Delhi District Court
Cbi vs . Narender Singh on 5 April, 2016
IN THE COURT OF SHRI RAMESH KUMAR: SPECIAL JUDGE
(PC ACT) (CBI) SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 56/2011
RC No. AC3/2004/A0006/CBI/ACU-III
U/s 7,9 and 13(2) r/w 13(1)(d) of the Prevention of
Corruption Act, 1988
Unique ID No.02406R0747362006
CBI Vs. Narender Singh
Son of Late Goga Singh,
Assistant Financial Advisor (02)
Finance Division, Ministry of Defence
New Delhi
Presently r/o:- B-10, Pandara Road, New
Delhi-110003
Date of Institution : 14.11.2006
Date on which case was received on
Transfer by this Court : 24.12.2011
Date of framing of charge : 06.10.2009
Date of conclusion of arguments : 05.04.2016
Date of Judgment : 05.04.2016
Memo of Appearance
Sh. Atul Sharma, Learned Special PP for CBI.
Sh. Bharat Bhushan, Learned Counsel for accused Narender Singh.
JUDGMENT
1 Accused Narender Singh has been facing trial for the offences punishable u/s 7 and 9 of PC Act 1988 and also for the offence of criminal misconduct punishable u/s 13 (2) r/w 13 (1) (d) of the Prevention of CC No. 56/2011 CBI Vs Narender Singh 1 of 71 Corruption Act, 1988. The charge is that, during the year 2000-2001, accused Narender Singh son of Late Sh Goga Singh, being a public servant, while working and posted as Assistant Financial Advisor (02), in Finance Division of Ministry of Defence at New Delhi, accepted Rs. 10,000 as gratification, other than legal remuneration, as a motive of reward from Sh Mathew Samuel for showing favour to him and his firm M/s West End International for facilitating, placing of order in favour of his firm for procurement of defence equipments i.e. HHTIS. Further, that during the aforesaid period and place while working and posted as such public servant, he accepted Rs. 10,000/-, from Mr Mathew Samuel, as illegal gratification for showing favour to him and his firm M/s West End International, by getting the order placed for procurement of defence equipment, by inducing his higher authorities by exercising his personal influence. Further, that during the aforesaid period and at place accused, being public servant, while working as Assistant Financial Advisor (02) in Finance Division of Ministry of Defence, at New Delhi, accepted Rs. 10,000/- as gratification, other than legal remuneration, from Mr Mathew Samuel, for showing favour to him and his firm M/s West End International, by getting the order placed, in favour of his firm for procurement of defence equipments i.e. HHTIs and thereby accused obtained pecuniary advantage for himself by abusing his position as such public servant.
2 After filing of the charge sheet in the court and after hearing arguments on charge, vide order, dated 25.09.2009, accused was ordered to be charged for offences punishable u/s 7, 9, 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988. Charge was framed against accused on 06.10.2009 for the offences u/s 7, 9, 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988 to which accused had pleaded not guilty and claimed trial.
CC No. 56/2011 CBI Vs Narender Singh 2 of 71 3 In the present matter, prosecution has examined PW1 to PW23
in all. They are PW1 Sh. S.K. Dasgupta, PW2 Sh. Brij Kishore Sharma, PW3 Ashok Sharma, PW4 Sh. Shankar Sharma, PW5 Sh. Rajender Singh, PW6 Sh. M.C. Luther, PW7 Sh. Tarunjit Tejpal, PW8 Sh. K. Seshaiah, PW9 Sh. Aniruddha Bahal, PW10 Sh. Vinu T. Abraham, PW11 Sh. A.D. Tiwari, PW12 S. Ingarsal, PW13 Colonel Sher Bahadur Bhandari, PW14 Brigadier Amrender Pal Singh, PW15 Arnab Pratim Dutta, PW16 Mr. Mathew samuel, PW17 Sh. S.N. Mahajan, PW18 Sh. Arun Sharma, PW19 Ms. Manjulika Gautam, PW20 D. Venkateswarlu, PW21 Sh. K.Y. Guru Prasad, PW22 Sh. P.K. Tripathi and PW23 Sh. Biswajit Das.
4 PW-1, Sh. S.K. Dasgupta, has deposed that he had retired, in the month of August 2005, as Director (Admn.), Dept.of personnel & Training, Ministry of Personnel, Public Grievances and Pension, Govt. of India, New Delhi. He had worked with Justice K. Venkatswami Commission of Inquiry as Secretary to the Commission and, subsequently, also worked as Additional Charge of Registrar of the Commission. The commission was constituted by the gazette notification, dated 24/03/2001, issued by Govt of India. The terms of reference of the Commission of Inquiry was mentioned in para 2 of gazette notification. This witness has proved the Photocopy of gazette notification as Ex.PW1/A. Hon'ble Justice K Venkatswami, Retired Judge of Supreme Court was appointed as the Chairman of the Commission by the gazette notification Ex.PW1/A. He was posted to the Commission on 29/03/2001 and appointed Secretary to the Commission on 30/03/2001. Hon'ble Justice K. Venkatswami resigned the Commission on 25/11/2002. After his resignation, Hon'ble Justice S.N. Phukan, Retired Supreme Court Judge, was appointed as the Chairman of the Commission in January 2003.
CC No. 56/2011 CBI Vs Narender Singh 3 of 71 5 PW-1, Sh. S.K. Dasgupta, has further deposed that Hon'ble
Justice S.N. Phukan started the inquiry from the stage Hon'ble Justice K. Venkatswami had completed. Hon'ble Justice S.N. Phukan took up the case of procurement of 15 defence equipments as per (a) of the terms of reference of the gazette notification dated 24/03/2001. Arguments were heard in camera in 13 cases and the remaining two were kept for public hearing. Meanwhile, the commission also visited Pune, Ahmednagar and Mumbai to inspect the defence equipments involved in the 15 cases. Finally, the commission submitted an interim report on the procurement of defence equipment as per (a) of the terms of reference of gazette notification, dated 24/03/2001, (Ex.PW1/A) on 04.02.2004. After submission of the interim report, the Commission decided to hear the arguments of the other notices involved in the case as per the remaining terms of the reference of gazette notification Ex.PW1/A. The hearing was deferred on the plea of the Additional Solicitor General, who required more time to go through the evidence recorded in the case.
6 PW-1, Sh. S.K. Dasgupta, has further deposed that, meanwhile the Govt of India, vide notification dated 08/10/2004, wound up the Commission w.e.f. 04/10/2004. He proved the photocopy of notification as Mark Ex.PW1/B. Subsequently, vide letter no. 403/19/2001-AVD IV, dated 08.10.2004, issued by Govt. of India, Ministry of Personnel, Public Grievances and Pensions nominated him (PW1) the designated officer for winding up the Commission. The letter running into two pages was signed by Ms Manjulika Gautam, Addl Secy to Govt of India. Photostate copy of the letter is marked Ex.PW1/C. 7 PW-1, Sh. S.K. Dasgupta, has further deposed that, accordingly, he took under his charge all the records, documents and exhibits to keep in CC No. 56/2011 CBI Vs Narender Singh 4 of 71 safe custody on behalf of Deptt of Personnel and Training, vide D.O. No. 403/9/2004-AVD IV, dated 29/10/2004, the Director, CBI was approached by the Deptt. Of Personnel & Training. The letter was signed by Ms Manjulika Gautam, Addl Secy to the Govt of India and the copy of said letter was marked to him. PW1 also proved the photostate copy of the said letter as Ex.PW1/D . In view of the letter to Director, CBI, the matter was also taken by PW1 with Director CBI in order to finalize the procedure for handing over the tapes and other related documents and exhibits to the CBI. Meanwhile the Govt. of India, Deptt. Of Personnel & Training requested PW1 to prepare a note based on the edited tapes of 4½ hours and transcripts of the edited tapes to indicate the names of individuals, including their addresses and details, who were shown in the tapes and also the details of money paid to the individuals, as shown in the transcripts. Accordingly, a secret note, running into eleven pages, was prepared by him and sent to the Govt of India, Deptt. Of Personnel & Training alongwith the note as mentioned above, the transcripts as well as affidavits submitted by Tehelka.com to the Commission were also enclosed. PW1 has identified his signature on photostate copy of one note sheet and eleven other pages at point A1 to A12 and has proved the same as Ex.PW1/E. PW1 has further deposed that, subsequently, Mr Arun Sharma, SP CBI discussed the modalities of transfer of tapes and documents to the CBI. Thereafter, as agreed, tapes and other documents, as mentioned in the seizure memo, dated 14.12.2004 were handed over to the CBI. PW1 has also identified his signatures on seizure memo, dated 14.12.2004, running into 26 pages, at point B1 to B26, and has proved the photostate copy of same as Ex.PW1/F. Vide the aforesaid seizure memo, the tapes and other documents were handed over to Sh K.Y. Guruprasad. Dy. Superintendent of Police, CBI.
7A In his cross-examination, PW1 S.K. Dasgupta has stated that he CC No. 56/2011 CBI Vs Narender Singh 5 of 71
had not seen the tapes as the same was not under his duty and he was not aware as to whether there was any allegations against Sh. L.M. Mehta for accepting the bribe of Rs. 50000/-. He cannot say whether Tehelka.Com people tampered with the records and tapes before coming to the commission.
8 PW2, Sh Brij Kishore Sharma, has deposed that he was working in the Anant Media Pvt Ltd., M-76, M Block Market, Greater Kailash Part-II New Delhi as Accounts Manager and prior to that he was also working as Accounts Manager in the same company. However, earlier the said company was known as Agni Media Pvt Ltd, and prior to that, he was working in M/s Buffalo Network, D-1 Soami Nagar, New Delhi-17 as Accounts Executive. He remained there from July, 2000 to August, 2003. The website used portal Tehelka.com was taken over by Agni Media Pvt.Ltd, in August, 2003. Mr. Tarunjit Tejpal was the Managing Director of the above named firms. PW2 has further deposed that he knew Sh Sudhir Verma as he was Auditor of M/s Buffalo Network Pvt. Ltd and he was also the proprietor of M/s S.N. Verma & Co., a Chartered Accountant firm having its office at B-57, New Rajender Nagar, Delhi. PW2 has identified the signature of Sh Sudhir Verma on the letter, dated 18.03.2005, annexed with six pages relating to the accounts of M/s Buffalo Network Pvt Ltd, at points A1 to A7. This letter was handed over to CBI by him in response to letter no. 667/RC-6/2004/ACU- III/N.DLI dated 17/03/2005. the letter along with its enclosures has been proved as Ex.PW2/A, collectively. Sh Anirudh Behl was the Editor Investigation of Tehelka.com during 2000-2003. Sh Anirudh Behl was allowed by M/s Buffalo Network Pvt Ltd to meet expenses from the imprest account. M/s Buffalo Network Pvt. Ltd made the payment of Rs. 12,20,000/- to Mr Anirudh Behl, Editor Investigation of Tehelka.com, towards the investigation expenses i.e. Operation Westend. He submitted the CC No. 56/2011 CBI Vs Narender Singh 6 of 71 account in writing showing the expenses as Rs. 12,08,998/- after refunding the amount of Rs. 80,000/- in cash. This detail has been given at page no.1 and 2 of Imprest Account of Anirudh Behl which is forming part of the Ex.PW2/A. Rs. 10,000/- as investigation story expenses were paid to accused Narender Singh at B-21, DIZ, C.P on 04.11.2000 and the said entry is reflecting in the enclosure at page no.1 of Bills paid during the Course of Operation Westend which is also forming part of Ex.PW2/A collectively.
