Karnataka High Court
Mr. Surya Sareen vs The Central Bureau Of Investigation on 2 June, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.5297 OF 2023
BETWEEN:
MR. SURYA SAREEN
S/O LATE K.N.SAREEN
AGED ABOUT 76 YEARS
PRESENTLY RESIDING AT NO.15007
BOHLMAN ROAD, SARTOGA
CALIFORNIA
THE UNITED STATES OF AMERICA - 95070
... PETITIONER
(BY SRI SANDESH J.CHOUTA, SR. ADVOCATE A/W.,
SRI CHINMAY J.MIRJI, ADVOCATE)
AND:
THE CENTRAL BUREAU OF
INVESTIGATION
ANTI-CORRUPTION BRANCH
BENGALURU
NO.49, KHANIJA BHAVANA
RACE COURSE ROAD
BENGALURU - 560 001
REPRESENTED BY THE
ADDITIONAL DIRECTOR
GENERAL OF POLICE
2
ANTI-CORRUPTION BRANCH.
... RESPONDENT
(BY SRI RAHUL KRISHNA REDDY P., ADVOCATE FOR
SRI. P. PRASANNA KUMAR, SPL. PP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER DATED 07.01.2023,
05.06.2023 AND THE ENTIRE PROCEEDINGS IN SPL.C.NO.27/2023
PENDING BEFORE THE HON'BLE XXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND PRL. SPECIAL JUDGE FOR CBI CASES AT
BENGALURU (CCH-4) AS AGAINST THE PETITIONER.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/accused No.4 is before this Court calling in
question orders darted 07-01-2023, 05-06-2023 and entire
proceedings in Special Case No.27 of 2023 pending before the XXI
Additional City Civil and Sessions Judge and Principal Special Judge
for CBI Cases at Bangalore arising out of FIR No.RC0372020A0017
registered for offences under Sections 120B r/w 420 of the IPC and
Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act,
1988.
3
2. Facts, in brief, adumbrated are as follows:-
The petitioner/accused No.4 is said to be the President and
Chief Executive Officer of M/s AKON Inc., a Corporation
incorporated under the laws of the State of California, United States
of America. One Mr. Fred Brewer retires from the post of President
of M/s AKON. It is then the petitioner becomes the President and
CEO of M/s AKON. On 23-03-2007 Defence Avionics Research
Establishment ('DARE') and Defence Research and Development
Organization ('DRDO') notified a global tender for procurement of
VO based radio frequency engines. M/s AKON Inc. emerges as the
successful tenderer and was accordingly awarded the contract. A
purchase order on 11-07-2007 was issued to M/s AKON Inc. in
which the payment terms decided was that 90% to be paid through
Line of Credit ('LoC') at State Bank of India upon delivery of
generators and the final payment after approval. In terms of the
purchase order, M/s AKON is said to have shipped 12 units on
19-02-2009, 12 units on 23-02-2009 and 11 units on 27-02-2009.
On 04-03-2009 the first 24 units were received by DARE, DRDO and
4
the remaining 11 units were received on 11-03-2009. As on 11-03-
2009, all the 35 units were shipped.
3. There appears to be some mischief played in the said
shipping. The CBI was asked to step in and conduct a preliminary
inquiry. The preliminary inquiry leads to several communications
between the officer bearers of M/s AKON and other accused during
the years 2009, 2010 and 2011. Communications also galore
between M/s AKON and DARE, DRDO on the score that they were
faulty machines. On 16-03-2012 a complaint is preferred to the
Director (Vigilance) by DARE, DRDO highlighting irregularities in the
procurement of VO based RF engines and also complained that
balance payments made to M/s AKON were deliberately and
erroneously done after the expiry of warranty period. After about 5
years of conduct of inquiry by the CBI, the Ministry of Defence,
Government of India registers a complaint. The preliminary inquiry
was again conducted by the CBI which revealed certain public
servants and private persons involved in the entire episode. A
crime, after three years of preliminary inquiry, comes to be
registered by the CBI for the afore-quoted offences. The CBI
5
conducts investigation and after two years filed a charge sheet
before the concerned Court against the petitioner and three others
on 12-12-2022. The learned Special Judge takes cognizance of the
offence against the petitioner and others on 07-01-2023 and issues
summons on 05-06-2023. It is those orders that have driven the
petitioner to this Court in the subject petition.
4. Heard Sri Sandesh J. Chouta, learned senior counsel
appearing for the petitioner and Sri Rahul Krishna Reddy P, learned
counsel for Sri P. Prasanna Kumar, learned Special Public
Prosecutor for the respondent.
5. The learned counsel representing the petitioner would
contend that there are no specific allegations against the petitioner
in the charge sheet or specific overt acts attributed to him to satisfy
the ingredients of the alleged offences. The primary ingredient for
the offence of conspiracy should be meeting of minds. That meeting
of minds has never happened in the case at hand and it is neither
established while filing the charge sheet. It is his submission that
statements of witnesses lack completeness as they fail to include
6
key statements to be taken of key personnel. There is gross delay
in the investigation and filing of final report by the CBI, as it has
taken three years for conduct of preliminary inquiry and two years
for investigation to file a charge sheet. It is his submission that the
complainant knew about irregularities way back in 2012 and no
action was taken. Therefore, his emphatic submission is that the
proceedings are hit by gross delay and that delay has vitiated the
proceedings. It is his further submission that the petitioner is not
the sole owner of M/s AKON and it is having multiple shareholders;
it is an incorporated Corporation and therefore, the petitioner could
not have been singled out for allegations, as the IPC does not
provide for vicarious liability and holds individual liable for the
offence if there is concrete evidence of his involvement. To buttress
all these grounds, several judgments are relied upon by the learned
counsel for the petitioner, which would all bear consideration qua
their relevance in the course of the order.
6. Per contra, Sri Rahul Krishana Reddy P., appearing for
Sri P Prasanna Kumar, learned Special Public Prosecutor for CBI
would contend that conspiracy is an offence, which has to be
7
inferred based upon circumstances surrounding the case and there
can be no direct evidence of conspiracy. The petitioner being the
President of M/s AKON Inc has cheated DARE, DRDO. M/s AKON
supplied all dummy goods on purchase order. Accused No.1 and
Accused No.3 were aware of the fact that Radio Frequency
Generators delivered by M/s AKON headed by the petitioner were
never in a working condition. In such cases where equipment is for
defence, delay would not vitiate the proceedings, for the reason
that there has been continuous communication between the parties.
It is only after complete preliminary inquiry conducted and report
submitted, FIR comes to be registered on 29-12-2020. M/s
AKON did not supply proper goods as per tender, instead supplied
units with empty castings which did not contain any component
inside and after payment was made to M/s AKON for the goods, the
goods were returned in the pretext of upgrade without conducting
any test. Investigation led to entire activity of the petitioner
himself and therefore, he is charged of the offence. It is no law that
every breach of contract is civil in nature and therefore,
proceedings must be quashed.
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7. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
8. The afore-narrated facts are not in dispute. The dates, link
in the chain of events are all narrated hereinabove; they would not
require any reiteration. The issue begins from a purchase order by
DARE, DRDO for the purchase of VO based Radio Frequency
Engines. After the purchase order was placed, on 12-03-2009 one
PW-18 representative of Indian entity of M/s AKON addresses a
communication seeking complete details of each RF Generator and
receives a reply from one Manager of M/s AKON, USA that the
document might get modified minutely when real results of testing
is available which they are conducting now. This would prima facie
demonstrate that M/s AKON was still conducting the test of
machines. On 02-04-2009 accused No.1 finds that several units
were not at all working. But she is said to have released the
payment in favour of accused No.2. Certain complaint had
emerged in the year 2012 pursuant to which, internal inquiry had
9
commenced. Based upon the said internal inquiry, information
emerged that non-working dummy units had been supplied.
9. The CBI was then asked to step in and conduct a
preliminary inquiry into the matter. The preliminary inquiry was
conducted for about 3 years and the result of the preliminary
inquiry is that complaint comes to be registered against several
accused on 29-12-2020. The complaint reads as follows:
"To
Head of the Branch,
CBI, ACB, Bangalore.
Sub:-Preliminary Enquiry report-reg.
Sir,
A Preliminary Enquiry vide PE
2(A)/2020/CBI/ACB/Bangalore was registered by CBI, ACB,
Bangalore on 05.08.2020 against Smt. Priya Suresh N. (S-1),
the then Scientist-D, DARE, DRDO, Bangalore; M/s. AKON Inc.
(S-2), USA and unknown public Servant(s) & private persons
based on the Letter No. 10/DO(Vig)/2014 dated 22.05.2017
written by Shri Surya Prakash, Director (Vigilance), Ministry of
Defence, Govt. of India, Sena Bhawan, "B" Wing, New Delhi
requesting inquiry/investigation into irregularities in
procurement of 35 Nos. of 'VCO based RF Generator' from M/s.
AKON Inc., USA for a total cost of US $ 1080450/-by DARE
(Defence Avionics Research Establishment), Defence Research
and Development Organization (DRDO), Bangalore. The letter
enclosed a copy of the complaint dated 16.03.2012 preferred by
Shri Poiyamani S., the then STA 'C", DARE, DRDO, Bangalore
alleging the irregularities and copy of the relevant Inquiry
Committee Report. The preliminary enquiry was conducted after
10
obtaining previous approval U/s. 17(A) of PC Act' 1988 (as
amended in 2018) issued by Under Secretary, Ministry of
Defence (Vigilance), Sena Bhawan, New Delhi vide Letter No.
10/DO(/vig.)/2014 dated 20.07.2020, and the enquiry in this
case was entrusted to the undersigned.
2. It is submitted that a thorough enquiry was conducted
by the undersigned into the irregularities into the procurement
of 35 Nos. of 'VCO based RF Generator' from M/s. AKON Inc.,
USA by DARE (Defence Avionics Research Establishment),
Defence Research and Development Organization (DRDO),
Bangalore. The enquiry conducted by the undersigned revealed
as under:-
2.1 During 2007, the RF Division, DARE, DRDO,
Bangalore was given the task of making simulators for the
operational testing of various Radar EW (Electronic Warfare)
Systems before the same were handed over to the Indian Air
Force. Meanwhile during the same period, the various Divisions/
Wings of DARE were working on various Radar EW projects and
all the RF based support to these projects was provided by
DARE's RF Division. For the lab testing of such Radar EWs, the
RF Division decided to procure 35 Nos. of VCO Based RF
Generators.
2.2 The Enquiry revealed that in due course after
completing the Global Tendering Process, a Purchase Order No.
DARE/FPD/VVLE/PO-02/2007-08 dated 11.07.2007 (later
amended as DARE/FPD/EWSFA/PO-18/2007-08 dated
11.07.2007) was issued under the signatures of Shri K. S.
Manjunatha, the then SSO-II (Senior Stores Officer-II), DARE,
DRDO, Bangalore to M/s. AKON Inc., USA through Air Mail and
Fax and the same was received and acknowledged by the
vendor namely M/s. AKON Inc., USA. As per the said Purchase
Order, 90% of net value was to be drawn against Letter of
Credit on presentation of following documents through State
Bank of India, St. Marks Road, Bangalore:-
(i) Airway Bill
(ii) Packing List
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(iii) Manufacturer's Guarantee/Warranty Certificate, if
any
(iv) Country of Origin Certificate
(v) Material Test Certificate (if applicable)
2.3 The Enquiry revealed that, M/s. AKON Inc. USA
shipped 12 Units (Sl. Nos. 1-12) on 19.02.2009, another
12 Units (Sl. Nos. 13-24) on 23.02.2009 and the
remaining 11 Units (Sl. Nos. 25-35) of purported VCO
Based RF Generators on 27.02.2009 and in due course
the 24 Units (S/N. 1 to 24 bearing Model No. A25-MH217)
pertaining to first two consignments were delivered by
Mis, Balmer Lawrie to Stores, DARE, Bangalore on
04.03.2009. The remaining 11 Units (S/N. 25 to 35) were
delivered on 11.03.2009. The average weight of 35 Nos.
of purported VCO based RF Generators received at DARE
on 04.03.2009 and 11.03.2009 was about 1 Kg as per the
relevant Delivery Challans and respective Bills of Entries.
2.4 The Enquiry revealed that all the above said 35
Units of purported 0.5-18.0 GHz VCO Based RF
Generators (Model No. A25-MH217), received at DARE,
DRDO, Bangalore on 04.03.2009 and 11.03.2009, were
inspected & accepted by Smt. Priya N. Suresh, the then
Scientist 'D' & Head of RF Division by signing the
respective Certificate Receipt Vouchers (CRV) and
Internal Demand and Issue Vouchers (IDIV).
2.5 The Enquiry revealed that as per the Terms of
the Purchase Order, 90% payment of net value viz. US $
333,396 (Rs. 1,72,78,248/-) against Import Bill number
0686109SS0036175, US $ 305,613 (Rs. 1,58,33,046/-)
against Import Bill number 0686109SS0036213 and US $
333,396 (Rs. 1,72,91,584/-) against Import Bill number
0686109SS0036189 was made to M/s. AKON Inc., USA by
SBI, Overseas Branch, Bangalore on behalf of DARE
against the LC No. 0686109IM0025088 on 02.03.2009,
03.03.2009 and 12.03.2009 respectively.
