in the court of ms. anju bajaj chandna, special judge …€¦ · sheeted abhishek verma (a1), smt....

IN THE COURT OF MS. ANJU BAJAJ CHANDNA,SPECIAL JUDGE (PC ACT) (CBI)6,

PATIALA HOUSE COURT, NEW DELHI

CC No. 67/16 (Old CC No. 03/15)FIR No. RCAC12012A0009CBIACINew DelhiU/s 120 (B) IPC & Sec. 8 and 12 of PC Act, 1988.CBI vs Abhishek Verma & Ors.CNR No. DLND010003502013

Central Bureau of Investigation

vs

1. Abhishek Verma (A1),S/o Late Sh. Srikant Verma,R/o Farm House2, Church Road, Vasant Kunj,New Delhi.

2. Smt. Anca Maria Neacsu (A2),D/o Mr. Mohail Arsene,R/o (1) Farm House2, Church Road, Vasant Kunj, New Delhi.(2) Building 149, Apartment 56, Floor 2, Bahuliului street no. 12, city Ploiesti, country Romania.

3. Gerhard Hoy (A3),S/o Sh. Ernst Hoy,R/o Marketing Liaison Office, New Delhi located at Aman Hotel, Lodhi Road, New Delhi.

CC No. 67/16 CBI vs Abhishek Verma & Ors Order on charge of 53

4. M/s Rheinmetall Air Defence AG of Switzerland(RAD), Birchstrasse, 155post tach CH8050, Zurich, Switzerland. (A4).Through Mr. Gerhard Hoy, Senior Vice President.R/o Marketing Liaison Office, New Delhi located at Aman Hotel, Lodhi Road, New Delhi.

Date of FIR : 05/06/2012.Date of filing of chargesheet: 05/06/2013.Arguments concluded on : 19/04/2017.Date of Order : 26/04/2017.

Appearances

For prosecution: Sh P.K. Dogra, Ld. Senior Public Prosecutor for CBI.For Accused persons: Sh. Maninder Singh Ld. Counsel for A1 and A2.

Sh. Siddharth Aggarwal, Ld. Counsel for A3.Sh. Percival Billimoria, Ld. Senior Counsel with Sh. Vikram Singh, Ld. Counsel for A4.

ORDER ON CHARGE

1. The Central Bureau of Investigation has charge

sheeted Abhishek Verma (A1), Smt. Anca Maria Neacsu (A2),

Mr. Gerhard Hoy (A3) and M/s Rheinmetall Air Defense AG of

Switzerland (RAD) (A4) for the offences punishable u/s 120B

IPC and Section 8 of Prevention of Corruption Act, 1988.


2. The case of the prosecution has been that the

investigation was pending vide RC0102009A0019 against M/s

Rheinmetall Air Defense AG of Switzerland (RAD) in the matter

of award of contract by Ordnance Factory Board (OFB) Kolkata,

wherein it was found that huge illegal gratification was paid to

the then Director General of OFB. On the basis of investigation,

blacklisting of RAD was recommended by CBI and while the

matter of blacklisting was under process, accused Abhishek

Verma, assured representatives of RAD to help, by influencing

the public servants of Government of India to stall the process of

blacklisting. On the offer of Abhishek Verma, accused company

RAD agreed and paid an advance of USD 5,30,000 for using his

influence on the public servants and also for payment of illegal

gratification to public servants in India. The money was paid by

transfer to the bank account of M/s Ganton Limited, New York,

USA (a benami company of Abhishek Verma), operated by one

C. Edmonds Allen of USA. The purchase order in respect of


aforesaid payment was issued by M/s RAD on 31/05/2010 and

the invoice of the said purchase order has shown the amount as

consultation charges by M/s Ganton Limited USA. The money

was accordingly transferred on 17/02/2011 to the account of

M/s Ganton Limited USA, a private company, incorporated in

USA on 24/03/2005 and was established by Mr. C. Edmonds

Allen at the request of accused Abhishek Verma. In India, M/s

Ganton India private limited, is subsidiary company fully owned

by M/s Ganton Limited USA. Accused Anca Maria Neacsu [wife

of accused Abhishek Verma (A1)] has been the Director of M/s

Ganton Limited USA and also Managing Director of M/s Ganton

India private limited. Accused Gerhard Hoy has been the senior

Vice President for Rheinmetall Defence India (RDI) and Mrs.

Jane James was working as Executive Assistant. Mrs. Jane James

used to arrange meetings, travel arrangements, hotel booking,

etc on behalf of RDI and also used to take care of payments and

correspondences etc. Blacklisting of M/s Rheinmetall Air


Defence, Zurich, Switzerland was recommended in the year

2010 and a show cause notice was issued on 04/02/2011.

3. Investigation revealed that accused Abhishek Verma

was associated with accused Gerhard Hoy and other

representatives of M/s Rheinmetall Air Defence since AprilMay

2010. In the beginning of year 2010, accused Abhishek Verma,

accused Anca Maria Neacsu and accused Gerhard Hoy (on

behalf of RAD) hatched a criminal conspiracy with the object to

prevent blacklisting of the company M/s Rheinmetall Air

Defence and various meetings were arranged and held between

them. Mrs. Jane James was asked by accused Gerhard Hoy to

collect the bank details of M/s Ganton Limited USA and the

same were received by her through Email dated 15/02/2011

from accused Abhishek Verma and the details were forwarded to

accused Gerhard Hoy. Also, accused Anca Maria Neacsu has

been facilitating the meetings between accused Gerhard Hoy


and accused Abhishek Verma.

4. It is further revealed that in pursuance of conspiracy,

accused Gerhard Hoy alongwith his chief Mr. Bodo Herbert

Garbe discussed the said issue in one of the meeting at the

residence of accused Abhishek Verma during OctoberNovember

2010.

5. It is further the claim of the prosecution that amount

of USD 5,29,982 was received by M/s Ganton Limited USA on

17/02/2011 as per the bank records. Thereafter, between

15/04/2011 to 12/10/2011, total amount of Rs. Two crores

(approximately) has been received in the bank account of M/s

Ganton India private limited. Accused Anca Maria Neacsu has

been the Managing Director as well as authorized signatory of

M/s Ganton India private limited. Mr. Bodo Herbert Garbe, CEO

and Mr. Max Kaufman, Head of International Corporation, RAD


visited India on several occasions on being convinced by Mr.

