Bangaru Laxman Bribery Case Judgement Tehelka Sting Operation-Operation Westend
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In the matter of: (C.B.I. Vs. Bangaru Laxman) Dated : 27.04.2012.
: IN THE COURT OF SH. KANWAL JEET ARORA : SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURT COMPLEX, NEW DELHI.
C.C.No. : 01 / 2011. FIR No. : RC/AC II/2004/A20007 dtd 06th December,2004 Under sec. : 9 of Prevention of Corruption Act, 1988. In the matter of: CENTRAL BUREAU OF
INVESTIGATIONS (C.B.I) ...Through [Dr.Padmini Singh, Learned Public Prosecutor for CBI]
v e r s u s
BANGARU LAXMAN, S/o.: Late Sh.B.Narsimha,
R/o.: 831107, Keshav Nagar, Hyderabad – 73, Presently residing
at : House No.228, North Avenue, New Delhi.
... Accused.
...Through [Sh.Sunil Kumar, Ld.Senior Advocate along with Sh.Rajesh Khanna, Sh. Manish Mohan, Sh.Atul Kumar and Sh. N. Balraj, Advocates] Date of Institution : 19.07.2006. Date of reserving judgement : 02.04.2012. Date of pronouncement
: 27.04.2012.
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: J U D G E M E N T : 1.
Large scale ramifications which electronic media
generates owing to audio, video impact it has on the minds of public, evokes immediate awareness and consciousness amongst them. It causes a ripple effect, in the otherwise calm waters of their lives and unites them to ask questions from their elected representatives about their conduct.
2.
On 13 March 2001, Zee T.V., a television th
channel had aired a programme based on “sting operation” conducted by representatives of Tehelka.com, a news and views portal of M/s Buffalo Networks Private Limited. In the said programme, senior politicians from the then ruling party, bureaucrats and senior officers of defence services were shown to be involved in large scale corruption in the defence procurement process of democratic republic of the country.
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3.
Responding to the sharp criticism which this
programme generated, the then Government decided to have a “Commission of Inquiry” constituted, which was initially headed by Hon'ble Mr.Justice K.Venkataswami and thereafter by Hon'ble Mr.Justice S.N.Phukan of Hon'ble Supreme Court of India.
4.
In October 2004, the inquiry commission was
wound up and it was decided to have the case registered and investigated by Central Bureau of Investigations.
5.
Central Bureau of Investigations (CBI), vide
letters dated 29.10.2004 and 25.11.2004 of Ms.Manjulika Gautam, Additional Secretary, Government of India, Department of Personnel & Training, New Delhi, were communicated the Government's decision regarding abolition of Justice S.N.Phukan Commission of Inquiry and for having the matter investigated, registered an FIR bearing registration number RC/AC II/2004/A20007 on 06th December,2004.
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6.
After registration of FIR against Sh.Bangaru
Laxman, the then President of Bhartiya Janta Party, Sh.N.Umamaheshwar Raju and Sh.T.Satyamurthy, the matter was investigated.
7.
During the course of investigations,
T.Satyamurthy was tendered “pardon” by Ld.Special Judge, vide orders dated 17 July, 2006. th
8.
CBI was informed about appointment of
Sh.S.K.Dass Gupta as “designated officer” for handing over the Hi8 Tapes, DVs and other documents including transcripts from Commission to CBI by letters of Additional Secretary, Department of Personnel and Training. It is stated that the same were duly handed over to CBI by the designated officer, so appointed.
9.
On culmination of the investigations, a charge
sheet was submitted in court for trial of accused Bangaru Laxman only by CBI, for offence punishable under section 9 of Prevention C.C.No: 01 / 2011 Page No.4 of 155
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of Corruption Act, 1988, as no evidence could be gathered against Umamaheshwar Raju to substantiate the allegations levelled against him in the FIR.
10.
On conclusion of the trial, which was a voyage of
discovery, of which “truth” is the ultimate quest, the present stage of pronouncement of judgement has been arrived at. Before adverting further, it is pertinent to have a grasp of the factual matrix which led to the origin of the present case, as emanating from the material on record. The same interse is as under:
FACTUAL MATRIX: 11.
Bangaru Laxman was elected as Member of
Parliament to Rajya Sabha from State of Gujarat for a period of six years in the year 1996. From October 1999 till August 2000, he functioned as “Union Minister of Railways” and thereafter from August 2000 till March 2001, he functioned as “President of Bhartiya Janta Party (BJP), the main constituent of the ruling N.D.A. During this period, he had his residencecumoffice at 3, C.C.No: 01 / 2011 Page No.5 of 155
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Kushak Road, New Delhi.
12.
Sh.N.Umamaheshwar Raju, who had been
working as Manager with SEBI was posted on deputation as “Assistant Private Secretary” to Sh.Bangaru Laxman from December 1999 to September 2000, i.e. when he was the then Railways Minister. Thereafter from September 2000 till July 2001, N.Umamaheshwar Raju was posted with the then Minister of Extenral Affairs, but till March 2001, he continued to look after the “secretarial work” of Sh.Bangaru Laxman.
13.
It is alleged that Sh.T.Satyamurthy, was earlier
working with M/s M.S.M.Enterprises Limited, Chennai and while working with said company, he had met Sh.Bangaru Laxman, a number of times for his official work and both of them had developed some sort of mutual liking for each other. In September 2000, when Sh.Bangaru Laxman became President of Bhartiya Janta Party, T.Satyamurthy resigned from his earlier job to work as “Private Secretary” to Sh.Bangaru Laxman. He started functioning as such,
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although he did not receive any official appointment letter or remuneration either from Bangaru Laxman or from Bhartiya Janta Party (BJP). He continued to work in this capacity till March 2001.
14.
Tehelka.com, a news and views portal of M/s
Buffalo Networks Private Limited, New Delhi was cofounded by Aniruddha Bahal and Tarun Tejpal,who besides others were directors of this Company. Tarun Tejpal functioned as Chief Executive Officer (CEO) of the same and Aniruddha Bahal assumed the role of Editor (Investigations) and its object was investigative journalism and they undertook its first exercise of exposing the instances of “match fixing” in the game of Cricket.
15.
In April 2000, huge fire took place in Bharatpur
Ammunition Depot and it was being reported that this was a “deliberate act” on the part of all those concerned, to cover up the wrong doings in procurement of Defence related equipments lying in the said deport. It was then that the founders of Tehelka.com took up a quest to expose corruption in Defence Procurement
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Process of Democratic Republic of India. For that, they undertook an under cover operation, which they termed as “Operation Westend”.
16.
As per the precursors of Operation Westend, they
proceeded with the sole object / purpose of exposing “Corruption in Defence Procurement Process” from a journalistic point of view, without any motive or intention to target any particular individual, organization or agency.
17.
In furtherance of their object, Sh.Aniruddha Bahal
and Sh.Tarun Tejpal had associated Sh.Mathew Samuel, another journalist in their operation along with one Anil Malviya.
18.
The officials of Tehelka.com acquired the
knowledge that there is a requirement of defence equipments, particularly of Hand Held Thermal Imagers (hereinafter referred to as HHTI's) for Indian Army. They also came to know that for supply of the same, two companies have already been shortlisted, of C.C.No: 01 / 2011 Page No.8 of 155
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which one was from Israel and the other one from France.
19.
After acquiring this knowledge, the precursors of
Tehelka.com formulated a fictitious firm under the name and style of M/s Westend International London, dealing with supplies of defence related products and promoted themselves as one of the suppliers of HHTI's, manufactured by a Netherland based company.
20.
Sh.Mathew Samuel and Aniruddha Bahal (who
assumed the name of Alwyn D'Souza for this operation), acting as Chief Liasioning Officer and President respectively of M/s Westend International London, had submitted their brochures and applications with the concerned authorities, for promotion / evaluation of their product, to get the supply orders of HHTI's to Indian Army.
21.
In order to get the orders for evaluation of their
product ie. HHTI's, officials of Tehelka.com, gathered the information that “political patronage” of leaders of the ruling party
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would be required. To get the same, they explored the possibility of meeting some of the leading politicians including the then Defence Minister, Presidents of Bhartiya Janta Party (BJP) and Samta Party.
22.
After interacting with a number of persons,
officials of Tehelka.com, at instance of Sh.H.C.Pant, an officer in Ministry of Defence, who was also posted as Private Secretary to Sh.Haren Pathak, the then Minister of State for Defence, succeeded in establishing contact with Sh.Bangaru Laxman, the then President of Bhartiya Janta Party. In this pursuit, Mathew Samuel with the help of Sh.H.C.Pant had taken assistance from one Mohan Singh, an employee of Gujarat Government, who had an access to Sh.Bangaru Laxman and his personal staff, as Sh.Bangaru Laxman often used to stay at Gujarat Bhawan in New Delhi.
23.
During the period from 23.12.2000 to 07.01.2001,
Eight meetings were held between / amongst Sh.Mathew Samuel and Aniruddha Bahal of Tehelka.com under the guise of
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representatives of M/s Westend International London, with Sh.Bangaru Laxman and two of his personal staff members namely Sh.N.Umamaheshwar Raju and Sh.T.Satyamurthy. All these eight meetings were secretly video recorded by the officials of Tehelka.com. Sl.N Date
Place of Meeting
o 1.
2.
23.12.2000
23.12.2000
between
Number
Mathew Samuel Tape No.95
Laxman
N.Umamaheshw
Office of
Mathew Samuel Tape No.65
Sh.Bangaru
Laxman
23.12.2000
Tape
Office of
Sh.Bangaru 3.
Meeting
Office of Sh.Bangaru Laxman
and
ar Raju and
T.Satyamurthy Mathew Samuel Tape No.65 and Bangaru Laxman
4. 02.01.2001
A restaurant in Chanakyapuri, New Delhi.
5.
05.01.2001
Office of Sh.Bangaru Laxman
Ma1thew Samuel
and Tape “B”
T.Satyamurthy Mathew Samuel Tape No.81 and Bangaru Laxman
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6.
05.01.2001
Hotel Oberoi, New Aniruddha Delhi.
7.
06.01.2001
Office of Sh.Bangaru Laxman.
Bahal
Tape “E” and
T.Satyamurthy.
Mathew Samuel, Tape No.87 Aniruddha Bahal
and
Bangaru Laxman. 8.
07.01.2001
Residence of
Mathew Samuel Tape No.89
Sh.T.Satyamurthy and in Sarvpriya
T.Satyamurthy.
Vihar, New Delhi.
24.
It is alleged that during these meeting held
amongst representatives of M/s Westend International, London and accused Bangaru Laxman, the accused was told the purpose and object of the company, which was to promote their product ie. HHTIs and to get supply order for same to Indian Army, for which help and assistance of accused was sought, to which he agreed and accepted Rs.1 lakh from Mathew Samuel as motive or reward, for exercise of his personal influence. It is alleged that accused further demanded and agreed to accept the balance consideration in dollars.
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25.
The gist of these eight meetings is as under:
(i)
FIRST MEETING dated 23.12.2000 :
26.
The first meeting was held on 23.12.2000 between
Mathew Samuel and N.Umamaheshwar Raju, wherein Mathew Samuel introduced himself as “Chief Liasoninig Officer” of M/s Westend International London, suppliers of Night Vision Binoculars. Mathew Samuel sought a meeting with Sh.Bangaru Laxman. However, as Bangaru Laxman was not available, N.Umamaheshwar Raju advised Mathew Samuel to come after an hour.
(ii)
SECOND MEETING dated 23.12.2000:
27.
Next meeting was held on same date ie.
23.12.2000 between Mathew Samuel and Sh.T.Satyamurthy, wherein Mathew Samuel introduced himself and mentioned about the supply of HHTI's to Indian Army worth Rs.60 Crores and expressed his desire to meet Sh.Bangaru Laxman.
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(iii)
THIRD MEETING dated 23.12.2000:
28.
Third meeting was held on same date ie.
23.12.2000 between Mathew Samuel and Bangaru Laxman in the office room of Sh.Bangaru Laxman at his official residence ie. 3, Kushak Road, New Delhi. In this meeting, Mathew Samuel after a formal introduction had shown papers / catalogs / brochures related to HHTI's, submitted by his company to Ministry of Defence. Mathew Samuel mentioned that their item is better as compared to their competitors and asked for favor of Sh.Bangaru Laxman to Defence Secretary. It is alleged that Sh.Bangaru Laxman replied “I know him, but at what stage the proposal is”.. Mathew Samuel replied that if the Defence Secretary agrees, their company will be shortlisted and they will get a supply order of Rs.60 crores. Mathew Samuel informed Sh.Bangaru Laxman about existence of two other vendors whose products were already under consideration with Army Headquarters and stated that, if Defence Secretary will say “Yes”, their company can get the order. Sh.Bangaru Laxman told him “Let met find out... what does he think...”. Mathew Samuel
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inquired as to when can he meet him again, to which Bangaru Laxman replied that he can meet him after 30th, after giving a ring (telephone call).
(iv)
FOURTH MEETING dated 02.01.2001:
29.
Fourth meeting was held on 02.01.2001 between
Mathew Samuel and T.Satyamurthy. Satyamurthy agreed to arrange a meeting of Mathew Samuel and Bangaru Laxman on 05.01.2001. Mathew Samuel offered a total of 6.5% political commission, out of which 5% was offered to Bangaru Laxman and 1.5% to T.Satyamurthy. In this meeting itself, Mathew Samuel gave gold chain to T.Satyamurthy.
(v)
FIFTH MEETING dated 05.01.2001:
30.
The fifth meeting was held on 05.01.2001 between
Bangaru Laxman and Mathew Samuel at official residence of Bangaru Laxman ie. 3, Kushak Road, Delhi. At the outset, Sh.Bangaru Laxman informed Mathew Samuel “maine who... maine usko keh diya hai.....” and that “message has been C.C.No: 01 / 2011 Page No.15 of 155
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passed...”
31.
During this meeting, Bangaru Laxman told
Mathew Samuel “Seedha mere se baat karna..... directly talk to me....” Bangaru Laxman also agreed to meet the boss of Mathew Samuel, who was staying in Hotel Oberoi the next day ie. 06.01.2001. Thereafter, Mathew Samuel mentioned “I have five lakh rupees.. and today I will give you Rs.1 lakh for just the beginning. Thereafter, Mathew Samuel offered the bundles of currency notes of Rs.1 lakh saying “Sir, this is small gift....” to which Bangaru Laxman exclaimed “arre.... aree... nahin, nahin” followed by further elucidation from Sh.Mathew Samuel : “it is a small gift for the new year party.. new year party fund... rupees 1 lakh..” It is alleged that Sh.Bangaru Laxman accepted the currency notes of Rs.1 lakh from Mathew Samuel and kept the same in his table drawer.
32.
Thereafter, at insistence of Mathew Samuel,
Sh.Bangaru Laxman agreed to meet Mathew Samuel's Boss on the C.C.No: 01 / 2011 Page No.16 of 155
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following day at 5'o clock and told Mathew Samuel to bring him along. On inquiry from Mathew Samuel as to whether he would prefer the balance amount in rupees or dollars, Bangaru Laxman replied “dollars, you can give dollars”.
(vi)
SIXTH MEETING dated 05.01.2001:
33.
The sixth meeting was held on the same night ie.
On 05.01.2001 between Sh.Aniruddha Bahal (under the guise of Alwyn D'Souza, President, M/s Westend International London) and Sh.T.Satyamurthy at Hotel Oberoi, New Delhi. Sh.Aniruddha Bahal mentioned that they were concerned with the matter relating to Hand Held Thermal Imagers. Sh.T.Satyamurthy mentioned having discussed with Mathew Samuel about their defence projects. There were discussion about the extent of commission in defence deals in the range of 15% to 25%. Aniruddha Bahal mentioned that they needed basic sound political structure as support.
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(vii)
SEVENTH MEETING dated 06.01.2001:
34.
The seventh meeting was held on 06.01.2001
between Mathew Samuel and Sh.Aniruddha Bahal (under the guise of Alwyn D'Souza, President of M/s Westend International London) and Sh.Bangaru Laxman in the office of Sh.Bangaru Laxman at 3, Kushak Road, New Delhi. After introductions, when Sh.Aniruddha Bahal enquired from Mathew Samuel as to whether he had shown him their brochures, to which Mathew Samuel replied in affirmative. Sh.Bangaru Laxman added : “Yes, I have seen..” In this meeting, Mathew Samuel told that they are ready to give 4 – 5% political commission. Bangaru Laxman inquired about the total worth of the order, to which Aniruddha Bahal replied that it can be anything above Rs.200 crores. Aniruddha Bahal inquired how should they proceed to transfer the money, to which Bangaru Laxman replied that they have to consult the treasurer. Aniruddha Bahal asked that who would be the main person with whom they should deal, to which Bangaru Laxman replied : “Oh sure... Let me get in touch with those people... I will tell you tomorrow.. Tomorrow
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I will find out”. On inquiry from Aniruddha Bahal as to whether we should meet again tomorrow, Bangaru Laxman replied “ Yes.... you will bring the cash..” to which Aniruddha Bahal replied “Yeah... it will be more convenient... We were supposed to convey some money today and as you understand my problem... getting dollars was a little hassle... so is it possible that I could come tomorrow with dollars” to which Bangaru Laxman acknowledged “Yeah..Yeah..”. Towards the end of the meeting, Aniruddha Bahal further inquired : “So will you get that piece of information by tomorrow”?, to which Sh.Bangaru Laxman replied “I hope so...”
