helicopter and make payment towards the hire charges, the
accused told him to forget about the helicopter as the same has
become his property now and at the most he would be entitled to the
payment relating to the helicopter. On 15.05.1996, when PW6 again
requested the accused to return his helicopter, he threatened of his
connection with Dawoud Ibrahim gang and to follow his instructions
otherwise he would face dire consequences. He also revealed his
proximity with Abu Salem and Irfan Goga. Thereafter, he asked PW6
to bring the original documents of the helicopter alongwith an affidavit
required for its transfer and told that he would make the payment
thereafter. The testimony of PW6 further reveals that he came with
his advocate, PW10 on 05.06.1996, also called PW7 where the
accused asked him to sign an agreement to sell Ex. PW6/33
purported to be of dated 14.05.1996. When PW10 advised PW6 to
take the payment first and then sign the documents, the accused
became furious, snatched the documents from PW6 and also
threatened his connection with Dawood Ibriham Gang. Being scared of
R.C No. : 1/(S)/98/STF/CBI/ND 179/213
180CBI Vs. Romesh Sharma & Ors.
the threats given by the accused Romesh Sharma, he signed on the
agreement and the affidavit Ex.PW2/A5 and also handed over him
the log books of the helicopter which was the requirement for transfer
of ownership of the helicopter in the name of the accused. The
accused had also directed PW6 to call PW18 with whom he had
pledged the registration of the helicopter as a collateral security for
payment of dues of Rs.18 lacs which were outstanding against PW6
towards the cost of the spare parts of the helicopter. On the request of
PW6, PW18 came at the house of the accused who also reiterated
the fact but on the assurance given by the accused Romesh Sharma
that he would pay him Rs.18 lacs, he handed over the registration
certificate of the helicopter Ex.PW2/A3. The accused on the basis of
the aforesaid documents got transferred the ownership in his name.
PW10 and PW7 have duly corroborated this fact and nothing material
came in their crossexamination to draw an inference that they have
deposed at the instance of PW6.
197.The affidavit is itself a property, which was delivered and later on
came into the possession of the accused Romesh Sharma as the
ownership of the helicopter could not have been transferred in the
R.C No. : 1/(S)/98/STF/CBI/ND 180/213
181CBI Vs. Romesh Sharma & Ors.
name of accused Romesh Sharma without the production of the same
as is evident from the statement of PW1 and PW2. The Supreme
Court in Abhayan and Mishra Vs. State of Bihar 1961(2)Crl.L.J. 822
has held that it is not necessary that a property (document) should
have any pecuniary value and thus held that admission card to sit in
examination is a property as defined in the Indian Penal Code. In the
case the affidavit Ex. PW2/A3 and the log books, both in original are
the property as contemplated u/s 22 of the IPC.
198.From the above facts, it is established that on 05.06.1996, the
accused Romesh Sharma committed the extortion by putting PW6 in
the fear of death, forced him to put his signature on the agreement
Ex.PW6/33 purported to be dated 14.05.1996 to sell the helicopter and
also forced him to put his signature on the affidavit dated 05.06.1996
Ex.PW2/A3 showing the receipt of the sale proceeds of the helicopter
in full and final from the accused Romesh Sharma which was being
carried by PW6 and dishonestly induced him to part with the
possession of the said documents and deliver the affidavit and log
books being the property and the valuable security to the accused and
thereby he committed the offence punishable under section 386 IPC.
R.C No. : 1/(S)/98/STF/CBI/ND 181/213
182CBI Vs. Romesh Sharma & Ors.
199.Now, coming to the charge under section 412 IPC against the accused
Romesh Sharma, the allegations are that on 14.05.1996 the accused
Romesh Sharma received the stolen property i.e. the helicopter
belonging to H. Suresh Rao at his residence and Jai Mata Di Farm,
Chattarpur, Delhi knowing fully well that the possession thereof has
been transferred on commission of the offence of dacoity by his
accomplices.
200.The important elements of section 412 IPC are :
a) The property is stolen property;
b) The said property was concerned with dacoity;
c) The accused dishonestly received it;
d) The accused knew or had reason to believe that the said
property was stolen in dacoity.
e) A property will be designated as stolen if possession of such
property has been transferred by theft or extortion, or robbery or
the property which has been criminally misappropriated or in
respect of which criminal breach of trust has been committed.