Gerhard Hoy. The hand written note slip was also recovered,

which has been in the handwriting of accused Gerhard Hoy,

wherein amount of USD 5,30,000 and name of accused

Abhishek Verma has been referred as “ABI”.

6. Finally, it is the claim of the prosecution that accused

persons Abhishek Verma, Anca Maria Neacsu with Gerhard Hoy

of RAD have been deeply involved in criminal conspiracy and

pecuniary advantage has been obtained by receiving the amount

through the bank account of M/s Ganton India private limited.

Mr. C. Edmonds Allen of M/s Ganton Limited USA was unaware

and he received Email from accused Abhishek Verma in

February 2011 stating that RAD would be sending Ganton

Limited USA US$ 6 lakhs from Singapore. The said amount was

accordingly received and thereafter transferred to M/s Ganton

India private limited during the period 15/04/2011 to


12/10/2011.

7. According to prosecution, in the face of above facts

and circumstances, the offences punishable u/s 120 B IPC and

section 8 of the Prevention of Corruption Act, 1988 has been

committed by accused Abhishek Verma (A1), Anca Maria

Neacsu (A2), Gerhard Hoy (A3) and M/s Rheinmetall Air

Defence AG of Switzerland (RAD) (A4).

8. I have heard Sh. P.K. Dogra, Ld. Senior PP for CBI,

Sh. Maninder Singh, Ld. Counsel for accused Abhishek Verma

(A1) and Anca Maria Neacsu (A2), Sh. Siddharth Aggarwal,

Ld. Counsel for Gerhard Hoy (A3), Sh. Percival Billimoria, Ld.

Senior Counsel for M/s Rheinmetall Air Defence (A4) and

perused the record/documents relied upon by CBI. I have also

examined the written submissions placed on record.


9. Ld. Senior PP for CBI has argued in terms of the

chargesheet and submitted that there is ample evidence to raise

grave suspicion against the accused persons for having

committed the offence of criminal conspiracy for taking

gratification to influence public servant by corrupt or illegal

means, thereby to help the company M/s Rheinmetall Air

Defence on the issue of its blacklisting. The Emails exchanged

between the accused persons clearly indicate that such

conspiracy had taken place and gratification in the form of USD

5,30,000 were transferred at the instance of accused Abhishek

Verma.

10. On the other hand, arguing on behalf of accused

Abhishek Verma (A1) and Anca Maria Neacsu (A2), Ld.

Counsel Sh. Maninder Singh submitted that charge has to be

framed only if there is sufficient material on record. If the case

of the prosecution is found to be groundless, the accused


persons deserve to be discharged as per Section 239 Cr. PC. The

accused persons have been chargesheeted for the offences of

criminal conspiracy and taking illegal gratification by corrupt or

illegal means in order to influence public servants as punishable

u/s 120B IPC and section 8 of the Prevention of Corruption Act,

1988. The ingredients of the offences are not fulfilled even if

entire version of prosecution is accepted. The facts and the

material relied upon by the prosecution do not form

incriminating evidence against the accused persons and

therefore, offences as alleged are not made out.

11. There is no admissible evidence linking or

connecting accused Abhishek Verma either to Ganton Limited

USA or to Ganton India. Accused Abhishek Verma had no

control over the affairs of above mentioned companies and he

has not been the direct beneficiary of the money so transferred.

The Emails relied upon by prosecution are not linked to accused


Abhishek Verma. On the contrary, there is evidence to show the

complicity of C. Edmonds Allen as he has been the director of

Ganton Limited USA and controlling its affairs. He only signed

the invoices and the non disclosure agreement, whereas accused

Abhishek Verma has not been in picture anywhere. CBI has not

directly questioned C. Edmonds Allen pertaining to the present

case and only on the basis of letter of rogatory, the prosecution

seeks to implicate accused persons. Even after the transfer of

money to Ganton limited USA, cheques were being signed by C.

Edmonds Allen in his own favour, which show that the said

amount has been put to his own use. If at all any offence has

been committed, it has been committed by Ganton limited USA

by accepting gratification from RAD and consequently C.

Edmonds Allen is the offender and without implicating him,

accused Abhishek Verma cannot be brought into the sequence of

events by alleging conspiracy.


12. The company M/s Ganton Limited USA has been

fully owned and controlled by Mr. C. Edmonds Allen and also

the company in India namely M/s Ganton India private limited.

Accused Anca Maria Neacsu is only one of the Director holding

0.1% equity. Also accused Anca Maria Neacsu has been charged

in her personal capacity without impleading the company as an

accused. Accused Anca Maria Neacsu in her personal capacity

admittedly has not committed any offence. The money transfer

from M/s Ganton Limited USA to its subsidiary company M/s

Ganton India private limited, itself is no offence particularly

when the exact amount USD 5,30,000 was not transferred and

admittedly the money has been transferred on many occasions

much more than USD 5,30,000. The amount allegedly termed

as illegal gratification does not match in any way to the amounts

received by M/s Ganton India, which otherwise have been

receiving the funds from its parent company, therefore, no

criminality can be attached to such transactions.


13. Ld. Counsel further contends that criminal

conspiracy is an independent offence and unlawful agreement is

sine qua non to the same. Mere knowledge cannot be made an

independent offence unless the person has deliberately

participated in the chain of events constituting conspiracy. There

is no material on record to show that meetings even if held

between accused Abhishek Verma and representatives of M/s

Rheinmetall Air Defence were on the issue to prevent

blacklisting. Also, there is nothing on record to suggest that

accused Abhishek Verma or his wife accused Mrs. Anca Maria

Neacsu made any promise to the representatives of M/s

Rheinmetall Air Defence to influence public servants to prevent

its blacklisting. The statements of witnesses recorded u/s 161

Cr. PC i.e. PW 5 Smt. Jane James; PW 9 Sh. Sambhajee Lal

Surve and PW 14 Shri Ram Prakash Singh have been pointed

out to stress that no offence against accused Anca Maria Neacsu


is disclosed of these statements. It is further submitted that there

has been prior meetings, dealings and transactions between

accused Abhishek Verma and M/s Rheinmetall Air Defence with

respect to Noida project and this fact has been admitted even by

prosecuting agency in the charge sheet (para 16.12). There is no

material to show that accused Anca Maria Neacsu had been

arranging the meetings between accused Abhishek Verma and

officials of RAD for the purposes of preventing their blacklisting.