(viii)
EIGHTH MEETING held on 07.01.2001:
35.
In the last meeting held on 07.01.2001 with
Sh.Satyamurthy, Mathew Samuel informed that arranging dollars was a big problem, but assured to make some arrangement by 10 pm.
36.
It has been alleged in the charge sheet that the
documents submitted on behalf of M/s Westend International in
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respect of HHTI's, were under consideration in Army Headquarters. It is alleged that the Infantry Directorate, consequent upon paper evaluation, had opined that enhanced evaluation of equipments of M/s Westend International was better than the equipments procured by them from the other companies. It is alleged that Major General P.S.K.Chaudhary, the then Additional Director General (Weapons and Equipments) had recorded a note dated 09.02.2001 to the effect that HHTI's of M/s Westend International should be considered at a later stage.
37.
It has been alleged that during the course of
investigations, sample / specimen of voice and image of Sh.Bangaru Laxman, T.Satyamurthy, Mathew Samuel and Aniruddha Bahal were recorded in presence of independent witnesses and the same along with the secretly recorded 7 Hi8 Tapes and DVs, were sent to Andhra Pradesh Forensic Science Laboratory (APFSL) Hyderabad. It is alleged that APFSL vide their opinion dated 12.06.2006 opined that 7 video tapes covering the meetings between Mathew Samuel, Aniruddha Bahal, Bangaru Laxman and others, so sent to them,
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have not been tampered with and the images and voices of all those persons recorded in specimen tapes, matched with the questioned tapes.
38.
It has been alleged that the motive of the
functionaries of Tehelka.com was to expose corruption in Defence procurements, which is evident from the manner in which they had, in a largely attended press conference convened / held on 13.03.2001 at New Delhi made public, the results of the above operation conducted by them. Besides playing the 4 ½ hours video tapes revealing select portions / abstracts of their meetings with a number of persons, (including Sh.Bangaru Laxman), in the above mentioned context, they also released a compilation titled “OPERATION WESTEND – A STORY OF HOW THE SUITCASE PEOPLE ARE COMPROMISING INDIAN DEFENCE”. Later on, excerpts from the above mentioned 4 ½ hours video tapes were telecast by certain TV Channels. It is alleged that during investigations, nothing was found so as to attribute any other motive or malafide on the part of functionaries of Tehelka.com.
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39.
It has further been alleged that on 05.01.2001
Sh.Bangaru Laxman, the then President of Bhartiya Janta Party had accepted an illegal gratification of Rs.1 lakh from Sh.Mathew Samuel, purportedly the representative of M/s Westend International London (a fictitious firm concerned with supply of Defence product to Indian Army) and that he further agreed to accept balance payment worth Rs.4 lakhs in Dollars, as a motive or reward for exercising his personal influence to induce public servants of the Ministry of Defence to show favor or to render service to the said firm in the matter of obtaining orders for supply of the purported products (HHTIs) of the said vendor for Indian Army. 40.
The investigating agency on culmination of the
investigations, had filed the charge sheet for trial of accused Bangaru Laxman, for offence under section 9 of Prevention of Corruption Act, 1988.
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41.
Pursuant to filing of charge sheet and after
perusal of the same in the light of supporting documents, Ld.Predecessor of this court took cognizance of offence and accused was accordingly summoned.
42.
In compliance to the provisions of Section 207
Cr.P.C, the accused was supplied with the copies of charge sheet and documents relied upon by the prosecution. In addition thereto, accused was supplied wih the copies of Hi8 Tapes and DVs on the Compact Discs.
CHARGE: 43.
Ld.Predecessor of this court, after hearing
arguments on charge on behalf of CBI as well as the accused, opined that primafacie case for offence punishable under section 9 of Prevention of Corruption Act, 1988 is made out against the accused.
44.
Requisite charge for offence under section 9 of
P.C.Act was framed, which was read over to the accused, to which C.C.No: 01 / 2011 Page No.23 of 155
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he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE: 45.
Prosecution was thereafter called upon to
substantiate their case by examining the witnesses listed in the list of witnesses, filed along with the charge sheet.
46.
Availing the given opportunities, prosecution had
examined 23 witnesses.
47.
The witnesses examined by the prosecution to
substantiate their case can be broadly categorized in five categories.
48.
First category of witnesses consists of the
material witnesses relating to the incident. (i) PW5 Aniruddha Bahal ; (ii) PW15 Mathew Samuel ; and (iii) PW18 T.Satyamurthy (the approver).
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49.
Second category of the witnesses are those
witnesses at whose instance the journey of present criminal prosecution started leading to registration of FIR and handing over of material documents, Hi8 Tapes, DVs and other related articles from the commission to CBI. These witnesses are (i) PW1 Sh.S.K.Dass Gupta (the designated officer appointed by the government) (ii) PW4 Sh.J.P.Mehta (Under Secretary working with the Commission, who assisted Sh.S.K.Dass Gupta in handing over the documents to CBI) ; and (iii) PW20 DSP Sh.K.Y.Guru Prasad, who had collected these documents vide three seizure memos dated 14.12.2004, 15.12.2004 and 16.12.2004 exhibited as Ex.PW.1/E, Ex.PW.1/F and Ex.PW.4/1 respectively.
50.
Third category of the witnesses falls under the
miscellaneous category and these witnesses are : the witnesses who had joined investigations at request of CBI for taking the voice and image samples of the accused Bangaru Laxman and Pws Aniruddha Bahal, Mathew Samuel and T.Satyamurthy. These witnesses are (i) PW3 Amarnath Chaudhary ; (ii) PW6 Paramjeet Singh ; and C.C.No: 01 / 2011 Page No.25 of 155
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(iii) PW13 Mohan Singh. Besides these witnesses, other witnesses who fall under this category are the ones from whom the investigating agency had collected documents required to substantiate the charge. These witnesses are (iv) PW7 Sh.S.R.Kar (posted as Under Secretary with Election Commission of India ; (v) PW8 Sh.Mohan Singh Rawat ; (vi) PW9 Sh.Debashish Banerjee (a journalist working with “The Week”) ; (vii) PW11 Col.Sher Bahadur Bhandari; (viii) PW12 Sh.Madho Prasad ; (ix) PW14 Brigadier A.P.Singh; (x) PW16 Sh.K.Seshaiah (working as Deputy Secretary with Ministry of Defence) and (xi) PW23 Sh.Sudhir Verma, the Chartered Accountant of M/s Buffalo Networks Pvt. Ltd.
51.
Fourth Category of witnesses consists of the
witnesses who remained associated with the investigations of the present case in one form or the other, at request of the investigating officer. These witnesses consists of (i) PW2 Sh.A.D.Tiwari ; (ii) PW10 Sh.S.Ingarsal ; and (iii) PW17 Sh.P.K.Gautam, all of whom were posted as Senior Scientific Officers (GradeII) with C.F.S.L and they at request of the investigating officer Inspector A.B.Chaudhary C.C.No: 01 / 2011 Page No.26 of 155
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had recorded audiovideo samples of Aniruddha Bahal, Bangaru Laxman, T.Satyamurthy and Mathew Samuel, in presence of independent witnesses. Besides these witnesses, PW19 D.Venkateshwarlu, the Scientific Officer, posted with A.P.F.S.L Hyderabad, also fall under this category, as it was him, who had received the requisition from CBI for examination of Hi8 Tapes, DVs, VHS Cassettes, along with the specimen samples of audio video of Bangaru Laxman, Aniruddha Bahal, T.Satyamurthy and Mathew Samuel, for comparison and report. He deposed that he along with Mr.U.Ramamohan had minutely examined the exhibits and gave report Ex.PW.19/A.
52.
Fifth category of witnesses consists of the
persons who were involved in the investigations of the case. The “investigating officer” of the present case ie. (i) PW21 Inspector A.B.Chaudhary, had conducted the investigations in the present case and on conclusion of investigations, filed the charge sheet. In this very category, deposition of (ii) PW22 Bishwajit Das, (Additional S.P, CBI) falls as it was him, who had conducted
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investigations with respect to a connected matter titled “CBI Vs. Narender Singh” bearing R.C. No.6/2004. Part of the investigations conducted by him in the said case, more particularly, that of recovery of briefcase device Ex.PX8 affected by him from Sh.Arnab Pratim Dutta of Tehelka.com and sending of the Hi8 Tapes, DVs, VHS Cassettes along with briefcase device and the sample audiovideo of all the concerned persons for examination to APFSL, Hyderabad, also relates to the present case.
53.
Before proceeding further, it is pertinent to make
a brief mention of the role and deposition of the prosecution witnesses categorywise as referred hereinabove. The detail deposition of the witnesses is not being adverted to, as the same shall be referred hereinafter while dealing with the necessary ingredients of the offence, with which accused has been charged, vis avis the rival contentions advanced by Ld.Special PP for CBI as well as by Ld.Defence Counsel for the accused.
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54.
All the prosecution witnesses were cross examined
in detail by Sh.Sunil Kumar, Ld.Senior Advocate, who was ably assisted by a battery of his associates. The crossexamination of these witnesses is not being mentioned for the sake of brevity, but the same and material portion thereof, more particularly, the one referred to during the course of arguments, shall be adverted to hereinafter, while appreciating the legal and factual issues advanced on behalf of the accused, alongside appreciation of evidence in entirety.
55.
FIRST SET OF WITNESSES:
PW5 Aniruddha Bahal, a Journalist by
profession, deposed that he after having worked with various magazines, had thereafter formed a company namely M/s Buffalo Networks Private Limited and also cofounded a news portal ie. Tehelka.com, in FebruaryMarch 2000 with Tarunjit Tejpal. He further deposed that after having done an exercise to expose cricket matchfixing, he came to know about hugefire which broke out in Bharatpur Ammunition Depot and the allegations that the same
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was a deliberate act / incident, to cover up the wrong doings in procurement of defence related equipments, which were lying there. He deposed that he thereafter with assistance of Mathew Samuel and Anil Malviya decided to pursue a journalistic operation which they termed as “Operation Westend” to expose corruption in defence procurement process of Union of India. He deposed that thereafter they formed a fictitious company in the name of M/s Westend International London, wherein he decided to act as 'president' under the assumed alias of “Alwyn D'Souza”, Mathew Samuel was given the role of 'chief liaison officer' and Malviya acted as 'chief representative' of the company. He deposed that for promotion & evaluation of their fictitious product ie. HHTI's, they met various officers posted with Ministry of Defence, middlemen and Senior Politicians. He deposed that to capture the conversation they had used a “briefcase devices” fitted with twocameras, a satchel device, a handbag and a tiecamera. He deposed that Mathew Samuel had met Bangaru Laxman through one Mr.Raju and Satyamurthy, to whom they had paid Rs.10,000/ and a gold chain respectively, as gratification. He deposed that Mathew Samuel in his meeting with
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Bangaru Laxman, the accused, introduced himself as “chief liaising officer” of M/s Westend International and told him about their product ie. HHTI's, on which Bangaru Laxman had assured his assistance. He deposed that Bangaru Laxman had discussed about the political commission and accepted a sum of Rs.1 lakh from Mathew Samuel and asked for the balance amount to be paid to him in dollars. He deposed that the same was captured on Hi8 Tapes through briefcase device.
56.
PW15 Mathew Samuel, a journalist
corroborated the version given by PW5 Aniruddha Bahal. He deposed that he had met Bangaru Laxman with assistance of his secretarial staff namely Umamaheshwar Raju and T.Satyamurthy. He deposed that in all, they had 8 meetings which were captured on Hi8 Tapes through briefcase device and on DVs. He deposed that he had met accused Bangaru Laxman at his office at 3, Kushak Road, as “chief liasioning officer” of M/s Westend International. He deposed that he had shown the catalogues / brochures of HHTI's and expressed his desire for a favor from Bangaru Laxman with Defence
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Secretary, so as to facilitate them to get a deal of supply of defence equipments. He deposed that Bangaru Laxman told him to come again after giving a ring (telephone call) and in the meantime, he will find out as to what does the Defence Secretary thinks. PW15 deposed that he had handed over a sum of Rs.1 lakh to Bangaru Laxman which he kept in his drawer and had asked for the remaining amount to be paid in dollars. PW15 deposed that accused Bangaru Laxman agreed to meet his boss. He deposed that thereafter he along with PW5 Aniruddha Bahal, again met Bangaru Laxman during which the conversation for pushing their product took place. PW15 during the course of his deposition had identified his voice and image and that of Bangaru Laxman and Aniruddha Bahal, when the Hi8 Tapes were played in court.
57.
PW18 T.Satyamurthy, who initially was
arrayed as an accused turned “approver” after having granted “pardon”. He during the course of his deposition narrated the entire incident. He deposed that he started working as Personal Secretary to the accused after having resigned from his earlier job with M/s
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MSM Enterprises Private Limited, Chennai. He deposed that he as Personal Secretary to Bangaru Laxman, used to take care of his day to day appointments, besides obeying his directions. He deposed that Mathew Samuel had met him and requested him to arrange a meeting with Bangaru Laxman. He deposed that he had accepted a gold chain from Mathew Samuel. He deposed that on advice of Bangaru Laxman, he had fixed an appointment of Mathew Samuel with Bangaru Laxman,during which Mathew Samuel gave a sum of Rs.1 lakh to him, which was confirmed to him by Bangaru Laxman. He deposed that he had met Aniruddha Bahal at Hotel Oberoi and discussed about their business proposals. He deposed that thereafter he after consulting Bangaru Laxman, had fixed an appointment of Mathew Samuel and Aniruddha Bahal (as Alwyn D'Souza) with Bangaru Laxman and thereafter at instance of Bangaru Laxman, he had followed up with Mr.Mathew Samuel about the balance payment. He deposed that after a few months when the whole episode was telecasted in media, he was blamed by the party functionaries and a damage control process started. He deposed that it was decided that a sum of Rs.1 lakh received by
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Bangaru Laxman, should be taken into the accounts of Bhartiya Janta Party and he was asked to give a letter taking entire blame on himself. During his deposition, he identified his statement under section 164 Cr.P.C as Ex.PW.18/A. He during the course of his deposition had also identified the voice and image of Bangaru Laxman and Mathew Samuel in Hi8 Tape No.81.
58.
SECOND SET OF WITNESSES:
PW1 Sh.S.K.Dass Gupta
deposed that
Government of India, through Department of Personnel and Training, had constituted a commission headed by Hon'ble Mr.Justice K.Venkataswami to probe into the tapes of Tehelka.com. He deposed that he was appointed as Secretary to the said commission. He deposed that Justice K.Venkataswami took over in March 2001 but resigned in November 2002. He deposed that Justice S.N.Phukan took over as Chairman of the Commission in January 2003 and submitted an “interim report” in February 2004. He deposed that government thereafter vide notification Ex.PW.1/B, wound up the commission with effect from 04.10.2004 and decided
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to have the matter investigated by CBI. He deposed that a letter dated 29.10.2004 Ex.PW.1/A and another letter dated 25.11.2004 Ex.PW.1/D, were written by Ms.Manjulika Gautam, Additional Secretary, Government of India, Department of Personnel & Training, New Delhi to CBI. He deposed that vide letter Ex.PW.1/C, he was appointed as “designated officer” to hand over the HI8 Tapes, DVs, VHS Cassettes and other documents to CBI. He deposed that he had prepared a forwarding note and a secret note Ex.PW.1/G and Ex.PW.1/H. He deposed that all the records along with Hi8 Tapes, DVs and transcripts were handed over by him in presence of PW4 Sh.J.P.Mehta to CBI, vide seizure memos Ex.PW. 1/E, Ex.PW.1/F and Ex.PW.4/1.
59.
PW4 Sh.J.P.Mehta, the Under Secretary,
working with the commission, deposed that after winding up of the Commission, he was assigned the work of handing over the documents and tapes to CBI. He deposed that the entire documents, Hi8 tapes Ex.PH4, PJ4, PK4, PL4 and Ex.PM4, DVs Ex.PF3 and Ex.PG3, VHS Cassettes Ex.PA3 to Ex.PA8 as well as
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transcripts Ex.PW.4/A to Ex.PW.4/O, were handed over by them, to CBI vide seizure memos dated 14.12.2004, 15.12.2004 and 16.12.2004. He deposed that all these tapes and DVs were sealed by DSP K.Y.Guru Prasad, to whom the same were handed over with the seal, which was given to him, which he produced during the course of his deposition as Ex.PW.4/PM5.
60.
PW20 DSP Sh.K.Y.Guru Prasad deposed that
he had collected all the documents, Hi8 Tapes, DVs, VHS Cassettes and transcripts from Sh.S.K.Dass Gupta, in presence of Sh.J.P.Mehta, vide seizure memos Ex.PW.1/E, Ex.PW.1/F and Ex.PW.4/1, which were prepared by him.
61.