2.6 The enquiry also revealed that there were email
communications among DARE officials Dr. U V. Revankar,
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Director, Smt. Priya Suresh N., Scientist 'C' and Shri
Rajeev R., Scientist 'C' and the officials/ representative of
M/s AKON Inc. during the period from 03.03.2009 to
31.03.2009 regarding the drawings and other technical
specifications. It is revealed that at the request of DARE,
on 10.03.2009, Shri Pandurang Deshmukh, the local
representative of M/s. AKON had sent an e-mail to Mr.
John Stokes of M/s. AKON Inc., USA seeking complete
details of each connector for VCO based RF Generator.
Subsequently, on 12.03.2009, Shri Pandurang Deshmukh
received a reply through e-mail on 12.03.2009 from Shri
Avinash Ratra, Engineering Manager, M/s AKON Inc., USA
forwarding an outline drawing & preliminary ATP
document for VCO and stating that "the document might
get modified very minutely when real results of our
testing are available which we are doing now". The email
was also forwarded to Smt. Priya Suresh. The said email
communications clearly reveal that the technical
personnel of M/s AKON Inc were only finalising the
specifications and conducting the testing of the units
even when the units were delivered at DARE in the said
period as per the records.
2.7 The Enquiry clearly revealed that the 35 Units of
purported 0.5-18.0 GHz VCO Based RF Generators (Model
No. A25-MH217) shipped by the vendor M/s. AKON Inc.,
USA during February' 2009 and received at DARE on
04.03.2009 and 11.03.2009 were incomplete units/outer
casings without electronic components inside. Smt. Priya
Suresh N., Scientist 'C' and Divisional Head, RF Lab
accepted these 35 Units of purported 0.5-18.0 GHz VCO
Based RF Generators (Model No. A25-MH217) in to the
stores on 04.03.2009 and 11.03.2009 by signing the
Certificate Receipt Vouchers as Inspecting Officer even
when she was having the knowledge through the emails
from the representatives of M/s AKON that the said units
were only at the development stage. As the Divisional
Head, RF Lab, she did not conduct any functional testing
of these units at the time of accepting the said units in
the stores. The enquiry has clearly revealed that M/s.
AKON Inc., USA had shipped incomplete units of 35 Nos.
of 0.5-18.0 GHz VCO Based RF Generators (Model No.
A25-MH217) in February 2009 with the intention to cheat
13
DARE and availed the payments fraudulently and Smt.
Priya Suresh facilitated the same by accepting the above
units without conducting any functional testing of these
units even when she was having the knowledge from the
emails of the representatives of M/s AKON Inc that the
units were at the testing and development stage.
2.8 The Enquiry revealed that the Units bearing Sl. Nos.
1-12 were sent back for upgrade/ repair vide Material Gate Pass
No. 827 dated 02.04.2009 and as per the approval taken vide
ION No. DARE/RFD/ION/13 dated 25.03.2009. Similarly, the
Units bearing Sl. Nos. 13-24 were sent back for upgrade/ repair
vide Material gate Pass No. 832 dated 22.04.2009 and as per
the approval taken against ION No. DARE/RFD/ION/26 dated
22.04.2009. The remaining 11 Units bearing Sl. Nos. 25 to 35
(which were received at DARE on 11.03.2009) remained idle
unused and untested at RF Lab till July' 2011 and the same
were returned for upgrade/ repair vide Material Gate Pass No.
611 dated 25.07.2011 and as per the approval taken vide I.O.N.
No. DARE/RFD/gate Pass/12 dated 25.07.2011. It is revealed
that vide the I.O.N. No. DARE/RFD/gate Pass/12 dated
25.07.2011, Smt. Priya Suresh N., the then Scientist 'D' cum
Divisional Head of RF Division had reported to the then Director
that the said 11 units were found "totally not working" and had
sought his approval for the return of the said units to M/s. AKON
Inc., USA (Vendor) for repair. Thus the enquiry clearly revealed
that after facilitating M/s AKON Inc with payments against non-
functional units, the said units were returned back to the vendor
in the pretext of upgrade without conducting any functional
testing or by stating or ascertaining the nature of the upgrade
or its specifications.
2.9 It is revealed that out of all the 35 returned
units, a total of 16 units (Sl. Nos. 1-15 & 35) were
subsequently returned (2nd delivery at DARE) by AKON
Inc. USA to DARE during different time periods (during
2010 to 2019). But, 6 items (Sl. Nos. 1-4, 6 & 9) out of
above said 16 items, were once again returned by DARE
to M/s AKON Inc. (during 2011) and out of these 6 items,
as on date, only 3 items (Sl. Nos. 1-3) have been
returned/re-delivered by M/s. AKON Inc to DARE (during
2011 & 2017). As such as on date only 13 items are
currently held with DARE and remaining 22 items are still
14
lying with M/s. AKON Inc, USA. Though the average
weight of the repaired/ upgraded (as claimed by the
vendor) units is approx. 3.6-Kg, which is significantly
higher than the average weight (1 Kg.). of the original
dummy units supplied by the vendor, none of them is
found functional or meeting the specifications of the
relevant Purchase Order issued by DARE to M/s. AKON
Inc., USA.
2.10 The Enquiry revealed that even after having the
knowledge that 90% payment was already made to the vendor
for the supply of the incomplete non-functional units and only
12 non-functional units were held with DARE and the remaining
23 units were still held by the vendor in USA, Smt. N. Priya
Suresh, the then Scientist 'D' &, Divisional Head, RF Lab-
recommended for the payment of balance amount to the vendor
in USA i.e. M/s. AKON Inc., USA by falsely stating on the
relevant Note-07 dated 31.01.2011/02.02.2011 that "Units are
working satisfactorily". Later, as per the request of DARE,
SBI, Overseas Branch, Bangalore made a payment of USD
54022.50 (Rs. 24,33,984) through wire transfer to the M/s.
AKON Inc., USA on 22.3.2011. It is pertinent to mention that a
few months after recommending and facilitating the payment of
balance amount to the vendor in USA, Smt. N. Priya Suresh, the
then Scientist 'D' & Divisional Head, RF Lab herself issued an
I.O.N. No. DARE/RFD/gate Pass/12 dated 25.07.2011 reporting
therein that the said 11 Units bearing Sl.Nos.25 to 35 were
found "totally not working" and sought Director's approval for
the return of the said units to M/s. AKON Inc., USA (Vendor) for
repair.
2.11 The enquiry revealed that even though the
subject VCO Based RF Generators (main component of
VCO based Radar Threat Simulators) were not supplied
by the vendor in USA, -as per the Demand made by RF
Divisions a Supply/ Work Order for "Integration,
Electrical cum Mechanical Assembly and Testing of VCO
Based Radar Threat Simulator" at an estimated cost of
Rs. 9.50 Lakhs, was awarded to M/s. AIDIN Technologies
Pvt. Ltd.. Bangalore. Subsequently the manpower
supplied by M/s. AIDIN Technologies Pvt. Ltd., Bangalore
was utilized for some other job as no functional VCO
Based RF Generator was supplied by the vendor. Instead
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of modifying/ cancelling the Work Order, RF Division
facilitated payment to M/s. AIDIN Technologies Pvt. Ltd.,
Bangalore on the basis of false IDIV for CRV Items and
Job Completion Certificate- Cum- IDIV. The job for which
the supply order was awarded to M/s. AIDIN
Technologies Pvt. Ltd., Bangalore was not completed as
the main component the Radar Threat Simulator i.e. VCO
Based RF Generators were not supplied by the vendor
M/s. AKON Inc., USA.
3 The enquiry has revealed that Smt Priya Suresh,
the then Scientist 'C/ Scientist 'D' cum Divisional Head,
RF Division, DARE, Bangalore was in conspiracy with M/s.
AKON Inc. (A-2), USA represented by Shri Surya Sareen,
President & CEO of M/s. AKON Inc., USA and other
officials of DARE and in furtherance of the conspiracy, she
had abused her official position by accepting the non-
functional units supplied by M/s. AKON Inc., USA and by
recommending balance payment to the firm. Hence it is
requested to initiate legal action by registering a F.I.R.
against the accused namely Smt. Priya Suresh N. (A-1),
the then Scientist 'C/ Scientist 'D' cum Divisional Head,
RF Division, DARE, Bangalore (Currently working as
Scientist 'E') and M/s. AKON Inc. (A-2), USA represented
by Shri Surya Sareen, President & CEO of M/s. AKON Inc.,
USA, unknown Officials of DARE and unknown private
persons for commission of offences U/s. 120-B of IPC
r/w 420 IPC and U/s. 13 (2) r/w Sec. 13 (1) (d) of PC
Act, 1988. It is further recommended that the role of
other concerned DARE officials may also be thoroughly
looked into during the course of investigation.
Sd/-
29/12/2020
(Brajesh Kumar)
Dy. Supdt. of Police
CBI, ACB, Bangalore."
(Emphasis added)
This results in a crime being registered by the CBI for the afore-
quoted offences. After formal registration of crime, the CBI filed a
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charge sheet on 12-12-2022. The charge sheet is filed against
several accused. The offences alleged are Section 120B and 420 of
the IPC and Sections 13(2) r/w 13(1)(d) of the Prevention of
Corruption Act. Accused were four in number, the 4th being the
petitioner. The allegations in the charge sheet are vividly brought
out by the CBI insofar as each of the accused. Certain paragraphs
of the summary of charge sheet are necessary to be noticed. They
read as follows:
".... .... ....
1.15. The investigation thus revealed that M/s. AKON Inc. USA
had shipped 12 Units (Sl. Nos. 1-12) on 19.02.2009,
another 12 Units (Sl. Nos. 13-24) on 23.02.2009 and the
remaining 11 Units (Sl. Nos. 25-35) on 27.02.2009 and
against the said shipments the vendor in, USA had raised
Invoice Nos. 7828 dated 19.02.2009, 7830 dated
23.02.2009 and 7838 dated 27.02.2009 respectively in
favour DARE, DRDO, Bangalore. The investigation further
revealed that all the above said imports at Bengaluru
International Airport were facilitated by M/s. Balmer &
Lawrie, on behalf of DARE, DRDO, Bangalore and in due
course the 24 Units (S/N. 1 to 24) of the purported 0.5-
18.0 GHz VCO Based RF Generators (Model No. A25-
MH217) pertaining to first two consignments were
delivered by M/s. Balmer Lawrie to Stores, DARE,
Bangalore on 04.03.2009 vide Delivery Challan Nos.
00094 & 00095 both dated 04.03.2009 whereas the
remaining 11 Units (S/N. 25 to 35) were delivered on
11.03.2009 vide Delivery Challan No. 17298 dated
11.03.2009. It is further revealed that the average weight
of 35 Nos. of purported VCO based RF Generators
received at DARE on 04.03.2009 and 11.03.2009 was
17
about 1 Kg as per the above said Delivery Challans and
respective Bills of Entries.
1.16 The investigation revealed that in pursuance of the
conspiracy, all the above said 35 Units of purported
0.5-18.0 GHz VCO Based RF Generators (Model No.
A25-MH217), received at DARE, DRDO, Bangalore
on 04.03.2009 and 11.03.2009, were fraudulently
recorded to be inspected & accepted by Smt. Priya
N. Suresh (A-1), the then Scientist 'D' & Head of RF
Division by signing the respective Certificate
Receipt Vouchers (CRV) and Internal Demand and
Issue Vouchers (IDIV) with the dishonest intention
to allow payments to the A-2 company. As per the
statements of the witnesses who were colleagues
of A-1 and e-mail communications retrieved during
investigation, it is clear that, both Smt Priya Suresh
(A-1) and Dr. U.K. Revankar (A-3), were aware of
the fact that the 35 units delivered by A-2 company
in March, 2009 were not in working condition. The
investigation revealed that the units received at
DARE during the above period were empty casings
and did not contain any component inside.
1.17 The investigation revealed that as per terms of
Purchase Order, 90% of net (invoice) value was to
be paid to the supplier i.e. M/s. AKON Inc., USA (A-
2) through Letter of Credit and as such meanwhile
during January' 2009, in anticipation of shipment
by the vendor in USA and arrival at DARE,
Bangalore of the above said 35 Nos. of VCO based
RF Generators, as per the request of DARE, the LC
No. 0686109IM0025088 was issued by SBI,
Overseas Branch, Bangalore for the beneficiary
M/s. AKON Inc., USA (A-2). As per the said LC,
documents viz. Air Consignment Note, Invoice,
Packing List etc. were stipulated to be submitted by
the supplier to SBI, Overseas Branch, Bangalore.