14. The proper invoice with respect to the consultation

charges was raised on behalf of M/s Ganton Limited USA and

money was transferred from the account of RAD. Accused

Abhishek Verma never had any control over the affairs of M/s

Ganton Limited USA nor he has been the beneficiary of any such

transactions, so cannot be considered to be a participant of

conspiracy. It is important to note that M/s Ganton Limited USA

has not been impleaded as an accused despite the fact that


alleged illegal gratification was directly transferred to it. Ld.

Counsel has relied upon following judgments in support of his

arguments. (1) Union of India vs Prafulla Kumar Samal and

another, (1979) 3 SCC 4; (2) State of M.P. Vs MohanLal Soni,

(2000) 6 SCC 338; (3) Dilawar Balu Kurane vs State of

Maharashtra, (2002) 2 SCC 135; (4) P. Vijayan vs State of

Kerala and another, (2010) 2 SCC 398; (5) Sajjan Kumar vs

Central Bureau of Investigation, (2010) 9 SCC 368; (6)

Shreya Jha vs CBI, 2007 [3] JCC 2318; (7) Rajender Singh

Sachdeva vs State (NCT of Delhi), 2008 [2] JCC 979; (8)

Sailendra Nath Mitra vs The state, AIR 1954 Cal 373; (9)

Kodur Thimma Reddi and Ors vs Unknown, 1957 CriLJ 1091;

(10) K.R. Purushothaman vs State of Kerala, (2005) 12 SCC

631; (11) Sanjiv Kumar etc vs State of Himachal Pradesh, AIR

1999 SCC 782 and (12) Bhikalal Ramjibhai Zaveri vs State of

Maharashtra, AIR 1981 SC 476.


15. Arguing on behalf of accused Gerhard Hoy (A3), Ld.

Counsel Sh. Siddharth Aggarwal submitted that applicant has

been the Senior Vice President of Rheinmetall Defence India

(RDI) during the relevant period. There has been commercial

relationship existing between RDI and M/s Ganton India even

prior to the arising of the need to take up the issue of

blacklisting. The blacklisting was recommended in July 2010,

whereas non disclosure agreement (D7) and letter of intent

executed between the two companies are dated 03/05/2010 and

20/04/2010 respectively. It is further contended that ingredients

of Section 8 of Prevention of Corruption Act, 1988 are not made

out in the present case. Nowhere accused persons have named

or even otherwise mentioned any public servant or office to be

induced for the purpose of sorting out the issue of blacklisting.

The money transfer done on 17/02/2011 between RDI can be

on various counts and there is not sufficient evidence to show

that said amount was paid only to get rid of blacklisting. The e


mails exchanged between accused Abhishek Verma and Mr. C.

Edmonds Allen have been referred to and it is stressed that

amount actually transferred does not match to the amount

agreed to be paid on behalf of RDI pertaining to this issue. The

case against accused Bodo Herbert Garbe (A5) has already been

quashed by Hon'ble High Court of Delhi and role attributed to

accused Gerhard Hoy (A3) is no different from him. There is no

incriminating material shown by the prosecution to raise

suspicion against accused Gerhard Hoy and therefore, he

deserves to be discharged.

16. Arguing on behalf of RAD, Ld. Senior Counsel Sh.

Percival Billimoria submitted that relationship between Ganton

Limited USA and RAD relates back to February 2010 and it was

a business relationship in nature. Referring to D12 (page 40),

which is a letter from Jeff Kirsch on behalf of Ganton Limited

USA, D12 (page 68), which is a concept note sent thereafter


and D48 (pages 493 and 496), which are also

communication/letters), it is stressed that there have been

deliberations with respect to joint venture between the above

mentioned two companies and there is no evidence to show that

amount of USD 5,30,000 has been for payment as illegal

gratification to public servants in India. The ingredients of

Section 8 of the Prevention of Corruption Act, 1988 are not

fulfilled and therefore, the offence alleged is not attracted. The

proper invoice was raised and payment was made through

official banking channel on 17/02/2011 and there is no material

on record to show that this transfer was on account of illegal

gratification to be paid for sorting out the issue of blacklisting.

The judgment of Devan Alias Vasudevan and Etc vs The state

1988 CriLJ 1005, has been referred to explain ingredients of

Section 8 of Prevention of Corruption Act, 1988.


17. Speaking about allegations of conspiracy, Ld.

Counsel referred to the judgment of Baliya alias Bal Kishan vs

State of Madhya Pradesh, (2012) 9 SCC 696 and submitted

that there are no circumstances from where the inference of

conspiracy is to be drawn. The prosecution has failed to show

that there has been any agreement between RAD and Ganton

Limited USA to do illegal act by paying gratification to public

servants. The prosecution story is based on assumptions, which

is not permissible under criminal law. There is no evidence to

frame charge against the company RAD.

18. I have given due consideration to the facts and

material placed on record in the light of aforesaid contentions.

19. The law on the question of consideration of charge is

well settled. If the criminal court, on consideration of the

material submitted with the charge sheet finds that a grave


suspicion exists about the involvement of the accused in the

crime alleged, it is expected to frame the charge and put the

accused on trial. At such initial stage of the trial, the truth,

veracity and effect of the evidence which the prosecutor

proposes to adduce are not required to be meticulously judged,

nor any weight is to be attached to the probable defence of the

accused.

20. It was held in the case of Union of India vs Prafulla

Kumar Samal and another, (1979) 3 SCC 4 that:

“…..10. Thus, on a consideration of the authoritiesmentioned above, the following principles emerge:

(1) That the Judge while considering the question offraming the charges under section 227 of the Code hasthe undoubted power to sift and weigh the evidence forthe limited purpose of finding out whether or not aprima facie case against the accused has been made out.

(2) Where the materials placed before the Court disclosegrave suspicion against the accused which has not beenproperly explained the Court will be, fully justified inframing a charge and proceeding with the trial.