THIRD SET OF WITNESSES: PW3 Sh.Amarnath Chaudhary deposed that he
was called by CBI to join investigations on 18.03.2005 along with one M.G.O.Kuttan. He deposed that pursuant thereto, he had visited CFSL along with other witnesses, where sample of audio and images of Sh.T.Satyamurthy, were to be recorded. He deposed that
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before taking the sample, blank cassettes were shown to them which were found to be blank after playing the same in the recorder. He deposed that thereafter the samples were recorded and a memorandum Ex.PW.2/C was prepared which was signed by him, as a witness. This witness during the course of his deposition had identified the voice of T.Satyamurthy in the cassette Ex.P4 and identified the image in the video cassette Ex.PC4.
62.
PW6 Sh.Paramjeet Singh, working as Senior
Assistant, NDMC, deposed that on 20.06.2005, he was called by CBI to join investigations along with one Rajesh Kumar. He deposed that on said date, audiovideo samples of Aniruddha Bahal were taken. He deposed that two blank audiovideo cassettes were shown to them. He deposed that thereafter their voices were recorded and then Aniruddha Bahal read a written text given to him, which was recorded, whereafter again their voices were recorded. He deposed that the cassettes were thereafter sealed by the IO and a memo Ex.PW.2/A was prepared, which was signed by him as a witness. He also identified the written text as Ex.PW.2/B. He deposed that seal
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after use was handed over to him which he produced in court as Ex.PW.6/PX. This witness identified the voice of Aniruddha Bahal,when the audio cassette Ex.P7 was played in court and identified the image of Aniruddha Bahal when video cassette Ex.PA4 was played in court.
63.
PW13 Sh.Mohan Singh, working as Assistant
Director, SFIO, CGO Complex, New Delhi, deposed that on 27.04.2005, he was called by the CBI to join investigations along with one Sandeep Aggarwal. He deposed that there they met IO Inspector A.B.Chaudhary and Bangaru Laxman with whom they went to CFSL, where audiovideo samples of Bangaru Laxman were taken. This witness deposed that initially blank cassettes were shown to them, which were played in the recorded and found to be blank. He deposed that initially his voice and that of the other witness was recorded, whereafter voice of Bangaru Laxman was recorded, who was given a written text. He deposed that cassette was thereafter sealed with a seal, which was given to him. He deposed that a memorandum Ex.PW.10/A was prepared by the IO,
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which was signed by him as a witness. He also identified the written text as Ex.PW.10/B. He produced the seal in court as Ex.PW.13/SPE. This witness identified the voice of Bangaru Laxman, when audio cassette Ex.PE5 was played. He further identified the image of Bangaru Laxman when video cassette Ex.PD5 was played.
64.
PW7 S.R.Kar, working as Under Secretary with
Election Commission of India, during the course of his deposition had stated that they had received a requisition from CBI vide letter Ex.PW.7/A and its reminder Ex.PW.7/B, asking for guidelines relating to contribution which political parties can take. He further deposed that the requisite information Ex.PW.7/D was provided to CBI, vide their letter Ex.PW.7/C. During his cross examination conducted on behalf of accused, this witness admitted that the amendment referred and exhibited as Ex.PW.7/D is of the year 2003.
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65.
PW8 Sh.Mohan Singh working with Gujarat
Bhawan, New Delhi appeared and deposed that Bangaru Laxman, a Member of Parliament from Rajya Sabha used to stay in Gujarat Bhawan, till he was allotted a house in Delhi. He deposed that he was working in room service at that time. He deposed that one H.C.Pant asked him to introduce Mathew Samuel to Bangaru Laxman, through his personal assistant Raju. He deposed that he took Mathew Samuel to the official residence of Bangaru Laxman, ie. At 3, Kushak Road, where another Raju met Mathew Samuel and they started talking. This witness deposed that he can identify image of Bangaru Laxman but cannot identify his voice. He identified image of Bangaru Laxman when C.D. Ex.PB4, a copy of Hi8 Tape No.81, was played in court.
66.
PW9 Sh.Debashish Mukherjee appeared and
deposed that he, while working as Journalist for the magazine “The Week” had interviewed Bangaru Laxman after the telecast of Tehelka tapes and the said interview was published on 25.03.2001. He deposed that he provided selfattested certified copy of said
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interview Ex.PW.9/B to CBI vide his letter Ex.PW.9/A. On being cross examined, he stated that the original of this magazine is available.
67.
PW11 Col.Sher Bahadur Bhandari, posted as
General Staff Officer in Sena Bhawan, deposed that between 1999 – 2002, his duty was to assist the Director in study / evaluation of weapons and equipments. He deposed that the documents of HHTI's of M/s Westend International were received from WE4 (weapons and equipments) in InfantryV, for comparison with the existing HHTI's. He deposed that paper evaluation was recommended and the recommendations were approved and were forwarded back to WE4 vide letter Ex.PW.11/A along with the comparative table marked as Mark A and B. On being cross examined, this witness deposed that he himself had not handed over these documents to CBI. He deposed that they had not checked the credentials of M/s Westend International as it was not their job. He deposed that after sending the letter Ex.PW.11/A, they had not received any communication.
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68.
PW12 Sh.Madho Prasad, was examined by CBI
for the purposes of identification of image and voice of the accused. This witness deposed that he had worked as First P.A. To Bangaru Laxman, when he was Minister of Railways. This witness identified the image and voice of Bangaru Laxman when CDs of Tehelka Tapes No.81 Ex.PB4, Tehelka Tape No.87 Ex.PB7 and Tehelka Tape No.65 Ex.PB5, were played in court. On being cross examined, this witness stated that his statement was recorded by CBI and he has brought a copy of his statement, which at insistence of defence was exhibited as Ex.PW.12/DA and the actual statement under section 161 Cr.P.C recorded by CBI was exhibited as Ex.PW. 12/DB. This witness on the questioning by the court deposed that he had identified the voice of accused, as he knows his voice.
69.
PW14 Brigadier A.P.Singh, deposed that
between 1999 – 2002, he was posted as Director in WE4 (weapons and equipments) at Army Headquarters. He deposed that while working there, they were looking after the work of identification,
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trial and procurement of equipments relating to infantry. He deposed that as per the normal procedure, their department receives literature from the companies, which is analysed in consultation with the Infantry Directorate. He deposed that for procurement of foreign products, GSQR are prepared by User Directorates. He deposed that once the analysis is approved on the basis of recommendations of Infantry Directorate, then the matter is taken up with Ministry of Defence for physical trial. He deposed that he had received literature of HHTI's of M/s Westend International, which they had sent to Infantry Directorate for analysis. He proved the literature as Ex.PW.14/A. He deposed that after analysis from Infantry, it was received back and analyzed by him. He deposed that it was marked to D.D.G(WE) vide noting Ex.PW.14/B. He deposed that he had made a comment dated 07.02.2001 stating that as they have already procured HHTI's from two countries and Bharat Electronic Limited were in the process of stabilizing the technology to produce HHTI's on their own, hence there was no need for procurement of new equipments. On being cross examined, this witness stated that these documents were not handed over by him to
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CBI. He further admitted that no sample equipment were supplied for comparison. He stated that no equipment is procured with physical trial. He deposed that there was no pressure on him from anyone regarding analysis of the product.
70.
PW16 Sh.K.Seshaiah, Dy.Secretary working
with Ministry of Defence deposed that pursuant to receipt of requisition from CBI, he had handed over the documents, pertaining to HHTI's Ex.PW.16/A to CBI, vide their letter Ex.PW.16/B. On being cross examined, he denied the suggestion that he had not handed over the documents. However he admitted that the documents so supplied by him to CBI, were pertaining to the period prior to his joining Ministry of Defence.
71.
PW23 Sh.Sudhir Verma, Chartered Accountant
of M/s Buffalo Networks was examined by the CBI after getting an order from the court, on an application under section 311 Cr.P.C as his name was not mentioned in the list of witnesses, filed along with the charge sheet. He deposed that he was Chartered Accountant of
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M/s Buffalo Networks. He deposed that he had seen the details of the bills paid during “Operation Westend” which are part of Ex.PW. 5/H. He deposed that the same were verified by him. On being cross examined, this witness stated that he does not know from where the finances of M/s Buffalo Networks came. He deposed that without seeing the records, he cannot tell the salaries of Aniruddha Bahal, Mathew Samuel and others and also cannot tell about the foreign investment. He admitted that Ex.PW.5/H, does not bear the date of verification done by him, but he stated that certificate was given by him, after seeing the records of the company. He admitted the fact that in the Ledger Register Ex.PW.21/DY, name of Bangaru Laxman as recipient is not mentioned.
72.
FOURTH SET OF WITNESSES: PW2 Sh.A.D.Tiwari, Senior Scientific Officer
(GradeII) working with photo and scientific aid division of CFSL, deposed that at request of IO Inspector A.B.Chaudhary, he had recorded audiovideo samples of Aniruddha Bahal on 20.06.2005. He deposed that Aniruddha Bahal voluntarily participated in the
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proceedings. This witness deposed that for recording, the room was made noisefree by closing all the doors, windows, fans and mobiles. He deposed that new cassette was taken and was shown to the witnesses. To ensure its blankness, it was played in the recorder, whereafter recording was done and it was again played to check the recording. He deposed that cassette was taken out and was signed by him, whereafter IO had sealed it in the presence of witnesses. He deposed that memorandum Ex.PW.2/A was prepared. He further identified the written text as Ex.PW.2/B. This witness further deposed that on 18.03.2005, audiovideo sample recording with respect to T.Satyamurthy was done in presence of two independent witnesses. He deposed that all the requisite precautions were taken before recording. He deposed that after the proceedings, memorandum Ex.PW.2/C was prepared by the IO. This witness during the course of his deposition had identified the cassette Ex.P4, wherein the voice samples of T.Satyamurthy was recorded and was identified by him. This witness further identified the cassette Ex.P8, wherein voice samples of Aniruddha Bahal was recorded, which he identified.
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73.
PW10 Sh.S.Ingarsal, Senior Scientific Officer
(GradeII) working with CFSL appeared and deposed that he had collected the video samples of Bangaru Laxman, A.B.Chaudhary, T.Satyamurthy and Mathew Samuel. He deposed that all the necessary precautions were taken before recording of the samples. He deposed that the blank cassettes were played in presence of independent witnesses to ensure their blankness, whereafter the recording was done. He deposed that after the recording, it was played again to ensure the recording. He deposed that the cassette was thereafter signed and sealed by the IO. He identified the memorandum prepared by the IO as Ex.PW.10/A, the written text read over by accused Bangaru Laxman as Ex.PW.10/B. He also identified his signatures on the memorandum and written text already exhibited as Ex.PW.2/A and Ex.PW.2/B. He also identified the memorandum prepared by the IO on 19.05.2005, when sample of audiovideo of Mathew Samuel were taken, which is Ex.PW.10/C. He proved the written text given to Mathew Samuel as Ex.PW.10/D. He also identified his signatures on the memorandum Ex.PW.2/C
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prepared by the IO, at that time of taking samples with respect to T.Satyamurthy. He identified the image of Bangaru Laxman when the video cassette Ex.PD5 was played in court. He identified the image of Aniruddha Bahal, when the video cassette Ex.PA4 was played in court. He identified the image of T.Satyamurthy when the video cassette Ex.PC4 was played in court. He identified the video of Mathew Samuel when video cassette Ex.MS4 was played in court.
74.
PW17 Sh.P.K.Gautam, Senior Scientific Officer
(GradeII) working with CFSL, deposed that audiovideo specimen of Mathew Samuel were taken on 19.05.2005 in presence of witnesses. He deposed that all the necessary precautions were taken. He deposed that blank cassette was taken and thereafter the specimen voice of witnesses and Mathew Samuel was recorded which was then played to ensure the recording. He deposed that cassette was thereafter handed over to the IO, who sealed the same. He identified the memorandum Ex.PW.10/C prepared by the IO and identified his signatures. He also identified the written text Ex.PW.
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10/D. This witness identified the voice of Mathew Samuel, when the cassette Ex.MS8 was produced and played in court. This witness also identified the voice of Bangaru Laxman, when the cassette Ex.PE5 was produced and played in court. He had also identified the memorandum Ex.PW.10/A, to have been signed by him.
75.
PW19 Sh.D.Venkateshwarlu deposed that he is
working as Scientific Officer with APFSL, Hyderabad. He deposed that on receipt of a requisition from the CBI, he along with U.Ramamohan had examined Hi8 Tapes, DVs, VHS Cassettes, specimen samples and the transcriptions. He deposed that after the careful examination, he had given his report Ex.PW.19/A. This witness deposed that he had received all the exhibits from the CBI in sealed condition. He further deposed that even the briefcase device was received in sealed condition, which was examined by them. He deposed that he had taken specimen recording by using the briefcase device Ex.PX8 and found the same to be in working condition. He deposed that he had examined the continuity in the video recording of Hi8 Tapes and found tthat the same were
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continuous without any additions or deletions.
76.
FIFTH SET OF WITNESSES:
Inspector A.B.Chaudhary, the investigating
officer of the present case appeared in the witness box as PW21. He deposed that the FIR bears signatures of the then S.P. Arun Sharma, which he proved as Ex.PW.21/A. He deposed that he was handed over the investigations. He deposed of having received letters from the office of Ms.Manjulika Gautam, Additional Secretary, Government of India, Department of Personnel & Training, New Delhi as Ex.PW.1/A to Ex.PW.1/D. He deposed that copy of a letter dated 22.11.2004 Ex.PW.21/B was received from the office of Additional Secretary, DOPT, regarding forwarding of the material to CBI. He deposed that he had seen the documents, which were taken into possession vide seizure memos Ex.PW.1/E and Ex.PW.1/F and also the transcripts of Hi8 Tapes prepared by Union of India, as Ex.PW.4/A to Ex.PW.4/G. He deposed that the copies of transcripts prepared in the commission ie. Ex.PW.4/H to Ex.PW.4/O, were taken into possession vide seizure memo Ex.PW.4/1. He
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deposed that during the course of investigations, he had also prepared the transcripts of the Hi8 Tapes which are Ex.PW.21/C to Ex.PW.21/I. He deposed that during the course of investigations, certain documents regarding HHTI's were asked from Ministry of Defence vide letter Ex.PW.21/J, which were received by him as Ex.PW.11/A ; Ex.PW.11/B and Ex.PW.14/A. He deposed that during the course of investigations, specimen of voice and image of T.Satyamurthy were taken and proved the memorandum prepared by him to that effect as Ex.PW.2/C. He further identified the video cassette Ex.PC4 and audio cassette as Ex.P4, on which specimen of audiovideo of T.Satyamurthy were taken. He deposed that during the course of investigations, he had collected specimen voice and image of Bangaru Laxman and prepared a memorandum Ex.PW. 10/A to that aspect. He identified the video cassette Ex.PD5 and audio Ex.PE5 of Bangaru Laxman. He deposed that during the course of investigations, he had collected specimen voice and image of Aniruddha Bahal and prepared a memorandum Ex.PW.2/A to that aspect. He identified the video cassette Ex.PA4 and audio Ex.P8 of Aniruddha Bahal. He deposed that in R.C No.06/04 DSP
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B.Dass had prepared the memorandum Ex.PW.10/C after recording the specimen voice and image of Mathew Samuel. He deposed that vide letter Ex.PW.21/K, questioned audiovideo tapes along with specimen audiovideo were sent to APFSL, Hyderabad for opinion, along with the transcripts Ex.PW.21/L. Opinion from APFSL vide report Ex.PW.19/A was received. He deposed that during the course of investigations, a certified copy of interview of Bangaru Laxman, taken by Assistant Director Debashish Mukherjee Ex.PW.19/B was received vide letter Ex.PW.9/A. He deposed that vide letter Ex.PW. 7/A and its reminder Ex.PW.7/B, he had asked for guidelines from Election Commission of India regarding collection of party fund by any political party. He deposed that in response, they had received the letter Ex.PW.7/C from Under Secretary, Election Commission of India and the copy of notification Ex.PW.7/D. He deposed that vide seizure memo Ex.PW.22/A, Deputy SP Sh.B.Dass, had taken into possession the briefcase device from Arnab Pratim Dass of Tehelka.com. He deposed that on 09.05.2005, he had received, a receipt book of political contribution and cash book from Office Secretary Sh.Shyam Jaju and proved the letter Ex.PW.21/M, Cash
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Book and Receipt book as Ex.PW.21/N and Ex.PW.21/O. He deposed that one Nalin Tandon, Chief Account Officer of Bhartiya Janta Party, had sent a cancelled Original Counterfoil dated 12.12.2000. The said letter and counterfoil are Ex.PW.21/P and Ex.PW.21/Q. He deposed that vide letter Ex.PW.21/R, he had received the returns of BJP for assessment year 20002001 and 20012002 which are Ex.PW.21/S. He deposed that during the course of investigations, he had recorded statement of witnesses and prepared the charge sheet.
77.