9 In his cross-examination, PW2 Brij Kishore Sharma has stated that he was bound to obey the instructions of his employer during the tenure of his service. He used to prepare the imprest account of Sh. Anirudh Behl. He does not know if girls were used by Tehelka.com in the present so called investigative work. He used to give the money to Anirudha Behl for the investigation but he did not verify as to where and when Mr. Anirudh Behl had spent the said money regarding the investigation including investigation relating to Narender Singh.
10 PW-3, Ashok Sharma has deposed that, during the year 2005, he was working as P.A to FM (LS), South Block, Ministry of Defence, New Delhi. He remained posted there for about 4-4½ years. He joined the Ministry of Defence in the year 1974 as clerk and he knew the officers, with whom he worked and interacted during the course of his official duties. He knew accused, Narender Singh, who was the Asstt. Financial Advisor in the Ministry of Defence. PW3 has also identified accused Narender Singh and his voice, who had been seen sitting on a sofa in two cassettes, which were played in the Court, during the examination of this witness i.e. Cassette Ex.PY and its cover Ex.PY-1 and cassette Ex.PY2 and its cover Ex.PY3.
11 In his cross-examination, PW3 Ashok Kumar had stated that he CC No. 56/2011 CBI Vs Narender Singh 7 of 71
never worked with Narender Singh and there was no occasion ever for any interaction with Narender Singh.
12 PW-4, Sh Shankar Sharma, deposed that he was the owner/Director of M/s First Global Stock Broking Pvt Ltd, which was operating from 4th Floor, Crescent Chambers, Tamarind Lane, Fort Mumbai-400001. His firm dealt with the stock broking, financial services and investment activities. He further deposed that his other subsidiaries were First Global Finance Pvt Ltd. Catergory I Merchant banker; II First Global (UK) Ltd:
Member of London Stock Exchange; III First Global (USA) incorporated purposed member NASD; 1V First Global (Mauritius) Ltd; investment Activities; M/s UD and MD agencies Pvt Ltd etc. He was the investor of M/s Buffalo Networks Pvt. Ltd and the same was owned and promoted by Mr Tarun Tejpal. M/s Technet Software Solutions Pvt Ltd was totally unrelated company.
13 PW-4, Sh Shankar Sharma, has further deposed that he was having interest in Buffalo Networks as a Financial Investor only but he had not been assigned any official role in the said company. He was one of the Directors of the said company alongwith Mr Amitabh Bacchan, Mr Khushwant Singh, Mr V.S. Naipaul besides Mr Tarun Tejpal, who was also one of the Directors. He knew Mr Tarun Tejpal from his college days and Mr Anirudh Behal was known to him since 2000, when Mr Tarun Tejpal introduced him. He has further deposed that M/s First Global stock Broking Pvt Ltd was owned by him and he look after the affairs of the said company. He invested money through M/s First Global Stock Broking Pvt. d. into UD and MD Agencies Pvt Ltd. Thereafter, the M/s Buffalo Networks acquired business of UD and MD at the subsequent stage and their investment was transferred to Buffalo Networks, as detailed above. Buffalo Networks was better known by CC No. 56/2011 CBI Vs Narender Singh 8 of 71 the name of Tehelka.com. Buffalo Networks came into existence after Tehelka.com. All the investment were made through cheques over a period of one year. Their investment was basically to provide initial capital to the Company and for this end their investment were made in various installments for a period of approximately one year. In early 2000, dot. com and technology and media portals were enjoying a very big boom across the world and a lot of websites had become valued in hundreds and thousands of crores some examples were rediff.com, sifi.com etc. Hence, they thought that an investment in Media Portal like Buffalo Networks Tehelka.com would be a good investment. First Global Stock Broking invested in Tehelka.com in two forms. It gave Rs 3.5 crores approximately by way of equity capital and Rs 2.7 crores by way of debt. The total value of this investment was very small compared to many hundreds of crores invested by venture capitalists in dot com companies. Their purpose of the investment was purely financial investment and they had no interest in running any aspect of their business or their journalism. Their objective was to exit their investment at a suitable point of time. Tehelka.com was itself a portal owned by Buffalo Networks Pvt Ltd which came from UD & MD. M/s UD & MD Agencies Pvt Ltd was incorporated in Mumbai. After the transaction of Tehelka.com, all the affairs were handed over to Mr Tarun Tejpal through Buffalo Networks. There was an agreement between M/s UD and MD Agency Pvt Ltd and M/s Buffalo Networks to acquire the entire affairs of the UD and MD Agency Pvt Ltd. The stake of First Global Stock Broking was 14.5% in Buffalo Networks. Valuation Assessment of Buffalo Networks was done by Ambit Finance plus their own assessment. The company Buffalo Networks needed further funding for which various media companies were approached. A loan of 2.7 crores were given to it. The further outlay was necessary in the period in which they were looking for additional investment from other media companies into Buffalo Networks. The company was still CC No. 56/2011 CBI Vs Narender Singh 9 of 71 needing the investment to continue its business and in this period of late 2000, the overall market for fund raising had become weak. They approached many media organizations like Star, Zee, etc for them to invest in Tehelka.com/Buffalo Networks. Normally, strategic investors look for a large stake and may even want a majority stake. It can be anything from 26% to full majority of the company. The amount of Rs. 3.5 Crores and Rs. 2.7 Crores invested by them in the company of M/s Buffalo Networks Ltd was lost and could not be recovered.
14 In his cross-examination, PW4 Shankar Sharma had stated that a total of Rs. 3.5 crores plus Rs. 2.7 crores were invested in the form of equity and loans and nothing was recovered. The entire amount was written off. He was not at all aware that Tehelka had used any prostitutes, call girls for the purposes of its investigation.
15 PW6 is M.C. Luther. He has deposed that he was working as Deputy Financial Advisor (E), Ministry of Finance, IX South Block, New Delhi. He has further deposed that by virtue of letter no A-19014/2/2000-Estt.1 dated 04/03/2005, CBI had sought certain documents from Establishment Branch of Defence Finance. The available documents, as mentioned in the aforesaid letter, were handed over to the CBI which was addressed to Sh Arun Sharma, the then S.P. CBI. This letter bears his signature at point A. This letter is marked as Ex.PW6/A. 16 He has further deposed that vide order no. A-19014/2/2000- Estt.1, dated 14.03.2001, accused Narender Singh was placed under suspension. This letter was issued under the signature of Mr Naveen Soi, who was working as Deputy Financial Advisor (E) at the relevant time whose signature is appearing at point A. This suspension letter was marked as CC No. 56/2011 CBI Vs Narender Singh 10 of 71 E.PW6/B. PW6 has further deposed that he took over the charge of Deputy Financial Advisor (E) from Sh Naveen Soi in June 2001. On the date of joining as Deputy Financial Advisor (E), Narender Singh was already running under suspension but he became aware from the record that, prior to the suspension, he was working as a Assistant Financial Advisor (02). There were 40-45 Assistant Financial Advisors in the Ministry of Defence (Finance). The general duty which is expected varies from seat to seat. When a proposal for procurement of any equipment comes to AFA, he will examine the proposal from the beginning. Then, he will put the note in his routine file bringing out the shortcomings if any in the proposal. The routine file contains internal notings of finance division. The procurement begins with the acceptance of necessity. Once, it was agreed by the Finance, it goes back to the main ministry. After acceptance of necessity, appropriate approvals were taken from the competent authority based on the value of the contract. A request for proposal was drafted and sent to Ministry of Defence (Finance) for concurrence/vetting. After the REP was examined in the same routine file by the finance, the approval was conveyed back to the Ministry of Defence (Finance). Thereafter, Request For Proposal (REP) was converted to tender. On receipt of tender, the Technical Evaluation Committee (TEC) evaluates the technical bids received. Thereafter, successful bids were processed for opening of commercial or financial bid. The comparative statement of bids was placed before the competent authority and a Price Negotiation Committee (PNC) was constituted which negotiates the prices of supply with the successful bidder, as per laid down norms and guidelines. Thereafter, approval of competent authority was obtained to place the order on the lowest bider. The finance division examines and participates in all the Price Negotiation Committee meetings, through its representatives and gives its financial advise on the procurement/supply of any item or services.
CC No. 56/2011 CBI Vs Narender Singh 11 of 71 17 PW6 has further deposed that as per Ex.PW6/A, accused
Narender Singh was posted as AFA (O2) in the Ministry of Defence (Finance Division) in the pay scale of Rs. 10,000- Rs. 15000/- during the period September 2000 to January 2001. The post of AFA is equivalent to the rank of Under Secretary to Government of India. At every stage, the concerned AFA will process the file for procurement cases in Finance Division. HHTI stands for Hand Held Thermal Imagers generally used by Armed Forces. If procurement proposal for HHTI was for Indian Army, this proposal would have been normally processed in O2 Sections of MOD (Finance). Being AFA, 02, he would have processed a proposal for HHTI among others. As AFA, O2, he would be expected to examine proposal thoroughly and raise such questions from Finance angle from the indenting authority with respect to the supply of item/product.
18 In his cross-examination, PW6 M.C. Luther had stated that he could not say with certainty that HHTI procurement was handled by Narender Singh. Assignment of allocation of duties in every department are clearly issued from time to time by Establishment Division of that department. He could not say whether the work related to HHTI (import) would have come to Narender Singh. The Assistant Financial Advisor or Desk Officer would not be answerable to anothre Assistant Financial Advisor.
19 PW7 is Tarunjit Tejpal. He has deposed, before the Court, that he had been working journalist all his life, since the age of 20. He had worked with Indian Express, The Telegraph, India Today and Outlook before he started Tehelka. He started Tehelka in the year 2000 after he left Out Look, where he was the Managing Editor. It was the time of Internet Boom and there was an opportunity to start a journalistic website committee to aggressive public interest journalism. He left Outlook in March 2000 having CC No. 56/2011 CBI Vs Narender Singh 12 of 71 tied up Angel Investment for tehelka.com.
20 The Angel investors in tehelka.com was a company called First Global. They started tehelka under company that was already owned by First Global. The name of this company was UD & MD Pvt Ltd. PW7 has further deposed that he alongwith, two of his partners, Aniruddh Bahal and Kunwar Tejpal were inducted as Directors in UD & MD. The reason for using this existing company which is often referred in the trade as a shell company, was to cut short the start up time for Tehelka. Eventually, they created a new company called Buffalo Networks Pvt. Ltd based out at New Delhi which was their head quarters and they moved all their work into this new Company. At this point, all three of them resigned from UD & MD Pvt Ltd. The aforesaid things took place in June-July 2000. Tehelka was funded through Angel Investment by First Global as stated earlier. The infusion of money into the working of tehelka came via investment and soft loans repayable at the time of further divestment or through profits.