(3) The test to determine a prima facie case wouldnaturally depend upon the facts of each case and it isdifficult to lay down a rule of universal application. Byand large however if two views are equally possible andthe Judge is satisfied that the evidence produced beforehim while giving rise to some suspicion but not gravesuspicion against the accused, he will be fully within hisright to discharge the accused.

(4) That in exercising his jurisdiction under section 227of the Code the Judge which under the present Code is asenior and experienced Judge cannot act merely as aPost office or a mouthpiece of the prosecution, but hasto consider the broad probabilities of the case, the totaleffect of the evidence and the documents producedbefore the Court, any basic infirmities appearing in thecase and so on. This however does not mean that theJudge should make a roving enquiry into the pros andcons of the matter and weigh the evidence as if he wasconducting a trial.

….”

21. It was held in the case of Niranjan Singh Karam

Singh Punjabi vs Jitendra Bhimraj Bijjaya, (1990), 4 SCC 76,

that,

at the time of framing charges having regard to section227 and 228 Cr. PC, the court is required to evaluate thematerial and documents on record with a view offinding out if the fact emerging therefrom taken at theirface value disclose the existence of all the ingredientsconstituting the alleged offence. The court may for thislimited purpose to sift the evidence, as it cannot beexpected even at the initial stage to accept all that the


prosecution states as gospel truth even if it is opposed tocommon sense or broad probabilities of the case.

22. It was also held in the case of P. Vijayan vs State of

Kerala and another, (2010) 2 SCC 398 that,

“….

10. Before considering the merits of the claim of boththe parties, it is useful to refer Section 227 of the Codeof Criminal Procedure, 1973, which reads as under:

"227. Discharge.If, upon consideration of the record ofthe case and the documents submitted therewith, andafter hearing the submissions of the accused and theprosecution in this behalf, the Judge considers that thereis not sufficient ground for proceeding against theaccused, he shall discharge the accused and record hisreasons for so doing."

If two views are possible and one of them gives rise tosuspicion only, as distinguished from grave suspicion,the Trial Judge will be empowered to discharge theaccused and at this stage he is not to see whether thetrial will end in conviction or acquittal. Further, thewords "not sufficient ground for proceeding against theaccused" clearly show that the Judge is not a mere PostOffice to frame the charge at the behest of theprosecution, but has to exercise his judicial mind to thefacts of the case in order to determine whether a casefor trial has been made out by the prosecution. Inassessing this fact, it is not necessary for the Court toenter into the pros and cons of the matter or into a


weighing and balancing of evidence and probabilitieswhich is really the function of the Court, after the trialstarts.

…..

23. The scope of Section 227 of the Code was considered

by Apex Court in the case of State of Bihar vs Ramesh Singh

(1977) 4 SCC 39, wherein it was observed that:

"4 ... Strong suspicion against the accused, if the matterremains in the region of suspicion, cannot take the placeof proof of his guilt at the conclusion of the trial. But atthe initial stage if there is a strong suspicion which leadsthe Court to think that there is ground for presumingthat the accused has committed an offence then it is notopen to the Court to say that there is no sufficientground for proceeding against the accused. Thepresumption of the guilt of the accused which is to bedrawn at the initial stage is not in the sense of the lawgoverning the trial of criminal cases in France where theaccused is presumed to be guilty unless the contrary isproved. But it is only for the purpose of deciding primafacie whether the Court should proceed with the trial ornot. If the evidence which the Prosecutor proposes toadduce to prove the guilt of the accused even if fullyaccepted before it is challenged in crossexamination orrebutted by the defence evidence, if any, cannot showthat the accused committed the offence, then there willbe no sufficient ground for proceeding with the trial.

.... "


This Court has thus held that whereas strong suspicion maynot take the place of the proof at the trial stage, yet it may besufficient for the satisfaction of the Trial Judge in order toframe a charge against the accused.

24. The prosecution has alleged commission of offences

punishable u/s 120B IPC and section 8 of the Prevention of

Corruption Act, 1988 against the accused persons.

25. Firstly, it is essential to understand the definition

and concept of section 8 of the Prevention of Corruption Act,

1988:

8. Taking gratification, in order, by corrupt or illegalmeans, to influence public servant.—Whoever acceptsor obtains, or agrees to accept, or attempts to obtain, fromany person, for himself or for any other person, anygratification whatever as a motive or reward for inducing,by corrupt or illegal means, any public servant, whethernamed or otherwise, to do or to forbear to do any officialact, or in the exercise of the official functions of suchpublic servant to show favour or disfavour to any person,or to render or attempt to render any service or disserviceto any person with the Central Government or any StateGovernment or Parliament or the Legislature of any Stateor with any local authority, corporation or Governmentcompany referred to in clause (c) of section 2, or with anypublic servant, whether named or otherwise, shall bepunishable with imprisonment for a term which shall be


not less than six months but which may extend to fiveyears and shall also be liable to fine.

26. The ingredients of the offence are:

(a) That the accused accepted or obtained, or agreed to

accept, or attempted to obtain, from someone;

(b) for himself or for some other person;

(c) any gratification whatever,

(d) as a motive or reward for inducing by corrupt or illegal

means any public servant to do or forbear to do any

official act or to show favour or render any service to any

of the persons specified in the section.

27. It is, therefore, clear that acceptance or obtaining or

even the attempt to obtain illegal gratification as a motive or

reward for inducing public servant by corrupt or illegal means,

constitute the offence. It is not necessary that the person who

receives the gratification should have succeeded in inducing the

public servant or even have attempted to induce the public

servant. The receipt of gratification for the purposes of inducing


public servant by corrupt or illegal means will complete the

offence. It is, however, necessary that accused should have

animus or intent at the time he receives gratification that same

is for the purpose of inducing public servant and such intention

can be gathered or inferred from the material placed on record.

28. In the present case, prosecution is therefore,

required to show by way of sufficient material on record that

accused Abhishek Verma in pursuance to the criminal conspiracy

accepted illegal gratification for the purposes of preventing

blacklisting of company M/s Rheinmetall Air Defence by

influencing public servants. The prosecution has relied upon

various Emails exchanged between accused persons i.e.