PW22 Sh.Bishwajit Das, Additional S.P CBI,
appeared and deposed that he had conducted investigations with respect to a connected case titled “CBI Vs. Narender Singh” registered as RC No.06/04. He deposed that during the investigations of said case, he had taken into possession the brief case device vide seizure memo Ex.PW.22/A from Arnab Pratim Dass of Tehelka.com. He deposed that he during the course of investigations of said case, had also taken specimen audiovideo recordings of Mathew Samuel, in presence of independent witnesses vide memorandum Ex.PW.10/C.
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STATEMENT OF ACCUSED: 78.
Statement of accused was thereafter recorded
under section 313 Cr.P.C, wherein he denied the prosecution evidence against him. It was submitted by the accused that he had risen from a very humble background to become President of Bhartiya Janta Party. He submitted that he was beguiled by the representatives of Tehelka.com, who were backed by venture capitalists and Congress Party. He contended that Tehelka.com was funded by Hindujas to conduct an illegitimate trap. He contended that all this was done to malign him and the image of his Party, for political gains. He contended that Tehelka.com as well as Aniruddha Bahal had made huge profits out of this operation, which they had conducted at instance of their political masters. He submitted that tapes were doctored to suit their criminal design. He stated that he has been framed and victimized by Tehelka people, who had come up with a story of a fictitious company and a fictitious product. He submitted that Tehelka people made various inducements and he fell in the trap. He submitted that he had never exercised personal C.C.No: 01 / 2011 Page No.54 of 155
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influence nor promised to exercise the same with anyone in respect of any product as alleged by Tehelka people. He contended that the Congress Government without letting the “Commission of Enquiry” to give its finding, had got the present case registered against him, which is a false case.
DEFENCE EVIDENCE: 79.
Accused on being asked stated that he wants to
examine witnesses in his defense. He was permitted to do so.
80.
Availing the given opportunities, accused had
examined two of his witnesses, Mr.Kartik.S.Godavarthy appeared in the witness as DW1 and Sh.Ramnath Kovind was examined as DW2.
81.
DW1 Sh.Kartik S.Godavarthy deposed that he
is a Post Graduate in Anthropology and had done Post Graduate Diploma in Advanced System Management in Computer Sciences. He submitted that he had been a film maker and over the past 1516 C.C.No: 01 / 2011 Page No.55 of 155
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years, he had been involved in production of around 2000 films and his clients include governmental and nongovernmental organizations. He deposed that he provides endtoend solutions to his clients, right from concept development to the editing and delivery of film. He deposed that he had examined briefcase device in court and has prepared his report Ex.DW1/A. He deposed that he had also examined the APFSL Report and had prepared his report on the same which is Ex.DW.1/B. He deposed that he had also prepared a CD Ex.DW.1/C. He deposed that methodology adopted by APFSL Hyderabad, to give report was a futile exercise.
82.
On being cross examined by Ld.Special PP for
CBI, this witness admitted that neither he, nor his company is registered with “National Accreditation Board for Testing and Calibration” or ISO Laboratory / Organization. He also admitted that briefcase device Ex.PX8 was inspected by him in court only. He stated that he had not used such kind of a device in his career. He admitted that he had not given any expert report in any court, except the present one. He further admitted that he had
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not mentioned the date of preparation of his report Ex.DW.1/A and 1/B. This witness deposed that he had inspected each and every component of briefcase device after taking them over from their respective places. He stated that he cannot say as to whether the microphone was properly connected with the wires or not. He stated that as he had not done the functional aspects of the cameras of briefcase device, therefore he cannot say as to whether video selection through the camera is controlled by a gravity switch and that it was not necessary to switch the source of audiovideo to either camera1 or camera2 manually. He denied the suggestion that the opinion given by him at all the points, in his report is false. During the course of his deposition, he stated that he cannot answer the questions on the workability aspect of both the camera in the briefcase device, as he had not conducted any examination on the functional aspect.
83.
He stated that he had not taken any permission
from the court to prepare any demo CD. He stated that he during his tenure had never done any test recording, nor had submitted the
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same with any government agency. He admitted that he had not seen HI8 Tapes personally and has based his opinion on the basis of CDs. He denied the suggestion that briefcase device was preserved in protective condition and electronic and mechanical performance of the same, was in perfect working commission. He stated that he could not give any comment on Hi8 Tapes as he had not seen the tapes. He denied the suggestion that recording was continuous and there was synchronization. He denied that the report given by him at instance of the accused is based on surmises and conjectures. He denied the suggestion that APFSL Experts have given the correct and conclusive report on the HI8 tapes and workability of the briefcase device.
84.
The other witness examined by the accused
namely Sh.Ramnath Kovind appeared in the witness box as DW2. He deposed that he knows Bangaru Laxman for last 20 years. He deposed that Bangaru Laxman is a straight forward, simple and honest person, who became President of Bhartiya Janta Party (BJP). He deposed that in the meeting of National Executive
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held in January 2001, Bangaru Laxman had delivered presidential speech Ex.DW.2/A. He deposed that on 13.03.2001 when Rajya Sabha was in sessions, some members of Congress Party had raised a topic that some pictures are being telecasted by Zee T.V with respect to certain defence deals. Congress M.Ps, stated that government should resign. He deposed that one Sh.Priyaranjan Dass Munshi, a Congress MP was showing a cassette stating that the same contains Tehelka script. He deposed that he had met Bangaru Laxman, who told him that he was framed. He further deposed that in November 2002, Mr.Kapil Sibbal had raised an issue in the Parliament that government is compromising the constitutional institutions, as they had offered Justice Venkataswami an appointment as Chairman of Advance Rulings on Customs and Excise. He deposed that as these issues were raised, Justice Venkataswami resigned from the Commission. He deposed that Kapil Sibbal had stated that an FIR should have been lodged in the present case. On being cross examined on behalf of Ld.Special PP, this witness stated that he does not know as to whether Bangaru Laxman had accepted a consideration of Rs.1 lakh for
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procurement of supply order of HHTI's from M/s Westend International. He denied the suggestion that after the telecast, a meeting was held of Senior BJP Leaders and as damage control exercise, it was decided that this amount should be shown as party fund.
85.
I have heard the arguments advanced.
Ms.Padmini Singh, Ld.Special Public Prosecutor had advanced arguments on behalf of CBI. On behalf of accused, Sh.Sunil Kumar, Senior Advocate assisted by Sh.Rajesh Khanna, Sh.Manish Mohan, Sh.Atul Kumar and Sh.N.Balraj, Advocates, had advanced arguments.
ARGUMENTS ON BEHALF OF CBI: 86.
Ms.Padmini Singh, Ld.Special PP for CBI, in her
quest to prove the prosecution case, contended relying upon the deposition of PW15 Mathew Samuel and PW5 Aniruddha Bahal that accused did assure them to get a supply order in favor of their company ie. M/s Westend International, by exercising his influence C.C.No: 01 / 2011 Page No.60 of 155
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over the officers of Ministry of Defence. She further contended that both these witnesses, during the course of their deposition had categorically stated that accused did accept a sum of Rs.1 lakh from Mathew Samuel as illegal gratification. She further contended that accused had demanded the balance sum to be paid to him, by the representatives of M/s Westend International, in dollars. She contended that this amount of Rs.1 lakh paid by PW15 is duly reflected and accounted for in the imprest account of M/s Buffalo Network, which fact has also been corroborated from the deposition of PW23, Sudhir Verma, the Chartered Accountant of said company.
87.
She vociferously contended that the conversation,
which took place between PW15 Mathew Samuel, under the guise of a representative of M/s Westend International and accused Bangaru Laxman and also the demand on the part of Bangaru Laxman for the balance bribe amount from them, has been substantiated by PW18, T.Satyamurthy. She contended that statement of T.Satyamurthy, recorded u/s 164 Cr.P.C ie. Ex.PW.
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18/A, further corroborates the whole incident.
88.
In order to bring home the charge against the
accused, she contended that the meetings between the representatives of M/s Westend International and the accused were recorded on HI8 Tapes and the transcripts thereof, duly prepared goes on to corroborate the prosecution version. She contended that in Tape No.81, of which Ex.PW.4/B is the transcript, accused is seen discussing about the product of M/s Westend International, for which the supply order was to be procured. She contended that in this very tape, accused Bangaru Laxman is seen accepting the bundles of currency notes as “illegal gratification” from Mathew Samuel, besides which he had demanded the balance amount in dollars.
89.
She further contended that in Tape No.87 of which
Ex.PW.4/C is the transcript, Bangaru Laxman is seen discussing with the representatives of M/s Westend International, about the political commission. She contended that in Tape No.65, of which
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transcript is Ex.PW.4/A, PW15 had clearly told the accused that their file is with Defence Secretary, to which Bangaru Laxman had responded saying : “Let me find out what does he (defence secretary) think.”
90.
It is submitted by Ld.Special Public Prosecutor
that after registration of FIR, the relevant documents and tapes which earlier were with the commission were taken into possession by the CBI. She contended relying upon the deposition of PW1, PW4 and PW20, that all the documents and tapes were duly handed over to CBI by the designated officer Sh.S.K.Dass Gupta. It is submitted that during the course of investigations, IO had taken the voice and image samples of accused Bangaru Laxman and PWs Aniruddha Bahal, T.Satyamurthy and Mathew Samuel, in presence of independent witnesses. She contended that these samples were taken by Senior Scientific Officers PW2, PW10 and PW17, after taking all the necessary precautions.
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91.
She contended that the questioned Hi8 Tapes,
along with the samples were sent to A.P.F.S.L (Hyderabad) and a report Ex.PW.19/A was received. She contended that as per the report of the expert, these tapes were not tampered with and there
was proper synchronization, therefore there is no question of any doubt of these tapes, having been tampered with. She contended that initially, these tapes were in possession of PW5 Aniruddha Bahal in his custody, during which he kept them in the Bank Lockers, whereafter the same were kept in safe custody at the office of the Commission, as is deposed by PW1 and PW4 from where the same was taken into possession by CBI, through PW20 DSP K.Y.Guruprasad.
92.
Ld.Special PP for CBI contended that the tape
recordings are admissible piece of evidence, as all necessary ingredients regarding their admissibility, have been established on record through the deposition of prosecution witnesses.
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93.
She summed up her contentions stating that the
documented piece of evidence in the form of recordings on Hi8 Tapes and DVs are duly corroborated by the oral evidence of the witnesses which establishes the necessary ingredients of Section9 of P.C.Act, 1988, with which the accused has been charged. She submitted that the defence sought to be raised by the accused is merely an afterthought and that too has not been substantiated by any plausible or acceptable piece of evidence.
DEFENCE ARGUMENTS: 94.
On the other hand, Sh.Sunil Kumar, Ld.Senior
Advocate, arguing suavely on behalf of accused Bangaru Laxman, had led a multifaceted attack, to demolish the prosecution case. At the outset, he contended that accused who had risen from a very humble background to the post of President of Bharatiya Janta Party, had no predisposition to commit any offence. He contended that accused who had an impeccable record of public life has been framed by a criminal design genesis of which lies in a 'sting operation'. He contended that the origin of the crime had taken C.C.No: 01 / 2011 Page No.65 of 155
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place in the minds of Tehelka people, more particularly Anirruddha Bahal, who acted on behalf of the rival political party to induce and beguile the accused by laying a trap. He contended that the offence has not been committed by the accused, rather it is committed by Aniruddha Bahal and others, who have been made the prosecution witnesses.
95.
He contended that the present case, origin of
which is a “sting operation”, in itself is an act of “illegal trap”, therefore the depositions of those who conducted this illegal trap and also the recordings made by them, should not be considered at all, against the accused.
96.
Second contention of Ld.Senior Counsel for the
accused was that PW5 and PW15 themselves during the course of their deposition had admitted that there is no company by the name of M/s Westend International and as such, they had formed a “fictitious company”. He contended that these witnesses had deposed that even the product ie. HHTIs for which they want to get
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a supply order, was a “fictitious product”. Therefore, by no stretch of imagination, it can be stated that even if accused had agreed to help them, any help in real sense, could have been extended.
97.
Third contention
of Ld.Senior Counsel
appearing on behalf of accused was that, in order to bring home the charge, for offence u/s 9 of P.C.Act, 1988, of which the accused has been charged, prosecution was required to establish the necessary ingredients of the same, one of which is that the person, who has been charged should be in a position to exercise personal influence on the public servant. It is submitted by him that nowhere in the entire evidence of the prosecution, it has been stated that who was the public servant, on whom accused was to exercise his personal influence. He contended that even in the transcripts, the accused when asked by PW15 Mathew Samuel regarding Defence Secretary, had stated that he does not know him. He contended that accused was no way connected with Ministry of Defence or the officers working in said Ministry, therefore there is no question of exercise of personal influence by the accused on any public servant.
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98.
Ld.Counsel for the accused had led a twopronged
attack on the deposition of PW5 and PW15 on one hand and the recordings on Hi8 Tapes on the other. He contended that if as per the prosecution, all the recordings of the conversation had taken place on the HI8 Tapes, then oral evidence of PW5 and PW15 becomes inadmissible and cannot be accepted.
99.
On the other hand, he contended that these HI8
Tapes and DVs on which the prosecution is relying upon are doctored as the same admittedly had remained with Tehelka people, who were working for and at behest of the venture capitalists and were interested in the success of their story to make money out of it, which in fact they made. He contended that Tehelka people had every opportunity to manipulate and doctor these tapes. He further contended that the tapes were thereafter taken into possession by the Army, from where it was handed over to the commission. He contended that in the commission, the same were not kept in the sealed condition, as is evident from the deposition of PW20.
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100.
Ld.Defence Counsel contended that deposition of
the prosecution witnesses cannot be considered, as their deposition was recorded after showing the recordings of Hi8 Tapes and the transcripts which amounts to putting the leading questions to them and the same is against the established norms of recording of prosecution evidence.
101.
It is contended by Ld.Senior Counsel that even
after taking these tapes in possession, CBI had failed to keep the same in proper custody. He contended relying upon the cross examination of the investigating officer PW21 that these tapes were kept in the Malkhana, where it was used by various Investigating officers, as and when required. He contended that neither the Malkhaana register, nor any proper record of these tapes has been produced in court.
102.
It is further contended by Ld.Defence Counsel that
the transcripts which are relied upon by the prosecution are not the
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correct version of what is recorded on these tapes. It is submitted that there is no synchronization and a particular dialogue which is being attributed to the accused, was infact never said by him. He further contended that a particular sentence or dialogue, stated by accused to someone else in his office, has been used by the prosecution, to be a part of conversation between accused and Mathew Samuel.
He contended that PW21 even during the
course of his crossexamination admitted the fact that there are discrepancies in the transcripts.
103.
It is submitted by Ld.Defence Counsel that there
was no demand of any gratification on the part of accused from anyone. The amount of Rs.1 lakh, allegedly passed on by Mathew Samuel, was a clear case of deceit on the part of Tehelka people and a design to capture the same on video, to suit their motives. He vociferously contended relying upon the meeting dated 06.01.2001 recorded on Hi8 Tape No.87 that, the whole discussion centered around “appointment” and even if it is presumed that this amount was accepted by the accused, the same was for “appointment” and
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not for any motive or reward for exercise of any personal influence on any public servant.
104.
It has been contended by Ld.Defence Counsel that
deposition of PW5 and PW15 is sought to be corroborated from the deposition of PW18 T.Satyamurthy, who was an accomplice. He contended that T.Satyamurthy was infact never authorized by the accused, to act as his “personal secretary”. It is further contended that he was not authorized to make any statement for or on behalf of accused Bangaru Laxman. It is further submitted that this person was deliberately made an “approver” by the investigating agency, to suit their needs and this person had accepted this opportunity to save his skin. He contended that deposition of PW18 which is mostly hearsay statement should not be considered as the same has not been corroborated in material particulars. He challenged that deposition of PW18 cannot be read, in view of Section 133 and 114(b) of Indian Evidence Act.
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105.
Ld.Defence Counsel relying upon the deposition of
DW1, an expert examined by them in defence, had led an attack on the deposition of PW19 D.Venkateshwarlu. He contended that this person is only a scientific officer and is not an expert in scientific analysis of tapes. He contended that one U.Ramamohan Rao is shown as an Expert with APFSL, but the said witness is withheld by the prosecution, therefore it should be presumed that the said witness has been withheld by the prosecution with a motive. He contended that the report Ex.PW.19/A should not be considered, as in the said report there is no description of the briefcase device, nor it has been stated that what was the condition of the briefcase device, when it was received and whether or not the same is in workable condition. He further contended in the report, PW19 did state that they had taken some specimen recordings, but the same have not been forwarded to the court along with the report. He further contended that there is no definite opinion given, as to whether the questioned recordings on Hi8 Tapes were done by the briefcase device Ex.PX8 only. He further contended that if the
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report given by PW19 is believed to the extent that “frame by frame examination” of the recorded tapes were considered, it is humanly impossible to do the same in the given time. He further contended that PW19 has given opinion with respect to the items, which were never sent to APFSL for examination.
106.
Ld.Defence Counsel has further tried to demolish
the prosecution case stating that the prescribed guidelines of CBI Manual for Sample Collection, were not followed by PW2 A.D.Tiwari, PW10 S.Ingarsal and PW17 S.K.Gautam, while collecting the voice and image samples of accused and prosecution witnesses. He contended that there are number of contradictions in the deposition of the socalled independent witnesses, joined by the investigating agency at the time of collection of audiovideo samples.