Investigation revealed that as per the relevant
Purchase Order No. DARE/FPD/VVLE/PO-02/2007-
08 dated 11.07.2007 (later amended as
DARE/FPD/EWSFA/PO-18/2007-08dated
11.07.2007). 90% of net value was to be drawn
18
against LC on presentation of specific documents
that also included Manufacturer's
Guarantee/Warranty Certificate, if any and Material
Test Certificate (if applicable). However, while
requesting for opening of the LC at SBI, DARE did
not request for the stipulation of Manufacturer's
Guarantee/ Warranty Certificate and Material Test
Certificate as mandatory LC documents.
Date of Commercial Particulars Sl. Nos. of Amount (in
Invoice Invoice Units USD)
No.
19.02.2009 7828 0.5 18.0 GHz VCO Based Sl. Nos. 1 to 3,33,396
RF Generators 12
Model No. A25-MH217 (12 Units)
23.02.2009 7830 0.5 18.0 GHz VCO Based Sl. Nos. 13 3,33,396
RF Generators to 24
Model No. A25-MH217 (12 Units)
27.02.2009 7838 0.5 18.0 GHz VCO Sl. Nos. 25 3,05,613
Based RF Generators to 35
Model No. A25-MH217 (11 Units)
1.18 The investigation revealed that against the above said
Invoice No. 7828 dated 19.02.2009, pertaining to
shipment of 12 Units of VCO Based RF Generators (Sl.
Nos. 1-12), and other stipulated documents and as per
the Terms of the Purchase Order, a "Debit Advice for
Import Bill Payment" dated 02.03.2009 was issued by
SBI, Overseas Branch, Bangalore to DARE, Bangalore
which shows that the relevant Import Bill number
0686109SS0036175 for US $ 333,396 (Rs. 1,72,78,248/-
) was paid by SBI, Overseas Branch, Bangalore on behalf
of DARE to M/s. AKON Inc., USA (A-2) against the said
LC No. 06861091M0025088 on 02.03.2009. Similarly,
against the above said Invoice No. 7830 dated
23.02.2009, pertaining to shipment of another 12 Units of
VCO Based RF Generators (Sl. Nos. 13-24) and other
stipulated documents, a sum of US $ 333,396 (Rs.
1,72,91,584/-) was paid by SBI, Overseas Branch,
Bangalore, on behalf of DARE, to M/s. AKON Inc., USA (A-
19
2) vide Import Bill number 0686109880036189 on
03.03.2009. Finally, against the Invoice No. 7838 dated
27.02.2009, pertaining to shipment of remaining 11 Units
of VCO Based RF Generators (Sl. Nos. 25-35) and other
stipulated documents, a sum of US $ 305,613 (Rs.
1,58,33,046/-) was paid by SBI, Overseas Branch,
Bangalore, on behalf of DARE, to M/s. AKON Inc., USA
(A-2) vide import Bill number 0686109SS0036189 on
03.03.2009. Finally, against the Invoice No. 7838 dated
27.02.2009, pertaining to shipment of remaining 11 Units
of VCO Based RF Generators (Sl. Nos. 25-35) and other
stipulated documents, a sum of US $ 305,613 (Rs.
1,58,33,046/-) was paid by SBI, Overseas Branch,
Bangalore, on behalf of DARE, to M/s. AKON Inc., USA
(A-2) vide Import Bill number 0686109SS0036213 on
12.03.2009. The timeline of initial shipments made by
M/s. AKON Inc., USA (A-2), initial deliveries received by
DARE, DRDO, Bangalore and the payments (90% as per
terms of Purchase Order) made through LC against the
respective supplies, in respect of above said 35 Nos. of
VCO based RF respective Generators can be summarized
as below:-:-
Units (VCO Based Shipped Received at Payment Made
RF Generators) by M/s. DARE on through LC on
AKON On
Sl. Nos. 1-12 (12 19.02.2009 04.03.2009 02.03.2009
Units)
Si. Nos.13-24 (12 23.02.2009 04.03.2009 03.03.2009
Units)
Bl. Nos.25-35 (11 27.02.2009 11.03.2009 12.03.2009
Units)
1.19 The investigation thus revealed that Smt Priya
Suresh (A-1) and Dr. U.K. Revankar (A-3) facilitated
the payments to the A-2 company in spite of having
the knowledge that the units delivered at DARE
were non-functional empty casings. All the above
said 35 Units received at DARE, DRDO, Bangalore on
04.03.2009 and 11.03.2009, were fraudulently
20
shown to be inspected by Smt. Priya N. Suresh, the
then Scientist 'D' & Head of RF Division and she
accepted the same by signing the respective
Certificate Receipt Vouchers (CRV) and Internal
Demand and Issue Vouchers (IDIV).
1.20 The investigation revealed that after accepting the
above said 35 non-functional units (24 Units on
04.03.2009 and 11 Units on 11.03.2009) and
releasing the payments to the A-2 company, as a
party of the conspiracy, Smt Priya Suresh (A-1),
Head of RF Division after obtaining approval of the
then Director, Dr. U.K. Revankar (A-3) returned the
24 Units (Sl. Nos. 1-24 received on 04.03.2009),
out of the total 35 Units, to M/s. AKON Inc., USA
(A-2) during March-April' 2009 itself in the pretext
of repair/ upgrade without conducting any test on
the said units. The Units bearing Sl. Nos. 1-12 were
sent back for upgrade/repair vide Material Gate
Pass No. 827 dated 02.04.2009 and as per the
approval taken vide ION No. DARE/RFD/ION/13
dated 25.03.2009. Similarly, the Units bearing Sl.
Nos. 13-24 were sent back for upgrade/ repair vide
Material gate Pass No. 832 dated 22.04.2009 and as
per the approval taken against ION No.
DARE/RFD/ION/26 dated 22.04.2009. The
dishonest intention of the accused was very evident
in the above act as the units were returned in the
pretext of upgrade /repair without conducting any
test, without confirming the scope of update and
without confirming the time schedule of upgrade
and without obtaining Security deposit/ Bank
Guarantee.
1.21 The investigation revealed that the remaining 11 Units
bearing Sl. Nos. 25 to 35 (which were received at DARE
on 11.03.2009) remained idle unused and untested at RF
Lab till July' 2011 and the same were returned for
upgrade/ repair vide Material Gate Pass No. 611 dated
25.07.2011 and as per the approval taken vide Ι.Ο.Ν. No.
DARE/RFD/Gate Pass/12 dated 25.07.2011. It is revealed
that vide the I.O.N. No. DARE/RFD/Gate Pass/12 dated
25.07.2011, Smt. Priya Suresh N. (A-1), the then
21
Scientist 'D' cum Divisional Head of RF Division had
reported to the then Director that the said 11 units were
found "totally not working" and had sought his
approval for the return of the said units to M/s. AKON
Inc., USA (A-2) (Vendor) for repair. Dr. U. K. Revankar
(A-3), the then Director, after perusing the said I.O.N.,
had approved for the return of the said 11 units for repair
against RMA No. 201154 as assigned by the vendor in
USA and accordingly the units were sent to the vendor in
USA for repair on 25.07.2011
.... .... ....
1.30 The investigation has further revealed that few
months after recommending and facilitating the
payment of balance amount to the vendor in USA,
Smt. N. Priya Suresh (A-1), the then Scientist 'D' &
Divisional Head, RF Lab herself issued an, I.O.N. No.
DARE/RFD/gate Pass/12 dated 25.07.2011
reporting therein that the said 11 Units bearing Sl.
Nos. 25 to 35 (which were received at DARE on
11.03.2009 and remained idle untested & unutilized
till July' 2011 when they were returned to the
vendor for repair/ update) were found "totally not
working" and sought Director's approval for the
return of the said units to M/s. AKON Inc., USA (A-
2) (Vendor) for repair, which corroborates the
criminal intent and related omissions/ commissions
off the part of Smt. N. Priya Suresh (A-1), the then
Scientist 'D' & Divisional Head of RF Lab in the
procurement of subject 35 Nos. of VCO Based RF
Generators.
1.31 The investigation has thus revealed that M/s. AKON Inc.
(A-2), represented by its President & CEO namely Shri
Surya Sareen Prakash (A-4), in collusion with DR. UK
Revankar (A-3), the then Director. DARE & Smt. N. Priya
Suresh (A-1), the then Scientist 'C'/ Scientist 'D' &
Divisional Head of RF Lab have conspired among
themselves and delivered dummy non-functional VCO
Based RF Generators to M/s. DARE and did not even
supply a single repaired unit meeting specifications of the
22
subject Purchase Order even after a lapse of almost 13
years after the said delivery to DARE and thus cheated
DARE to the tune of Rs. 5,28,36,862/- plus applicable
interest thereon.
1.32 Hence, the charge-sheet is filed against
(i) Smt. Priya Suresh N.. (A-1), the then
Scientist 'C'/ Scientist 'D' cum Divisional
Head, RF Division, DARE, Bangalore.
(ii) M/s. AKON Inc., USA (A-2) represented by
Shri Surya Sareen (A-4). President & CEO of
M/s. AKON Inc., USA (A-2) having its Head
office-2135, Ringwood Ave., San Jose, CA
95131-1725, USA.
(iii) Dr. U.K. Ravenkar, the then Director, DARE
(A-3)
(iv) Shri Surya Sareen (A-4), President & CEO of
M/s. AKON Inc., USA (A-2)
for commission of offences U/s. 120-B of IPC r/w 420 IPC
and U/s. 13 (2) r/w Sec. 13 (1) (d) of PC Act, 1988."
(Emphasis added)
To arrive at the aforesaid findings in the charge sheet, statements
of witnesses are recorded by the CBI. The statements of witnesses
clearly pin down the petitioner for all the acts. The statement of
one Pandurang Deshmukh is as follows:
"RC-17(A)/2020/CBI/ACB/BLR Bangalore
Date: 06.04.2022
23
Statement of Shri Pandurang Deshmukh (DOB- 13.09.1969),
S/o Shri Raghavendra Rao, General Manager (Business
Development), M/s. AKON Electronics India Pvt. Ltd., No. 906,
Raj Arcado, Mezzanine Floor, 5TH A Cross, 1ST Block, HRBR
Layout, Kalyan Nagar, Bangalore-560043; Present and
permanent resident of Flat No. 4131, Prestige Gulmohar
Apartments, Horamavu Main Road, Horamavu, Bangalore-
560043. PAN No.: AALPD9402C; Aadhaar No.: 2542-6030-
6311; Ph.: 080-43728513 (Off.). 9741866611 (Mob.); E-mail
ID-pdeshmukh @akonelectronics.com pandurang
[email protected].
___________________________________________________
I am as above. I was born and brought up in Gulbarga,
Karnataka. I completed my B.Sc. from Government College,
Gulbarga, Karnataka in the year 1990. I joined M/s.
International Marketing and Services, Bangalore as Marketing
Executive during 1991 and worked there in the same capacity
till 1993. Thereafter, I worked in M/s. Merlinhawk Associates
Pvt. Ltd., Bangalore as Marketing Executive/ manager
(Marketing) from 1993 to 2000. From 2000 to 2003, I worked in
M/s. Syratron Marketing Pvt. Ltd., Bangalore as General
Manager (Marketing). Subsequently, I worked in M/s. Hitech
Telecom Pvt. Ltd. as General Manager (Marketing) during the
period from 2003 to 2006. Thereafter, I re-joined M/s. Syratron
Marketing Pvt. Ltd., Bangalore as General Manager (Marketing)
and worked there till 2009, I joined M/s. AKON Electronics India
Pvt. Ltd. as General Manager (Business Development) during
2009 and since then till date I have been working in this
company in the same position.
On being asked, I state that M/s. AKON Electronics
India Pvt. Ltd. is a private limited company and its registered
office is situated at 11-12, Vaishali 'A' Block, Community Centre,
Paschim Vihar, Delhi-110063. The company was incorporated on
16.01.1985 and is registered with Registrar of Companies,
Delhi. Shri Surya SareenParkash and Shri Sandeep Sareen are
the promoter directors in this company, however, both of them
are US citizens. Sri Sodhi Ram Sharma is the other (Indian)
Director in M/s. AKON Electronics India Pvt. Ltd. M/s. AKON
Electronics India Pvt. Ltd. is a wholly owned subsidiary of M/s.
AKON Inc., USA Shri Surya Sareen Parkash is the President
24
& CEO of M/s. AKON Inc., USA as well as Managing
Director of M/s. AKON Electronics India Pvt. Ltd.
I state that M/s. Akon Electronics India Pvt. Ltd. has been
supplying Microwave components and Assemblies for defence
and space applications for over 20 years. The company has
certified lab spaces for manufacturing RF/Microwave Assemblies
for space applications. The company is a leading supplier of
Microwave products for Airborne, Ground, Ship-borne and Space
applications in India. AEl-supplied hardware can be found in
almost every major EW (Electronic Warfare) program in India.
The company has been in the business of custom built design,
manufacture, and supply of highly reliable, state-of-the-art
Microwave components and sub-systems in the 0.5GHz to
18GHz frequency range. The company has contributed to major
Defence and Space programs in India, like TEMPEST, Tarang,
Samyukta, Sangraha, Varuna, Chandraayana and GSAT. The
company is having its Design & Manufacturing Unit situated at
Bahadurgarh, Haryana and Business Development Office (BDO)
in Bangalore. The BDO of the company situated in Bangalore is
headed by me.