Abhishek Verma, Anca Maria Neacsu, Gerhard Hoy and other

officials of M/s Rheinmetall Air Defence. For accused Abhishek

Verma prosecution relies upon Emails exchanged with C.

Edmonds Allen (Director of M/s Ganton Limited USA). The


prosecution further relies upon the statements of witnesses

recorded u/s 161 Cr. PC and also to a hand written slip allegedly

written by Gerhard Hoy containing amount of USD 5,30,000 and

name of accused Abhishek Verma has been referred as “ABI”.

Also the bank records showing transfer of USD 5,29,982 from

the account of M/s Rheinmetall Air Defence to M/s Ganton

Limited USA and funds transfer from M/s Ganton Limited USA

to M/s Ganton India private limited have been relied upon to

show the acceptance of illegal gratification.

29. The Email dated 08/09/2010 allegedly sent by

Abhishek Verma to C. Edmonds Allen reads as follows:

“Has been charge sheeted in a corruption case of CBI inIndia last month. Copy she will send you via Skype to CG.They are on the verge of being blacklisted and we aretrying to help them. So this does not take place. Thesituation for RH is quite fluid and their future inIndia is uncertain. If they are blacklisted then we arenot sure if RAD is blacklisted or the entire RH groupis blacklisted from every deal in India. Moreover, RHbrought Denel, South Africa last year which too isblacklisted since 2003. This move wasn't appreciatedby the MOD in India. Chairman is coming to India on


the 30th September. I will be meeting him. I will alsobe meeting Gerhard Hoy tomorrow Thursday evening.I shall let you know how to proceed in the light of all theabove. Regarding other vendors you mentioned belowplease not that a separate mail follows by the week.”

30. The Email dated 15/02/2011 sent by Abhishek

Verma to C. Edmonds Allen reads as follows:

“Dear Ed,Rheinmetall Germany will be wiring $600,000 to GantonUSA this week. Need an invoice for services rendered.Will explain via Skype which invoice to prepare.Kindly call me, I am available on Skype now.Thanks.”


Verma to gili@gantonlimited.com reads as follows:

“ Dear GiliRheinmetall Germany received an invitation to submitRFP for flycatcher radars $1.5billion. See attached. I waswith Gerhard Hoy last night for dinner at home. He gaveme this document. They will most probably beblacklisted by the time they are ready to bid. We aretrying to prevent that from happening. However lookfor other vendors who can participate in thisprogram thru us. Thru a contact I am trying to get moredetails of this program by sunday. RegardsCC: Sam you comments on petential companies to target.CC: Amarjit – findout more from bud and sachu.”


mailto:[email protected]

32. The Email dated 18/04/2011 sent by C. Edmonds

Allen to Abhishek Verma reads as follows:

“Got it.Eva Herzigova wrote:Dear Ed,You will recall Rheinmetall Germany sentUS$539,000 in February 2011 to Ganton USA as“consultancy payments”.These amounts were to be paid to some people inIndia for “job well done”. These payments in Indiawere to be paid by us and balance margin (profit)was to be kept by us.However job in India was delayed due to reasonsbeyond our control as the control is with theGovt/Military, so the payments to those people alsoare delayed in India. Thus we are holding on to thefunds.After a while Rheinmetall started panicking andwanted their funds back but I didn't want to give itback because the job in India is 3/4 done and if thejob is done completely and Rhenmetall doesn't paythen – we are fucked because those powerful people willdemand from us their pound of share for the work done. Ifwe don't pay these people in India it could seriously affectall our other military programs in India coz its the samegroup of people here.Thereafter I told Rhenmetall that because funds weretransferred by them to Ganton from UBS Switzerland andsender was: Rheinmetall Air Defense, the JP Chase bankgot suspicious and reported the matter to FINCENWashington DC thus the funds are frozen and cannot besent back to UBS Bank Zurich in March.To make them believe I gave them a tipex + cut paste jobof an actual FINCEN letter of March 2011 stating theabove.Today you have to tell him:


a) Funds can be conditionally released however we need tohave proper documentation (besides what they gave us inFebruary 2011)b) if the funds have to go back they can't be sent back toUBS Zurich as it will look suspicious as the funds came tous as consultancy payments from UBS Zurich from RHMaccount. So sending them back to the same place is out ofthe question. c) If and when we do sent the funds back to them toanother subsidiary of RHM in any part of the world, thenit will have to be NON swiss jurisdiction and it will haveto be shown as being sent for another transaction asadvance and not as refund of consultancy payments sentto Ganton.Basically we don't want to pay these monies back to RHMbecause our people in India who we are taking favoursfrom would be upset however we can't say this to RHMbut this is the internal situation as you know. Please don't give him any documents or letters orundertakings of any kind. Just now the balance ofconvenience is in our favour, however if letters oracknowledgment signed then it would tilt in their favour. Regards.”

33. The Email dated 18/04/2011 sent by C. Edmonds

Allen to Abhishek Verma reads as follows:

“My understanding is that the work there was about 3/4done and now Mr. Kaufmann has asked that the funds bereturned as he understands that the work being donecannot be completed and may not have been started. I do not have the details on this so I would appreciate anupdate.We have a problem with the bank explaining why we tooka fee (on which we have to pay income tax) and are nowreturning it to the same party. Mr. Kaufmann and I are


discussing how to send it back and he proposed a companyin Hong Kong. I was trying to figure out how muchwithholding we would have to make on a transmittal toHK. I have explained that we are able to send moneywithout withholding to India because it is capital for thesubsidiary.Please explain the status in India and I will check with thebank which was asking a lot of questions because of thesize of the wire. My banker is on vacation and cannot runinterference. I will be here until 7 or so. I am finishing taxes and filing.I am on Skype if you wish to call me before the meeting fora private Chat.”