21 PW-7, Tarunjit Tejpal, has further deposed that Tehelka practiced a lot of very prominent journalism soon after its launch. One of its biggest exposing was into match fixing in Cricket. This led to a global clean up in Cricket. Also, some of the finest columnist and writers in India were writing on tehelka.com. The genesis of operation Westend lies in a major fire that took place in the ammunition dump at Bharatpur. At that time, there was a lot of rumours that there was something sinister about that fire. Anirudh Bahal, who was the head of the investigation team at tehelka, decided to investigate into corruption in Defence deals. This was an area which had been full of controversy for the last fifteen years in Indian Public Life, post the Bofors controversy. As journalists, it was a story worth pursuing. He gave Anirudh the go ahead to follow his investigation and in this he was assisted CC No. 56/2011 CBI Vs Narender Singh 13 of 71 mainly by another reporter Samuel Mathew. They also took the assistance of one Anil Malviya in the investigation. He has further deposed that in pursuit of the investigation, they ended up meeting a whole host of officials, Army officers and politicians. The whole process took about six months of field work. During this investigation, they discovered wide spread corruption in the defence procurement sector. The product that they were ostensibly trying to sell was a Hand Held Thermal Imager. They finished the investigation in January 2001. Thereafter, they transcribed 105 tapes that had been shot during the course of investigation. The equipment used for the investigation consisted of Spy Cams placed in a variety of products including a briefcase, a satchal, a hand bag and a tie. The cassettes used were Hi-8 and DV Cam. All the footage was kept always in the custody of Aniruddh Bahal who normally stored them safely in the office locker. From January to March 2001, these tapes were occasionally stored in the locker of Standard Chartered Grandlay Bank in Malcha Marg, New Delhi.
22 PW-7 has further deposed that they broke the story on March 13, 2001 at a public press conference at the Imperial Hotel in Delhi. At this press conference, they showed a four and a half hour compilation of the corruptions that their reporters had unearthed in defence procurements in the course of the investigation. The entire lot of 105 tapes were submitted to the Venkat Swamy Commission of enquiry, which was set up by the Government of India to examine their findings. A set of the tapes carrying the four and a half hour version of their expose was also delivered on the morning of March 2013 to the President of India Sh.K.R. Narayanan. A full account of the bribes paid while exposing corruption was also recorded and released to the public and also deposited with the Venkat Swamy Commission. The total amount of money paid by way of bribes in connection with operation Westend was about ten and a half lakh rupee. Some of the people caught on CC No. 56/2011 CBI Vs Narender Singh 14 of 71 the tehelka tapes included Bangaru Laxman, Jaya Jaitley and some very senior army officials. Subsequently, the equipments tehelka had used and the tapes were examined for forensic authenticity by experts in India and in England and were declared to be absolutely genuine and undoctored.
23 In his cross-examination, PW7, Tarunjit Tejpal, has stated that he did not directly witness any alleged action of giving or taking the bribe. He could not say about the exact amount of all costs that had taken place during the operation Westend, however, the details of the costs was recorded and submitted. He could not say if any illegal methods were adopted in the process of investigation called Westend. He has stated in his cross- examination that he is not an expert or technical person to give any personal opinion but he professed complete faith in his reporters and their integrity and the fact that several different forensic laboratories have established the total authenticity of the tapes. He has further stated in his cross-examination that he had no reason ever to suspect that Anirudh Behl and Samuel Mathew were doing anything else except a piece of great journalism in the highest public interest.
24 PW-8, K Seshaiah, had identified his signature at point A on letter dated 27/01/2005 which is Ex.PW8/A, vide which he handed over the documents mentioned therein to the CBI. He has proved the documents supplied by him from page 119 to 403 i.e appendix HHTI Contract details at running page no.8, agreement between Government of the Republic of India, Ministry of Defence and ELOP, Electro-Optics Industries Limited for Hand Held Thermal Imager (running page 119 to 141), Annexure-III, Hand Held Thermal Imager Preliminary technical specifications PS 6406-0000-00 etc, as Mark P-119 to P-403 collectively. He has also proved (D-9) letter dated 24.03.2005 as Ex.PW8/B, bearing his signature at point A. He has also CC No. 56/2011 CBI Vs Narender Singh 15 of 71 identified all the documents given by him to the CBI alongwith Ex.PW8/B from page 412 to 445, all the pages are collectively marked as P-412 to P-
456. 25 In his cross-examination PW8 K. Seshaiah has stated that the documents, prima facie, are those sent by him. He further stated that as per the contents and the total number of pages, he could not recollect exact figures and facts at this stage.
26 PW-9 is Aniruddha Bahal. He deposed that he was journalist since 1991 and had been employed by various media organizations like India Today, Down to Earth, Financial Express, Outlook Magazine, Tehelka.com and he was Editor in Chief of Cobrapost.com. During the Course of his career, he alongwith his colleague/partners Sh Tarunjit Tejpal and Minty Tejpal started Tehelka in the February-March, 2000. Their website started in 2000 and they did many investigative stories. One of the first stories that they did in Tehelka was their investigation into match fixing in Cricket, which led to an inquiry by BCCI. During the course of his employment in Tehelka, his designation was of The Editor, Investigations. He held the same designation till the date of his resignation in Tehelkha in the year 2003. Sometimes in April of 2000, there was ammunition Depot fire in Bharatpur. There were various rumors associated with this fire which basically suggested that this could be a way of destroying inventory so that the provisions in the store could not be accounted for. PW9 has further deposed that this set him thinking and they, in the investigative cell of Tehelka, decided to conduct an investigation into the defence procurement system of the country. The way they decided to do it was to conduct and under cover investigation at the very bottom of the chain pretending to be defence dealers themselves. During the Course of their investigation, CC No. 56/2011 CBI Vs Narender Singh 16 of 71 members of his team like Mathew Samuel, etc met with various people like bureaucrats, army officer, politicians and defence middlemen to forward the interest of their fictitious product which was hand held thermal imagers (HHTI). They started a fictitious companny called West End International which was based at an address in London and which sold HHTI. During the course of their investigation, PW9 adopted the identity of Alwin D.souza, who was the President of this fictitious company called West End International. Mathew Samuel was the Chief Liaison officer of this fictitious company. They started with a person called P.Sasi, who worked in the Ministry of Defence and who was instrumental in taking them to certain Col. Sehgal, who was the Director (Armament in the Indian Army). It was Col Sehgal and P. Sasi, who made them aware of the requirement in the Indian Army of HHTI.
27 PW-9 has further deposed that, subsequently, Mr. P. Sasi, at some point, also suggested that they should meet Mr Narender Singh to further the interest of getting their product under selection and purchase by the system. They were informed at some stage by Mr P.Sasi that Mathew Samuel could go and meet Mr Narender Singh and also informed that Col. Sehgal had also spoken to him. Subsequently, Mr Samuel met Mr Singh twice in the month of November, 2000. In the first meeting, Mr Narender Singh talked about the fact that the Indian Army was already considering two companies for HHTI products. Those two companies were CSF Thomposon and another company called ELOP. He said that it would be very difficult for a new Company to make a Mark. He also suggested very strongly to them that they should make attempts to get their product's trial and evaluated by the Indian Army first viz. The artillery and the Infantry and the role of the Finance Department started only after the product had been trial and evaluated by the Indian Army. He further deposed that they came to CC No. 56/2011 CBI Vs Narender Singh 17 of 71 know about the requirement of Hand Held Thermal Imagers in the Indian Army. Subsequent to this, they made an elaborate catalogue with such fictitious products and named their company Westend Interanational. He has further deposed that he had a friend in London Mr George Vergheese whose office address they put on the brochure to give the impression that they were a big multinational company based out of London. He further deposed that Mr Verghese had nothing to do with the subsequent story or even knew the purposes for which he had requested the use of his address on the brochure. The said Westend International was supposedly a subsidiary of Wynn International. Mr Mathew Samuel, the reporter of the story, was given the designation of Chief Liaison officer of Westend International and Mr Rajeev Sharma was designated the Chief Representative of the said fictitious company by him. The name of their investigation was subsequently titled as Operation Westend, keeping in mind that they had named the fictitious company as Westend International. While he was the editor of the story as well he did not enter the field from early as his face was well known and he feared that people would recognise him. However, towards the end of the story, he did make an appearance in the field as Alvin D'Souza, the Chief of Westend International. During the Course of the field work while Mr Mathew Samuel was the main reporter, Sh Anil Malviya posted himself as Rajiv Sharma, Chief Representative of their company. Mr Tarun Tejpal guided them during the course of the investigation. PW-9 has further deposed that the number of audio-visual tapes shot during the course of Operation Westend was 105. They were mixture of Analog and mini DV Cassettes. Four devices were used viz. A briefcase device, a sachel device, a ladies hand bag and a tie. The tapes, thus, shot were always in his custody and, sometime in January 2001, they were deposited in two lockers at Standard Chartered Bank at Malcha Marg. Subsequently, the tapes were later given to Justice Venkat Swami, CC No. 56/2011 CBI Vs Narender Singh 18 of 71 Commission of Enquiry and they even had the tapes forensically checked by a tape laboratory based in UK. The tapes were declared true and un- doctored. He has further deposed that the name which he took was of a certain Sh Rajiv Sharma and was actually a fictitious name and the real name of the person was Sh Anil Malviya and he had first come into contact with him regarding the story of corruption in Canteen Stores Department in Maharashtra. Subsequent to that, he took the decision to involve him in Operation Westend as he was a person of great confidence and he and Mathew Samuel would make a great investigate team in the field. There were two phones, which were used for purposes of investigation. Mobile number 9810274694 was used by Mathew Samuel for this purpose and the land line number of the office in the Tehelka office was 6013817.
28 He has further stated that besides this, there were several meetings with people in which recording devices were not taken for purposes of caution, or the fact that there was a likelihood of detection of the equipment. There were two types of audio-visual tapes that were used i.e. Mini-DV and Hi-8 tapes. PW7 has also stated that they never targeted any one person during the course of investigation. It was people taking them to other people and they were pretending to be middlemen, who wanted to procure a trial and evaluation for a fictitious equipment. They spent about Rs. 10 lacs during the course of their ground work in operation Westend. The books of accounts were maintained. He used to draw lump sum as Imperest account and utilize the same for operation as per day to day needs. The amounts and the dates and the people to whom those amounts were given, the entire list was submitted by them in the Justice Venkat Swami Commission and it may be referred to. They finally aired the story in New Delhi on 13th March, 2001 via a press conference.
CC No. 56/2011 CBI Vs Narender Singh 19 of 71 29 PW-9 has further stated that their intention from the start was to
become an insider in the defence procurement process and to such end they i.e. Tehelka investigating team started a fictitious company called Westend International, ostensibly with offices out of London. The London address of the company was genuine address of his friend George Verghese but he had nothing to do with operation Westend except for lending them address to his office.