On being asked, I state that M/s. AKON Inc., USA. was
incorporated on 31-10-1980 at California, USA, with the address
Head office- 2135, Ringwood Ave., San Jose, CA 95131-1725,
USA, by Shri Surya Sareen, who is the President and CEO of this
company. This firm is in business for about 41 years and
Shri Surya Sareen is the sole owner of this company and
he is holding major shares of this company, his son Shri
Sandeep Sareen is director of this Company. Ms. Neha Sareen,
D/o Shri Surya Sareen was working for about 2 years during
2008-09 after her completion of her education and leaving
separately with her husband at US. On being also shown the
profile of M/s. AKON Inc., USA collected from Dan and
Bradstreet Information Services India Pvt Ltd. after going
through the same I state that the details are 100% correct and
Shri Surya Sareen is the only independent owner of the
M/s. AKON Inc., USA and he is the beneficiary of M/s.
AKON Inc., USA and he is the beneficiary of the company.
I further state that M/s. AKON Inc., has been a leading
supplier of microwave products for airborne, ground, shipboard
and space applications since 1980. I state that AKON-designed
25
hardware can be found in almost every major EW program in
the free world. Leading defence contractors such as Lockheed
Martin, Northrop Grumman, BAE Systems, Raytheon, DRS
Systems, Naval Research Laboratory, Jet Propulsion Lab, Indian
Air Force, Turkish Navy, to name just a few have chosen AKON
as their supplier of choice for tuners, log components, frequency
measurement modules, miniature switches and filters,
frequency synthesizers, phase shifters, front-end receivers,
up/down-converters as well as other microwave components
and subsystems.
On being asked, I state that while working as General
Manager (Business Development) in M/s. Akon Electronics India
Pvt. Ltd., I have also been responsible for liaisoning with the
Indian clients of our parent company M/s. AKON Inc., USA. On
being asked, I state that I, on behalf of M/s. AKON Inc.,
USA, have been liaisoning with Defence Avionics
Research Establishment (DARE), Defence Research &
Development Organization (DRDO), Bangalore in respect
of various pending orders issued/awarded by DARE to
M/s. AKON Inc., USA.
On being shown and asked I state that these email
printouts were seized from our office during search conducted
on 2.1.2021. Further I state that the email dated 16.2.2009 was
sent by me from my email id [email protected]
to informLynette Ovalle on the email id of Mr.SuryaSareen I.e.,
[email protected] wherein I have informed the establishment of
LC(Letter of credit) through SBI St.Marks road Bangalore.
On being shown and asked I state that email dated
18.2.2009 was sent by me from my email id
[email protected] to Mr.SuryaSareen on
his email Id [email protected] to inform that LC has
already been established and requested Mr.SuryaSareen
to arrange for the final outline and dimensions of the unit
as requested by Dr.Revankar who had requested me over
phone to arrange the outline and dimensions of the VCO
based RF generators unit.
On being shown and asked I state that email dated
18.2.2009 is a reply email received by me from Blancachi
26
having email id [email protected] stating that the LC has been
received by AKON and the unit will be shipped in this week.
On being shown and asked I state that email dated
3.3.2009 is an email received by me from Rajeev
Ramachandran having email id [email protected] in which he
has stated that "Please let me know if the attached file on the
VCO based RF generator has the latest pin out and mechanical
details. I can start work on the housing and power supply
accordingly
On being shown and asked I state that email dated
6.3.2009 is an email sent by me to Priyasuresh on her email id
[email protected] with a copy marked to Dr. Revankar
having email id [email protected] stating "Please find
attached final drawing for the VCO based RF generator"
On being shown and asked I state that email dated
15.3.2009 is an email sent by me to Mr.SuryaSareen on
his email id [email protected] with a copy marked to
Mr.AvinashRatra on [email protected] stating
"Dr.Revankar spoke with me again this afternoon, he was
quite unhappy to know that the specs and draft ATP sent
by AKON is for old model YIG based generator and not for
the VCO based RF generator, your intervention is required
on this issue, kindly arrange for the latest specifications
as per DARE tender and arrange for pin layout etc."
On being shown and asked I state that email dated
12.3.2009 is an email received by me from Avinash Ratra
having email id [email protected] stating that"
Attached please find the outline and the preliminary ATP
document for VCO. The document might get modified very
minutely when real results of our testing is available
which we are doing now. Also outline drawing talks about
all pin configuration for frequency as well as attenuation
bits. Please let me know in case u need anything else.
On being shown and asked I state that email dated
12.3.2009 is an email received by me from Rajeev
Ramachandran from email id [email protected] in which he
has stated "The specifications of the VCO based RF generator as
implied in the ATP document that you have forwarded to me is
significantly different from DARE tender specs. The specs seems
27
to be same as that of the YIG based RF generator M/s Akon had
supplied kindly clarify the same. We would like complete
specification sheet (including pin layout current consumption)
for the VCO based RF generator as soon as possible, as the
system specification are to be derived as per this."
On being shown and asked I state that email dated
24.3.2009 is an email sent by me to Neha Sareen
daughter of Mr.SuryaSareen on her email id
[email protected] and copy marked Mr.SuryaSareen on
his email id [email protected] to stating that "I did speak
with Mr.Sareen last evening (USA time) and he has
assured me that he will review the final spec, outline, pin
configuration etc. and arrange for the details by email to
me.
On being shown and asked I state that email dated
31.3.2009 is an email received by me from Neha Sareen
from her email id [email protected] stating that " Here
is the final specs, formal outline and block diagram for
DARE.
On being shown and asked I state that email dated
31.3.2009 is an email sent by me to Priya Suresh on her
email id [email protected] stating that "Please
find attached details on VCO based RF generator.
On being shown and asked I state that email dated
17.4.2009 is an email sent by me to Priya Suresh on her email
id [email protected] with a copy to Dr.Revankar on his
email [email protected] stating that "We have sent the
attached letter by FAX to your stores division" the contents of
the FAX dated 16.4.2009 are as below:
RMA no. (Return Material Authorisation) 200937 has been
issued for the 12 units (Sn no.13 to 24 shipped to DARE under
purchase order No.DARE/FPD/EWSFA/PO-18/2007/08 on
19.2.2009 please send the units back to as soon as possible and
we can turn these around quite rapidly upon repair and return of
these units will be issuing RMA's in parallel for the next set of
units shipped to DARE.
28
On being shown and asked I state that email dated
21.6.2011 is an email received by me from Rajeev
Ramachandran having email id [email protected] stating that
"VCO generators S.No.3,4 which were found to be mal
functioning are to be returned to Akon for repair. Also the VCO
generator that was brought by Mr.Avinash Ratra l.e., S.No.5 is
also malfunctioning in the 6 GHz to 9 GHz band after working
normally for few days. There is no output in this band, while the
generator is functioning normally at all other frequencies, please
issue the RMA No. for these generators so that they can be sent
back to Akon for repair.
On being shown and asked I state that email dated
28.6.2011 sent by Smt. Uma who was working as sales co-
ordinator in Akon electronics Bangalore from her email id
[email protected] to purchase department of DARE
with a copy marked to Priya Suresh on her email id priya
[email protected] and another copy marked Sri. Yadaiah on
his email id [email protected] and another copy marked
to me stating that "RMA letter for Sl.No. 384 for VCO based RF
generator model no.A25-MH217.
On being shown and asked I state that email dated
28.6.2011 is an email received by me from Smt.Priya Suresh
from her email id [email protected] with a copy
marked to Rajeev and Dr. Revankar stating that "Of the 35 VCO
based RF generators that were received at DARE, S/Ns 1 to 25
were sent back to AKON for repair while the other 10 units S/N
26 to 35 are with DARE and have to be sent to AKON for repair.
"Repair:- of the 25 units that were sent to AKON for
repair we have received 6 units, S/Ns 1 to 6 after repair
1) S/N 01 and 02 were found to be malfunctioning and
were resent back to AKON for repair
2) S/N 03, 04 and 05 are with DARE. While S/Ns 03
and 04 are totally not working. S/N 05 is
malfunctioning in the 6 GHz to 9 GHz band. They
are to be sent back to AKON for repair.
3) S/N 06 is working normally at this point of time.
29
Please provide the RMA numbers for all the
modules which are to be sent back to M/s AKON
On being shown and asked I state that these are the
second set of email printouts and FAX message printouts seized
from CBI during search on 2.1.2021. Further I state that the
email dated 21.4.2014 sent by me to Rajeev Ramachandran
having email id [email protected] copy marked to Sri.
Yadaiahon his email id [email protected] and copies to
Sri. Thangaraj, Dr.K.Maheswar Reddy on the email id's
thangaraj [email protected]@rediffmail.com
stating that "one more VCO is ready for demonstration with
improved performance. Kindly let us know if Mr.Rathi (from
Bahadurgarh) can visit DARE for joint testing of unit. He will
bring the unit from Delhi for demo.
On being shown and asked I state that FAX message
printout dated 10.11.2014 containing letter from DARE dated
5.11.2014 addressed to AKON SANJOSE CALIFORNIA 95131.
Further I state that this letter was sent through FAX which is
signed by Smt.Priya Suresh Scientish "D" in which she has
informed that
1. Quantity 35 numbers VCO based RF generators were
shipped by M/s AKON by end of February 2009. The units were
sent back for upgrade in 03 consignments from March 2009 to
July 2009. So far only 07 numbers VCO based RF generators
have been returned back by M/s AKON.
2. As about 03 years passed from the last consignment
sent you are requested to intimate the status of readiness of the
remaining 28 units for despatch.
3. Also please forward the unit wise test reports which will
be verified and cleared by DARE before despatch of these units.
4. An early reply is highly appreciated."
On being shown and asked I state that email dated
26.11.2014 sent by me to Sri. SuryaSareen on his email id
[email protected] with copies to Sri.S.C.Khanna on his email Id
[email protected], Sridhar Perepa on his email id
[email protected], Saheb Singh Rathi on his email id
[email protected], Vikas Verma on his email id
[email protected], Avinash Ratra on his email Id
30
[email protected] stating that "Please find below the
comments from Mr.Rathi also please find attached a copy of
letter sent to DARE, We need to provide the spec we can meet
and tentative delivery schedule for the balance RMA units."
On being shown and asked I state that FAX message
printout dated 03.2.2015 containing letter from DARE dated
2.2.2015 addressed to M/s AKON Bangalore Further I state that
this letter was sent through FAX which is signed by Smt.Priya
Suresh Scientist "D" in which she has informed as mentioned
below
"1. With reference to your letter dated 24.12.2014, it was
confirmed from your side that you will be sending the achieved
specs vis-à-vis DARE's specifications on or before 10th Jan
2015, so far there is no communication received since the
matter is urgent a meeting is scheduled at DARE to discuss on
this matter preferably on 06th February 2015 at 14:00 hrs
2. You are requested to attend the same"
On being shown and asked I state that email dated
27.02.2015 sent by me to Sri SuryaSareen on his email id
[email protected] copy marked to Sridhar Perepa on his email id
[email protected] stating about the proceedings of meeting
at DARE which is as below
"The meeting was held at DARE this afternoon as
scheduled.
Dr.Reddy was chairing the meeting, other scientists
present were Mrs.Mini Cherian/Sc G, Mr. Thangaraj/ Sc F and
Mrs. Priya/ Sc D.
They patiently listened and went to the presentation
document after the presentation only one line comment from
Dr.Reddy was- DARE needs all the balance units which meet
tender/PO specs, including mechanical dimensions at the
earliest. As AKON had received the PO against Global Tender
and any deviation in specs/outline will be viewed seriously.
All though I have proposed 3 months time to start 3-4
units/month after realisation of the first 2 units, meeting the
31
specs and outline. The committee's view is, total programme
will be again 9-10 months from now which is not acceptable.
On being shown and asked I state that email dated
02.03.2015 sent by me to Meriam Medina on her email id
[email protected] with copies marked to Sri. Amarnath
Premsiri on his email id m Sridhar Perepa on his email id
[email protected] and Sri SuryaSareen on his email id
[email protected] stating that "Please find attached TWO
documents as we could not get the original specs issued by
DARE, which was prior to April 2007 where in AKON-Bangalore
started the operations/office in early 2009.
1. Document in response to tender from DARE:- page 10
and 11 of the document has compliance table with
DARE specs and our/ AKON comments.
2. Document after the contract: This is similar to PDR,
AKON had submitted this document in November 2007
on receipt of PO/contract from DARE.
On being shown and asked I state that email dated
22.4.2015 sent by me to Sri SuryaSareen on his email id
[email protected] copy marked to Sri.SC Khanna on his email id
[email protected] stating that "It is becoming difficult to
get the appointment confirmation from DARE and I request you
to speak with Mrs. Manjula, (Director DARE)
On being shown and asked I state that FAX message
printout dated 12.3.2015 containing letter the letter dated
12.3.2015 addressed to M/s AKON INC, RINGWOOD AVE. SAN
JOSE, CA, USA signed by Mr.D.S. Tilak SSO II DARE in which he
has informed that:-
There has been an inordinate delay from your side
returning back of the units after up-gradation. Only 7 out of 35
units have been returned and the performance of the same as
reported by us earlier, is not confirming to the committed
specifications. Further I state that this FAX message was
received at AKON Electronics Bangalore office.