201.The testimony of the prosecution witnesses clearly establish that the
R.C No. : 1/(S)/98/STF/CBI/ND 182/213
183CBI Vs. Romesh Sharma & Ors.
accused persons Avtar Singh and coaccused on 11.05.1996, after the
machine and the dismantled parts of the helicopter which had been
loaded for Mumbai, reloaded the same in another truck arranged by
Avtar Singh to hand over the stolen property to the accused Romesh
Sharma. The accused persons were more than five in number, armed
with weapons and lathis. They forcibly unloaded the helicopter from
the truck and got it loaded in other truck and took it to Delhi. All they
did was on the directions of accused Romesh Sharma. They took the
helicopter to the farm of Romesh Sharma at Chatter Pur, Delhi where
on 24.06.1996 the accused got reassembled the helicopter from PW9
and PW44. He also got the documents executed from PW6 as to the
receipt of full consideration towards the helicopter for its transfer by
extending threats as to his connection with Dawood Ibrahim Gang, got
the ownership of the helicopter transferred in his name and retained its
possession unlawfully and further contacted PW45 and PW64 for its
use by the Reliance Industries.
202.I am of the considered view that prosecution has established its case
against the accused Romesh Sharma of his having committed the
offence punishable under section 412 IPC.
R.C No. : 1/(S)/98/STF/CBI/ND 183/213
184CBI Vs. Romesh Sharma & Ors.
203.Now coming to the charges U/s 365, 506 and 323 IPC against the
accused persons namely Romesh Sharma and Laxman Singh, the
allegations are that on 20.10.98, from C30 Mayfair Garden they
abducted H. Suresh Rao and Rakesh Gupta in his Mercedes car and
forcibly brought them to the office at 16, Mahadev Road with intent to
cause them to be secretly and wrongfully confined and also committed
criminal intimidation by pointing a licensed pistol towards H. Suresh
Rao to cause injury to H. Suresh Rao with intent to keep him forcibly
sitting in the car and voluntarily caused hurt on to the person of H.
Suresh Rao.
204.Section 365 provides punishment for kidnapping or abducting with
intent secretly and wrongfully to confine person. Abduction in common
language means the carrying away of a person by force or fraud.
205.Section 323 provides punishment for voluntarily causing hurt. To
constitute an offence under this section, following ingredients must
exist :
(i) The accused by his act caused bodily pain, disease or
infirmity to the complainant;
R.C No. : 1/(S)/98/STF/CBI/ND 184/213
185CBI Vs. Romesh Sharma & Ors.
(ii) He did such act intentionally or with knowledge that it would
cause hurt, etc.
206.Section 506 IPC provides punishment for criminal intimidation. This
section has the following essentials:
1) Threatening a person with any injury:
a) To his person, reputation, or property, or
b) To the person, or reputation of anyone in whom that
person is interested;
2) Threat must be with intent:
a) To cause alarm to that person, or,
b) To cause the person to do any act which he is not legally
bound to do as the means of avoiding the execution of
such threat, or
c) To cause that person to omit to do any act which that
person is legally entitled to do as the means of avoiding
the execution of such threat.
207.Testimony of PW6 reveals that on 20.10.98 he came to Delhi, met
PW7 and requested for his help in retrieving his legitimate dues. They
R.C No. : 1/(S)/98/STF/CBI/ND 185/213
186CBI Vs. Romesh Sharma & Ors.
went to the house of the accused at Mayfair Garden at 11.30 AM where
they were made to wait for two hours. Accused then called them in the
cabin where PW7 requested the accused to settle the account of Mr.
Rao (PW6) stating that PW6 was in great difficulty. PW6 has stated
that the accused then told them that the helicopter has become his
property. When PW7 requested the accused to settle the account of
Mr. Rao as much time has passed and told that if it is not settled, PW6
may unnecessarily go and make complaint to the police, the accused
got angry and told that he was telling a lie. He knew that PW6 has
already filed a complaint. Accused then started beating him giving
punches and kicks. He also lifted a chair and tried to hit him which
PW7 prevented. Accused then told them to sit and not to move. It has
further come in the testimony of PW6 that he thought to run away. He
told the personnel of accused Romesh Sharma in the house that he
was going to buy a cigarette. He came out and started running. He
then saw someone following him. When he was trying to take a taxi, he
saw the accused in Pajero jeep, driving it himself, PW7 sitting by his
side and another person sitting on his back. PW6 has stated that
accused shouted at him and asked him to sit in the car. The accused
enquired from him if he was going to the police station. When he told
R.C No. : 1/(S)/98/STF/CBI/ND 186/213
187CBI Vs. Romesh Sharma & Ors.