30 During the story, he assumed the role of President of Westend International with the alias of Alwyn D'souza. Mathew Samuel the main reporter during the undercover investigation was the chief liaison officer with his original name. The third person who had helped them during the investigation was late Anil Malviya who took an alias of Rajiv Sharma. Sh. Anil Malviya was somebody who had come in contact with Mathew Samuel sometime in August, 2000 with an idea to do a story in Mumbai on the procurement process in the Central Store Departments in Mumbai. That story they could not investigate fully but impressed with his confidence in talking with people, PW-9 teamed him with Mathew Samuel initially during the course of operation Westend. PW9 has further deposed that While he was the editor investigations of the story, his personal appearance in the field was limited for about 8 or 9 tapes as after tehelka's match fixing stories in cricket, his face had become recognizable even when he entered the field, he did so, after shaving his head and putting a cap on and changing his accent. During the course of the field operation, he kept Sh. Tarun Tejpal the editor of Tehelka abreast of what was happening and took the field decisions in consultations with Mathew Samuel.
31 In all, the number of tapes shot during the course of operation Westend were about 105. These were a mixture of Hi-8 tapes and mini-dv CC No. 56/2011 CBI Vs Narender Singh 20 of 71 tapes. The principle mean of communication with Mathew Samuel and the other people whom they approached in their investigation was Mathew's mobile number 9810274694. The landline used was 6013817. The recording devices used during the course of operation Westend were four. The main device was a briefcase device with two cameras. Second was a satchel device. Then a lady's handbag and a tie device. After the field work was over sometime in January of 2001, they deposited the tapes in a bank locker in Grindlays Bank, Malcha Marg. Before that, the tapes were in his personal custody in an office safe.
32 Subsequently, they transcribed all the tapes and edited a four and half hours documentary called operation Westend from the 105 tapes. This documentary was aired in a press conference on March, 13 2001. their editor Sh. Tarun Tejpal even sent the copy of the documentary to the then President of India Sh. Narayanan. During the course of the investigation, nearly Rs. 10 lacs were paid to various people. These amounts reflected in the Tehelka imprest account. He has further deposed that the entire operation was done with public interest in mind with the intention to bring out the corruption that takes place in the defence procurement process. They never intended to target any particular individual. In fact, it was different middlemen who took them to meet different people whether politicians or bureaucrats or defence dealers. The via media of the whole story was that they were selling night vision thermal binoculars and approaching various departments to procure a trial and evaluation order for the product for subsequent purchase. Tehelka Investigative Team had two meetings with Narender Singh, in the month of November, 2000. In the first meeting, Narender Singh accepted Rs. 10,000/- from Mathew Samuel. In both the meetings, he also suggested that he would be helpful only after the product came into the procurement system of the Indian Army. Till that time, he CC No. 56/2011 CBI Vs Narender Singh 21 of 71 advised them to concentrate their efforts to get their product trial and evaluated. He said that once that was done, he would introduce them to influential middlemen and also guide them, as to which officer was to be approached by them and when. There was also talk about the percentages of commission that were in vogue in defence deals. The two meetings with Narender Singh were recorded by Mathew Samuel by a briefcase camera device. The same were part of the 105 tapes deposited with the Justice Venkatswami Inquiry Commission. PW-9 had occasion to view the tapes just after they were shot by Mathew Samuel and also while he was preparing the script for operation Westend for publication/telecast purpose. Said briefcase camera device was handed over to CBI by their then employee Sh. Arnab P. Dutta.
33 PW-9 has identified the case property before the Court i.e. a briefcase devise as Ex. PX-8, Pinhole CCD lenses points as PX and PX1, Sony Video Recorder as Ex. PX2, remote control as Ex. PX3, Sonic Communication as Ex. PX4, Cardboard as Ex. PX3A, battery Ex. PX5, battery charger Ex. PX6, detachable battery pack Ex. PX7, Cassette no. 34 as Ex. PY and cassette cover as Ex. PY1 Cassette no. 28 has as Ex. PY3 and cassette cover as Ex. PY4.
34 In his cross-examination, PW9, Aniruddha Bahal, has stated that they never entrapped Sh. Narender Singh. (Vol. In fact the ongoing interpretation of the word entrapment in Westend Case Law clearly suggest that if there is prior information of the inclination of a particular person to commit a particular act then him committing that is not entrapment.). He has further deposed that it is wrong to suggest he is deposing falsely in this regard and they were never directed by Col Sehgal or Sashi to Narender Singh. In his cross-examination PW9 has also deposed that, in case, he was not in CC No. 56/2011 CBI Vs Narender Singh 22 of 71 office then any particular tape coming late in the night might have been kept in secure custody in Tehelka investigative team's enclosed office and handed over to him in the morning to be kept in the safe. They made duplicate copies from the original tapes for purpose of transcription because they did not want to damage the original tapes while doing transcription. In his cross- examination, PW9 Aniruddha Bahal has further deposed that, at a later stage, the tapes were kept in safe custody in a bank locker that they hired at Standard Chartered Bank, Malcha Marg. He did not recollect if either of them, could operate alone or jointly. He did not recollect as to the number of times locker was accessed by either of them. In his cross-examination, PW9 has volunteered that cassettes produced that day are the original cassettes and not the copies of the originals as they had pasted some special stickers and some handwriting marking was done on the original cassettes to the best of his memory. PW9 further deposed that original were never parted with for any purpose and were kept in locker when they were not in his custody. Copies from originals were made under his supervision and most of the times he was physically present also.
35 PW-10, Vinu.T. Abraham, deposed that, in the year 2005, he was Laboratory Assistant in the month of March 2005, sample voice and videography of Sh. Narender Singh was taken in his presence and in the presence of other independent witnesses. Mr Narender Singh agreed voluntarily to give his sample voice and he also agreed for his videography voluntarily. Subsequently, one normal audio cassette and one video cassette was produced and these were shown to Mr Narender Singh and to the witnesses who were present. The blankness of cassettes etc were ensured by playing the audio cassette and video cassette in the presence of CFSL officers and independent witnesses. Upon playing, it was found that audio cassette and video cassette were blank and were not containing any CC No. 56/2011 CBI Vs Narender Singh 23 of 71 pre recorded voice or video in the cassettes. The text which was to be read by Narender Singh was shown to him and he was asked to read the text and he read the text thrice and his voice and images were recorded accordingly. The audio cassette and the video cassette were sealed in his presence and in the presence of other CFSL officials and other independent witnesses. The proceedings that took place, while recording sample voice and videography, were reduced into writing and the same was signed by him and other CFSL officials and other independent witnesses. The specimen seal was also affixed on the memorandum. PW-10 has identified the said memorandum (D-10) as Ex.PW10/A and has also identified the seal impressions affixed in his presence and in the presence of others at point X. He has also identified his initials/signatures on all the five pages at point A on the text which was read by Sh Narender Singh at the time of taking voice and he has also identified the text, which was read by accused Narender Singh at the time of recording of sample voice as Ex.PW10/B. He has also identified big colour yellow envelope as Ex.P6 and two yellow colour envelopes taken out from envelope Ex.P6 as Ex.PW2 and Ex.P3. Two brown colour envelopes Ex. P4 and Ex.P5 taken out from yellow colour envelop Ex.P2 and cassette of UX-S of make Sony as Ex.P8 and its cover as Ex.P7. Cassette was played during trial and the witness has identified the voice of accused Narender Singh. Witness has stated that sample voice was taken in his presence and all the precautions were taken before recording the sample voice and the text read over by the accused Narender Singh was in verbatim same as mentioned in Ex. PW10/B from point N-1 to N-33.
36 In his cross-examination, PW10 has stated that he did not know, as to what precautions were required to be taken. He did not know as to how he had dealt with the CBI officials, before the recording of the specimen voice.
CC No. 56/2011 CBI Vs Narender Singh 24 of 71 37 PW-11, A.D. Tiwari, has deposed that, in the year 2005, he was
in CFSL as a Senior Scientific Officer, Grade-II. A letter was received by Director, CFSL from CBI for the purpose of recording sample voice as well as videography in tehelka cases. On 14/03/2005, in the photo & Scientific Aid Division of CFSL, sample voice and videography of Mr Narender Singh was taken. PW-11 has further deposed that he remained throughout the proceedings when the sample voice and videography was taken. Apart from him, other CFSL officials, namely, Vinu.T.Abraham and S.Ingarsal, one CBI officer, namely, Mr Dass and two independent witnesses were present. The room where the sample voice and videography was to be taken was made noise free and sound proof. One audio cassette make Sony Crome in a sealed condition and one video cassette in a sealed condition were produced before the Court and this witness had also identified accused Narender Singh.
38 PW-11 has further deposed that Mr Narender Singh voluntarily agreed to give his sample voice and videography to be taken. Both the sealed audio and video cassettes were opened and the same was played before all the CFSL officers, Mr Narender Singh and independent witnesses present at the time of recording of sample voice and videography to ensure its blankness. Upon playing, it was found that the audio and video cassettes were blank and were not containing any pre recorded voice or videography. One text was given to Mr Narender Singh to be read for the purpose of recording sample voice and for videography. The proceedings that took place on 14.03.2005 were reduced into writing and the same were signed by him, other CFSL Officials and independent witnesses. PW-11 has identified his signatures on memorandum Ex.PW10/A at point B. He has also identified written text Ex.PW10/B and his initials/signatures at point B on all the five CC No. 56/2011 CBI Vs Narender Singh 25 of 71 pages Ex.PW10/B. The text Ex.PW10/B was read by accused Narender Singh thrice and the sample was recorded. The introductory voice of both the independent witnesses was also recorded. Thereafter, the audio and video cassettes were taken out after recording from the instrument and the same was also duly signed and sealed at the spot.
39 PW-11 has further deposed that the sample voice of accused Narender Singh was recorded in his presence. All the technical formalities before recording the sample voice of accused Narender Singh were completed and were in proper order. Thereafter, some written text was given to accused Narender Singh, who read the same and the same was recorded. This witness has also identified voice of accused Narender Singh which was taken and recorded as per memorandum Ex.PW10/A and same was read over from the text Ex. PW10/B. He has also identified cassette as Ex.P8 and its cover as Ex.P7.
40 In his cross-examination, PW11, A.D. Tiwari, has stated that the brown envelope from which the audio cassette was taken out was not sealed. He volunteered that brown colour envelope was taken out from the yellow colour sealed envelope which was sealed with the seal of the court.
41 PW-12, S. Ingarsal, has deposed that in the year 2005, he was working as Senior Scientific Officer, Grade-II in CFSL, Delhi. A letter for the purpose of recording sample voice and videography was received by the Director, CFSL in tehelka cases. On 14/03/2005, he was instructed by the HOD, Photo & Scientific Aid Division for the purpose of video recording of Mr Narender Singh. He has further deposed that he alongwith Mr A.D. Tiwari and Mr Vinu. T. Abraham both from the CFSL and other two independent witnessed alongwith the IO of this case were present at the time of recording CC No. 56/2011 CBI Vs Narender Singh 26 of 71 of sample voice and videography of Mr Narender Singh. Mr Narender Singh voluntarily agreed to give his sample voice and for giving videography. New audio and Video cassettes were produced and the same were played before the witnesses and Mr Narender Singh and other CFSL officials to ensure there blankness. Upon playing, those were found that both the cassettes were blank and it was not containing any pre recorded voice or videography. Sample voice and videography of Narender Singh were simultaneously taken. He had taken the images of Mr Narender Singh alongwith the witnesses who were present at the time of aforesaid proceedings. After the recording of sample voice and videography of Mr Narender Singh, the cassettes were again played and shown to the witnesses alongwith Mr Narender Singh. Thereafter, the cassette were handed over to the IO. The cassette was signed and sealed, thereafter, in his presence and in the presence of others.