Further state that Sri. Tilak has informed that: in view of
the above, as was intimated to your reps in the meeting, you
32
are hereby requested to return all the units presently held with
you immediately without any further delay along with latest
unit-wise test reports. You are also that the units being returned
fully comply with our original specifications. Schedule for
returning the same may please be intimated by return FAX.
On being shown and asked | state that Sri. Tilak SSO II
DARE sent another Fax message as Reminder-l on 25.3.2015
and Reminder-ll on 10.4.2015 requesting to send the remaining
VCO based RF generators at the earliest as the same are
required for DARE project activities.
On being shown and asked state that the letter dated
7.04.2015 from Mr.SuryaSareen President and CEO of AKON
INC USA addressed to Ms. J.Manjula OS and Director of DARE
Bangalore is a email printout received at Akon Electronics India
Bangalore office. Further I state that the letter was written by
Sri SuryaSareen for requesting an appointment and necessary
security clearance to visit DARE Bangalore office.
On being shown and asked I state that email sent by me
to Mr.SuryaSareen on his email id [email protected] with
copies marked to Sri.R.R.Raghavendra on his email id
[email protected] and to Sri Amarnath
Premasiri on his email id [email protected] stating that
"Based on our request the appointment is fixed with Director
DARE on Monday (2nd Nov 2015). We request for the update on
the project as the scientists in DARE would be keen to start the
discussion with this topic first. The subject mentioned in the
email was VCO based RF generator.
On being shown and asked I state that email received by
me on 28th June 2015 from Mr.SuryaSareen from his email Id
[email protected] stating that "BUSINESS CONFIDENTIAL
Very serious problem. Did we order the main housing etc. We
had promised to deliver VCO in three months. They end in July.
Let us talk and attack the problem. Further I state that this
email was addressed to Sri Amarnath Premasiri on his email id
[email protected] who was working as a Mechanical
Engineer at AKON INC USA and a copy was marked to me.
On being shown and asked I state that email sent by me
dated 16.8.2016 to Sri. Yadaiah on his email id
33
[email protected] with a copy marked to Sri
K.Maheswar Reddy on his email id
[email protected] stating that please find
attached the VCO control details and the operating manual. We
look forward for your valuable feedback after testing the unit as
per operating manual.
On being shown and asked I state that email received by
me dated 05.7.2016 from Sri.Yadaiah from his email id
[email protected] stating that "Please provide the following
technical details of the VCO generator for verifying the controls
and functionality of the module and also comparing the test
results.
a. Control details (Frequency words table, band selection,
DCA Settings, other controls and modulation settings)
b. Block diagram of the module."
On being shown and asked I state that email sent by me
dated 29.9.2016 to Sri. Yadaiah on his email id yadaiah@dare
drdo.in with copies marked to Sri.K.Maheswar Reddy on his
email id [email protected] and Sri. Thangaraj on
his email id [email protected] stating that "Thank
you for your below e-mail. Sorry for the delay in replying your
e-mail. Please find attached the response to letter from MMD-
DARE. Further I state that the above said email was sent as a
reply to the email received by me on 22.9.2016 from Sri.
Yadaiah from his email id [email protected] stating that
"Find DARE letter on VCO generator functionality in the
attachment.
On being shown and asked I state that Letter dated
29.9.2016 was sent by me to Sri S. Ramanathan group director
MMG DARE CV Raman Nagar Bangalore, in which I had informed
Sri. S. Ramanathan of DARE regarding VCO based generator
S/N 12 and that I was authorised to respond against the letter
from DARE addressed to AKON INC USA and further informed
DARE that the AKON company regrets to inform about the
output intermittency in the unit, and that the unit was tested at
AKON USA and the test data was shared with DARE prior to
shipment, only after test data by DARE the unit was shipped.
34
On being shown and asked I state that email sent by me
dated 16.10.2016 to Sri SuryaSareen on his email id
[email protected] in which I had stated that "We have
already issued RMA and requested DARE to ship the unit back to
AKON-USA.
On being shown and asked I state that email sent
by me dated 15.11.2016 to Sri. SuryaSareen on his email
id [email protected] with a copy marked to accounting
person at AKON-USA Ms.Sylvia Van on her email id
[email protected] in which I had stated that "Please find
below details
VCO unit price as per DARE PO: $ 30870 (100%)
$27783 x 35=$ 972405 (90% by LC)
$3087 x 35=$ 108045 (10% by wire transfer)
LD deducted 5% of the PO value (or 50% of
warranty payment) $ 108045/2 = $54022.60
After deduction of LD DARE has released the
warranty payment as well in the year 2011
On being shown and asked I state that email sent by me
dated 26.5.2017 to Sri SuryaSareen on his email id
[email protected] with copies marked to Sridhar Perepa on
his email id [email protected] and Smt. PreetiKotha on her
email id [email protected] stating that "Spoke with
Mr.Yadaiah, understand the testing procedure is more or less
same since many years, test equipments of same make and
model numbers may not be available but they have all the
required/latest test equipments As per him the test jig is
required to control the bits. Whatever test jig is being used for
testing the VCO's prior to shipment from AKON, the same can
be brought to DARE for testing. Or the internal details/ block
diagram and components used needs to be shared with DARE
for future testing of units.
On being shown and asked state that email sent by me
dated 5.09.2017 to Sri SuryaSareen on his email id
[email protected] with copies marked to Avinash Ratra on
his email Id [email protected] and Sridhar Perepa on his
35
email Id [email protected] stating that VCO SN 13
(Shipped through Fed Ex Cargo) is received at DARE stores this
afternoon. With these two units DARE has total 4 units for
testing (SN 01,02,13 and 14)
On being shown and asked I state that email dated
02.1.2018 received by me as copy from Sri SuryaSareen on his
email id [email protected] actually sent to Sri VikasVerma
on his email id [email protected] stating that
"Vikas, AEI team then: Please do the need full, I think AP sent
you DOCS. Must be a simple issue as all units were checked by
you all, and no output is coming in a specific path. Further I
state that this email was sent to Sri. VikasVerma and copies
were marked to Sri Amarnath Premasiri and me by Sri.
SuryaSareen as I had sent an email dated 01.1.2018 addressed
Sri. VikasVerma and marked copy to Sri.SuryaSareen regarding
the visit of Mr.Rajesh an employee of DARE to AKON INDIA
Bahadurgarh on 3.1.2018 with the Air India Flight Details.
On being shown and asked I state that email dated
20.12.2017 was sent by me to Sri. SuryaSareen on his email id
[email protected] and copies marked to Sri. Vikas Verma
and Sridhar Perepa on their email id's as seen in this email
stating that "we have spoken with Rajeev/Yadaiah at DARE. As
per recent DRDO guidelines they can send the units with their
person next week. Our team (at AEI) can attempt rectifying the
units on receipt of drawings from AKON.
On being shown and asked I state that email dated
19.12.2017 was received by me from Sri.VikasVerma from his
email id [email protected] as a copy and addressed
to Sri. SuryaSareen as seen in this email, also a copy has been
marked to Sri Sridhar Perepa stating that "Today work at DARE
is finished. Tomorrow I will be at office with Deshmukh, I need
to book flights for either tomorrow or next day".
On being shown and asked I state that email dated
9.1.2018 was received by me from Mr.Sagayaraju, stores
officer, from email id [email protected] and copy marked to
Sri SuryaSareen on his email ID [email protected] stating
that "Please find attached a letter towards export of remaining
RF generators to DARE kindly acknowledge receipt". Further I
state that this email had an attachment having letter dated 08
JAN 2018 addressed to M/s AKON INC 2135 RINGWOOD AVE
36
SANJOSE, CA, USA. This letter was sent to AKON by Group
Captain Sri.RNB. Rao Group Director MMG DARE, to
inform that, out of the 35 VCO based generators
purchased by DARE from M/s AKON vide PO-18/2007-08,
after all the 35 units were back loaded to your company
between April 2009 to August 2011 for up gradation, so
far only 12 units have been received after up-gradation
and remaining 23 units are yet to be received even after a
lapse of 08 years. This has resulted in adverse comments
by higher authorities of DARE and repeated audit
observations.
On being shown and asked I state that the email dated
20.8.2018 is an email received by me from Air Commodore RNB
Rao from email ID [email protected] addressed to Sri.
SuryaSareen on his email id [email protected] and a copy
marked to me on my email id [email protected]
stating that "PFA letter for your compliance please Best
Regards" Further I state that this email had an attachment
having a letter dated 20.8.2018 addressed to AKON INC, 2135
RINGWOOD AVE SANJOSE CA USA, from Air Commodore RNB
Rao Group Director MMG-DARE in which Sri. RNB Rao had
thanked AKON for their response and requested AKON to adhere
to the proposed delivery schedule without any deviation and
complete the delivery as promised.
On being shown and asked I state that the email dated
4.7.2019 is an email received by me from Group Captain
S.Vinay Kumar from email [email protected] addressed to
Sr. SuryaSareen on his email id [email protected] and a
copy marked to me on my email id
[email protected] stating that "Please find
attached letter towards return of VCO based RF Generators,
Kindly expedite. Further I state that this email had an
attachment having letter dated 4.7.2019 addressed to AKON
INC, 2135 RINGWOOD AVE SANJOSE CA USA, from Group
Captain S.Vinay Kumar in which they have informed M/s AKON
that in spite of repeated reminders it is regretted to state that
once again AKON has failed to ship one unit as promised. In
spite of approaching AKON repeatedly explaining DARE's
precarious position with the auditors AKON's response is
not in favour of submission of Bank Guarantee for
mentioned value till the shipment is completed. Further I
37
state that the Group Captain in his letter had further
explained that DARE is a Government Organisation under
Ministry of Defence, the consignment held with AKON is
the property of Government of India, AKON's continuous
false promises may lead to intervention of both
Governments to resolve the issue either through DRDO's
technical advisor in USA or through Arbitration.
On being shown and asked I state that the email dated
21.1.2019 received by me from K.V.S.C Sastry scientist "F"
officiating group director from email ID [email protected]
addressed to Sri SuryaSareen on his email id
[email protected] and a copy marked to me on my email id
[email protected] stating that "Please find
attached letter herewith seeking bank guarantee. Kindly
acknowledge receipt of this email and confirm your acceptance.
Further I state that this email had an attachment having letter
dated 21.1.2019 addressed to AKON INC, 2135 RINGWOOD AVE
SANJOSE CA USA, from Air Commodore RNB Rao Group Director
MMG DARE. In the said letter the Group director Sri RNB has
expressed the concern that there is no update from AKON side
till date regarding shipment details. DARE's auditors have
suggested to obtain a bank guarantee for the equal value of the
pending 23 VCO based RF generators held by AKON valid till
shipment of all the units to DARE, he further requests to submit
the bank guarantee for US$ 71,0010/- (30870x23 Nos) so as to
clear all audit issues and the same will be returned after receipt
of all the items at DARE.
On being shown and asked I state that computer printout
of letter dated 27.3.2019 addressed to the director DARE
Bangalore with kind attention to Air Commodore RNB Rao GD
MMG from Veronica Grandon sales support AKON INC, in which
she has informed DARE that AKON INC is a small company
(something similar to MSME in India) and cannot afford the
Bank Guarantee which is nothing but depositing physical cash at
the Bank, equivalent of BG value and informed that AKON INC
USA has incurred huge loss in replacement of critical
components while upgrading the VCO's and requested DARE not
to insist on Bank guarantee. On being shown and asked I state
that email dated 31.10.2017 addressed to Sri. SuryaSareen on
his email id [email protected] and a copies marked to Sri.
VikasVerma, Avinash Ratra and Sridhar Perepa on their email
38
id's as seen in this email printout. This email had an attachment
containing minutes of the meeting held at DARE with summary
of testing of VCO based RF generators. I further state that the
meeting was called to discuss testing parameters of VCO based
RF generators S/n 13,14,1,2. In the said meeting myself, Sri.
VikasVerma Senior Manager Manufacturing from AKON
Electronics India Pvt Ltd, Bahdurgarh Manufacturing facility,
Sridhar Perepa Head Designs AKON INC USA, Ms.PreetiKotha
Project Manager participated the said technical experts
conducted tests on the above mentioned S/n 13,14,1,2 VCO
based generators in the presence of DARE officials namely Sri.
YadiahGandamalla scientist "E", Rajeev scientist "E", Poiyamani
Santosh Technical officer 'A'. The testing of the said VCO
units indicated that the generators were not working
satisfactorily.
Read over and admitted to be correct.