107.
It is submitted by Ld.Defence Counsel that the
investigations were not properly conducted by CBI, which has caused prejudice to the accused. He contended that no telephone records were collected by the investigating officer, nor the financial
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aspects were investigated. He contended that in the year 2004, the government had scuttled the commission of inquiry from inquiring into the financial aspects and had abolished the commission. He contended that the government had clandestinely collected a secret note from Sh.S.K.Dass Gupta, on the basis of which, the present case was got registered.
108.
He further contended that the prosecution has
withheld material witnesses during the course of trial which has prejudiced the case of the accused. It is contended that Tarun Tejpal and Shankar Sharma, who could have thrown light on the financial aspects were withheld by the prosecution. He contended that even Arnab Pratim Dass, from whom PW20 Sh.K.Y.Guru Prasad had taken the possession of brief case device, was not produced in the witness box. He contended that he was withheld as prosecution was afraid, as had he appeared in the witness box, then it would have come to light that the alleged briefcase device Ex.PX8 was not in a working condition. He contended that neither any witness, nor the investigating officer had demonstrated the
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functional aspects of the briefcase device. He contended that the recording device of DVs, has also not been produced.
109.
It is submitted by Ld.Defence Counsel, relying
upon the American precedents that origin of the criminal design should not take place in the minds of the enforcement agencies, to prove anything against the accused. He contended that accused must have a disposition to commit the offence, on his own. He next contended that accused should not be induced or beguiled by the enforcement agencies to commit an offence. He contended that in the present case, the criminal design Originated in the minds of Tehelka people. He contended that accused has never had any Disposition to commit any offence as he never approached anyone to demand any amount. He further contended that the Inducement took place on the part of tehelka people due to which accused was beguiled. He contended that the entire case of the prosecution is thus hit by ODI.
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110.
He concluded his arguments saying that as the
evidence on record is tainted, doctored, manipulated and motivated, therefore the same is inadmissible. He contended that therefore prosecution has failed to fulfill the necessary ingredients of the offence, so the accused be honorably acquitted. Ld.Defence Counsel in support of his contentions relied upon certain precedents.
APPRECIATION OF EVIDENCE AND RIVAL CONTENTIONS: 111.
I have given my thoughtful consideration to the
rival contentions advanced in the lights of oral as well as documentary evidence on record. I have also gone through the precedents relied upon by Ld.Special PP for CBI as well as by Ld.Defence Counsel, to substantiate their respective contentions.
112.
Before, I delve upon the multifarious contentions
advanced by Ld.Defence Counsel on the basis of evidence on record, it would be pertinent to consider his first and the foremost contention which being based on legal issue, does not require the C.C.No: 01 / 2011 Page No.76 of 155
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background of the factual canvas painted by the prosecution witnesses.
113.
It was contended by Ld.Defence Counsel that the
genesis of the present case is a “sting operation” which in itself has been carried out in violation of the fundamental right to privacy of an individual, which has been considered as an inalienable and inseparable part of right to “Life and Liberty” enshrined in Article 21 of Constitution of India, by Hon'ble Supreme Court. It was contended by Ld.Defence Counsel that the representative of Tehelka.com who had carried out this “sting operation” themselves should be rendered as accused, as they had committed a number of offences besides violating the fundamental right of privacy of an individual. He contended that the criminal design originated in the minds of the representatives of Tehelka.com, who carried out this operation. He further contended that the disposition of crime of bribegiving was also theirs and it was they who had induced and given a sum of Rs.1 lakh, which they illegally and wrongfully captured on Hi8 Tapes, as part of their illegal design. He further
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contended that all the material relied upon by the prosecution should be discarded as the mode and method adopted by representatives of Tehelka.com was not lawful.
114.
Ld.Defence Counsel relying upon the judgement
passed by Hon'ble High Court of Delhi in “Court on its own Motion Vs. State” bearing Crl.W.P.No.1175/2007 decided on 14.12.2007, contended hat Hon'ble High Court of Delhi, while reminding the electronic media of its immense responsibility to the public at large, came down heavily on a “sting operation” carried out by the representatives of a news channel and laid down certain guidelines for Ministry of Information and Broadcasting for consideration and incorporation as an enactment / guidelines for the electronic media to observe and follow.
115.
I have gone through the said precedent along with
the two American precedents relied upon by Ld.Defence Counsel, which were also considered by Hon'ble High Court of Delhi in the above referred matter. C.C.No: 01 / 2011 Page No.78 of 155
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116.
Argument of Ld.Defence Counsel with respect to
violation of fundamental right to privacy of accused, as claimed, is required to be considered, visavis corresponding fundamental duties of others, as enshrined in the Constitution.
117.
An individual is the basic unit of which the fabric
of society is woven. For any society to develop to its full potential and for any democratic polity to attain its full stature, while preserving its social heritage and moral values, right to life and liberty of its individuals, is to be considered supreme. There can be no twoways about it. Hon'ble Apex Court in a number of judgements had incorporated number of rights, which were considered as the most basic rights, to be part of the “right to life and liberty” of an individual. Right to privacy is one amongst such rights. However, no fundamental right can be granted or asserted without any restrictions, which though should be reasonable, as the source of every right is in a corresponding duty. Duty is an inalienable part of right. In fact, they are two sides of same coin.
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What is duty for one is another's right and viceversa. For any democratic society, specially like ours which is the biggest democracy, each and every citizen of India is under an obligation to fulfill his / her fundamental duties, as enshrined in Article 51A of the Constitution.
118.
Article 51 A of the Constitution prescribes: FUNDAMENTAL DUTIES It shall be the duty of every citizen of India : (a)
…
(b)
to cherish and follow the noble ideals which inspired our national struggle for freedom.
(c)
119.
. . .
It was not the struggle merely for political freedom
of India. It was for the social and economic emancipation of the people. Its ideals were those of building a just society and a united nation, of freedom, equality, nonviolence, brotherhood and world peace. If we, the citizen of India remain conscious of and committed C.C.No: 01 / 2011 Page No.80 of 155
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to these ideals, we will be able to rise above the various fissiparous tendencies raising their ugly heads now and then, here and there.
120.
In a democracy, it is most important for citizens to
exercise their right to vote, with a great sense of responsibility to elect the right people. But this responsibility does not get over by exercising this right once in five years. It is even more important to exercise a constant vigil over the conduct and actions of our representatives and ensure that they keep to the right track, that power does not go to their head or corrupt them and that they do not indulge in antinational or antipeople activities. The ultimate responsibility is of the people and if we want to have our rights enforced, then we are under a constitutional obligation to fulfill our corresponding duties enshrined in Article 51A.
121.
In the backdrop of above, I would like to state that
a similar question, as has been raised by Ld.Defence Counsel in the present case, had arisen before Hon'ble High Court of Delhi in cases titled “Aniruddha Bahal Vs. State” and “Suhasini Raj Vs.
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State” bearing Crl.M.C.No.2793/09 and Crl.M.C.No.3194/09 respectively, which were disposed off by a common judgement dated 29th September 2010, wherein Hon'ble Mr.Justice S.N.Dhingra observed as under: 6. The question that arises in these petitions is whether a citizen of this country has a right to conduct such sting operation to expose the corruption by using agent provocateurs and to bring the knowledge of common man, corruption at high strata of society. 7. The Constitution [PartIVA] lays down certain fundamental duties for the citizens of this country and Article 51A (b) provides that it is the duty of every citizen of India to cherish and follow the noble ideas which inspired our national struggle for freedom. I consider that one of the noble ideals of our national struggle for freedom was to have an independent and corruption free India. The other duties assigned to the citizen by the Constitution is to uphold and protect the sovereignty, unity and integrity of India and I consider that sovereignty, unity C.C.No: 01 / 2011 Page No.82 of 155
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and integrity of this country cannot be protected and safeguarded if the corruption is not removed from this country. Another duty of every citizen is to defend the country and render national service when called upon to do so. I consider that a country cannot be defended only by taking a gun and going to border at the time of war. The country is to be defended day in and day out, by being vigil and alert to the needs and requirements of the country and to bring forth the corruption at higher level. The duty under Article 51A (h) is to develop a spirit of inquiry and reforms. The duty of a citizen under Article 51A (j)is to strive towards excellence in all spheres so that the nation constantly rises to higher level of endeavour and achievements. I consider that it is builtin duties that every citizen must strive for a corruption free society and must expose the corruption whenever it comes to his or her knowledge and try to remove corruption at all levels, more so at higher levels of management of the State.
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8. The Court can take judicial notice of the fa ct that of widespread corruption on an large scale which was unheard of before was now a common place. In 1988 (2) SCC 602 (Antulay's case), Justice Sabyasachi Mukharji observed as under: “Values in public life and perspective of these values in public life, have undergone serious changes and erosion during the last few decades. What was unheard of before is common place today. A new value orientation is being undergone in our life and in our culture. We are at the threshold of the cross roads of values. It is, for the sovereign people of the country to settle those conflicts, yet the Courts have vital roles to play in such matters.” 9. I consider that it is the fundamental right of the citizens of this country to have a clean incorruptible judiciary, legislature, executive and other organs and in order to achieve this fundamental right, every citizen has a
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corresponding duty to expose corruption whereever he finds it, whenever he finds it and to expose it, if possible with proof so that even if the State machinery does not act and does not take action against the corrupt people, when time comes people are able to take action, either by rejecting thm as their representatives or by compelling the State by public awareness to take action against them. 10. …. 11. …. 12. ….
13. The corruption in this country has now taken deep roots. Chanakya in his famous work “Arthashastra” advised and suggested that honesty of even judges should be periodically tested by the agent provocateurs. I consider that the duties prescribed by the Constitution of India for the citizens of this country, do permit citizens to act as agent provocateurs to bring out and expose and uproot the corruption.
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122.
In view of above, the precedents sought to be
relied upon by Ld.Defence Counsel in a case titled “Court on its own motion Vs. State” being writ petition (crl.) no.1175/2007 decided on 14.12.2007 by a division bench of Hon'ble High Court of Delhi, wherein the American precedents titled “C.V.Sorrells Vs. United States of America” reported as 287 US 435459 and “Sherman Vs. United States” reported as 356 US 369(1958), were relied upon, does not apply to the facts of the present case as in the said case Hon'ble High Court of Delhi was seized off a false and fabricated “sting operation” carried out for the purposes of creating false evidence. As the said sting operation was carried out using “setup characters” to falsely implicate a school teacher, so as to malign her for extraneous considerations, therefore, Hon'ble High Court had deprecated that practice. The facts of said case differ from the case in hand. In the said case itself, Hon'ble High Court had not debarred the sting operations, but had only given a note of caution that entrapment of any person should not be resorted to, to depict something which is not true. Hon'ble High Court of Delhi in C.C.No: 01 / 2011 Page No.86 of 155
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the said case had proposed certain guidelines for being considered by the concerned Ministry. 123.
There cannot be any doubt that for a democratic
polity to flourish, the actual happenings in relation to the public works are required to be shown and brought to the knowledge of public, to see and analyze the work and conduct of their elected representatives. The role of press and proactive citizens as part of their fundamental duties, is immense. However, considering the fact that the impact on the minds of general public of electronic media is unparalled. Therefore, this power which Press and the journalists enjoy has to exercised with a great sense of responsibility. Any regulation on the powers of the Press had always invoked sharp criticism from every quarter. Therefore, a restraint has to come from within. It has to be a selfrestraint, balancing the “twin interest” of right to information of the general public at the one hand and right to privacy of the person, on the other hand, with respect to whom the information is sought to be revealed or aired.
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124.
In view of the aforesaid discussion, I am of the
opinion that the method adopted by Tehelka people may be objectionable, but their purpose was not.
125.
The evidence which is yet to be considered on the
touchstone of the Indian Evidence Act, cannot be discarded at the outset, as has been argued by Ld.Defence Counsel.
126.
Having held so, that the material collected by
Tehelka people cannot be thrown overboard at the outset. I, now advert to adjudicate upon the contentions raised by Ld.Defence Counsel, visavis, the evidence on record, to find out as to whether the necessary ingredients of the offence, with which the accused has been charged, has or has not been proved by CBI.
127.
The next contention advanced by Ld.Defence
Counsel for the accused was that the evidence placed on record by the prosecution on conclusion of trial, does not fall within the four C.C.No: 01 / 2011 Page No.88 of 155
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corners of Section9 of Prevention of Corruption Act, with which the accused has been charged. It is contended that the evidence on record falls short of proving the necessary ingredients of the offence. It was contended that there was neither any demand, nor acceptance of any money, which can be termed as “illegal gratification”. It has further been contended on behalf of the accused that he had no role to get the supply orders of HHTI's for M/s Westend International. It is contended that there is no mention of any public servant nor accused ever stated that he had any proximity with any public servant. It is further contended that there was no such company in the name of M/s Westend International in existence and even the product sought to be promoted ie.HHTI's was a fictitious product, therefore, there could not have been exercise of any influence over anyone, to do or not to do any act.
128.
Before adverting to deliberate upon the
contentions advanced by Ld.Defence Counsel for the accused, it is pertinent to peruse Section9 of Prevention of Corruption Act, which
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is reproduced as under: Section 9: Taking gratification for exercise of personal influence with public servant. “Whoever, accepts or obtains or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by the exercise of personal influence, any public servant whether named or otherwise to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. 129.
Bare perusal of this Section makes it evident that
the same has been drafted by the Legislature, using words of wide
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connotation. The literal meaning, if given to the words reveals that the provision is all encompassing. This provision does not talk of any specific demand by the accused for illegal gratification. It specifically states that whoever accepts or obtains or agrees to accept or attempts to obtain any gratification as a motive or reward, for inducing by the exercise of personal influence any public servant, then he can be tried for an offence under this section.
130.
Consequently the language, import and spirit of
Section 9 of the Act, to my mind is, “acceptance of gratification”. Its invocation does not call for any other act, action or inaction.
131.
Contention of Ld.Defence Counsel that there could
not have been any favor by the accused, for which he is alleged to have accepted illegal gratification, as there was no such company in existence and there was no such product as both were fictitious, to my mind does not hold much waters. No doubt, M/s Westend International, London & HHTI's, which was sought to be promoted C.C.No: 01 / 2011 Page No.91 of 155
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were fictitious in the eyes of law, but the accused went ahead with the intention to help them as he was not aware of this fact and his act of alleged acceptance of illegal gratification and of the assurances advanced, were real. Section 9 of the Act, covers such acts.
132.
Consequently, in the pretext of present facts as
discussed hereinafter on the basis of evidence on record, it is immaterial as to whether the person from whom the gratification has been accepted is a genuine person or a fictitious person and whether or not, the same has been obtained to promote a genuine product or a fictitious product.
133.
Another contention advanced by Ld.Counsel for
the accused, that for the purposes of invocation of Section9 against any person, there has to be an exercise of “personal influence” with public servant. It has been contended by him that accused had no proximity with any public servant, as none has been specifically mentioned in the evidence which has come up on record. It has been C.C.No: 01 / 2011 Page No.92 of 155
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further contended that neither in any of the tapes, nor in the transcripts, accused had stated that he knows the concerned public servant personally.
134.
To my mind, this contention of the defense does
not hold much waters, as the word “personal” is a qualifying word used in this section for the word “influence”. Therefore, the word “personal” should not be interpreted in such a manner that the word “influence” looses its significance. 135.
The term “personal influence” has been knowingly
used by the Legislature as the same has wider connotation than the term “undue influence”. It takes into its sweep not only the exercise of undue influence, but also the personal influence which a father wields over his son, a friend wields over another, a boss wields over his subordinate, a minister wields over the babus. When this influence is put to service as contemplated in this Section (which is to seen on the basis of evidence on record as discussed hereinafter), then it would undoubtedly be an offence.
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136.
Next contention of Ld.Defence Counsel was that
the CBI had sought to rely upon deposition of PW18 T.Satyamurthy, who was an accomplice and had turned approver just for the sake of earning pardon for himself. He contended relying upon Section 133 and 114 (b) of Indian Evidence Act that statement of an approver cannot be relied upon as he is a person of low morals, being an opportunist and is not a trustworthy person, who for the sake of earning “pardon” for himself is willing to let down his erstwhile accomplice. He further contended that PW18 always looked for his own future prospects as is evident from his deposition, had initially joined Bangaru Laxman and thereafter finding business prospects with the representatives of fictitious company M/s Westend International, agreed to join them and now seeing a better prospect and assurance of being granted pardon, had turned “approver”. Ld.Defence Counsel in order to substantiate his contention had relied upon the law laid down by Hon'ble Supreme Court in “Rampal Pithwa Rahidas & Ors. Vs. State of Maharashtra” reported as 1994 Criminal Law Journal, 2320 and
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stated that the deposition of PW18 should not be considered at all.
137.
I have given my thoughtful consideration to the
contentions advanced in the light of material on record.
138.