42 The aforesaid proceedings were reduced into writing. PW-12 has also identified Ex.PW10/A and Ex.PW10/B. He has further deposed that he was instructed by HOD, Photo & Scientific Aid Division on 19/05/2005 to remain present in the proceedings for taking sample voice and videography of Mr Mathew Samuel. Similar proceedings were followed in the case of Mr Mathew Samuel.
43 He has further deposed that on 19/05/2005, he alongwith other CFSL officials, namely, Mr P.K. Gottam, Mr M.K. Jain etc, independent witnesses, Mr Mathew Samuel and IO of the case were also present, at the time of recording of sample voice and videography of Mr Mathew Samuel. Mr Mathew Samuel voluntarily agreed to give his sample voice and for giving videography. New audio and video cassettes were produced and the same was played before the witnesses and Mr Mathew Samuel and other CFSL CC No. 56/2011 CBI Vs Narender Singh 27 of 71 officials to ensure its blankness. Upon playing, it was found that both the cassettes were blank and it was not containing any pre recorded voice or videography. Sample voice and videography of Mr Mathew Samuel were simultaneously taken. He had taken the images of Mr Mathew Samuel along with the witnesses, who were present at the time of aforesaid proceedings. After the recording of sample voice and videography of Mr Mathew Samuel, the cassettes were again played and shown to the witnesses alongwith Mr Mathew Samuel. Thereafter, the cassettes were handed over to the IO. The cassettes were signed and sealed thereafter in his presence and in the presence of others. The aforesaid proceedings were reduced into writing. PW-12 has identified (D-11) Ex.PW12/A and his signatures at point A on both the pages. He has also identified the written text running into eight pages and he identified his signatures at point A on all the eight pages. He also identified the signatures of Mr Mathew Samuel at point B. He identified the written text as Ex.PW12/B , which was read by Mr Mathew Samual at the time of recording of sample voice and taking videography. He has also identified the seal as mark 'Y', which was affixed in his presence, on the last page of Ex.PW12/B. PW-12 has also identified envelopes Mark ExP2, another yellow colour envelop as Ex.P3, two brown colour envelopes as mark Ex-P4 and mark Ex.P5. one cassette in plastic cassette cover as Ex. P7 and he has also identified his signatures at point A on inlay card Ex.P6. PW-12 has also identified the voice of Narender Singh and he also identified accused Narender Singh in videography, which was taken by him. Witness had also identified text Ex.PW10/B and the relevant pages of Ex.PW10/B as N- 1 to N-33.
44 In his cross-examination, PW12, S. Ingarsal, has stated that they avoid excess of light. They close the room. Cassette should be new and unused and it is unsealed/opened for the first time in the presence of CC No. 56/2011 CBI Vs Narender Singh 28 of 71 witnesses. It is also played in order to show that it is blank and not containing anything.
45 PW-13, Col. Sher Bahadur Bhandari, has deposed that in the year 2000, he was posted as GSO-I, Infantry-5, Infantry Directorate, Sena Bhawan, Army Headquarters, New Delhi. His duty was to evaluate the papers of latest weapons and equipments and make recommendations to the DG, Infantry about their likely further evaluation. Beside these, he used to interact with DRDO, DGQA, WE-4 of the Army Headquarters.
46 PW-13 has further deposed that he had dealt with the matter pertaining to M/s Westend International which came from WE-4 of the Army Headquarters. The said matter was pertaining to Hand Held Thermal Imagers (HHTIS). The Hand Held Thermal Imagers were used for surveillance during night time or for during the poor visibility. He has further deposed that weapons Equipment (WE)-4 had asked for paper evaluation and comparative analysis of the technical literature of HHTIs of M/s Westend International. Accordingly, Infantry Directorate forwarded the literature to Infantry School, Mahow. They replied with their recommendations for comparative trials of the aforesaid equipment (HHTI). The response of the Infantry School was further analysed at Infantry Directorate by Director Infantry-5 and the same was approved by DG, Infantry. The Infantry Directorate recommendations were forwarded to WE-4 in response to their aforementioned request under the inter office note at page no. 416 and 417 of D-9. He also identified his signature at point A. The details mentioned in this letter were sent by him. PW-13 has also proved both the pages as Ex.PW13/A. He has also seen the comparison of HHTI at page no. 418 and 419, same were prepared by Director, Infantry-5 of which he was aware of. He also proved both the comparison sheets collectively as Ex.PW13/B. CC No. 56/2011 CBI Vs Narender Singh 29 of 71 47 PW-13, further stated, after going through Thermal Imaging Camera from page no. 420 to 437, that this literature was part of the initial literature as forwarded by WE-4 to his Directorate i.e Infantry Directorate. Same was sent to them and were collectively marked as Mark A. PW-13 has further deposed that he handed over the documents to Weapon & Equipment Section (WE Section-IV) along with the recommendations and analysis of Directorate General Infantry. After that role of Directorate General Infantry was over.
48 In his cross-examination, PW13, Col. Sher Bahadur Bhandari, has stated that he did not carry out any studies regarding any material stated to have been supplied by Westend and it was done by Col. C.G. Suares based on the analysis and study by Infantry School. No work was done by him individually in this case and nobody tried to influence them including him.
49 PW-14, Brigadier Amrender Pal Singh, has deposed that, during the year 1999-2000, he was posted as Director WE 4 at Army Head Quarter, New Delhi. He was looking after the work related to identification, trials and procurements of infantry weapons and equipments. At that time, Major General P.S.K. Chaudhary was the Addl Director General of Weapon Equipment in the Army Headquarters. He had worked under him. Brdg. Harinder Singh was working as Dy. Director General in WE Directorate of Army Headquarter.
50 As per procedure, literature was received from companies, defence attachies and various officials of Army Headquarters and Ministry of Defence. This literature was analysed in consultation with Infantry Directorate. The Infantry Directorate then send it to the Trial Wing of CC No. 56/2011 CBI Vs Narender Singh 30 of 71 Infantry School Mahow. After obtaining the recommendation from the Infantry School Mahow, the Infantry Directorate with their recommendation sends it to WE Directorate for further course of action at their end. GSQR (General Staff Qualitative Requirement) was a basic document for analyzing the equipment to be procured.
51 PW-14 has further deposed that, so far as procurement of items from a foreign country by the Ministry of Defence was concerned, first General Staff Qualitative Requirement (GSQRs) were prepared by the User Directorate. Based on the GSQRs, literature was produced from their milliatry Attachies & Defence Attachies as well as study of Internet literature. Thereafter, they were asked to various vendors by Military Attachies and Defence Attachies to forward their literatures to the Army Headquarter. By this time, the information was generally known to all the vendors and they start sending their literatures directly to the Army. Literature was then analysed by Weapons and Equipment Directorate at Army Headquarter and on such literature was forwarded by the W & E Directorate to the User Directorate at Army Headquarter. W&E-4 deals with Infantry Directorate. Infantry Directorate, then forwards it to the Trial Wings at Infantory school, Mahow, for further analysis. The User Directorate then sends, based upon the recommendations of the Trial Wings to W & E Directorate for further trials or otherwise. Based on these, W & E Directorate forwards their recommendations to the Ministry of Defence for conduct of trials, who asks the vendors to sent their equipment for trials at no cost - no commitment basis. At the same time, the Ministry of Defence consults DRDO, Ordnance Factory Board, as well as other Public Sector Undertakings (PSU), for considering development of same equipment based on transfer of technology from selected firms. After this, the vendors forward their technical specifications and commercial bids to the Ministry of CC No. 56/2011 CBI Vs Narender Singh 31 of 71 Defence. Ministry of Defence sends the technical bids to the W & E Directorate for selection of vendors, who made the GSQRs. After shortlisting the vendors, W & E Directorate sends their recommendations to the Ministry of Defence for getting the equipments for trial. Based on competitive trials, the trial report was prepared by the Trial Wing at Infantry School and their recommendations were sent back to W & E Directorate. W & E Directorate then carries out General staff Evaluation and forwards their recommendations to the Ministry of Defence to all suitable vendors for commercial negotiations.
52 PW-14 has further deposed that he dealt with the proposal, for Hand-held Thermal Imaging Camera, submitted by M/s West End International. This witness after going through proposal for thermal imaging cameras/binoculars, along with the literature and other documents (18 pages and it is a part of D-9 from running pages 420 to 437) Marked as A has further deposed that it was received by Maj. Genl. PSK Chaudhary, the then ADG (WE) Army Headquarters, New Delhi. PW-14 has identified his initials at point A. Vide noting at point X, this literature was sent to the Infantory Directorate. PW-14 has proved all the 17 pages as Ex. PW14/A collectively. He has further deposed that the proposal Ex.P14/A was received by Major General P.S.K. Chaudhary and in WE 4 by Lt Colner A.K. Anand, GSO (1). PW14 has identified the initials of Lt Colonel A.K. Anand at point B. Only the literature concerning the HHTI & Binocular was received and no equipment was received for trial. Thereafter, this proposal was sent to Infantry School, Mhow by Infantry Directorate for analysis. The Infantry School, Mhow carried out the comparative study with in service INTIM & SOPHIE, which were already procured from Israel & France, respectively. Thereafter, the Infantry Directorate wrote back to WE Directorate saying that already procured equipments were better i.e. INTIM & SOPHIE, than the CC No. 56/2011 CBI Vs Narender Singh 32 of 71 equipments of M/s West End International except the enhanced version of the equipment of M/s West End International, with respect to which the literature was submitted. The Infantry Directorate recommended the comparative trial of enhanced version of equipment of aforesaid firms and Sagem from France at no cost and no commitment basis. PW14 has identified the signatures of Lt. Colonel S.B. Bhandhari, at point A on Ex.PW13/A. He has further stated that the said letter was received alongwith the comparative statement of HHTI. He has also identified the comparative statement of HHTI running into two pages Ex. PW13/B, and has further stated that the same was analysed by him and he sent the noting to that effect to then, DDG WE (A), Brigadier Harinder Singh. He has also seen noting at running page 414 & 415, which is part of D-9. He has also identified his signature at point A at page 414, which is Ex.PW14/B vide his noting at point X recommended that they cannot change their stand to procure new model as they have already procured HHTIs from two countries. He marked the file to the then DDG WE (A), Brigadier Harinder Singh. He identified the signature of Brigadier Harinder Singh at point B on Ex. PW14/B and his noting appearing at point X-1. Vide this noting they also agreed to his recommendation. Thereafter, this file was marked to ADG WE. He also gave his comments and recommendations of PW14 were finally accepted by him. PW14 had identified his signature at point C and his noting at point X-2, which is Ex. PW14/C. Thereafter, the file was marked back to DDG WE (A). PW14 has also identified the signature of Sh Harinder Singh, DDG WE (A) at Point D. His noting is appearing at point X-3. PW14 has further deposed that, when he processed the proposal, he was doing his job and there was no pressure on him.