Before me
Sd/-
(R.Valavan)
DSP CBI ACB
Bangalore"
(Emphasis supplied)
Statement of one Vikas Verma reads as follows:
"RC-17(A)/2020/CB/ACB/BLR
05.04.2022
Bangalore/Date:
Statement of Shri Vikas Verma (DOB- 21.12.1975),
S/o, Shri Rameshwar Dayal Verma, Additional General
Manager, M/s. AKON Electronics India Pvt. Ltd., No. 36,
Milestone Jakhoda Village, Bahadurgarh Haryana State
124527 R/o No.392 1ST Floor OMAXE city homes sector 15
Bahadurgarh Haryana 124507 Ph.: 01276297500 (Off.).
9996119205(Mob.); E-mail ID-
[email protected] Ph. Rathi 9871858946
______________________________________________
39
I am as above.
On being asked I state that, I am a Diploma graduate in
electronics and communication, I joined AKON Electronics India
Pvt Ltd in the year 1996 as Junior Engineer in the production
department. M/s. AKON Electronics India PVT Ltd has been
involved in the manufacture of RF(Radio frequency and
Microwave components) ISRO and our major customers are
PSU's from the Defence sector and ISRO.
On being asked, I state that M/s. AKON Inc., USA. was
incorporated on 31-10-1980 at California, USA, with the address
Head office-2135, Ringwood Ave., San Jose, CA 95131-1725,
USA, by Shri Surya Sareen, who is the President and CEO of this
company. This firm is in business for about 41 years and
Shri Surya Sareen is the sole owner of this company and
he is holding major shares of this company, his son Shri
Sandeep Sareen is director of this Company. Ms. Neha
Sareen, D/o Shri Surya Sareen was working for about 2
years during 2008-09 after her completion of her
education and living separately with her husband at US.
On being also shown the profile of M/s. AKON Inc., USA.
collected from Dan and Bradstreet Information Services
India Pvt Ltd. through after going through the same I
state that the details are 100% correct and Shri Surya
Sareen is the only independent owner of the M/s. AKON
Inc., USA and he is the beneficiary of M/s. AKON Inc.,
USA.
On being asked I state that since my appointment I state
that AKON Electronics INDIA business activities was
controlled by Sri.Surya Sareen of AKON INC USA,
Sri.Surya Sareen is also the Managing Director of the
company AKON Electronics India PVT Ltd, He controls the
administration of AKON India through managers in India.
Further I state that since 1997 Sri Sodhi Ram Sharma is also a
director of the company has been co-ordinating with Sri. Surya
Sareen and takes instructions from him regarding the business
of M/s AKON Electronics India PVT Ltd. But due to old age Shri
Sri. Sodhi Ram Sharma is not attending to office nowadays.
40
On being asked I state that M/s AKON India PVT Ltd is
doing value addition work for various products supplied by M/s
AKON INC USA, AKON India receives raw material required for
manufacture of components from AKON USA, and then the
components are assembled and the units are tested at our
AKON Electronics India manufacturing and design facility at
Bahadurgarh Haryana and sent back to USA
On being asked I state that we also participate in tenders
invited from various Defence related PSU's and supply RF and
Microwave components directly from AKON Electronics India Pvt.
LTD. Our customers include SAC (Space Application centre) and
DLRL Defence Electronics research Laboratory.
On being asked I state that in the year 2009 M/s AKON
INC USA got the tender of supplying 35.nos of VCO based RF
generators from DARE Bangalore. Further I state that I was not
aware of this tender till 2014, in the year 2014 Sri.S.S. Rathi
informed me during a discussion that AKON INC USA was
supplying 35. nos of VCO based RF generators to DARE
Bangalore and the modules on which we were working in 2014
was related to the above said supply, as our work involves
working on modules i.e. (Assembling the components sent by
AKON INC USA as per the drawings sent to AKON Electronics
INDIA). Further I state that as the products manufactured at
AKON Electronics INDIA are mostly supplied to defence related
organisations the name of the product and the purpose for
which it is procured is not known to us and also the information
about the organisation to which it is supplied.
On being shown and asked I state that during the year
2014 I received a copy of email from email id
[email protected] in which Sri Deshmukh asked
Sri Sahab Singh Rathi about his plan to visit Bangalore. Further
I state that Sri Rathi had visited DARE Bangalore regarding
testing of VCO based RF generators in 2014.
On being shown and asked I state that during the year
2017 on 3.11.2017 I received a copy of email from email id
[email protected] written to Ms. Preeti Kotha in which
Mr.Sareen is talking about the need of internal discussion
on the subject ICD of VCO based RF generator.
41
On being shown and asked I state that on 7.11.2017 I
received a copy of email from email id
[email protected] written to Sri.Surya Sareen in
which he is referring to a reminder email from Sri. Rajeev from
DARE and also suggesting providing ICD details to DARE so that
they may start the programing of automatic testing.
On being shown and asked I stat that on 8.11.2017 I
received a copy of email from Sri. Avinash Ratra from email id
[email protected] written to Sri Surya Sareen in which he is
informing Ms. Preeti Kotah that he is going to put the
documents regarding ICD details in public folder, he further
requested her to print it and get it approved from Sri. Malkiat
Bajwa
On being shown and asked I state that I sent an email to
Sri. Surya Sareen on 19.12.2017 on his email id
[email protected] in which I had informed him that I am
there in Bangalore for next day and offered to extend the stay.
In reply to this email Sri Sareen suggested to contact Sridhar
Perepa, after which I received another reply email form Sri.
Sridhar Perepa in which I was requested to finalise the repair
plan at Bahadurgarh with DARE. Further I state that in
continuation of this email Sri.Sareen replied to Sri.Sridhar's
email asking me to confirm the receipt of Sridhar's email
and suggested to take the units from DARE and bring the
same to Bahadurgarh for repair.
On being shown and asked I state that on 2.1.2018 Sri.
Pandurang Deshmukh has sent an email to me in which he
informed me about the flight details of Sri. Rajesh from DARE he
requested me to arrange pickup from Airport and arrange for
extension of stay if required.
On being asked I state that Sri. Rajesh had brought some
VCO based RF generator units could be 2 or 3 which was tested
for specifications and repaired and later handed over to Sri.
Rajesh of DARE.
On being shown and asked I state that on 9.1.2018 I
received an email from Sri. Deshmukh from email id
[email protected] in which he had forwarded a
letter from DARE regarding RF generators. Further I state that
42
the letter was sent to AKON INC USA to remind them
regarding the supply of VCO based RF generators.
On being shown and asked I state that during 2018
DARE Bangalore had informed AKON INC USA and AKON
Electronics India Pvt Ltd about not receiving balance 23
units of VCO based generators
On being asked I state that the assembling work of RF
and Microwave components that is done in our manufacturing
facility at Bahadurgarh is sub assembly of components and the
same is to be completed by assembling the other components
required to complete the finished product.
On being asked I state that there has been a delay in
supply of the VCO based RF generators, as the technology
involved in the RF generator is very complex and as the product
requires some improvements and components need to be
upgraded, there might have been many issues connected with
the upgradation and repairs due to which this delay has been
caused.
Read over and accepted as correct."
If the summary of the charge sheet, paragraphs of which are
quoted hereinabove, and the statements of witnesses, in their
entirety, are noticed, the role of the petitioner is clearly brought
out. The witness statements are in clear narration of what the
petitioner has done. The witness statements are clear that the
petitioner is the sole owner of M/s AKON, USA and his son Sandeep
Sareen is Director of M/s AKON and the petitioner is the
independent owner and beneficiary of M/s AKON; he controls M/s
43
AKON Electronics India Pvt. Ltd. and all the mail communications
clearly point at the involvement of the petitioner. After filing of the
charge sheet, the concerned Court takes cognizance of the offence
on 07-01-2023. The order of taking cognizance runs into 12 pages
and cognizance is taken after clear narration by the following order:
"ORDERS REGARDING TAKING COGNIZANCE
Sri. R. Valavan (C.W.38), The Deputy Superintendent of
Police, CBI/ ACB/ Bengaluru has submitted this charge sheet
against accused No.1 to 4 alleging commission of offences
punishable u/s.120-B r/w.420 of IPC and Section 13(2) R/w
13(1)(d) of PC Act 1988.
Consideration of the charge sheet and allied materials
reveal that RC 17(A)/2020/CBI/ACB Bengaluru was registered
by Central Bureau of Investigation, Anti Corruption Branch,
Bengaluru on 29.12.2020 against Mrs. Priya Suresh N.(A-1).
The then Scientist 'D', Defence Avionics research Establishment
(DARE), Defence Research and Development Organization
(DRDO), C.V.Raman Nagar, Bengaluru-560 093 and M/s. AKON
Inc.(A-2), Head office- 2135, Ringwood Ave., San Jose, CA
95121, USA, on the basis of written complaint lodged by Shri
Surya Prakash Director (Vigilance), Ministry of Defence, Govt. of
India, Sena Bhawan, "B" Wing, New Delhi vide Letter
No.10/DO(Vig)/2014 dated 22.05.2017 enclosing a Complaint
dated 16.03.2012 preferred by Shri Poiyamani S., the then STA
"C"
DARE, DRDO, Bengaluru and relevant Inquiry Committee
Report, regarding irregularities in procurement of 35 Nos. of VO
based RF Generator' from M/S.AKON Inc., USA (A-2) for a total
cost of US 1080450/- by DARE (Defence Avionics Research
Establishment), Defence Research and Development
Organization (DRDO), Bengaluru and after obtaining
Order/Authorization U/s.17(A) of PC Act' 1988 (as amended in
2018) issued by Under Secretary, Ministry of Defence
44
(Vigilance), Sena Bhawan, New Delhi vide Letter
No.10/DO/Vig.)2014 dated 20.07.2020.
It is alleged that:
i) The RF Division, DARE, DRDO had placed a purchase
order No. DARE/FPD/VVLE/PO-02/2007-08 dated 11.07.2007
(later amended as DARE/FPD/EWSFA/PO-18/2007-08 dated
11.07.2007 for the supply of 35 nos.of VCO based on RF
generators with M/s.AKON In., USA (A-2) which was identified
through a global tender. The said items were proposed for
procurement in connection with the lab testing of simulators of
various radar electronic warfare systems. As per the said
purchase order, 90% of the net value was to be drawn against
Letter of Credit on presentation of documents like Airway Bill,
packing list, manufacturer warranty certificate, origin certificate,
accuracy certificate by the vendor through Sate Bank of India,
St.Marks Road, Bengaluru.
ii) M/s.AKON Inc.(A-2) in conspiracy with Smt.Priya
Suresh N.(A-1). shipped 35 Nos. of incomplete units of VCO RF
Generators in 3 consignments No the month of February, 2009
and availed 90% payment of net value viz.US $ 333,396
(Rs.1,72,78,248/-) against import Bill Number
0686109SS0036175, US $ 305,613 (Rs.1,58,33,046/-) against
Import Bill Number 0686109SS0036213 and US $ 333,396
(Rs.1,72,91,584/-) against Import Bill number
0686109SS0036189 through SBI, Overseas Branch, Bengaluru
on behalf of DARE against the LC No.0686109IM0025088 on
02.03.2009, 03.03.2009 and 12.03.2009 respectively.
iii). In pursuance to the conspiracy, Smt.Priya Suresh
N.(A-1), the then Scientist 'D' and Divisional Head, RF Lab
accepted these 35 Units of purported 0.5-18.0 GHz VCO Based
RF Generators (Model No.A25-MH217) Into the stores on
04.03.2009 and 11.03.2009 by signing the Certificate Receipt
Vouchers as Inspecting Officer even when she was having the
knowledge through the emails from the representatives of
M/s.AKON that the said units were only at the development
stage. As the Divisional Head, RF Lab, she did not conduct any
functional testing of these units at the time of accepting the said
units in the stores.