The combined effect of Sections 133 and 114,
Illustration (B) is that though under section 133 of the Evidence Act, it is not illegal to convict a person on the uncorroborated testimony of an accomplice. Illustration (B) to Section 114 of the Act lays down as a rule of prudence based on experience, that an accomplice is unworthy of credit unless his evidence is corroborated in material particulars and this has now been accepted as a “Rule of law”.
139.
An accomplice is undoubtedly a competent
witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious taint in his evidence and a natural reluctance occurs act on such tainted evidence, unless it is corroborated in material particulars by other independent C.C.No: 01 / 2011 Page No.95 of 155
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corroboration. However it is not desirable in the eyes of law for me to accept this contention of Ld.Defense Counsel that independent corroboration should cover the whole of the prosecution case or even all the material particulars of the prosecution case. If such a view is adopted, it will render the evidence of the accomplice wholly superfluous, which to my mind would render the complete provision of having someone as approver or tendering him pardon, nugatory. In view thereof, I do not find any force in the arguments advanced by Ld.Defense Counsel.
140.
The precedents relied upon by Ld.Defence Counsel
instead of supporting the contention of defence, lends an authoritative support to the abovementioned view. Consequently, the deposition of PW18 T.Satyamurthy cannot be discarded. Needless to add that this deposition of PW18 shall be considered only for the purposes of corroboration of the case of CBI, which is to be established on the basis of other oral and documentary evidence on record.
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141.
Ld.Defence Counsel vociferously submitted his
next contention that the deposition of prosecution witnesses was extracted from them by putting leading questions to them. He contended relying upon the law laid down by Hon'ble Apex Court in case titled “Varkey Joseph Vs. State of Kerala” reported as AIR 1993 Cr.L.J.2010, that the material portion of evidence which has come up on record on the basis of leading questions to the witness, cannot be used against the accused, as that would offend his right to a fair trial, as enshrined in Article 21 of the Constitution. He contended that in the present case PW5 Aniruddha Bahal, PW15 Mathew Samuel and PW18 T.Satyamurthy and other witnesses who were produced for identification of voice and image of accused, were shown the tapes or the CDs first and were then put the questions, which thus become leading questions.
142.
This contention of Ld.Defence Counsel to my mind,
is devoid of any merits. On bare perusal of deposition of PW5 Aniruddha Bahal, PW15 Mathew Samuel and PW18 T.Satyamurthy, it is apparent that in the initial part of their
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depositions, they had narrated the perceived facts, as per their retention power. It is only when they were supposed to identify their own voice and image as well as that of the accused, that the tapes were played and shown to them.
143.
So far as witnesses who had joined the
investigations at the time of collection of sample audiovideo recordings are concerned viz. PW3 Amarnath, PW6 Paramjeet and PW13 Mohan Singh, they too in the initial part of their deposition had deposed the relevant facts and thereafter they were shown the cassettes, as it is they only, who could have identified the voice and image of the concerned persons recorded in their presence. Therefore, it cannot by any stretch of imagination can be termed as deposition extracted on the basis of leading questions. Even in the precedents relied upon by Ld.Defence Counsel, Hon'ble Apex Court has held that leading questions are permissible, stating “the court may permit leading question to draw the attention of witness, which cannot otherwise be called to the matter under inquiry, trial or investigations”.
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144.
In view thereof and considering the fact that the
questions regarding identification of voice and image of accused and other prosecution witnesses could have been asked only after playing the Hi8 Tapes, CDs or cassettes, therefore this contention of Ld.Defence Counsel is rejected, being devoid of any merits.
145.
Another limb of the arguments advanced by
Ld.Defence Counsel was that the prosecution has withheld material witnesses. He contended that neither Tarun Tejpal nor Shankar Sharma were examined by the prosecution. He contended that even Manjulika Gautam, Additional Secretary, DOPT, on whose letters Ex.PW.1/A and 1/B, the FIR was registered, failed to appear in the witness box. He contended that Arun Sharma, the S.P. CBI, and the person from whom the briefcase device was taken into possession were also not examined. He contended that non examination of these material witnesses has caused prejudice to the accused, therefore, an adverse inference should be cast on the prosecution. Ld.Defence Counsel in order to support his contention
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had relied upon the law laid down by Hon'ble Supreme Court in case titled “Narain & Ors. Vs. State of Punjab” reported as AIR 1959 SC 484.
146.
I have considered this contention of Ld.Defence
Counsel and have also perused the precedents relied upon by him.
147.
It always has been a sound and well established
rule of law and practice that a court while adjudicating upon a particular issue, should always be concerned with quality of evidence before it and not the quantity for proving or disproving a fact. The material witnesses listed in the “list of witnesses” by the prosecution, should be and ought to be examined by the prosecution. However, the discretion always rests with the Public Prosecutor, who is Incharge of the prosecution case, not to examine irrelevant or superfluous witnesses, more particularly, when a particular fact which is sought to be proved, has already come up on record through deposition of other witnesses already examined.
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148.
The relevant test has been laid down by Hon'ble
Supreme Court in the precedent relied upon by Ld.Defence Counsel which is “The test is whether he is a witness essential to the unfolding of narrative, on which the prosecution is based”. Going by this particular test laid down by Hon'ble Apex Court, I am of the opinion that all the material witnesses, who were essential to the unfolding of prosecution case, were examined. Those witnesses who were not summoned despite having figured in the list of witnesses are superfluous witnesses. Further, there was no prohibition imposed on the accused to summon any or all of those witnesses who, he thinks were necessary for his defence, he could have filed an appropriate application for the same, which he failed to do.
149.
In view thereof, I am of the considered opinion
that this argument has been raised only as an afterthought and in an attempt to dent the case of the prosecution in an indirect manner.
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150.
This has brought me down to the next & most
prominent contention of Ld.Defence Counsel. He has submitted that corroboration of oral deposition was sought from the recordings on Hi8 Tapes and DVs. He contended that these recordings fall in the category of “documents” as defined in section 3 of the Evidence Act. He contended that due to development in electronic techniques, the recordings on tapes and DVs are more susceptible to tampering and alterations, by transposition and interpolation. He relying upon the deposition of the defence witness ie. DW1 Kartik S.Godavarthy contended that the Hi8 Tapes, on which reliance is placed by the prosecution are doctored by Tehelka people to suit their criminal design.
151.
He contended that the briefcase device Ex.PX8,
with which it is alleged that recording was done, was a makeshift device. He contended that neither any witness nor the investigating officer had operated the briefcase device in court, to prove its workability. It is contended that the said device was taken into possession in a dismantled condition. Another facet of his argument was that the mode of preservation of the recorded tapes has not been properly explained and proved on record. He contended that C.C.No: 01 / 2011 Page No.102 of 155
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initially these Hi8 Tapes remained at the office of Tehelka, where they had all sort of equipments required for manipulations and doctoring the tapes. He further contended that prosecution has failed to establish on record that these tapes were kept in safe custody, when the same remained with the “Commission of Inquiry”. It has further been submitted by him that from the deposition of PW1 and PW4, coupled with deposition of PW20, it is clear that the same were handed over by the designated officer from the Commission to CBI in an unsealed condition. Another contention of his, was that in CBI these tapes were kept in Malkhana, from where they were used by different investigating officers. It is submitted that neither any movement register nor the relevant entries from Malkhana were produced to show that these tapes were kept in safe custody. He contended that in view thereof, the possibility that these tapes were tampered with, cannot be ruled out. He contended that in view thereof, these Hi8 Tapes and DVs, should be rendered inadmissible. Ld.Defence Counsel in support of his contention had relied upon two judgements from Hon'ble Supreme Court titled “Tukaram S.Dighole Vs. Manikrao
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Shivaji Kokate” reported as (2010) 4 Supreme Court Case 329 and case titled “Nilesh Dinkar Paradkar Vs. State of Maharashtra” reported as (2011) 4 Supreme Court Case 143.
152.
To counter these contentions, Ld.Special PP for
CBI had contended that recordings have always been held as a valuable piece of evidence, subject however to certain precautions. She contended that Hon'ble Supreme Court in case titled “R.M.Malkani Vs. State of Maharashtra” reported as (1973) 1 SCC 471 and case titled “Ram Singh Vs. Col.Ram Singh” reported as (1985) Suppl.SCC.611, stated that Hon'ble Apex Court had laid down certain conditions subject to which the recordings have been held as admissible piece of evidence.
153.
In the case of Nilesh Dinkar (supra) relied upon
by Ld.Defence Counsel, Hon'ble Apex Court had considered the principles evolved in American jurisprudence as well. The earlier law laid down by Hon'ble Apex Court in Ram Singh's Case (supra), was also considered and it was observed that conditions C.C.No: 01 / 2011 Page No.104 of 155
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laid therein, are necessary for admissibility of the tape recorded statements. The relevant conditions as laid down are: i.
The voice of the speaker must be duly
identified by the maker of the record or by the others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
ii.
The accuracy of the taperecorded
statement has to be proved by the maker of the record by satisfactory evidencedirect or circumstantial. iii.
Every possibility of tampering with or
erasure of a party of a taperecorded statement must be ruled out, otherwise it may render the said statement out of context and, therefore, inadmissible. iv.
The statement must be relevant
according to the rules of the Evidence Act.
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v.
The recorded cassette must be
carefully sealed and kept in safe or official custody. vi.
The voice of the speaker should be
clearly audible and not lost or distorted by other sounds or disturbances.
154.
These contentions advanced by Ld.Defence
Counsel challenging the very admissibility of the Hi8 Tapes are required to be considered on the basis of evidence of the prosecution witnesses, which has come up on record, keeping in mind the conditions laid down by Hon'ble Apex Court. It is required to be seen on the basis of evidence of the prosecution that the criterion laid down in Nilesh Dinkar's Case and Ram Singh's Case (supra) are satisfied or not. Only if the requisite conditions are fulfilled, the recordings relied upon by the prosecution can be considered as an admissible piece of evidence.
155.
I would deal with each and every condition, so laid
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on record.
156.
The first condition of admissibility of recorded
tapes is that voice of the speaker must be identified by the maker of the record or by others, who recognise his voice.
157.
In the present case, prosecution has sought to rely
upon 5 Hi8 Tapes and 2 DVs. The image and voice of accused Bangaru Laxman is recorded on 3 Hi8 Tapes ie. Hi8 Tape No.65, 81 and 87 which are Ex.PH4, Ex.PJ4, Ex.PK4 respectively and these three tapes were recorded through briefcase device Ex.PX8 as per the deposition of PW5 Sh.Aniruddha Bahal and PW15 Mathew Samuel. It was PW15 Mathew Samuel who had been operating this briefcase device and it was he who had recorded these three Hi8 Tapes as deposed by him and endorsed by PW5 Aniruddha Bahal. He during the course of his deposition as PW5, had categorically identified the image and voice of himself and Bangaru Laxman, the accused herein, in Hi8 Tape No.65 and 81, when the same was played in court. He had further identified the
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voice and image of himself as well as Bangaru Laxman and Aniruddha Bahal in Tape No.87, when the same were played in court.
158.
Further the voice and image of accused Bangaru
Laxman in these three Hi8 tapes has also been identified by an independent witness ie. PW12 Sh.Madho Prasad. The identification by PW12 Madho Prasad of the image and voice of Bangaru Laxman cannot be doubted, as he was working as Personal Assistant with Bangaru Laxman, when he was Minister of Railways. Thus, he had been conversant with his voice and image. Although, deposition of this witness was challenged by Ld.Defence Counsel stating that for his cross examination, this witness had brought copy of his statement recorded by CBI, which was proved on record as Ex.PW.12/DA. It had been contended that actual statement under section 161 Cr.P.C of this witness is Ex.PW.12/DB and there is substantial difference between the two, thus his deposition should not be relied upon.
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159.
I do not find any merits in the contentions
advanced by Ld.Defence Counsel. Nowhere this witness during the course of his deposition stated that he was provided a copy of his statement under section 161 Cr.P.C by the Investigating Officer. He during the course of his deposition clarified that part of Ex.PW. 12/DA was typed by he himself. Further in my considered opinion, this witness was examined by the CBI only for the purposes of identification of voice and image of Bangaru Laxman, as he had worked with him as his Personal Assistant and he had categorically identified the same in court. The dispute raised on behalf of accused regarding discrepancy in his statement recorded by the investigating officer under section 161 Cr.P.C is too trivial to be given an undue importance, so as to neglect the otherwise cogent, consistent and material deposition made by this witness in court, regarding identification of voice and image of the accused in Hi8 Tapes.
160.
Apart from that, during the course of
investigations, sample audiovideo of Bangaru Laxman were
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recorded as specimen, in presence of independent witnesses and the said specimen along with the questioned audio & video tapes were sent to APFSL,Hyderabad for opinion by the CBI. In view of the report of APFSL Ex.PW.19/A which is based on scientific and professional analysis, it is evidently clear that image and voice of Bangaru Laxman in the questioned tapes, matches with the specimen taken during the course of investigations.
161.
Consequently, the first condition stands fulfilled.
162.
So far as the second condition ie. accuracy of
the tapes recorded statement is concerned, the same has to be proved by the maker of the record, which in this case was PW15 Mathew Samuel.
163.
PW15 during the course of his deposition had
deposed that for the purposes of recording, he had used the brief case device, which was provided to him by PW5 Aniruddha Bahal, which fact was corroborated by PW5. PW15 further deposed that
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brandnew Hi8 Tapes were provided to him by PW5 Aniruddha Bahal, on which he himself had done the recordings. The factum that Hi8 Tape No.65 Ex.PH4, Hi8 Tape No.81 Ex.PJ4, Hi8 Tape No.87 Ex.PX4, were recorded through briefcase device Ex.PX8, has been substantiated through the report of APFSL Ex.PW.19/A. The report of the defence witness DW1 in this regard is inconsequential as he during the course of his deposition had categorically stated that he had not considered the “functional aspect” of the briefcase device. Further, this witness had not seen the Hi8 Tapes in question.
164.
Ld.Defence Counsel relying upon the deposition of
his expert ie. DW1 and his report Ex.DW.1/A and Ex.DW.1/B contended that the report of APFSL, Hyderabad is not conclusive and is not based on any scientific analysis.
165.
I do not find any substance in this contention of
Ld.Defence Counsel for obvious reasons. The same being:
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(a)
DW1 himself was not having any scientific background ;
(b)
He is not accredited to National Accreditation Board for Testing and Calibration” or ISO Laboratory / Organization ;
(c)
He had not conducted any recording on the brief case device Ex.PX8 ;
(d)
He had never used any such device in his career, as deposed by him in his crossexamination ;
(e)
As he did not verify the function aspects of the brief case device, his opinion on the same and the opposition recorded by him, against APFSL report is of no value and if he had neither seen nor examined Hi8 Tapes in question.
166.
In view thereof, I am of the opinion that the
accuracy of recordings of the tapes has been duly proved by prosecution through depositions of PW15 Mathew Samuel, the maker thereof, which is corroborated by PW5 Aniruddha Bahal. Further the same stands substantiated by the report of APFSL Hyderabad Ex.PW.19/A, wherein it was opined after taking sample C.C.No: 01 / 2011 Page No.112 of 155
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recordings from the briefcase device Ex.PX8, that the questioned tapes were recorded using the device.
167.
The second condition thus stands satisfied.
168.
So far as the third condition is concerned, the
report given by APFSL Hyderabad ie. Ex.PW.19/A is cogent and trustworthy. PW19 the Scientific Officer from APFSL, Hyderabad during the course of his deposition had categorically stated that he had seen Hi8 Tapes and also the briefcase device. He categorically deposed that he had done some sample recording to find out the workability aspect of the briefcase device. He categorically deposed that after frame by frame examination of the questioned tapes, he found the same to be in continuity and the same are neither tampered, nor doctored and no additions / deletions have been done in the same.
169.
The report of APFSL was sought to be challenged
by Ld.Defence Counsel on the grounds that it is humanly not
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possible for the expert to give said report in a short span of time. This contention of Ld.Defence Counsel appears to be contrary to their own suggestion, as they themselves had given a suggestion to this witness that they have deliberately delayed the report Ex.PW. 19/A which of course was denied by the witness. No doubt, during the course of cross examination, PW19 did state that the specimen recording taken by him using briefcase device Ex.PX8 were not filed by him along with the report. However, in my opinion, it is not a ground to discard the otherwise cogent and consistent report, as those specimen were recorded only to find out the workability of the briefcase device Ex.PX8 and the same were not supposed to be filled alongwith the report.
170.
Ld.Defence Counsel contended that deposition of
PW19 Sh.D.Venkateshwarlu should not be considered and report Ex.PW.19/A be rejected, as prosecution has withheld U.Ramamohan Rao, who as per PW19 assisted him in preparation of the report. He contended that the report is not based on scientific analysis and as per report of their expert DW1, the topics are doctored with
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insertions and interpolations.
171.