Verma to C. Edmonds Allen reads as follows:

“When I met Gerhard Hoy ten days back, we reached anunderstanding that we will give them cash very slowly inIndia in Indian Rupees and small installments for theirexpenses in India with officials and for their paymentstowards baksheesh. As this cash would be unaccounted itwon't pass through their books. Therefore, it is going to be better for us for our cashflowin we pay on their behalf in small trickles spread over ayear or so. This month of July I plan to give them $50,000 equivalentin rupees in cash in Delhi.Therefore, kindly transfer $50,000 on Rheinmetallaccount and another $30,000 for July payroll andbusiness expenses to Ganton India as share capital. Totalof $80,000.If you could remit these funds, they would get to India byMonday or Tuesday which would be great as we can sendout payments next week. In the meanwhile kindly send out an email reply to Max


Kauffman with BCC to me, saying that, as agreed with MrHoy the process of documentation has been arranged andyou will receive the first set of documents in July. Regards. Sent from my iPad.”

35. On examining the contents of Email dated

08/09/2010, it is clear that accused Abhishek Verma have

written to C. Edmond Allen (Director of M/s Ganton Limited

USA) informing him about the probable blacklisting of M/s

Rheinmetall Air Defense. Vide Email dated 15/02/2011,

accused Abhishek Verma has informed C. Edmond Allen about

M/s Rheinmetall Air Defense paying US$ 6 lakhs to M/s Ganton

Limited USA and asked for invoice for services rendered.

36. Email dated 23/03/2011 sent by accused Abhishek

Verma shows that he has been trying to prevent the probable

blacklisting of M/s Rheinmetall Air Defense.


37. Further, Email dated 18/04/2011 shows that the

amount sent by M/s Rheinmetall, Germany in February 2011 to

M/s Ganton Limited USA were to be paid to 'some people in

India for job well done' and balance margin was to be kept by

accused Abhishek Verma. It is also stated in the said Emails that

job in India has been delayed due to the reasons beyond his

control. The Email also mentions that M/s Rheinmetall Air

Defense started asking for the return of the payment. Email

dated 30/06/2011 shows that there has been understanding

between accused Abhishek Verma and accused Gerhard Hoy (on

behalf of M/s Rheinmetall Air Defense) that payment would be

returned by way of installments slowly/gradually.

38. However, in all the above Emails there is no

mention that any public servant is being influenced by accused

Abhishek Verma to prevent blacklisting of M/s Rheinmetall Air

Defense or that any illegal gratification is to be paid to any


public servant out of the amount USD 5,30,000 received from

M/s Rheinmetall, Germany or that the said amount is to be paid

to any public servant as a motive or reward for showing favour.

Although, it appears that there has been involvement of accused

Abhishek Verma in helping out M/s Rheinmetall Air Defense on

the issue of their blacklisting but it is nowhere visible that it is

done through inducing any public servant by corrupt or illegal

means. In any of the above Emails, accused Abhishek Verma has

not named or otherwise specified 'some people in India' to

whom the payments were to be made for the “job well done”,

therefore, the acts of accused Abhishek Verma cannot be linked

or covered within the ambit or definition of Section 8 of the

Prevention of Corruption Act, 1988.

39. The contents of remaining Emails relied upon by

prosecution show that there has been several meetings held

between accused persons Abhishek Verma, Anca Maria Neacsu


and Gerhard Hoy but there is no material to suggest the specific

purpose of the said meetings. According to the statement of Mrs.

Jane James (Executive Assistant of M/s Rheinmetall Air

Defense) recorded u/s 161 Cr. PC, there has been meetings

between accused persons for Noida project and on the matter of

Short Range Surface to Air Missile (SRSAM). These Emails

cannot be considered as evidence indicating that the meetings

were held between accused persons Abhishek Verma, Anca

Maria Neacsu and Gerhard Hoy for the purposes of preventing

blacklisting of M/s Rheinmetall Air Defence or that any such

matter was even discussed between them at that point of time.

There is no material which can show that accused Abhishek

Verma even discussed with the representatives of M/s

Rheinmetall Air Defence about inducing any public servant for

the purposes of preventing blacklisting of the company. No

witness of the prosecution could state anything about this issue.


40. It is also important to note the statement of witness

Sambhajee Lal Surve recorded u/s 161 Cr. PC, wherein he stated

that he advised Mr. Hoy that it would be futile even to think that

blacklisting process could be stopped or reversed. The witness,

although, stated that he got the impression that Mr. Hoy was

willing to put influence through Ministry of Defence or using

political entity to reverse the matter of M/s Rheinmetall Air

Defence but the witness has nowhere stated that any such efforts

were made nor he named accused Abhishek Verma or his wife

Ms. Anca Maria Neacsu for having discussed this matter with

accused Gerhard Hoy. Similarly, no witness of prosecution has

stated that meetings held between accused persons were for the

purposes of even discussing the issue of blacklisting. The factum

of meetings between accused Abhishek Verma, accused Gerhard

Hoy and Mr. Bodo Herbert Garbe on behalf of M/s Rheninmetall

Air Defence, itself constitute no offence when admittedly they

were associated otherwise also even prior to the arising of


matter in question.

41. To constitute a conspiracy, meeting of minds of two

or more persons for doing an illegal act or an act by illegal

means is the first and primary condition and it is not necessary

that all the conspirators must know each and every detail of the

conspiracy. Neither is it necessary that every one of the

conspirators takes active part in the commission of each and

every conspiratorial acts. The agreement amongst the

conspirators can be inferred by necessary implication. In most of

the cases, the conspiracies are proved by the circumstantial

evidence, as the conspiracy is seldom an open affair. The

existence of conspiracy and its objects are usually deduced from

the circumstances of the case and the conduct of the accused

involved in the conspiracy. Criminal conspiracy is an

independent offence in the Penal Code. The unlawful agreement

is sine qua non for constituting offence under the Penal Code


and not an accomplishment. Conspiracy consists of the scheme

or adjustment between two or more persons which may be

express or implied or partly express or partly implied.

42. In "Shivanarayan v. State of Maharashtra", AIR

1980 Supreme Court 439, it was held that

"It is manifest that a conspiracy is always hatched insecrecy and it is impossible to adduce direct evidence ofthe same. The offence can be only proved largely from theinferences drawn from acts or illegal omission committedby the conspirators in pursuance of a common design."