him that he was going to purchase cigarette, accused frisked his
pocket and found the cigarette in his pocket. He stated that the
accused became annoyed and started beating him. He called his
security man, accused Laxman Singh and a South Indian man and
asked them to sit in his Mercedes Car. The accused Laxman Singh
had a pistol with him who pointed it out towards him in the car. PW6
has also stated that accused had told Laxman to shoot if he (PW6)
tried to run away. The accused then took them to 16, Mahadev Road,
his party office from where they were not allowed to leave. They
remained confined there for some time and were rescued by the
police. He identified the pistol Ex. P1. He stated that on the same day
he gave the complaint Ex.PW6/46 in the police station Hauz Khas,
New Delhi. In his presence Pajero jeep and Mercedes Car were
seized. Testimony of PW6 shows that he was examined on the same
day of incident at AIIMS where his MLC Ex.PW90/1 was prepared.
The testimony of PW6 H. Suresh Rao is corroborated by the
statement of PW7 Rakesh Gupta who has stated that Romesh
Sharma when found cigarettes in the pocket of of H. Suresh Rao
slapped and punched him (H. Suresh Rao). Someone informed the
control room at Tel. No. 100 regarding his beating.
R.C No. : 1/(S)/98/STF/CBI/ND 187/213
188CBI Vs. Romesh Sharma & Ors.
The said information was received by PW41 lady constable
Reena. PW41 has stated that she had received a call at 100 No. at
1357 hrs. that Romesh Sharma was beating two persons. She
recorded the information vide Ex.PW41/A. No suggestions were given
to PW41 that no such information was received or she recorded the
false information. She has stated that the information was passed on
through the communication set. PW39 has stated that she recorded
the information in the Rojnamcha vide DD Ex.PW39/D. PW42 the
SHO of Police Station Kalkaji, New Delhi has stated that he had
received the message on wireless that he should reach at Mayfair
Garden and report to the SHO Police Station Hauz Khas. He went
there and met the SHO Hauz Khas who asked him to go to 16,
Mahadev Road saying that accused has picked up two persons forcibly
and taken them there. He went there and found PW6 and PW7 in the
captivity of Romesh Sharma. He rescued them. They at that time
were very disturbed and terribly shattered. He took them alongwith the
accused to the police station Hauz Khas. He then took the accused
Romesh Sharma to Mayfair Garden and handed over his custody to
the SHO Hauz Khas.
R.C No. : 1/(S)/98/STF/CBI/ND 188/213
189CBI Vs. Romesh Sharma & Ors.
208.It has also come in evidence that 16, Mahadev Road was allotted to
Shiv Charan Singh against whom an eviction order Ex.PW57/7 was
passed after the allotment was cancelled. Since the premises was not
vacated by Shiv Charan, so it was got vacated on 11.11.98 vide Eviction
Report Ex.PW57/10. It has come in the evidence of PW56 that the
accused had given an application requesting for change of his office
from Churiwalan, Sita Ram Bazar to Mahadev Road. PW10 has
stated that there was board of All India Bhartiya Congress on the
premises. From the testimony of above witnesses, it is clear that the
accused was operating from the premises at 16, Mahadev Road at the
time of incident which was his party office.
209.PW6 also identified the accused Laxman from the photograph
Ex.PW6/57, after the accused Laxman refused to participate in TIP.
PW7 also deposed on the lines of PW6. No material contradictions
came in the testimony of PW7 as to the incident which happened on
20.10.98.
210.It was contended by Ld. Counsel for the accused Laxman Singh that
the accused was simply a security guard of the accused Romesh
R.C No. : 1/(S)/98/STF/CBI/ND 189/213
190CBI Vs. Romesh Sharma & Ors.
Sharma and has nothing to do with the alleged incident.