I do not find any merits in the contentions
advanced by Ld.Defence Counsel. So far as report of DW1 is concerned, the same is not based on the workability of the recording device Ex.PX8. The expert examined by the accused, had not sought any permission to examine the workability aspects of the briefcase device. Further, he had also not even seen the questioned Hi8 Tapes. On the other hand, deposition of PW19 inspires confidence as he categorically deposed that they had examined the exhibits, so received by them from CBI in a sealed condition using the technical and scientific aids they have at APFSL. PW19 clearly stated and the report Ex.PW.19/A also reveals that there is proper synchronization and there are no additions , alterations or interpolation in the tapes. Nothing could be elicited during the crossexamination of this witness conducted by the Ld.Defence Counsel, so as to raise any doubt with respect to authenticity of the report or competence of PW19 in examination of the exhibits.
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172.
Merely because the other expert was not examined
by the prosecution is no ground to reject the otherwise cogent and consistent report Ex.PW.19/A.
173.
In view thereof, the third condition regarding
admissibility of tapes also stands compiled with.
174.
So far as the fourth condition is concerned, the
same is fulfilled as the recordings on the tapes are relevant to the subject in issue as per the provisions of Indian Evidence Act.
175.
The fifth condition laid down is that the cassette
/ tapes must be carefully sealed and kept in safe or official custody. Ld.Defence Counsel had contended that prosecution has failed to establish on record that throughout the Hi8 Tapes and DVs were in safe custody and there was no occasion with anyone to tamper with the same.
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176.
In the present case, it apparent from the
deposition of PW5 Aniruddha Bahal that he used to keep Hi8 Tapes recorded by PW15 Mathew Samuel with him in his custody and noone else had any access to the same. This fact has been corroborated by PW15 Mathew Samuel, who stated that immediately after the recording, he used to hand over the Hi8 Tapes to PW5 Aniruddha Bahal, who used to keep it in safe custody. Both these witnesses despite being cross examined at length, maintained the stand that noone else in the office of Tehelka, had access to these Hi8 Tapes. It has been deposed by both these witnesses that “Operation Westend” was kept secret even from the other employees of Tehelka.com.
177.
Further, PW5 deposed that he then transferred
these Hi8 Tapes and DVs so recorded, in two bank lockers at Standard Chartered Bank, Malcha Marg, New Delhi,which only he used to operate. It has further come up on record that once the telecast was done, the Government ordered for “Commission of Inquiry” and these tapes were handed over to the Commission.
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178.
PW1 Sh.S.K.Dass Gupta, the designated officer,
who had worked as Secretary to the Commission and PW4 Sh.J.P.Mehta, who had assisted PW1 in handing over the documents and tapes to CBI, deposed that these tapes used to be kept in safe vaults in the office of the Commission. These tapes were subsequently taken into possession by CBI vide seizure memo Ex.PW.1/F, through PW20 DSP K.Y.Guruprasad, who deposed that the same were sealed and were kept in Malkhana of CBI, from where the same were sent to APFSL Hyderabad for examination.
179.
Merely because Malkhana register was not
produced on record, it cannot be presumed that the tapes were not kept in safe custody. At the time when the same were taken in custody from commission vide seizure memos Ex.PW.1/E, Ex.PW.1/F and Ex.PW.4/1, the same were sealed. This fact was deposed so, by PW 4 Sh.J.P.Mehta and PW20 Sh.K.Y.Guruprasad and seal after use was handed over to Sh.J.P.Mehta, which he produced in court.
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180.
The contentions advanced by Ld.Defence Counsel
that Ld.Public Prosecutor while recording of deposition of PW4 Sh.J.P.Mehta had taken five minutes break, during which they probably had handed over a seal, to be produced in court and prompted Sh.J.P.Mehta to depose to that effect, to my mind is devoid of any merits. There is no factual evidence produced on record by Ld.Defence Counsel of the fact that seal was infact given to the witness by the prosecution in court, to be handed over during the course of his deposition. Further, this contention of Ld.Defence Counse is devoid of any merits, as the fact that the seal which was used at the time when the tapes and other records were taken into possession from the Commission was infact handed over to Sh.J.P.Mehta, finds mention in the seizure memos. Ex.PW.1/E, Ex.PW.1/F and Ex.PW.4/1.
181.
Prosecution through the deposition of its
witnesses, more particularly, PW19 Sh.D.Venkateshwarlu as well as PW21 IO Inspector A.B.Chaudhary and PW22 Sh.B.Dass, has been able to establish on record that the exhibits when were sent
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from CBI for opinion to APFSL Hyderabad, the same were sent along with the specimen seal and specimen signatures of the attesting witnesses.
182.
It is also apparent from the deposition of these
witnesses that these exhibits after examination were returned to CBI in a sealed condition with the seal of APFSL and while sending them back, they had also sent the specimen seal, with which these exhibits were sealed during transit. There is nothing on record to show that these seals were ever tampered with by anyone. 183.
The deposition of PW5 and PW15 was challenged
by the accused stating that there is are contradictions, as PW15 Mathew Samuel stated that PW5 Aniruddha Bahal used to maintain a “log book” with respect to these tapes, whereas PW5 Aniruddha Bahal stated that he never maintained any such log book.
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184.
This contradiction to my mind, is too trivial to be
given an undue importance, so as to discard the otherwise cogent and trustworthy deposition of PW5 and PW15 in this regard. Further, it is apparent from the deposition of PW15 Mathew Samuel, who stated that he had seen PW5 Aniruddha Bahal making some entries with respect to these tapes. He had also stated that he himself was not mentioning any date or number on these tapes. PW5 Aniruddha Bahal did state that he had been mentioning the date of recordings on the tapes and also used to give numbers to these tapes. In my opinion, probably it is these entries only, which Aniruddha Bahal used to make on the tapes, to which PW15 Mathew Samuel had referred to, in his deposition. Even otherwise, there was no legal requirement of maintaining any log book on the part of PW5 Aniruddha Bahal.
185.
In view thereof, CBI through deposition of its
witnesses has been able to establish that throughout these tapes remained in safe custody and there was no occasion during which these tapes and DVs to come in the hands of any unauthorized
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person.
186.
Thus, fifth condition also stands fulfilled.
187.
So far the sixth condition is concerned, it is
apparent from the actual playing of the Hi8 Tapes in court, that the voice of the speaker is clearly audible and is neither distorted by other sounds nor by the disturbances. Whatever disturbances are there in Hi8 Tapes, the same have been properly explained by PW5 and PW15, which occurred due to break of signal owing to loose connection and this fact has also been corroborated and supported by the report of expert from APFSL Ex.PW.19/A.
188.
Consequently from the evidence on record,
prosecution has been able to establish that all the conditions laid down by Hon'ble Apex Court regarding admissibility of these tapes stands fulfilled, which leads to the only inference that the same are original and are without any interpolation and thus are admissible piece of evidence.
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189.
In view thereof, the recorded Hi8 Tapes and DVs
on which the CBI is relying upon can be considered being an admissible and relevant piece of evidence.
190.
I do find some force in the contentions advanced
on behalf of the accused that the recorded Hi8 Tapes and DVs ie. Ex.PH4, Ex.PJ4, Ex.PK4, Ex.PL4 and Ex.PM4 of Tape Nos. 65, 81, 87, 89 and 95 respectively and mini DVs Ex.PF3 and Ex.PG3 of Tape No. “E” and “B” respectively, in itself cannot form the basis to prove the charge against the accused without corroboration. 191.
Although in the precedents relied upon by
Ld.Defence Counsel ie. in Nilesh Dinkar's Case (supra), Hon'ble Apex Court has categorically held that once the conditions laid down are fulfilled, then the taperecorded device becomes admissible and being primary piece of evidence can be considered as such. However, as a matter of abundant caution, I would consider the oral evidence on record alongside the recordings, to see as to whether the
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same corroborates / substantiates / supplement the recorded facts on Hi8 Tapes.
192.
In all, the prosecution required to establish the
following ingredients of the offence under section 9 of Prevention of Corruption Act, with which the accused was charged : (i)
That accused accepted or obtained or agreed to accept or attempted to obtain from a particular person ;
(ii)
For himself or for any other person ;
(iii)
Any Gratification ;
(iv)
(a) and that he received the gratification as a motive or reward for inducing by exercise of personal influence any public servant, whether named or otherwise to do or forebear to do any official act ;
(v)
or in exercise of the official function of such public servant to show favor or disfavor to any person ;
(vi)
or to render or attempt to render any service or disservice to any person.
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193.
The oral evidence which has come on record in the
form of deposition of PW5 Aniruddha Bahal and PW15 Mathew Samuel, categorically establishes on record that accused Bangaru Laxman had met Mathew Samuel as “Chief Liasioning Officer” of M/s Westend International and Aniruddha Bahal as Alwyn D'Souza, President of M/s Westend International, which is even admitted by the accused in his statement under section 313 Cr.P.C. PW15 deposed that in his first meeting with Bangaru Laxman, he had introduced himself and told him about the purpose of his visit. He further deposed that he had handed over the brochures and pamphlets of M/s Westend International to Bangaru Laxman and told him that he wants his favor with Defence Secretary. PW5 deposed after going through the recorded tapes, more particularly Ex.PX5 ie Hi8 Tape No.65, that Bangaru Laxman told him that “he will find out what he (defence secretary) thinks..” PW5 deposed that in his next meeting in first week of January 2001, he has given Rs.1 lakh to Bangaru Laxman and on being asked about the balance payment, Bangaru Laxman had stated that the same, they can pay C.C.No: 01 / 2011 Page No.125 of 155
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in dollars. He identified the image and voice of Bangaru Laxman, while handing over the currency notes to him, when the Hi8 Tape No.81 Ex.PJ4, was played in court. 194.
This deposition of PW15 was corroborated by
PW5 Aniruddha Bahal, who during the course of his deposition had deposed that he was working as Editor (Investigations) of Tehelka.com, to whom Mathew Samuel was reporting and this fact was also told to him by Mathew Samuel on that very day. Further, the Hi8 Tapes recorded by Mathew Samuel, as per deposition of PW5 was handed over to him.
195.
It is contended by Ld.Defence Counsel that in the
transcript of Hi8 Tape No.65 Ex.PW.4/A at point B6, it is wrongly recorded that accused said : “I know him..”, whereas, in the tape he was heard saying : “I do not know him..” It is submitted that when accused had clearly told PW15 that he does not know the Defence Secretary, therefore, there is no question of exercise of any personal influence by the accused over Defence Secretary. He further
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contended relying upon HiTape No.87 Ex.PK4, transcript of which is Ex.PW.4/C, which is the recording of the meeting dated 06.01.2001 between Mathew Samuel, Aniruddha Bahal and Bangaru Laxman, that throughout this meeting, the centrepoint of the discussion was an “appointment”. He contended that the money, if any, was given, the same was for an “appointment” and not for exercise of personal influence by the accused over any public servant.
196.
I have considered the submissions advanced &
have perused the deposition of the witnesses, viewed the CDs ie. Copies of the tapes and have gone through the transcripts.
197.
Before adverting to adjudicate upon the recordings
on the Hi8 Tapes which for the reasons stated hereinabove are found to be admissible piece of evidence, I would like to add that to know what actually transpired between the accused and Mathew Samuel PW15, the whole conversation is to be considered. It is time tested principle that for the purposes of evaluation of evidence, the statement of witness or the recording should be considered as a
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whole to find out the intention of the parties to the conversation. Hypertechnical approach of taking a single sentence out of context from the whole of conversation and to attach undue importance to the same, may lead to miscarriage of justice. A single sentence from here and there should not be picked to gather the intention of parties as the same would make the rest of the conversation redundant or superfluous.
198.
In the backdrop of above, I have viewed the CD of
Hi8 Tape No.65 and have also gone through the court observation recorded by Ld.Predecessor of this court, during examination in chief of PW5. It is apparent that the audio at point 40:54 is not very clear when accused responded to the statement of PW15 that : “I need your favor to Defence Secretary..” It was observed by Ld.Predecessor of this court that as per the law, a proposition favorable to accused, may be taken at appropriate stage, as it is not clear from the voice as to whether Bangaru Laxman at this point had said : “I know him..” or “I do not know him..”
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199.
However, that in itself cannot be a ground to infer
that Bangaru Laxman was not in a position to exercise personal influence and had not assured for any assistance or that the amount of Rs.1 lakh, if any was given to him for appointment and not for exercise of any personal influence, as suggested by Ld.Defence Counsel during arguments. 200.
Intention is a state of mind. The same has to be
gathered or inferred on the basis of the conduct of the person in the form of his mannerism or conversation and surrounding circumstances. In the present case, the intention of the accused is to be gathered from the overall conversation which he had with the representatives of M/s Westend International, as is depicted in the Hi8 Tapes no.65, 81 and 87 ie. Ex.PH4, PJ4 and PK4 respectively. Had accused no intention to favor the representatives of M/s Westend International for promotion of their product, then at first instance, he should not have entertained them, as he was not the concerned person for evaluation / approval of any product for Indian Army.
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201.
Secondly, accused had no business as President
of a political party, which was the main constituent of NDA Government, to look into the brochures and pamphlets of a defence related product, to which he himself was not related officially. But deposition of PW15 and the visuals in the Hi8 Tape No.65 reveals that he look at the brochures of M/s Westend International. He even admitted having seen the pamphlets during the meeting dated 06.01.2001 as revealed in the visuals in Hi8 Tape No.87 and the transcripts thereof.
202.
Thirdly, if he had no intention to assist and help
the representatives of M/s Westend International in promotion of their product HHTI's, then he would not have asked as to with whom the same is pending consideration. Further, he would not have told to Mathew Samuel to let him find out, as to what does he (defence secretary) thinks and would not have asked Mathew Samuel to meet him after 30th. However, all these facts have been proved on record by prosecution to have taken place through
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deposition of PW15 coupled with the depiction thereof, in Hi8 Tape No.65 Ex.PH4. 203.
Fourthly, if the accused never had any intention
to exercise any influence over any public servant in favor of M/s Westend International for getting supply orders for HHTI's, then he had no business to tell PW15 Mathew Samuel when he met him on 05.01.2001, that “maine who... maine usko keh diya hai..” and that “message has been passed...”. This fact has been proved on record by PW15 Mathew Samuel coupled with the recording of Hi8 Tape no.81 Ex.PJ4 and the transcript thereof.
204.
Fifthly, if the accused was neither interested in
any conversation with the representatives of M/s Westend International, nor was having any intention to exercise any personal influence in their favor over any public servant, as has been argued by Ld.Defence Counsel, then definitely he had no business to accept any money from PW15, being in the position which he was holding at that time. However from deposition of PW15 Mathew Samuel C.C.No: 01 / 2011 Page No.131 of 155
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and on the basis of recordings of Hi8 Tape No.81 Ex.PJ4, accused has received bundles of currency notes amounting to Rs.1 lakh from Mathew Samuel and kept the same in the drawer of his table.
205.
No doubt, the acceptance of Rs.1 lakh by the
accused has been challenged by the Ld.Defence Counsel raising various arguments. On one hand, it is contended that no money was taken by the accused from PW15 at all. On the other hand, it is submitted that if any sum of Rs.1 lakh was received by the accused, the same was for an “appointment” and not as a motive or reward for exercise of any personal influence. Another line of defence, advanced was that this amount was given on account of party fund for which even a receipt was also issued by the party office in favor of Mathew Samuel Ex.PW.15/2, which he deliberately failed to collect.
206.
All these stands taken by Ld.Defence Counsel are
not consistent to the evidence on record and have been raised as an afterthought in an attempt to circumvent the clear and cogent
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deposition of prosecution evidence on record.
207.
First stand taken by Ld.Defence Counsel that no
money was accepted by the accused at all is belied from the deposition of PW15 Mathew Samuel and the recordings on Tape No.81 Ex.PJ4, coupled with the deposition of PW5 Aniruddha Bahal. It is apparent from this evidence on record that they had been keeping an account of the money spent by them during this operation. The amount of Rs.1 lakh paid to Bangaru Laxman by PW15, was duly accounted for and the same was taken from the imprest account of M/s Buffalo Networks Limited. The same is reflected in the accounts Ex.PW.5/H, which has been duly verified by the Chartered Accountant of M/s Buffalo Networks namely Sh.Sudhir Verma, who appeared in the witness box as PW23 and deposed of having verified Ex.PW.5/H from the accounts of the company. 208.
The contention of Ld.Defence Counsel that as
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during the course of their crossexaminations had admitted the fact that there is no mention of Rs.1 lakh given to accused Bangaru Laxman, in the Ledger Account Ex.PW.23/DY, therefore the version of prosecution is false, to my mind is not worthy of any credit. Merely because in the Ledger Account Ex.PW.23/DY name of accused as recipient of Rs.1 lakh is not mentioned, the same does not diminish the quality of evidence which has come up on record through the deposition of other witnesses to the effect that this amount was infact taken by the accused from PW15 Mathew Samuel. Accused himself had admitted though halfheartedly, of having received this amount which is claimed to have been received as “party fund”.
209.