45
iv). The incomplete units delivered at DARE were shipped
back to M/s.AKON Inc. based on the recommendations of
Smt.Priya suresh N.(A-1), on the pretext of upgrade, while
there was no official record of the nature of upgrade/repair for
which the units were shipped back to M/s.AKON Inc..the units
bearing Sl.Nos.1 to 12 were sent back for upgrade/repair on
25.03.2009 whereas units bearing Sl.Nos.13 to 24 were sent
back on 22.04.2009. While the 24 units of the first two
consignments were sent back within weeks of the delivery a
above, the remaining 11 units bearing Sl.Nos.25 to 35 received
at DARE on 11.03.2009 remained idle/unused and untested at
RF lab till July, 2011.
v). Even after having the knowledge that 90% payment
was already made to the vendor for the supply of incomplete
non functional units and only 12 non functional units were held
with DARE and the remaining 23 units were still held by the
vendor in USA, Smt.N.Priya Suresh (A-1), the then Scientist 'D'
& Divisional Head, RF Lab recommended for the payment of
balance amount to the vendor in USA i.e., M/s.AKON Inc., USA
(A-2) by falsely stating on the, relevant Note-07 that "Units are
working satisfactorily." Later, as power the request of DARE,
SBI Overseas Branch, Bengaluru made a payment of USD
54022.50 (Rs.24,33,984/-) through wire transfer to the
M/s.AKON Inc. USA (A-2) on 22.03.2011.
vi). A few months after recommending and facilitating the
payment of balance amount to the vendor in USA, Smt.Priya
Suresh N.(A-1)., the then Scientist "D' & Divisional Head, RF
Lab herself issued an I.O.N. No.DARE/RFD/Gate Pass/12 dated
25.07.2011 reporting therein that the said 11 Units bearing
Sl.Nos.25 to 35 were found "totally not working" and sought
Director's approval for the return of the said units to M/s.AKON
Inc., USA (A-2) (Vendor) for repair.
vii). As on date, only 13 items are currently held with
DARE and remaining 22 items are still lying with M/s.AKON
Inc.USA. Though the average weight of the repaired/upgraded
(as claimed by the vendor) units is approx. 3.6 Kg., which is
significantly higher than the average weight (1 Kg.) of the
original dummy units supplied by the vendor, none of them is
found functional or meeting the specifications of the relevant
purchase order issued by DARE to M/S.AKON Inc. USA (A-2)
46
viii). Smt.Priya Suresh N. (A-1), the then Scientist 'D'
cum Divisional Head, RF Division, DARE, Bengalaru, along with
unknown officials of DARE conspired with M/s.AKON Inc. (A-2),
USA represented by Shri Surya Sareen (A-4), President & CEO
of M/s.AKON Inc. USA (A-2) and in furtherance of the
conspiracy, she had abused her official position by accepting the
non-functional 35 units of VCO based RF generators supplied by
M/s.AKON Inc., USA (A-2) and by recommending balance
payment to the firm thereby cheating DARE and Government of
India.
The chargesheet and allied materials further reveal
Dr.U.K. Revankar (A-3), the then Director, DARE was also a
part of the conspiracy along with Smt.Priya. N.Suresh and they
were aware that the 35 units of purported 0.5-18.0 GHz VCO
Based, RF Generators received at DARE from M/s.AKON Inc.
USA (A-2) were all non functional units and not as per the
specifications stipulated in the relevant Purchase order & Global
Tender. They were also aware of the fact that the said non-
functional units delivered to DARE were dummy items as the
testing of the Unit was still going on in USA as claimed by the
vendor itself before the said officials. Inspite of the same, 90%
payment was released to the firm.
The charge sheet and allied materials further reveal, CBI
obtained prior permission under 17-A of Prevention of
Corruption Act to conduct investigation into the role of Dr.
U.K.Revankar (A-3), the then Director, DARE in the entire
matter of procurement and payment. The same was conveyed
by Shri. B.P.Pant, Under Secretary to Government of India, vide
letter dated 02.06.2021 in the File No.10/DO(vig)/2014,
Ministry of Defence, D(Vigilance), Room No.341-A, Sena
Bhawan, New Delhi-110 011.
The charge sheet and allied materials further reveal even
after having the knowledge that 90% payment was already
made to the vendor for the supply of he incomplete non-
functional units and only 12 non-functional units were held with
DARE and the remaining 23 units were still held by the vendor
in USA, Smt.Priya Suresh N.(A-1), the then Scientist 'D' &
Divisional Head, RF Lab recommended for the payment of
balance amount to the vendor in USA i.e., M/s.AKON Inc. USA
47
(A-2) by falsely stating or the relevant Note-07 dated
31.01.2011/02.02.2011 that "Units are working satisfactorily"
and the same was approved by Dr.U.K. Revankar (A-3).
Prosecution papers clearly disclose to the fact that, IO has
collected documents in respect of A1 to A4 with regard to
criminal conspiracy with respect to supply of dummy non-
functional VCO based RF Generators to M/S DARE and non
supply of even a single repaired unit as per specifications of the
purchase order and thereby cheating M/S DARE to the tune of
Rs.5,28,36,862/-.
I.0 has recorded the Statements of C.W.1 to C.W.24 and
C.W. 30 to C.W.32, and collected 35 documents in order to
bring home guilt against accused persons for committing the
alleged offences with regard to criminal conspiracy to cheat M/S
DARE to the tune of Rs.5,28,36,862/-
The Deputy Secretary (Vigilance), Ministry of Defence,
Government of India, has accorded permission under Section
19(1)(c) of Prevention of Corruption Act, 1988 to proceed
against A1 for initiation criminal proceedings.
Accused No.3 being a retired Government servant and the
offence being committed prior to amendment of the Prevention
of Corruption Act, it is opined by the I.O that no sanction is
necessary.
Comprehensive reading of all the records and collected
evidence makes it clear to show that prima-facie there is
sufficient collection of evidence to attract the offences
punishable u/s.120-B r/w.420 of IPC and Section 13(2) R/W
13(1)(d) of PC Act 1988 against Accused No.1 to 4 and Court is
inclined to take cognizance U/Sec.191 Cr.P.C. for the offences
punishable u/s.120-B r/w.420 of IPC and Section 13(2) R/w
13(1)(d) of PC Act 1988 against Accused No.1 to 4 Hence, the
following:
ORDER
Cognizance is taken for the offences
punishable u/s.120-B r/w.420 of IPC and Section
13(2) R/w 13(1)(d) of PC Act 1988 against Accused
No.1 to 4.
Office is directed to register criminal case as
Special Calender Case and issue summons to
accused No.1 to 4.
returnable by 27.02.2023.
Sd/-
(K.L.ASHOK), 07/1/23
XXI Addl.City Civil & Sessions Judge &
Prl. Special Judge for CBI Cases,
Bangalore City."
A perusal at the order of taking cognizance and issuance of
summons nowhere indicates that it suffers from non-application of
mind. It does not reveal dearth of application of mind but it is
abundance of application of mind. Therefore, this order by no
stretch of imagination can be termed to be an order wanting
reasons or application of mind. The preliminary submission of the
learned counsel for the petitioner is that the order suffers from non-
application of mind. The submission is noted only to be rejected
and thus tumbles down the said contention. Even otherwise, the
Apex Court in a judgment reported in PRAMILA DEVI v. STATE
OF JHARKHAND1, has held as follows:
".... .... ....
ANALYSIS, REASONING AND CONCLUSION:
13. We have considered the matter in its entirety. Two
basic issues arise for consideration.
14. Firstly, whether the Additional Judicial Commissioner
while taking cognizance has to record detailed reasons for
taking cognizance? Secondly, whether the FIR itself was
instituted with mala fide intention and was liable to be quashed?
15. Coming to the first issue, we have no hesitation
to record that the approach of the High Court was totally
erroneous. Perusal of the Order taking cognizance dated
13.06.2019 discloses that the Additional Judicial
Commissioner has stated that the 'case diary and case
record' have been perused, which disclosed a prima
facie case made out under
Sections 498(A), 406 and 420of the IPC and Section 3
(1)(g) of the SC/ST Act against the accused including
appellants. Further, we find the approach of the
Additional Judicial Commissioner correct inasmuch as
while taking cognizance, it firstly applied its mind to the
materials before it to form an opinion as to whether any
offence has been committed and thereafter went into the
aspect of identifying the persons who appeared to have
committed the offence. Accordingly, the process moves to
the next stage; of issuance of summons or warrant, as
the case may be, against such persons.
16. In the present case, we find that the Additional
Judicial Commissioner has taken cognizance while
recording a finding that - from a perusal of the case diary
and case record, a prima facie case was made out against
the accused, including the Appellants. In Bhushan
2025 SCC OnLine SC 886
Kumar v. State (NCT of Delhi), (2012) 5 SCC 424, this
Court held that an order of the Magistrate taking
cognizance cannot be faulted only because it was not a
reasoned order; relevant paragraphs being as under:
'14. Time and again it has been stated by this Court
that the summoning order under Section 204 of the Code
requires no explicit reasons to be stated because it is
imperative that the Magistrate must have taken notice of
the accusations and applied his mind to the allegations
made in the police report and the materials filed therewith.
15. In Kanti Bhadra Shah v. State of W.B. [(2000) 1
SCC 722 : 2000 SCC (Cri) 303] the following passage will
be apposite in this context : (SCC p. 726, para 12)
"12. If there is no legal requirement that the
trial court should write an order showing the reasons
for framing a charge, why should the already
burdened trial courts be further burdened with such
an extra work. The time has reached to adopt all
possible measures to expedite the court procedures
and to chalk out measures to avert all roadblocks
causing avoidable delays. If a Magistrate is to write
detailed orders at different stages merely because
the counsel would address arguments at all stages,
the snail-paced progress of proceedings in trial
courts would further be slowed down. We are coming
across interlocutory orders of Magistrates and
Sessions Judges running into several pages. We can
appreciate if such a detailed order has been passed
for culminating the proceedings before them. But it
is quite unnecessary to write detailed orders at other
stages, such as issuing process, remanding the
accused to custody, framing of charges, passing over
to next stages in the trial."
(emphasis supplied)
16. In Nagawwa v. VeerannaShivalingappaKonjalgi
[(1976) 3 SCC 736 : 1976 SCC (Cri) 507] this Court held
that it is not the province of the Magistrate to enter into a
detailed discussion on the merits or demerits of the case.
It was further held that in deciding whether a process
should be issued, the Magistrate can take into
consideration improbabilities appearing on the face of the
complaint or in the evidence led by the complainant in
support of the allegations. The Magistrate has been given
an undoubted discretion in the matter and the discretion
has to be judicially exercised by him. It was further held
that : (SCC p. 741, para 5)
"5. ... Once the Magistrate has exercised his
discretion it is not for the High Court, or even this
Court, to substitute its own discretion for that of the
Magistrate or to examine the case on merits with a
view to find out whether or not the allegations in the
complaint, if proved, would ultimately end in
conviction of the accused."
17. In Chief Controller of Imports &
Exports v. Roshanlal Agarwal [(2003) 4 SCC 139 : 2003
SCC (Cri) 788] this Court, in para 9, held as under : (SCC
pp. 145-46)
"9. In determining the question whether any
process is to be issued or not, what the Magistrate has to
be satisfied is whether there is sufficient ground for
proceeding and not whether there is sufficient ground for
conviction. Whether the evidence is adequate for
supporting the conviction, can be determined only at the
trial and not at the stage of inquiry. At the stage of issuing
the process to the accused, the Magistrate is not required
to record reasons. This question was considered recently
in U.P. Pollution Control Board v. Mohan Meakins
Ltd. [(2000) 3 SCC 745] and after noticing the law laid
down in Kanti Bhadra Shah v. State of W.B. [(2000) 1 SCC
722 : 2000 SCC (Cri) 303] it was held as follows: (U.P.
Pollution case [(2000) 3 SCC 745], SCC p. 749, para 6)
'6. The legislature has stressed the need to record
reasons in certain situations such as dismissal of a
complaint without issuing process. There is no such legal
requirement imposed on a Magistrate for passing detailed
order while issuing summons. The process issued to the
accused cannot be quashed merely on the ground that the
Magistrate had not passed a speaking order.'"
18. In U.P. Pollution Control Board v. Bhupendra
Kumar Modi [(2009) 2 SCC 147 : (2009) 1 SCC (Cri) 679]
this Court, in para 23, held as under : (SCC p. 154)
"23. It is a settled legal position that at the stage
of issuing process, the Magistrate is mainly concerned with
the allegations made in the complaint or the evidence led
in support of the same and he is only to be prima facie
satisfied whether there are sufficient grounds for
proceeding against the accused."
19. This being the settled legal position, the order
passed by the Magistrate could not be faulted with only on
the ground that the summoning order was not a reasoned
order.'
(emphasis supplied)
17. The view in Bhushan Kumar (supra) was reiterated
in Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12
SCC 420 and State of Gujarat v. Afroz Mohammed
Hasanfatta, (2019) 20 SCC 539. This Court in Rakhi
Mishra v. State of Bihar, (2017) 16 SCC 772 restated the settled
proposition of law enunciated in Sonu Gupta v. Deepak
Gupta, (2015) 3 SCC 424, as under:
'4. We have heard the learned counsel appearing for
the parties. We are of the considered opinion that the High
Court erred in allowing the application filed by Respondents
2, 4, 5, 6, 7, 8, 9 and 10 and quashing the criminal
proceedings against them. A perusal of the FIR would
clearly show that the appellant alleged cruelty against
Respondents 2, 4, 5, 6, 7, 8, 9 and 10. This Court in Sonu
Gupta v. Deepak Gupta [Sonu Gupta v. Deepak
Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] held as
follows : (SCC p. 429, para 8)
"8. ... At the stage of cognizance and
summoning the Magistrate is required to apply his
judicial mind only with a view to take cognizance of
the offence ... to find out whether a prima facie case
has been made out for summoning the accused
persons. At this stage, the learned Magistrate is not
required to consider the defence version or materials
or arguments nor is he required to evaluate the
merits of the materials or evidence of the
complainant, because the Magistrate must not
undertake the exercise to find out at this stage
whether the materials would lead to conviction or
not."
5. The order passed by the trial court taking
cognizance against R-2 and R-4 to R-9 is in conformity with
the law laid down in the above judgment. It is settled law
that the power under Section 482 CrPC is exercised by the
High Court only in exceptional circumstances only when a
prima facie case is not made out against the accused. The
test applied by this Court for interference at the initial stage
of a prosecution is whether the uncontroverted allegations
prima facie establish a case.'