211.It is true that the accused was a security personnel of accused
Romesh Sharma for his security, but, he did not have a license to
threaten or kidnap any person that too at the point of pistol on the
instructions of his master. There is nothing to indicate that the accused
Romesh Sharma had threat from them. Testimony of PW6 and PW7
go to show that he had accompanied the accused Romesh Sharma in
his car and had put pistol on to PW6 and confined them in a room at
16, Mahadev Road. This shows his complicity with the accused
Romesh Sharma in abducting and wrongfully confining PW6 and
PW7 at Mahadev Road.
Thus, from the testimony of above witnesses, it is proved that
the accused Romesh Sharma abducted PW6 and PW7 with intent to
wrongfully restrain them at 16, Mahadev Road at the point of pistol with
the help of coaccused Laxman Singh and also gave beatings to PW6
when PW6 tried to retrieve the helicopter or his legitimate dues from
the accused thereby committed the offences punishable u/s 365/506
and 323 IPC.
R.C No. : 1/(S)/98/STF/CBI/ND 190/213
191CBI Vs. Romesh Sharma & Ors.
Criminal Conspiracy :
212.It was contended by Ld. Counsel for the accused persons that there is
no material on record to show that the accused Romesh Sharma had
hatched criminal conspiracy with the coaccused or they agreed to
commit such offences as alleged.
213.The essential ingredient for an offence of conspiracy U/s 120A is that
there should be an agreement between two or more persons to commit
an offence. The agreement to commit an offence or an illegal act
between two persons or more is the essence of conspiracy. Such an
agreement is designated as criminal conspiracy. It is relevant to quote
the relevant observations made by Hon’ble Supreme Court in Kehar
Singh Vs. State (Delhi Administration) AIR 1988 SC 1883 (known as
Indira Gandhi murder case) which are as follows :
Generally, a conspiracy is hatched in secrecy and it may be
difficult to adduce direct evidence of the same. The
prosecution often relies on evidence of acts of various
parties to infer that they were done in reference to their
common intention. The prosecution will also more often rely
R.C No. : 1/(S)/98/STF/CBI/ND 191/213
192CBI Vs. Romesh Sharma & Ors.
upon circumstantial evidence. The conspiracy can
undoubtedly be proved by such evidence direct or
circumstantial. But the Court must enquire whether the two
persons are independently pursuing the same end or they
have come together in the pursuit of the unlawful object. The
former does not render them conspirators, but the latter
does. It is, however, essential that the offence of conspiracy
requires some kind of physical manifestation of agreement.
The express agreement, however, need not be proved. Nor
actual meeting of two persons is necessary. Nor it is
necessary to prove the actual words of communication. The
evidence as to transmission of thoughts sharing the unlawful
design may be sufficient.
It is unnecessary to prove that the parties “actually came
together and agreed in terms” to pursue the unalwful object;
their need never have been an express verbal agreement, it
being sufficient that there was a “tacit understanding
between the conspirators as to what should be done.”
R.C No. : 1/(S)/98/STF/CBI/ND 192/213
193CBI Vs. Romesh Sharma & Ors.
214.From perusal of the above, it comes out that in order to prove the
conspiracy, prosecution is not required to prove the agreement and to
adduce the direct evidence/agreement of conspiracy or that the parties
should come together actually to agree to pursuit the unlawful object,
there may be, it is not necessary that there was an express verbal
agreement but what is necessary to show is that there was some sort
of tacit understanding between the conspirators as to what should be
done. It will also be appropriate to refer to observations made in para
no. 276 wherein it is stated that “the relative acts or conduct of the
parties must be conscientious and clear to mark their concurrence as
to what should be done. The concurrence cannot be inferred by a
group of irrelevant facts artfully arranged so as to give an appearance
of coherence. The innocuous, innocent or inadvertent events and
incidents should not enter the judicial verdict.” In the case of E. G.
Barsay Vs. State of Bombay (1962) 2 SCR 195 it was held that the
gist of the offence is an agreement to break the law. In a case of Eran
Eliav Vs. State 2008 Drugs Cases (Narcotics) 98 it was held that
both abetment and criminal conspiracy are fiendishly difficult to
establish by virtue of direct evidence, it can be established by indirect
or circumstantial evidence which is of an impeccable nature.
R.C No. : 1/(S)/98/STF/CBI/ND 193/213
194CBI Vs. Romesh Sharma & Ors.
215.In the decision reported as State of Maharashtra & Ors. Vs.