Second stand taken by Ld.Defence Counsel that
this amount was received by the accused for an “appointment” relying upon the conversation which took place between Mathew Samuel and Aniruddha Bahal on one hand and accused on the other in the meeting held on 06.01.2001 recorded on Hi8 Tape No.87 Ex.PK4. This stand of Ld.Defence Counsel does not appeal to
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reason, as the money was received by the accused on 05.01.2001 which was recorded on Hi8 Tape No.81 Ex.PJ4. From the conversation in this meeting when the money was accepted, it is apparent that there is no question of giving this count to the accused for any appointment. Ld.Defence Counsel has tried to bring in the facts of a subsequent meeting, that too in a distorted fashion and to superimpose the same on the meeting, which had already taken place. Further, his contention does not appear to be plausible as it is evident from depositions of PW5 Aniruddha Bahal, PW15 Mathew Samuel and facts recorded in Hi8 Tape No.81 and 87 Ex.PJ4 and Ex.PK4 that accused has asked for the balance amount and had agreed to get the same in “dollars”.
210.
Third stand taken by Ld.Defence Counsel was
that this amount of Rs.1 lakh if any, received by the accused, was for party fund and a receipt Ex.PW.15/2 was also issued in lieu thereof. He contended that in Hi8 Tape No.81 Ex.PJ4, from the recorded facts, it is evident that Mathew Samuel while handing over this amount, had said that the same is towards “New Year Party /
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New Year Party Gift / New Year Party Fund”.
211.
This contention of Ld.Defence Counsel does not
find favor with me as such “illgotten money” is not received or given by using the depiction that it is being taken or given as “bribe”. The same is given using camouflaging words which were done by PW15. 212.
The defence sought to be raised on behalf of the
accused that this amount was paid by Mathew Samuel as “party fund” to Bhartiya Janta Party (BJP), for which a receipt Ex.PW.15/2 was also issued, which Mathew Samuel failed to collect from the Party Office, appears to me as an attempt on the part of accused to save himself. PW15 Mathew Samuel during the course of his deposition had categorically stated that there is no question of collecting any such receipt as he had not given this money towards “party fund” but as it was a bribe, there is no question of collection of any receipt. He had denied the suggestion that he had gone to the party office at 11 Ashoka Road, to pay this amount. He had maintained throughout this deposition that this amount was paid by
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him to Bangaru Laxman at his office at 3, Kushak Road, New Delhi. Had the same been the party fund as claimed by the accused, there was no question of his having accepting the same, as admittedly he was not the “treasurer” of Bhartiya Janta Party, but the President.
213.
In the light of evidence which has come up on
record, the version given on record by PW18 T.Satyamurthy (the approver) appears to be correct and cogent, that after telecast of the tehelka tapes, the party had called for a meeting to undertake a damage control exercise and it was in that meeting, that it was decided to have this amount shown as “party fund”. He deposed that it was decided to have a receipt to that effect issued.
214.
The plea of the defence is thus rejected being
inconsistent with the evidence on record.
215.
Having regards to these factual aspects which has
come up on record and which also stands corroborated through deposition of PW18 T.Satyamurthy to have happened like the way
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it has been deposed so, by PW15 Mathew Samuel and recorded on Hi8 Tapes, the intention of the accused towards acceptance of Rs.1 lakh becomes evident, that it has been taken after assuring the representatives of M/s Westend International that the “message has been passed...” Meaning thereby that the concerned officer of Ministry of Defence has been influenced to show favor.
216.
Further, the discussion as depicted in Hi8 Tapes
no.81 and 87 Ex.PJ4 and Ex.PK4 between accused and representatives of M/s Westend International reveals that accused did ask for balance payment to be made to him in “dollars”, goes on to fortifies the only inference about his intention which was to get the “gratification” was with a motive to exercise his influence over the officers of Ministry of Defence. The factum of demand of the balance amount on the part of accused from the representatives of M/s Westend International has also been proved from the deposition of PW5 Aniruddha Bahal and PW15 Mathew Samuel, who had received telephone calls from PW18 T.Satyamurthy, demanding the balance on behalf of the accused.
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217.
Apart from what has been stated hereinabove on
the basis of prosecution evidence, it has come up on record from the deposition of PW11 Col.Sher Bahadur Bhandari and PW14 Brigadier A.P.Singh that during the period of December 2000 and February 2001, they had received the brochures of M/s Westend International with respect to HHTI's at Weapons and Equipments DivisionIV of Army Headquarters. As per PW14, the same was sent to Infantry Directorate for analysis. It has been corroborated by PW11 that when the same was received from Weapons and Equipments Div.4, the paper evaluation of HHTI's from M/s Westend International were recommended and the recommendations duly approved were sent back to WE Division4 vide letter Ex.PW.11/A. PW14 deposed that when the same were received back from the Infantry Directorate after analysis, the same were marked to DDG (WE) vide Ex.PW.14/B. These documents were collected by CBI during the course of investigations from PW16 K.Seshaiah, who was posted as Dy.Secretary with Ministry of Defence. These facts goes on to establish that representatives of
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M/s Westend International, which though was a fictitious company had infact sent their brochures / pamphlets for evaluation and approval to the Army Headquarters.
218.
It is for pushing this product in their favor which
as per deposition of PW11 and PW14 was pending consideration with Ministry of Defence at relevant point of time, that PW15 and PW5 had approached the accused. The evidence on record thus reveals that accused did assure them for extending favor by exercising his influence over officers of Ministry of Defence, as discussed hereinabove.
219.
The deposition of PW15 Mathew Samuel which is
duly corroborated by the accounts kept by M/s Buffalo Networks, the audio / video visuals recorded in Hi8 Tapes, clearly establishes that accused did accept this amount of Rs.1 lakh as a motive or reward, for exercising his influence on the public servant for getting a supply order for HHTI's, in favor of M/s Westend International.
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220.
Ld.Defence Counsel in his quest to demolish the
deposition of PW15 and the recorded Hi8 Tapes, contended that the transcriptions of these tapes do not depict the correct and actual words as stated in the tapes. He contended that even the investigating officer PW21 Sh.A.B.Chaudhary and PW19 D.Venkateshwarlu, during the course of their crossexamination, had admitted that there are some discrepancies in the transcripts. Ld.Defence Counsel contended that in the transcript of Tape No.97, the defect is glaring as the portion marked from X to X1 is duplicated and by no stretch of imagination, it can be inferred that the persons would stated the same facts twice, nor the same is depicted so, in the Tape Ex.PG3. In support of his contention, Ld.Defence Counsel had relied upon the law laid down in “Nandia Vs. Emperor” reported as AIR 1940 Lahore 457 and stated that whole of statement of the witness should be discredited on this aspect.
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221.
I have considered the submissions advanced and
have perused the precedents relied upon by Ld.Defence Counsel. In the said judgement itself, it has been held that where the falsehood is merely an embroidery to a story, that would not be enough to discredit the whole of the witnesses evidence, but if the falsehood is on a major point in the case or if one of the essential circumstances of the story told is clearly unfounded, then that is enough to discredit the witness altogether. Even otherwise, the maxim falsus inuno, falsusinomnibus, is not of universal application. It has been held in a number of cases by Hon'ble Apex Court that it is not expected from a witness to give the exact and concise version of the facts observed and perceived by him. If in the description of the actual and material facts, some embroidery has been cast around the fabric of facts, then the whole deposition of the witness is not to be discarded. In the present case, the discrepancy has been pointed out only in the transcription of the tapes. Transcriptions in itself are not the material piece of evidence, the same have been made only for the purposes of administrative convenience of investigations and trial, as it is not always possible to play the recorded tapes for
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evaluation of evidence. In view thereof, just because there are some discrepancies in the transcription of the recorded tapes, the same is not a sufficient ground to discard the otherwise cogent and consistent deposition of PW5 Aniruddha Bahal and PW15 Mathew Samuel.
222.
Ld.Defence Counsel during the course of
arguments had brought to my notice some contradictions in the deposition of PW5 Aniruddha Bahal on one hand and that of PW15 Mathew Samuel on the other hand, with respect to maintenance of logbook of Hi8 Tapes. PW5 stated that he never maintained any such log book, whereas, PW15 during the course of his cross examination had stated otherwise. Besides this, another contradiction has been brought to my notice by Ld.Defence Counsel with respect to the telephone calls made to representatives of M/s Westend International, demanding the balance amount of illegal gratification. PW5 during the course of his cross examination had stated that T.Satyamurthy had made calls on behalf of accused Bangaru Laxman, whereas PW15 Mathew Samuel stated that he
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had received calls from accused Bangaru Laxman as well as by T.Satyamurthy demanding the balance amount of gratification.
223.
These contradictions to my mind are too
insignificant to be given such importance, so as to throw overboard the otherwise cogent and consistent deposition of PW5 and PW15, which is duly corroborated by the recorded evidence, in the form of Hi8 tapes which has been found to be admissible fulfilling all the necessary requirements.
224.
Further the capacity and power of perception of
the facts, their retention and thereafter description in court at a later stage, differs from person to person. Same yardstick cannot be adopted to evaluate the deposition of all the witnesses coming from different backgrounds.
225.
In view thereof, this contention of Ld.Defence
Counsel is also rejected being devoid of merits.
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226.
Ld.Defence Counsel during the course of
arguments had contended relying upon the crossexamination conducted by them with respect to PW2 A.D.Tiwari, PW10 S.Ingarsal, PW15 Sh.P.K.Gautam as well as the Investigating Officer ie. PW21 Inspector A.B.Chaudhary, that the necessary guidelines laid down by CBI in “CBI Manual” ie. Annexure 27B of Ex.PW.19/DA, for the purposes of taking specimen audiovideo recordings, were not complied with, therefore the same could not have been used to the purposes of comparing it with the questioned tapes. 227.
This contention of Ld.Defence Counsel is also
devoid of any merits, in view of the fact that during his cross examination, Inspector A.B.Chaudhary categorically mentioned that these guidelines were implemented with effect from the year 2007 as time of its implementation is mentioned in Ex.PW.19/DA itself, whereas, in the present case specimen audiovideo samples were taken prior to the year 2007.
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228.
Even otherwise, the guidelines so laid down in CBI
Manual being procedural, are only directory and not mandatory. It is well established principle that procedural laws / policies are made to supplement the cause of justice and not to supplant the same. Procedural guidelines are not be given that importance so that they become stumbling block for the otherwise cogent and consistent description of facts leading to unearthing of truth, for which the whole exercise is undertaken. In view of the categorical deposition of PW2, PW10 and PW17, the Scientific Officers posted at CFSL, with assistance of whom IO Inspector A.B.Chaudhary had taken the specimen in presence of the independent witnesses ie. PW3, PW6 and PW13 that all the necessary precautions were taken at the time of recording the specimen audiovideo samples, I do not see any reason to doubt the authenticity of these specimen taken during the course of investigations.
229.
Further, no objection of any sort was stated by the
expert from APFSL ie. PW19 in his report Ex.PW.19/A about any shortcoming in these specimens when the same were being used by
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him for comparison with the questioned tapes. Consequently, this argument of Ld.Defence Counsel is also turned down.
230.
Ld.Defence Counsel in an attempt to wriggle out of
the prosecution evidence on record, had taken a number of stands. Accused during the course of his statement under section 313 Cr.P.C did state that the representatives of M/s Westend International had lured him by giving inducements and he fell in the trap. Another stand taken by the defence is that no illegal gratification whatsoever, was accepted. Third stand taken by the defence was that the amount, if any, received was not for a motive or reward for exercise of any personal influence on a public servant, rather it was for an appointment which is no offence. Fourth stand taken by the defence was that the amount, if any, received was on account of “party fund”. Fifth stand taken by the defence was that Mathew Samuel had deposited this amount with Bhartiya Janta Party at the party office at 11, Ashoka Road and deliberately did not collect the receipt thereof, i.e. Ex.PW.15/2.
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231.
All these stands taken by the defence to my mind
have been raised as an afterthought, in an attempt to thwart the case of the prosecution. The multiplicity of these stands by itself destroys the bonafide of the accused. These stands on the face of it are unbelievable and inadequate as the accused failed to prove any of these defences by leading any cogent and consistent evidence to that effect. Rather, the prosecution evidence on record belies all these stands / pleas raised by the accused in his defence.
232.
Ld.Defence Counsel contended that the present
operation was conducted at instance and on behest of the venture capitalists to make money out of same. He further contended that this project was funded by Hindujas and other persons to suit their nefarious designs and was executed by Aniruddha Bahal and others, who made huge amount of profits in the form of “royalty” even without writing the book, for which the same was granted.
233.
To my mind, these contentions of Ld.Defence
Counsel have been raised to vent their feelings and exasperation,
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without any concrete evidence to support them. Nothing has been brought on record by the accused in his defence, so as to establish on record that funds for carrying out this operation were provided with any particular motive or intention. Further no link could be established between the role of Aniruddha Bahal in the present operation and his earnings in the form of royalty. Consequently, I do not find any force in this contention of Ld.Defence Counsel that the sole motive or intention of Tehelka people behind carrying out this operation was to make money.
234.
Last attempt made by Ld.Defence Counsel in
support of his pleas was that, the investigations of the present case were politically motivated and were not conducted in a fair manner to find out the financial aspects of M/s Buffalo Networks. He contended that the Congress Party did use the Tehelka tapes in the general elections held in the year 2004, which goes on to establish that it was Congress Party or the persons having interest therein, who had funded this project, wherein accused was framed, whereas, he never had any disposition to commit any offence.
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235.
I do not find much waters in these contentions of
Ld.Defence Counsel. So far as propaganda of a particular political party against the other is concerned, the same is beyond the scope and purview of the present adjudication. Even otherwise, it is a matter of common knowledge that in any healthy democracy, a political party raises before the general public all the contentious issues and the shortcomings of its rival party, for the people to decide whom to vote for. The material collected on record does not suggest any shortfall in the investigations. It is a settled principle of law that for any shortcoming or doubt in the investigations, benefit cannot be given to the accused when all other facts leading to the establishment of necessary ingredients of the offence, with which he has been charged, are otherwise proved on record by cogent and consistent evidence of the witnesses.
236.
In the wake of evidence on record and the
necessary inference which it is leading to, that accused did entertain the representatives of M/s Westend International with intention to
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exercise his influence on officials of Ministry of Defence, after coming to know of the quantum of the supply order and did accept “illegal gratification” as a motive or reward for the same and had even asked for the balance amount. The argument raised by Ld.Defence Counsel that the Origin of crime took place in the minds of Tehelka people and that accused had no predisposition to commit any wrong, pales into insignificance.
237.
Evidence on record establishes that it was not the
idea of crime which originated in the minds of Tehelka people. The origin was of the idea of exposure of corruption in procurement of defence related products. They had acted as whistleblowers only. It was accused Bangaru Laxman, who as President of Bhartiya Janta Party, despite being not related to the process of procurement or evaluation of any such product for Indian Army, did entertain the representatives of M/s Westend International with the belief that theirs is an actual company dealing with HHTI's, assured them that he will find out what Defence Secretary think and thereafter told them that message has been passed and accepted gratification.
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Thus, the origin of idea and disposition to commit wrong came to the accused, immediately after meeting the representatives of M/s Westend International. 238.
Prosecution through the deposition of PW15
Mathew Samuel, duly corroborated by the taperecorded evidence on Hi8 Tape No.81 Ex.PJ4, coupled with depositions of PW5 Aniruddha Bahal and PW23 Sudhir Verma who had verified the imprest account Ex.PW.5/H has been able to establish on record that accused Bangaru Laxman, the then President of Bhartiya Janta Party on 05th January 2001 at his residential office at 3, Kushak Road, New Delhi, had accepted a sum of Rs.1 lakh from Mathew Samuel, as Chief Liasioning Officer of M/s Westend International and has further agreed to accept the balance amount of gratification in dollars for himself.
239.
It has further been established on record by the
prosecution through the deposition of PW15 Mathew Samuel and PW5 Aniruddha Bahal, coupled with the taperecorded evidence of
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HiTape Nos.65, 81 and 87 Ex.PH4, Ex.PJ4 and Ex.PK4 respectively, that this gratification was accepted by the accused from representatives of M/s Westend International as a motive or reward for influencing the officers of Ministry of Defence, the Public Servants, for exercise of their favor towards M/s Westend International to promote their product ie. HHTIs.
240.
Thus, all the necessary ingredients of the
offence under section 9 of the Act, have been duly proved and established on record by the prosecution against the accused, as the evidence on record is consistent with guilt of accused and not his innocence.
FINAL VERDICT: 241.
If the story unfolded by CBI through deposition of
its witnesses is taken to its logical conclusion, the following would emerge :
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242.
That accused Bangaru Laxman on 05.01.2001 had
accepted illegal gratification of Rs.1 lakh from Mathew Samuel, as Chief Liasioning Officer of M/s Westend International and has further agreed to accept the balance amount of illegal gratification in dollars, as a motive or reward for exercise of personal influence on the the public servants working with Ministry of Defence, to show favor for award of a supply order in favor of the abovementioned company of HHTI's to Indian Army.
243.
Having regards to these facts and circumstances, I
am of the considered opinion that CBI had been able to establish the necessary ingredients of offence under section 9 of Prevention of Corruption Act,1988 against accused Bangaru Laxman beyond reasonable doubt.
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244.
Accused Bangaru Laxman is accordingly
convicted for offence punishable under section 9 of Prevention of Corruption Act,1988.
245.
Let accused be heard on point of sentence.
Announced in the Open Court
On the 27 Day of April, 2012. th
(KANWALJEET ARORA)
SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.
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