(emphasis supplied)
18. Coming to the second point which the
Appellants canvassed before this Court viz. the
background of lodging of the FIR to impress that the
same is mala fide, an afterthought and at best, a civil
dispute being tried to be settled through criminal
proceedings by way of arm-twisting. On this point, need
for a detailed discussion is obviated in view of our answer
on the first point supra and the paragraphs infra.
19. Perusal of the entire gamut of the pleadings of
the Appellants does not disclose any categorical
statement to the effect that during investigation by the
police, no evidence has emerged to warrant taking of
cognizance, much less against the Appellants. The only
averment which has been made is that the Trial Court had
not recorded the prima facie material against the
Appellants because it does not exist. This is too simplistic
an argument and does not shift the burden from the
Appellants of taking a categorical stand that no material
whatsoever for taking cognizance is available in the
police papers/case diary against the Appellants. Be it
noted, the State has argued that sufficient material
warranting cognizance has been unearthed during the
course of investigation."
20. Here, the Court would pause to delve on what is
the scope of the exercise of application of mind on the
police papers/case diary for deciding as to whether to
take cognizance or not - it has only to be seen whether
there is material forthcoming to indicate commission of
the offence(s) alleged. The concerned Court is not
empowered to go into the veracity of the material at that
time. That is why, the law provides for a trial where it is
open to both the parties i.e., the prosecution as well as
the defence to lead evidence(s) either to prove the
materials which have come against the accused or to
disprove such findings. This Court vide Order dated
13.09.2024 directed the Appellants to file a translated
copy of the chargesheet, as the State filed the
chargesheet in Hindi along with an application seeking
exemption from filing official translation (I.A. No.
198073/2024). As this Court [Coram : Sudhanshu Dhulia
and Ahsanuddin Amanullah, JJ.] is well-conversant with
Hindi, the language in which the chargesheet is and
which has been brought on record, we have examined the
same. However, the Appellants failed to comply with the
specific direction issued on 13.09.2024. Be that as it may,
we find that chargesheet mentions that on the basis of
investigation, site inspection and statements of the
complainant, the police has found the allegations true
against all the accused including appellants."
(Emphasis supplied)
The Apex Court holds that statements recorded clearly point at guilt
of the appellant and further holds that merely because the order of
taking cognizance suffers from non-application of mind, it does not
vitiate the entire order. The surrounding circumstances and the
order should be seen. What the Apex Court saw was the statement
recorded and then the order of cognizance. In the case at hand, the
order of cognizance bears complete reasons as to why the
concerned Court is taking cognizance for the afore-quoted offences
and issuing summons.
10. The next submission of the learned counsel for the
petitioner is that the proceedings are vitiated on account of gross
delay. In the normal circumstances this Court would have accepted
the submission of the learned counsel for the petitioner that delay
has vitiated the proceedings, if it was unexplained. The delay in the
case at hand bears explanation. The statement quoted supra of
both the key witnesses point at every year of communication and
every year of conduct of preliminary inquiry. The case at hand is of
a global tender and the successful tenderer allegedly cheated the
DRDO. Therefore, there has been some delay in investigating an
overseas allegation. In that light, delay in the case at hand, has not
vitiated the proceedings, as it is trite law that mere delay would not
vitiate the proceedings; it is only unexplained delay. The delay
finds explanation in the case at hand and therefore, the said
contention does not merit any acceptance. Therefore, the second
submission of the learned counsel for the petitioner also tumbles
down.
11. The third submission is that acts are all by the Company,
M/s AKON and axe has fallen upon the petitioner. There can be no
vicarious liability in the offences under the IPC. Accused No.2, in
the case at hand, is M/s AKON inc., USA, the Company is made an
accused. Accused No.4 is the petitioner, the then President and CEO
of M/s AKON Inc. USA. The role of the petitioner again is clearly
brought out in the statements quoted supra. Therefore, the
contention that the petitioner has been deliberately dragged and
there can be no vicarious liability cannot be accepted. It is a matter
of trial for the petitioner to come out clean.
12. The last submission that the issue in the lis relates to
contract between DARE, DRDO and M/s AKON Inc and therefore
criminal law could not have been set into motion in a purely civil
dispute is a statement that cannot be accepted. It is trite law that
a particular action can lead to two circumstances - one invoking
civil remedy and the other criminal law to be set into motion. Not in
all cases merely because civil remedy is sought in criminal
proceedings it can be quashed. Not in all cases wherein the
allegations in the criminal law has a civil flavour criminal proceeding
can be quashed. It depends on a case to case basis and dependent
upon facts obtaining in those cases. If the facts obtaining in a
particular case has both flavours of civil and criminal, such criminal
proceedings cannot be quashed.
13. The case at hand is a classic illustration of prima facie
offence of Sections 420 and 120B of the IPC against the petitioner
and the entire issue revolves round a maze of facts, certain
disputed and certain matters on record. Therefore, interference at
this stage of the proceedings, would run foul of the judgment of the
Apex Court in the case of KAPTAN SINGH v. STATE OF UTTAR
PRADESH2, wherein it is held as follows:
".... .... ....
9.1. At the outset, it is required to be noted that in
the present case the High Court in exercise of powers
under Section 482 CrPC has quashed the criminal
proceedings for the offences under Sections 147, 148,
149, 406, 329 and 386 IPC. It is required to be noted
that when the High Court in exercise of powers under
Section 482 CrPC quashed the criminal proceedings, by
the time the investigating officer after recording the
statement of the witnesses, statement of the
complainant and collecting the evidence from the
incident place and after taking statement of the
independent witnesses and even statement of the
accused persons, has filed the charge-sheet before the
learned Magistrate for the offences under Sections 147,
148, 149, 406, 329 and 386 IPC and even the learned
Magistrate also took the cognizance. From the impugned
judgment and order [Radhey Shyam Gupta v. State of U.P.,
(2021) 9 SCC 35
2020 SCC OnLine All 914] passed by the High Court, it does
not appear that the High Court took into consideration the
material collected during the investigation/inquiry and even
the statements recorded. If the petition under Section 482
CrPC was at the stage of FIR in that case the allegations
in the FIR/complaint only are required to be considered
and whether a cognizable offence is disclosed or not is
required to be considered. However, thereafter when
the statements are recorded, evidence is collected and
the charge-sheet is filed after conclusion of the
investigation/inquiry the matter stands on different
footing and the Court is required to consider the
material/evidence collected during the investigation.
Even at this stage also, as observed and held by this Court in
a catena of decisions, the High Court is not required to go into
the merits of the allegations and/or enter into the merits of
the case as if the High Court is exercising the appellate
jurisdiction and/or conducting the trial. As held by this Court
in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai
Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC
(Cri) 683] in order to examine as to whether factual contents
of FIR disclose any cognizable offence or not, the High Court
cannot act like the investigating agency nor can exercise the
powers like an appellate court. It is further observed and held
that that question is required to be examined keeping in view,
the contents of FIR and prima facie material, if any, requiring
no proof. At such stage, the High Court cannot appreciate
evidence nor can it draw its own inferences from
contents of FIR and material relied on. It is further
observed it is more so, when the material relied on is
disputed. It is further observed that in such a situation,
it becomes the job of the investigating authority at such
stage to probe and then of the court to examine
questions once the charge-sheet is filed along with such
material as to how far and to what extent reliance can
be placed on such material.
9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram
Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 :
(2020) 3 SCC (Cri) 672] after considering the decisions of this
Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this
Court that exercise of powers under Section 482 CrPC to
quash the proceedings is an exception and not a rule. It is
further observed that inherent jurisdiction under
Section 482 CrPC though wide is to be exercised
sparingly, carefully and with caution, only when such
exercise is justified by tests specifically laid down in the
section itself. It is further observed that appreciation of
evidence is not permissible at the stage of quashing of
proceedings in exercise of powers under Section 482
CrPC. Similar view has been expressed by this Court in Arvind
Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1
SCC (Cri) 94] , Managipet [State of Telangana v. Managipet,
(2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and
in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1
SCC (Cri) 173] , referred to hereinabove.
9.3. Applying the law laid down by this Court in the
aforesaid decisions to the facts of the case on hand, we are of
the opinion that the High Court has exceeded its jurisdiction in
quashing the criminal proceedings in exercise of powers under
Section 482 CrPC.
10. The High Court has failed to appreciate and consider
the fact that there are very serious triable issues/allegations
which are required to be gone into and considered at the time
of trial. The High Court has lost sight of crucial aspects which
have emerged during the course of the investigation. The High
Court has failed to appreciate and consider the fact that the
document i.e. a joint notarised affidavit of Mamta Gupta
Accused 2 and Munni Devi under which according to Accused 2
Ms Mamta Gupta, Rs 25 lakhs was paid and the possession
was transferred to her itself is seriously disputed. It is required
to be noted that in the registered agreement to sell dated 27-
10-2010, the sale consideration is stated to be Rs 25 lakhs
and with no reference to payment of Rs 25 lakhs to Ms Munni
Devi and no reference to handing over the possession.
However, in the joint notarised affidavit of the same date i.e.
27-10-2010 sale consideration is stated to be Rs 35 lakhs out
of which Rs 25 lakhs is alleged to have been paid and there is
a reference to transfer of possession to Accused 2. Whether Rs
25 lakhs has been paid or not the accused have to establish
during the trial, because the accused are relying upon the said
document and payment of Rs 25 lakhs as mentioned in the
joint notarised affidavit dated 27-10-2010. It is also required
to be considered that the first agreement to sell in which Rs 25
lakhs is stated to be sale consideration and there is reference
to the payment of Rs 10 lakhs by cheques. It is a registered
document. The aforesaid are all triable issues/allegations
which are required to be considered at the time of trial. The
High Court has failed to notice and/or consider the material
collected during the investigation.
11. Now so far as the finding recorded by the High Court
that no case is made out for the offence under Section 406 IPC
is concerned, it is to be noted that the High Court itself has
noted that the joint notarised affidavit dated 27-10-2010 is
seriously disputed, however as per the High Court the same is
required to be considered in the civil proceedings. There the
High Court has committed an error. Even the High Court has
failed to notice that another FIR has been lodged against the
accused for the offences under Sections 467, 468, 471 IPC
with respect to the said alleged joint notarised affidavit. Even
according to the accused the possession was handed over to
them. However, when the payment of Rs 25 lakhs as
mentioned in the joint notarised affidavit is seriously disputed
and even one of the cheques out of 5 cheques each of Rs 2
lakhs was dishonoured and according to the accused they were
handed over the possession (which is seriously disputed) it can
be said to be entrustment of property. Therefore, at this stage
to opine that no case is made out for the offence under
Section 406 IPC is premature and the aforesaid aspect is to be
considered during trial. It is also required to be noted that the
first suit was filed by Munni Devi and thereafter subsequent
suit came to be filed by the accused and that too for
permanent injunction only. Nothing is on record that any suit
for specific performance has been filed. Be that as it may, all
the aforesaid aspects are required to be considered at the time
of trial only.
12. Therefore, the High Court has grossly erred in
quashing the criminal proceedings by entering into the
merits of the allegations as if the High Court was
exercising the appellate jurisdiction and/or conducting
the trial. The High Court has exceeded its jurisdiction in
quashing the criminal proceedings in exercise of powers
under Section 482 CrPC.
13. Even the High Court has erred in observing that
original complaint has no locus. The aforesaid observation is
made on the premise that the complainant has not placed on
record the power of attorney along with the counter filed
before the High Court. However, when it is specifically stated
in the FIR that Munni Devi has executed the power of attorney
and thereafter the investigating officer has conducted the
investigation and has recorded the statement of the
complainant, accused and the independent witnesses,
thereafter whether the complainant is having the power of
attorney or not is to be considered during trial.
14. In view of the above and for the reasons stated
above, the impugned judgment and order [Radhey Shyam
Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by
the High Court quashing the criminal proceedings in exercise
of powers under Section 482 CrPC is unsustainable and the
same deserves to be quashed and set aside and is accordingly
quashed and set aside. Now, the trial is to be conducted and
proceeded further in accordance with law and on its own
merits. It is made clear that the observations made by this
Court in the present proceedings are to be treated to be
confined to the proceedings under Section 482 CrPC only and
the trial court to decide the case in accordance with law and
on its own merits and on the basis of the evidence to be laid
and without being influenced by any of the observations made
by us hereinabove. The present appeal is accordingly allowed."
(Emphasis supplied)
14. Insofar as the judgments relied on by the learned counsel
for the petitioner of the Apex Court or of this Court, there can be no
qualm about the principles laid down in those cases, as they are
laid down based upon facts obtaining in those cases. Therefore,
they are not applicable to the facts obtaining in the case at hand. In
that light, I do not find any warrant to interfere with the impugned
proceedings.
15. The petition lacking in merit stands rejected.
Sd/-
(M. NAGAPRASANNA)
JUDGE
bkp
CT:SS