43. In the case of State of Maharashtra and Others vs

Som Nath Thapa and Others, (1996) 4 SCC 659, it was held that

“To establish a charge of conspiracy knowledge aboutindulgence in either an illegal act or a legal act by illegalmeans is necessary. In some cases, intent of unlawful usebeing made of the goods or services in question may beinferred from the knowledge itself. This apart, theprosecution has not to establish that particular unlawfuluse was intended, so long as the goods or service inquestion could not be put to any lawful use. Finally,when the ultimate offence consists of a chain of actions,it would not be necessary for the prosecution toestablish, to bring home the charge of conspiracy, thateach of the conspirators had the knowledge of what thecollaborator would do, so long as it is known that thecollaborator would put the goods or service to an


unlawful use.”

44. The conspiracy consist of scheme or adjustment

between two or more persons, which may be expressed or

implied or partly expressed or partly implied. Mere knowledge,

even discussion, of the plan would not perse constitute

conspiracy. Also, suspicion cannot take place of legal proof and

prosecution is required to show chain of circumstances showing

agreement between the conspirators. The circumstances should

not be capable of any other inference or conclusion.

45. Taking into account the facts and events of present

case, I find that there is no circumstance showing criminal

conspiracy between the accused persons. Holding of meetings at

various places itself constitute no offence unless it is shown that

same were for some illegal purpose. Nothing incriminating can

be discerned from the factum of meetings held between accused


persons over the period 201011. I, therefore, conclude that

there is no evidence on record showing conspiracy or further any

effort made by accused Abhishek Verma or his wife accused

Anca Maria Neacsu to influence any public servant or public

office to prevent blacklisting of M/s Rheinmetall Air Defence.

46. Coming to the issue of money transfer, as per the

case of CBI, the money was transferred to the bank account of

M/s Ganton Limited USA. The company is fully owned and

controlled by one C. Edmonds Allen of USA. The account is

maintained with JP Morgan Chase Bank, San Antonio, Texas,

USA. The invoice about said payment shows that same was

raised as consultation charges and money was transferred on

17/02/2011 from the account of RAD at UBS Zurich to the

account of M/s Ganton Limited USA. Even if the version of the

prosecution is assumed as truthful, there is no explanation or

justification as to why the company M/s Ganton Limited USA


and its controlling officials have not been impleaded as accused

in the chargesheet. It is the case of CBI that illegal gratification

has been exchanged between two companies M/s Rheinmetall

Air Defense and M/s Ganton Limited USA and subsequently

transferred to M/s Ganton India private limited. It is further

interesting to note that even M/s Ganton India private limited

has not been impleaded as an accused. The chain of conspiracy

and acceptance of illegal gratification is not consistent and

without participation of the aforesaid companies the offence

could not have been committed by other accused. The

prosecution has also failed to show that the payment of USD

5,29,982 is illegal gratification and meant for influencing public

servants. There has been no direct transfer of money either to

accused Abhishek Verma or to Anca Maria Neacsu and therefore,

impleading them in their personal capacity as accused is without

any justification. There is no explanation as to how M/s Ganton

Limited USA can be deleted from the chain of conspiracy, when


admittedly the payment of illegal gratification was directly and

firstly accepted by M/s Ganton Limited USA.

47. If at all any offence has been committed, it is firstly

committed by Ganton limited USA by accepting gratification

from RAD. C. Edmonds Allen is the sole shareholder of Ganton

limited USA and without implicating the company and C.

Edmonds Allen, the liability that too criminal cannot be

attributed to accused Abhishek Verma in his personal capacity.

The money credited to the account of Ganton Limited USA was

at the disposal of C. Edmonds Allen and it is clear that he has

been using the same as per his own wishes. If story of

Prosecution is believed, C. Edmonds Allen is an integral and

inseparable part of the conspiracy, rather he is actual executor of

the same and if he has not been impleaded as an accused and he

has not committed any offence, no other person can be said to

have committed the offence, even by utilizing the said funds. It


is also important to note that Emails otherwise are not

admissible since no proper certificate u/s 65B of Indian Evidence

Act is accompanied with the said emails. The requirements of

statutory provision of Section 65B Indian Evidence Act as

elaborated in Hon'ble Supreme Court judgment Anvar P.V. vs.

P.K. Basheer, (2014) 10 SCC 473 are nowhere visible with

respect to evidence relied upon.

48. The transfer of money from M/s Ganton Limited USA

to M/s Ganton India private limited itself is no offence as

admittedly M/s Ganton India is the subsidiary company of M/s

Ganton Limited USA and money has been transferred on various

occasions otherwise also. There is no evidence on record to show

that illegal gratification received on 17/02/2011 was as such

transferred to M/s Ganton India private limited. There is no

parameter to differentiate the funds coming to Ganton India

from Ganton limited USA and there is no material to show that


money transferred to Ganton India is illegal.

49. With respect to Ms. Anca Maria Neacsu the concept

of “Alter Ego” has also not been properly understood and

applied. It is the case of prosecution itself that expenditures

were done from the account of M/s Ganton India private limited

through authorized signatory Ram Prakash Singh. The company

M/s Ganton India private limited had other directors also

besides accused Anca Maria Neacsu. Neither the authorized

signatory nor other directors have been impleaded as accused

despite the fact that expenditures could not have been done by

accused Anca Maria Neacsu exclusively without involvement of

the company and its authorized officials.

50. There is no dispute that a company is liable to be

prosecuted and punished for criminal offence. The generally

accepted modern rule is that a corporation may be subject to


indictment or other criminal process, although the criminal act is

committed through its agent.

51. When a person which is a company commits an

offence, then certain categories of persons in charge as well as

the company would be deemed to be liable for the offences.

Thus, the statutory intendment is absolutely plain. As is

perceptible, the provision makes the functionaries and the

companies to be liable and that is by deeming fiction. A deeming

fiction has its own signification. No doubt, a corporate entity is

an artificial person which acts through its officers, directors,

managing director, chairman etc. If such company commits an

offence involving mens rea, it would normally be the intent and

action of that individual who would act on behalf of the

company. It would be more so, when the criminal act is that of

conspiracy. However, at the same time, it is the cardinal

principle of criminal jurisprudence that there is no vicarious


liability unless the statute specifically provides so. When the

company is the offender, vicarious liability of the Directors

cannot be imputed automatically, in the absence of any statutory

provision to this effect.