53 In his cross-examination, PW14, Brigadier Amrender Pal Singh, has stated that he was in the Directorate that was dealing with the subject of CC No. 56/2011 CBI Vs Narender Singh 33 of 71 trial evaluation of HHTIs. He had never received any communication from Addl. Secretary Sh. L.M. Mehta addressed to Major General Chaudhary or WE-IV for issuance of trial evaluation letter qua HHTI of M/s West End International. No letter for trial evaluation of HHTI of West End International was ever issued.
54 PW-15, Sh. Arnab Pratim Dutta, has deposed that, in the year 2005, he was working with Tehelka. He joined M/s Buffalo Network Pvt. Ltd, in the year 2000. Sh Tarun Tejpal was the Chief Executive officer of M/s Buffalo Network Pvt Ltd. PW15 has further deposed that he was called by the CBI and his statement was recorded. He handed over one briefcase containing the recording devices which were used by Mr Mathew Samuel during the operation Westend for recording the meeting held between him and Narender Singh. He has further deposed that vide seizure memo dated 01/06/2005 (D-13), he handed over one briefcase containing audio visual recording devices to Dy. SP-CBI Sh B. Das. The details of which are mentioned in the seizure memo from point 1 to 7. He has also identified his signature at point A and has proved the seizure memo ExPW15/A. Briefcase was produced before the Court, during the evidence of this witness. He has identified the briefcase as the same, which was handed over by him to the CBI as a Sr. Correspondent of Tehelka.com as Ex.PX-8. Upon seeing the contents of the briefcase, this witness identified the contents as specified in seizure memo Ex.PW15/A. He has further deposed that at the left side lower portion and the front portion of the briefcase were the points, where two coloured pin hole CCD lenses were fixed and it contains the lenses, which were not visible with the naked eyes. Two points are exhibited as Ex.PX and PX-1. He has further stated that it contains one Sony Video Recorder model GV-A500E with Sl no. 60047, which is mentioned at the back side of the recorder and batch no. 3-979-207-02 CE, and same is CC No. 56/2011 CBI Vs Narender Singh 34 of 71 Ex.PX-2, it also contains one remote control unit model no. UKTX002 with Sl no. as MPT1340 in a pocket in the cover of the said brief case and same was exhibited as Ex.PX-3. He further stated that it also contains Sonic Communication (Int.) Ltd, which is beneath the cardboard Ex.PX-3A in the briefcase and the same is exhibited as Ex.PX-4, it also contains YUSA lens battery model NP2.1-12 and the same was exhibited as Ex.PWX-5, which also contains one Montu Battery Charger 12 Volts INPUt-AC-230 V/50 Hz. Ex. PX-6. One Sony Info-lithium battery NP F-750 battery pack with batch no. 3-998-165-01 was affixed with Sony Video Recorder which can be detached and same was exhibited as Ex.PX-7.
55 In his cross-examination, PW15 had stated that it was correct that he himself had not seen that anyone had handed over these instruments to Mathew Samuel.
56 PW-16, Mathew Samuel, deposed that, from 1996 onwards, he was working as Journalist with various media organizations. In 2000, Tehalka.com exposed story of cricket match fixing scam. He contacted Tarun Tejpal and there was a brief discussion in their Swami Nagar, Panchsheel Office and PW16 offered that he could further develop match fixing story. So he directed PW16 to meet Anirudh Bahal. He was at that time Editor Investigation with Tehalka.com. During his conversation with Mr. Bahal, PW16 had given him lots of story ideas and one of them was antique smuggling from South India i.e. a place called Tanjore. PW16 further deposed that in connection with said story related to antique smuggling, he visited Tanjore by train. Mr. Bahal had also gone there but he took flight from Delhi to Chennai and then reached Tanjore. When in Tanjore, Mr. Bahal had offered him a job in Tahalka.com. Thus, in the year 2000, PW16 joined Tehalka.com and remained with them till 2003. When he was staying in CC No. 56/2011 CBI Vs Narender Singh 35 of 71 Nagalraya, one of his neighbour, Mr. Nair, who was a Keralite came into his contact. He knew one Mr. P. Sasi and that is how he, first met P. Sasi. Initially he was introduced by Mr. Nair as Mr. Sasi Menon. Later, PW16 learnt that his name was P. Sasi. He was working with Ministry of Defence (MoD). Through him, he met various defence officials etc. Aim of the operation was to expose, top to bottom, as to how defence deals had been taking place, with the help of under-table transactions.
57 PW-16, Mathew Samuel, further deposed that while associated with Tehalka.com, carried out operation Westend, a sting operation directed by Aniruddha Bahal. During the time of investigation, he was a special correspondent in Special Investigative Team of Tehalka.com. Mr. Tarun Tejpal was the Chief-Editor of Tehalka.com and he was assigned the field work to meet various people for this operation Westend. The purpose of Operation Westend was to expose how suitcase people were compromising with Indian Defence. It was a journalistic operation.
58 They formed a fictitious company with the name of M/s Westend International. It was shown based in UK and he was to act as Chief Representative of said fictitious company. During the course of investigation, Aniruddha Bahal also participated in the Operation Westend and he had assumed fictitious identity and claimed himself to be one Alvin D-Souza. One more imaginary character i.e. George Vergosa was also created. However, PW16 did not change his name and did not assume any fictitious name during the said operation.
59 PW16, Mathew Samuel, has further deposed that, during the course of investigation, they used spy cams for recording the conversation. Mostly two types of camera devices were used. One was briefcase device CC No. 56/2011 CBI Vs Narender Singh 36 of 71 and other was satchel. He has also identified briefcase device, before the Court, as Ex.PX8, as the same device which he used in the present sting operation. It has two cameras. One is on the front side, near left side of the handle and other is on the left side of the briefcase. These are pinhole cameras. Such briefcase recording device could also capture audio. He further deposed that he used the same during the operation Westend and he also used the same during his interaction with accused Narender Singh. Mr. Anil Malviya, from Mumbai, was also initially apprised about a defence dealer. He was also joined in the sting operation in the initial phases with the assumed/fictitious identity of Rajiv Sharma. During some other meetings, not connected with accused Narender Singh, one of the office staff, namely, Anu Nair also joined such operation with the assumed name of Anjali.
60 This witness deposed that Mr. Bahal handed over said briefcase device to him for using in sting operation. He also had given him blank HI-8 tapes for using with such device. In this case also, he used blank HI-8 tape. During the process of operation Westend, after recording, any such HI-8 tape used to be handed by PW16 to Mr. Bahal. Total 105 tapes, including HI-8 and DV tapes, were used in said operation. Mr. P. Sasi had told him to meet accused Narender Singh and he also apprised him that one Col. Anil Sehgal had already talked to Narender Singh. Mr. Sasi told him that he could go and meet Narender Singh. Mr. Sasi also provided him with his telephone number and address. PW16 talked to him on phone.
61 PW16, Mathew Samuel, further deposed that he met him, for the first time, in his official accommodation situated in Connaught Place around that time. During his conversations with him at his such house, he discussed about his product i.e. HHTI (Hand Held Thermal Imager) and he recalled, Mr. Narender Singh also telling him about the type of product CC No. 56/2011 CBI Vs Narender Singh 37 of 71 manufactured by other company i.e. Elope & CSF Thompson. He informed PW16 that he (PW16) would have to go and cultivate Major General P. S. K. Choudhary (W&E). He told him (PW16) that he was the right person, who could help him, in that regard, in the initial stage. During the conversation with Mr. Narender Singh, the modalities regarding the bribe were also discussed. PW16 asked whether it would be in the vicinity of 30-35% but he told him that it would be 2-3% of the deal amount. He also told him that he knew some arm dealers who knew Defence Official of Ministry of Defence. He told him that he could introduce those dealers also but his name should not be disclosed. The conversation which PW16 had that day, at his house, was also recorded by him with the help of same briefcase device.
62 PW-16 further deposed that during his such meeting, he also offered him Rs.10,000/- by saying, "can I give a gift to you" and his answer was "you can". He gave him said amount. He received that. PW-16 had one more meeting with Mr. Narender Singh which he recorded in the same manner. It was also in November, 2000 and 5-6 days after their first meeting. The venue was also same. There was no one else, beside both of house, at his said house. In such meeting also, there was discussion regarding defence deal etc. He has further deposed that Mr. Sasi told him that Mr. Narender Singh was Assistant Financial Advisor. During discussion with Narender Singh, Narender Singh told that his role would come at a later stage and not in the initial stage.
63 PW-16 Mathew Samuel had also identified the video footage captured during both said meetings. After seeing the contents of the footage, he deposed that it pertains to his visit to the house of accused. He was enquiring about his address and going towards his house i.e. official accommodation of Connaught Place. He had also seen introducing himself CC No. 56/2011 CBI Vs Narender Singh 38 of 71 out side the gate of the house of accused. Then, he was allowed entry in his house. He is also seen siting in white dress in his living room. Such footage also contains the discussions which he had with him. During the conversation at approximate 00:08:24 to 00:11:25, there was discussion regarding the person to be approached and accused apprising about the procedure. At about 00:27:00, accused was seen telling about requirement of HHTI. PW-16 has further deposed that he was found using words "JS". It means Joint Secretary. At about 00:31:53, accused was seen claiming that the proposal would come within two months. In between, Mr. Narender Singh left the living room and re-enters at about 00:47:22. He however, kept on siting in the same room. Then there was discussion regarding Col. Sehgal. Accused was also seen claiming that he could also contact with other persons on his behalf. He was also claiming that so far this equipment was not in the list of emergency requirement. He was also claiming that contacting one person in MoD could not help and that several persons would need to be contacted. He was also claiming that he would tell how to tackle the persons involved. He is also claiming that he had come to the right place and all those things will be taken care of. At 00:51:22, he was saying to him, "within 4-5 days, what my this thing, can he give small gift for you" to which accused was seen uttering "no problem". Then, he offered Rs.10,000/- to him claiming "10,000/- bucks and making him arrange the meetings. PW-16 has further deposed that he was offering the notes in loose condition i.e. not in any envelope and accused accepted the same and put the same below the table. (Witness has also been shown the transcription content in D-6/1 and witness states that the transactions is as per the conversation recorded in cassette no.28. Such transactions is Ex.PW16/A (from external page no.60 to 88) 64 This witness further deposed that cassette Ex.P-1 i.e. HI-8 MP of Sony make, though Ex.PY, and is due to some clerical error wrong number CC No. 56/2011 CBI Vs Narender Singh 39 of 71 had been mentioned, is Re-exhibited, and correctly exhibited and the cassette cover having inlay card is already exhibited as Ex.PY-1 as per the description made there upon and fresh/same exhibit number has been put. Its transcription was contained in D-6/2 and has been shown to the witness. This witness has seen the transcription and the video footage contained in cassette no. 34 and said that transcription is as per the footage. Transcription is exhibited as Ex.PW16/B (Pages No.89 to 116).
