Bangaru Laxman Bribery Case Judgement Tehelka Sting Operation-Operation Westend

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 residingat : 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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Dated : 27.04.2012.

: 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 13th March 2001, Zee T.V., a television

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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 17th July, 2006.

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

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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,

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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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

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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.No

Date Place of Meeting Meeting between

Tape Number

1. 23.12.2000 Office of Sh.Bangaru

Laxman

Mathew Samuel and N.Umamaheshwar Raju

Tape No.95


Laxman

Mathew Samuel and T.Satyamurthy

Tape No.65


Laxman

Mathew Samuel and Bangaru Laxman

Tape No.65

4.

02.01.2001A restaurant in Chanakyapuri,

New Delhi.

Ma1thew Samuel and T.Satyamurthy

Tape “B”


Laxman

Mathew Samuel and Bangaru Laxman

Tape No.81

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6. 05.01.2001 Hotel Oberoi, New Delhi.

Aniruddha Bahal and T.Satyamurthy.

Tape “E”


Laxman.

Mathew Samuel, Aniruddha Bahal and Bangaru Laxman.

Tape No.87

8. 07.01.2001 Residence of Sh.T.Satyamurthy

in Sarvpriya Vihar, New Delhi.

Mathew Samuel and T.Satyamurthy.

Tape No.89

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

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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

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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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Dated : 27.04.2012.

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

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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

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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

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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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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.

FIRST SET OF WITNESSES:

55. 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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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.

SECOND SET OF WITNESSES:

58. 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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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.

THIRD SET OF WITNESSES:

61. 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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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.

FOURTH SET OF WITNESSES:

72. 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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

continuous without any additions or deletions.

FIFTH SET OF WITNESSES:

76. 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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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.

C.C.No: 01 / 2011 Page No.53 of 155


Dated : 27.04.2012.

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


Dated : 27.04.2012.

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


Dated : 27.04.2012.

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

C.C.No: 01 / 2011 Page No.56 of 155


Dated : 27.04.2012.

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

C.C.No: 01 / 2011 Page No.57 of 155


Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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


Dated : 27.04.2012.

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.

C.C.No: 01 / 2011 Page No.61 of 155


Dated : 27.04.2012.

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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Dated : 27.04.2012.

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.

C.C.No: 01 / 2011 Page No.63 of 155


Dated : 27.04.2012.

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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Dated : 27.04.2012.

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

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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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

C.C.No: 01 / 2011 Page No.72 of 155


Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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

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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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.

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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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

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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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

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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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

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Dated : 27.04.2012.

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

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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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Dated : 27.04.2012.

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

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Dated : 27.04.2012.

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

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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

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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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

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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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

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Dated : 27.04.2012.

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

down, one by one, on the basis of deposition of prosecution witnesses

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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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 briefcase 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

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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

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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

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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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Dated : 27.04.2012.

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

PW23 Sudhir Verma as well as the investigating officer PW21,

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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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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Dated : 27.04.2012.

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 CourtOn the 27th Day of April, 2012.

(KANWALJEET ARORA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.

C.C.No: 01 / 2011 Page No.155 of 155

Bangaru Laxman Bribery Case Judgement Tehelka Sting Operation-Operation Westend

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