52. In Aneeta Hada vs Godfather Travels and Tours

(P) Ltd, (2012) 5 SCC 661, the court noted that if a group of

persons that guide the business of the company have the

criminal intent, that would be imputed to the body corporate

and it is in this backdrop, Section 141 of the Negotiable

Instruments Act has to be understood such a position is,

therefore, because of statutory intendment making it a deeming

fiction. Here also, the principle of “alter ego”, was applied only

in one direction namely where a group of persons that guide the

business had criminal intent, that is to be imputed to the body

corporate and not the vice versa. Otherwise, there has to be a

specific act attributed to the Director or any other person


allegedly in control and management of the company, to the

effect that such a person was responsible for the acts committed

by or on behalf of the company.

53. In the case of Maksud Saiyed vs State of Gujarat

and ors, (2008) 5 SCC 668 it has been observed that, where a

jurisdiction is exercised on a complaint petition filed in terms of

Section 156(3) or Section 200 of the Code of Criminal

Procedure, the Magistrate is required to apply his mind. Indian

Penal Code does not contain any provision for attaching

vicarious liability on the part of the Managing Director or the

Directors of the Company when the accused is the Company.

The learned Magistrate failed to pose unto himself the correct

question viz. as to whether the complaint petition, even if given

face value and taken to be correct in its entirety, would lead to

the conclusion that the respondents herein were personally

liable for any offence. The Bank is a body corporate. Vicarious


liability of the Managing Director and Director would arise

provided any provision exists in that behalf in the statute.

Statutes indisputably must contain provision fixing such

vicarious liabilities. Even for the said purpose, it is obligatory on

the part of the complainant to make requisite allegations which

would attract the provisions constituting vicarious liability.

54. Coming to the case in hand, even if prosecution

version is believed, the illegal gratification was first received by

M/s Ganton Limited USA and then transferred to M/s Ganton

India and funds were spent on the instructions of accused Anca

Maria Neacsu (A2) (Managing Director). She has been

impleaded in her personal capacity on the basis that she availed

the benefit in ultimate analysis. However, without acceptance of

gratification firstly by M/s Ganton Limited USA and

subsequently by Ganton India, accused Anca Maria Neacsu could

not have been in a position to avail or spend the funds. She has


not been directly involved in transfer of funds from M/s Ganton

Limited USA to M/s Ganton India. She only spent the amount

placed at the disposal of her company by the parent company,

which cannot itself constitute any offence. The money trail is

broken when companies M/s Ganton Limited USA and M/s

Ganton India have not been impleaded as accused. Moreover, no

witness has stated that funds transferred to M/s Ganton India

were the same as illegal gratification from M/s Rheinmetall Air

Defense. If the amount of USD 5,30,000 is termed as illegal

gratification, it is received by M/s Ganton Limited USA but the

same has not been impleaded as an accused. The transfer of

funds after receiving has been the sole and exclusive prerogative

of M/s Ganton Limited USA. If M/s Ganton Limited USA has

committed no offence, M/s Ganton India or its Directors cannot

be said to have commit any offence. Merely by receiving funds

from its parent company and further making the expenditure

therefrom, M/s Ganton India or its Directors cannot become


offendors. There is nothing on record to suggest that M/s

Ganton India or its Directors were knowing the source from

where the funds were credited to the account of M/s Ganton

Limited USA.

55. It is the statement of Mr. C. Edmonds Allen

(recorded on letter of rogatory) that accused Abhishek Verma

eventually told him via telephone and Emails that US$ 6 lakhs

was to get M/s Rheinmetall Air Defence of the blacklisting but

this statement is not corroborated by the Email contents and

otherwise, not admissible being hearsay. The Director of M/s

Ganton Limited USA Mr. C. Edmonds Allen never joined or

attended any meeting or deliberations held between accused

Abhishek Verma and accused Gerhard Hoy of M/s Rheinmetall

Air Defense. It is also contrary to the stand taken by CBI that Mr.

C. Edmonds Allen was not knowing anything about the money

transfer.


56. In view of above observations and stated legal

positions, it is not possible to implead accused Anca Maria

Neacsu (A2) as an accused in her personal capacity when

alleged offence has been attributed to her in the capacity of

Director of M/s Ganton India private limited that too without

impleading the company in question. Also, the company M/s

Rheinmetall Air Defence and accused Gerhard Hoy cannot be

roped in for criminal conspiracy nor the money transaction can

be termed as illegal gratification. Nowhere the discussion about

involvement of public servant or public office is shown during

the meetings of the accused. Minus any promise to influence

public servant, the offence described u/s 8 of Prevention of

Corruption Act, 1988, is not made out. If private persons,

deliberate to solve some issue and even exchange money for this

purpose, Section 8 of the Prevention of Corruption Act, 1988 is

not attracted. I, therefore, come to the conclusion that there is


no evidence against company M/s Rheinmetall Air Defence

(A4) and its Senior Vice President Gerhard Hoy (A3) to show

that illegal gratification of USD 5,29,982 has been paid on

account of influencing public servants through accused Abhishek

Verma (A1) for the purpose of preventing blacklisting of the

company. Nothing incriminating is found in the entire material

relied upon by the prosecution and there is no prima facie

evidence to substantiate the version of the prosecution.

57. The facts and evidence relied upon by the

prosecution do not lead to the conclusion that the offence u/s 8

of the Prevention of Corruption Act, 1988 has been committed

by the accused persons in conspiracy. In view of aforesaid

discussions, I conclude that material on record does not suggest

that prima facie case is made out against any of the accused and

therefore, they deserve to be discharged. Accordingly, all the

accused persons are discharged from this case. Their bail bonds


are canceled and sureties are discharged.

58. Let compliance to section 437A Cr. PC be done by all

accused persons. The open NBWs ordered against accused

Gerhard Hoy (A3) are cancelled and he is permitted to furnish

his bail bond u/s 437A through his authorized Counsel.

59. Ahlmad is directed to page and bookmark the file

forthwith so as to enable digitization of the entire record.

60. File be consigned to record room.

Announced in the open court (Anju Bajaj Chandna)on 26/04/2017. Special Judge (PC Act) (CBI)6

Patiala House Court, New Delhi


in the court of ms. anju bajaj chandna, special judge …€¦ · sheeted abhishek verma (a1), smt....

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