65 PW16, further, stated that such footage contained the initial footage when he visited the house of Ketan Shukla. From there he had gone to the house of accused Narender where recording started from 00:09:50 onwards. Witness stated that he was able to identify the voice of accused Narender Singh besides his own voice. In the initial part, Nareder Singh's voice was heard but his image was not there. But, in later part his side view was available and then full image was also available. At about 00:24:16, accused was found claiming regarding one other company Sagem dealing in the same product. He was also saying that their approach was correct as they were concentrating on WE and about the trial to be conducted by them. Then there was a discussion about the percentage offered by Sagem. Accused was also found claiming that as per the latest procedure, if they were not the lowest, then, they were out of the fray. At 00:26:14, he was claiming that 21% was out of question and it could have been possible earlier. At 00:26:39, he was claiming that the percentage was only 2-3% which meant 2-3 crores in the total deal of 100 crores. At 00:27:07, he was claiming that he would not misguide them because their association would be long. The total length of the tape no.34 was 01:14:44. ) 66 PW-16 Mathew Samuel has further deposed that both the video footages were correct and were recorded by him with the help said briefcase CC No. 56/2011 CBI Vs Narender Singh 40 of 71 device and the transcriptions contained the conversations which he had with accused Narender Singh. He had identify his voice as well as his image and stated that the recordings were correct. This witness further deposed that he was called by CBI and his statement was recorded. His voice sample and his image sample was also taken by CBI. He has also identified memorandum, dated 19.05.05, Ex.PW12/A (D-11) and further deposed that vide said proceedings his said image sample and voice sample were captured. His signatures are at point B. He was given text Ex.PW12/B (part of D-11) for reading out for voice sample. Such texts also bear his signatures at point B on first page. The cameras were installed inside the briefcase device and such device and cameras were working properly all along. Such device was in his custody.
67 In his cross-examination, PW16, Mathew Samuel, stated that there was no break in the continuity of the video footage. He did not know who handed over the tapes to Commission of Enquiry. He had handed over tapes to Mr. Bahal. As far as he recollected, Mr. Bahal had put the same in a bank locker. He explained the meaning of "editing" as it was only for the purposes of the telecast of the sting on TV but the cassettes produced before the court i.e. HI8 cassettes were unedited. On confrontation with Mark PW16/C which consist of 14 pages and is stated to be the print out taken from the portal of Tehlka.com, this witness stated that he was not able to comment but such document comprises of extracts of conversation also and he did not dispute the relevant pieces of conversation but he could not vouch for the authenticity. PW16, Mathew Samuel further stated that he did not read the transcription prepared by Tehlka.com. He never tried to meet Mr. Narender Singh, after 11.11.2000. Narender Singh also did not contact him. He told him that his role would appear only at a later stage and, therefore, he did not contact him. Accused did not misguide him in any of the two meetings in CC No. 56/2011 CBI Vs Narender Singh 41 of 71 order to draw any sort of incentive. PW16 also volunteered that he rather advised him to meet the right person. PW16 Mathew Samuel also claimed in his cross-examination that he had deposed before the CVC that after the second meeting, he came to know that Narender Singh could not be able to provide whatever expectation they had as they came to know that he was a low profile officer and he could not be able to do much for them.
68 PW-17, Sh. S.N. Mahajan deposed that on 19 th May 2005, he was working as Deputy Manager (Vigilance) in Central Warehousing Corporation (CWC). His office was in Hauz Khas. As per the request received from CBI, he had gone to CBI office situated at CGO Complex. Several officials of CBI & CFSL were also present there. One Mr. Mathew Samuel was also there who, on being asked by CBI, consented to give his sample voice and image for necessary comparison by forensic expert.
69 One blank/new audio cassette and one blank/new video cassette were opened in their presence. These were also played in order to show that these were blank, new and empty. Voice sample of Mathew Samuel was taken in their presence. He was given a text Ex. PW12/B (already exhibited). He read out that text and, accordingly, the voice sample was taken on said blank/new audio cassette. His image sample was also taken on blank/new video cassette. Both the cassettes were separately sealed. His signatures were also taken on such cassettes as well as on the envelops. A memorandum was prepared and he also signed the same. PW-17, has also identified such memorandum contained in D-11 Ex. PW12/B, before the Court and he has identified his signatures at point C on both the pages. He also identified the specimen of brass seal, used for sealing the cassettes, as Ex. PW17/A (part of D-11) and identified his signatures at point C. CC No. 56/2011 CBI Vs Narender Singh 42 of 71 70 In his cross-examination, PW17, S.N. Mahajan, stated that he could recognize Mr. Samuel, who was already there when he reached the CBI office. He is not expert with respect to the technical requirements for such audio/video recordings. He claimed that they were shown the cassettes which were blank and new and, after recording, the audio cassette and video cassette were played again in order to ensure that the recording was proper.
71 PW-18, Arun Sharmam deposed that during the period April 2000 to November 2006, he was posted as SP/CBI in ACU-II Branch, New Delhi on deputation from Directorate of Enforcement. During this period, apart from other cases, he also supervised investigations in certain cases related to sting conducted by Tehalka.com. On 06.12.2004, he was also holding additional charge of SP/CBI/ACU-III/New Delhi and on the basis of information/letter dated 29.10.2004 received from Ms. Manjulika Gautam, Additional Secretary, Government of India, FIR No. RC-AC3 2004 A0006 was recorded by him. This witness also identified copy of FIR as Ex. PW18/A (eight pages) which bears impression of his signatures at points A at three places. Copies of FIR were forwarded, to the concerned authorities, as per endorsement, appearing in last page of the FIR i.e. page no. 8. Investigation was entrusted to Sh. B. Das, Dy. SP/ACU-III Branch.
72 PW-18 further deposed that, in the present case also, he had, inter alia, sent two HI8 Tapes bearing number 28 & 34 in duly sealed condition and two working copies of said two tapes as well as the specimen voice and image samples of Sh. Narender Singh and Sh. Mathew Samuel to Director/APFSL/ Hyderabad for comparison and expert opinion. Such letter dated 20.06.2005 is Ex. PW18/B (D-12) (four pages). He further deposed that details of material sent to Hyderabad are contained in para-8 of his letter and the questionnaire sent to Hyderabad was mentioned as annexure to the CC No. 56/2011 CBI Vs Narender Singh 43 of 71 aforesaid letter.
73 In his cross-examination, PW18, Arun Sharma stated that he had no other role in the present matter except the aforesaid act of recording of FIR and sending letter to Hyderabad and it was his decision to register FIR. It was backed up with the approval of his DIG & Joint Director. He further stated that he did not personally scrutinize the accounts of Tehelka.com.
74 PW-19, Ms. Manjulika Gautam, deposed that, in the year 2004, she was working as Additional Secretary in the Department of Personnel & Training, Government of India. She also identified D-2 i.e. photocopy of his letter, dated 29.10.2004, which she had written to the then Director/CBI as Ex. PW1/D. 75 Court had observed, during the examination of this witness, that original of such letter was in the connected matter i.e. CBI Vs. H.C. Pant. Such original letter was annexed in that case as D-2 and has been exhibited in that case as Ex. PW19/C. 76 PW19 has identified impression of her signature at point A on letter Ex. PW1/D. She has further deposed that he had informed CBI, vide aforesaid letter, that since the Commission had been ordered to be wound up and since the Government had decided to entrust the matter to CBI, it was for CBI to take necessary action in the matter. Copy of gazette notification in this regard is Ex. PW1/B (part of D-2).
77 In her cross-examination, PW19, Ms. Manjulika Gautam, stated that there was reference of one letter dated 3.11.2004 written by Sh. D. Mukerjee in her letter. She stated that she had not been shown any such CC No. 56/2011 CBI Vs Narender Singh 44 of 71 letter at the time of evidence. She stated that there is reference of consultation between DOPT and Legal Department. She further stated that there was correspondence in writing by way of movement of file and corresponding noting with respect to such consultation and such file was not shown to her. She did not recall the names of those officers of legal department.
78 PW-20, Sh. D. Venkateswarlu, deposed that he was working as Assistant Director (Computer Forensics & Incharge Engineering Section) in A.P. Forensic Science Laboratory, Andhra Pradesh, since March 2012. Prior to that he worked as Scientific Officer since 2003 till March 2012. He joined in A.P.F.S.L. in 1993 as Scientific Assistant. He under went induction training programme for a period of five months in physical examinations and was posted in physics section. In this section, he had examined many physical evidences including audio video examinations. He had attended training programme at All India Institute of Speech and Hearing, Mysore and CFSL, New Delhi regarding voice examination and he had also attended training programme conducted by CFSL, Kolkata in collaboration with Indian Statistical Institute, Kolkata regarding image analysis and video examinations. In this case, their office i.e. physical evidence section received 8 sealed covers and one sealed cloth parcel on 22.6.2005 through CBI along with a forwarding memo vide letter Ex. PW18/B (D-12, 4 pages including annexure). On two such sealed covers, related to Tehlka-28 and Tehlka-34, seals were bearing impression as CBI,N.DELHI along with Ashoka emblem. The seals were intact and were tallied with the sample seals. First such parcel was HI8 tape of Sony Video purportedly containing audio visual recording of conversation between Mathew Samuel and Narender Singh which took place on 4.11.00 and which was marked by us as item No. 1.
CC No. 56/2011 CBI Vs Narender Singh 45 of 71 79 PW-20, D. Venkateswarlu, further deposed that another sealed
cover was containing HI8 tape of Tehlka No. 34 which was said to contain unedited original audio video recording of meeting dt. 11.11.00 between Narender Singh and representative of Tehlka.com and was marked as item No. 2. Sealed cloth lined cover already marked as C1 and C2 were found containing Panasonic VHS Video Cassette each which were marked as item no.3 and 4, respectively. These were claimed to be the working copy of item No.1 and 2. Another sealed cover marked SA-1 (seal of "Malkhana"in Hindi letters) was said to contain sample voice of Narender Singh in Sony UXS 60 audio cassette which was marked as item no. 5. Another sealed cover marked SA-2 having seal of KYG, seal intact and tallied with sample seal, was opened and was found containing Sony UXS 60 audio cassette, having specimen voice of Mathew Samuel. It was marked as item no. 6. Another sealed cover marked SV-1, having seal of "Malkhana" in Hindi, seal intact and tallied with sample seal was opened and found containing Sony video 8 tape containing sample video of Narender Singh. It was marked as item no.7. Another sealed cover marked SV-2, having seal of KYG, seal intact and tallied with sample seal, was opened and found containing one Sony video 8 i.e. video cassette of Sony Album MP-120 said to be containing sample voice and image of Mathew Samuel. It was marked as item no.8. Another sealed cover, having seal of AKT, seal intact and tallied with sample seal and having marking as T-1, was opened up and was found containing transcription related to tape no.28 regarding meeting dt. 4.11.00. It was marked as item no.9. Another sealed cloth parcel, having marking as BC-1, having seal of CBI letters, seal intact and tallied with sample seal, was opened up and was found containing one black colour leather briefcase containing two colour pihhole CCD lenses with circuits, Sony video HI 8 video cassette recorder (Model No. GV-A500 E, Made in Japan), bearing number 600472, remote control unit (bearing model no. UK TX 002, MPT 1340, affixed with a sticker bearing no.
CC No. 56/2011 CBI Vs Narender Singh 46 of 71 1022), Sonic communications set (Int.) Ltd., bearing number 343666, yuasa 12 V battery (2.1 Ah) bearing number 0011842, Montu Charger (12 V) & Sony infolithium battery (7.2 V & 21.6 Ah) model no. NP-F 750- marked by him as item 10. Detailed video examination, audio examination, auditory examination, voice spectrographic examination had been carried out. However, he remained associated with audio examination and also took assistance of Sh. U. Ramamohan (Computer Forensic Expert) in conducting video examination.
80 PW20, D. Venkateswarlu, further deposed that, on video examinations and observation, they repeatedly viewed and listened to the contents of items 1 to 4 and items 7 & 8 by observing and analysing the scenes, objects and background in detail. They found the contents of item 3 & 4 to be identical with the corresponding contents in items 1 & 2. The contents of items 7 & 8 are specimen video recordings of suspect persons. The duration of recordings in the tapes items 1 & 2 were found as under:-
Item number Total duration of recording Mode of recording H:M:S Item 1 1:08:09 Long Play Item 2 1:14:46 Long Play
81 Item 2 contained two video recordings first one was found recorded during night time and the second was found recorded during day time. They observed number of breaks in the recording which were due to camera movement and shift of camera focus. These, however, did not affect the continuity of scenes. The images recorded were noisy due to poor lighting conditions and low resolution of the camera. They did not notice any abrupt charges in intonation, quality of audio and in lighting conditions. They book test recordings using the briefcase camera unit (BC-1) item 10. The test CC No. 56/2011 CBI Vs Narender Singh 47 of 71 recordings produced similar quality of recordings and noise level as those in items 1 & 2. The recordings in items 1 & 2 were converted into digital video format and digital images of the video were captured on to the hard disc of a computer. Then they undertook frame-by-frame study of video recording and did not notice any addition/deletion of frames in items 1 & 2 except the breaks due to loss of signal and stop between two incidents recorded in item 2.
82 PW20, D. Venkateswarlu further deposed that they examined the recordings in items 1 & 2 using waveform monitor and did not observe any abrupt changes in the waveform of the signal. They closely listened to the audio (including background sounds) while viewing the video of items 1 & 2 and found audio and video to be in synchronization. They carefully observed the video tapes and captured several video frames/images of the person in items 1 & 2 and conducted histogram studies and facial identification studies after enhancing the video signal. These studies revealed that there were no abrupt variations in colour combinations and textures in the images of the person, in the recordings of items 1 & 2. The video frames/images captured from items 1 & 2 said to be of Sri Narender Singh were compared with the specimen video frames/images captured from item 7 and found the facial features to be tallying. No video frames/images of Sri Mathew Samuel were found present in items 1 & 2.
83 PW-20, D. Venkateswarlu, further deposed that, on audio examinations, they repeatedly listened to the contents recorded in items 1 to 4 and specimen voice recorded in item 5 and item 6 in an analytical manner. While listening to the contents recorded in item 1 they also went through the corresponding transcription in item 9. They prepared the transcription for the conversations in item 2 for the purpose of examination. They found the conversations in items 3 & 4 to be identical with the corresponding CC No. 56/2011 CBI Vs Narender Singh 48 of 71 conversation in items 1 & 2. They captured the conversations recorded in items 1 & 2 and specimen voice recorded in audio tapes items 5 & 6 into Computerized Speech Lab (Model 4500, KAY Elemetrics Corp. USA). They segregated the questioned voice and specimen voice samples and marked them as follows:-
Sl.No. Voice segregated from Said to be belonging to Marked by us as 1 Items 1 & 2 Sri Narender Singh A1Q1, A1Q2 2 Items 1 & 2 Sri Mathew Samuel A2Q1, A2Q2 84 The specimen voice sample said to be of Sri Narender Singh and Sri Mathew Samuel present in items 5 & 6 were marked as S1 & S2, respectively.
85 PW20, D. Venkateswarlu, further deposed that they examined and compared the auditory features (phonetic and linguistic) of segregated questioned voice samples said to be of Sri Narender Singh and Sri Mathew Samuel with the corresponding specimen voice samples. The consolidated effect of the prominent auditory features were observed for each individual.
They studied the continuity of conversations in item 1 and the two recordings in item 2 by taking the meaning also into consideration in relation to the context.
They came to following conclusion that :-
i) Questioned voice marked as A1Q1, A1Q2 was found
similar to the specimen voice marked as S1.
ii) Questioned voice marked as A2Q1, A2Q2 was found
similar to the specimen voice marked as S2.
86 PW-20, D. Venkateswarlu, further deposed that in respect of
CC No. 56/2011 CBI Vs Narender Singh 49 of 71
linguistic and phonetic features viz., dialect, articulation, vocal quality, stress and other unique characteristics, requisite examination was carried out.
87 PW-20, D. Venkateswarlu, further deposed that on VOICE SPECTROGRAPHIC EXAMINATION:-
i) They selected some clearly audible common words/ sentences from questioned voice (A1Q1, A1Q2) and specimen voice sample S1 and obtained the voice spectrograms by subjecting them to computerized speech lab.
ii) They selected some clearly audible common words/ sentences from questioned voice (A2Q1, A2Q2) and specimen voice sample S2 and obtained the voice spectrograms by subjecting them to computerized speech lab.
88 The acoustic features, namely, number of formants, formant frequency distribution, intonation pattern and other general spectral details observed in voice grams of the above utterances were noted. The voice grams of selected common words from the questioned voice were compared with those of specimen voice and it was observed as under:-
i) The voice grams of selected common words from the questioned voice samples marked as A1Q1 & A1Q2 are similar to those of specimen voice marked as S1;
ii) The voicegrams of selected common words from the questioned voice samples marked as A2Q1 & A2Q2 are similar to those of specimen voice marked as S2;
89 In acoustic features such as number of formants, formant CC No. 56/2011 CBI Vs Narender Singh 50 of 71 frequency distribution, pitch striations, energy distribution, intonation pattern and other spectral details were seen.
90 He has further deposed that based on the above examination and observations, they came to following conclusion that :-
i) The content in item 1 represents true depiction of single incident recorded without any material editing and two incidents recorded in item 2 represent true depiction of the incidents recorded without any material editing.
ii) Items 1 & 2had not been subjected to any process of tampering.
iii) The contents in items 3 & 4 are same as in items 1 & 2, respectively.
iv) Recording in items 1 & 2 could have been recorded by the briefcase camera unit (BC-1) item 10.
v) The facial features of the person suspected to be Sri Narender Singh, present in the recordings of items 1 & 2 are tallying to the facial features of the person present in the specimen recordings of item 7.
vi) No facial features of Sri Mathew Samuel are present in items 1 & 2.
vii) The questioned voice marked A1Q1, A1Q2 (segregated from items 1 &
2) and specimen voice marked S1 are of the same person (Sri Narender Singh).
viii) The questioned voice marked A2Q1, A2Q2 and specimen voice marked S2 are of the same person (Sri Mathew Samuel).
91 He further deposed that their report, dated 14.6.2006,exhibited as Ex. PW20/A (6 pages) (D-14), is correct and bears his signatures at point A and of Sh. U. Ramamohan at point B which he identified as he had seen him writing and signing in discharge of his official duties and as they had given joint reports in many other cases. PW20 also identified signatures of CC No. 56/2011 CBI Vs Narender Singh 51 of 71 Dr. T.S.N. Murthy, the then Joint Director at point C on Ex. PW20/A (last page).
92 PW-20, D. Venkateswarlu, signed all the aforesaid exhibits/items which had been received for examination. These were also sent back to CBI on 2.11.2006 and 6.8.2008 through Physical Evidence Unit. These exhibits were returned after they affixed their seal of AP FSL, HYD.
93 PW-20, D. Venkateswarlu, had identified the case property i.e. one green envelop in which the exhibit was returned by AP FSL to CBI as well as HI8 tape No.28 as Ex. PY3 and he had identified his signatures at point X on envelop as well as on cassette and inlay card, another one green envelop in which the exhibit was returned by AP FSL to CBI as well as HI8 tape No.34 as Ex. PY1, which bears his signatures at point X on envelop as well as on cassette and inlay card, two yellow envelops and two VHS tapes (C1 and C2) which were returned by AP FSL to CBI. VHS tapes as Ex. PW20/B1 & PW20/B2, inlay covers as Ex.PW20/B3 & PW20/B4 and envelops as Ex. PW20/B5 & PW20/B6, which bears his signatures at point X on envelop as well as on cassette and inlay card, three yellow envelops as Ex. P1, P2 and P3 and two brown envelops as Ex. P4 and Ex. P5 containing voice and image sample of Narender Singh recorded in in two cassettes. These cassettes and inlay cards as Ex. P6 to P8 and the witness had identified his signatures at point X on envelops as well as on cassettes and inlay cards, briefcase as Ex. PX8.
94 In his cross-examination, PW20, D. Venkateswarlu, stated that with respect to audio features, he had done linguistic and phonetic examination and regarding acoustic, voice spectrographic voice examination was done. Wave from monitor is done to see frame to frame image CC No. 56/2011 CBI Vs Narender Singh 52 of 71 appearance and it is seen whether there is any sort of edition in the frame or not. He had been shown briefcase device that day but he could not say whether it is now functional or not. At the time of examination, it was functional. As long as it remained in their laboratory, it was functional. He stated that contents of such HI8 cassettes could be transferred to computers. From analog, such video becomes digital. There is possibility of editing of any file stored in any such computer. He was, however, not aware whether such edited digitized file can be converted to analog and can be transferred to such HI8 tapes again.
95 In his cross-examination, PW20, D. Venkateswarlu, further stated that the exhibits were not directly received by them i.e. himself and Mr. U. Ramamohan from CBI. He volunteered that they received it from their physical evidence section. Exhibits' external seals were checked while they received exhibits from physical evidence section. Report was prepared on 14.6.06 i.e. approximately after one year. That much time was taken due to shortage of staff and acute work pressure. It generally happens in most of the cases because the reasons remains the same. There was nothing unusual, in view of aforesaid, in taking time of one year. He further stated that they had taken the specimen recording through the same briefcase device and matched and compared the quality of the resolution etc and then they came to the opinion that the cassettes supplied to them could be prepared from same briefcase device. He had admitted that there can be other cameras prepared by same company of the same configuration. He had further admitted that any such other camera would also give similar type of result.
96 PW21, Sh K.Y. Guru Prasad, deposed that during the period from 2003 to February 2010, he was posted in AC-I, CBI, Delhi as DSP. He was entrusted with the investigation of the present case on 6.1.2006 due to CC No. 56/2011 CBI Vs Narender Singh 53 of 71 the transfer of previous IO Sh. B. Das. Sh. Das handed over to him the entire file, related to investigation, along with the documents etc. already seized by him, during his investigation.
97 PW21, Sh. K.Y. Guru Prasad, has further deposed that during his tenure, he had merely received the expert opinion from AP FSL as well as part of the exhibits from FSL. Some of the exhibits were retained by FSL as those were required for examination in other cases of Tehlka.com. He also obtained sanction for prosecution from the concerned competent authority i.e. Sh. P.K. Tripathi, Director (vigilance). Such sanction was exhibited as Ex. PW21/A and, thereafter, he prepared charge sheet and same was filed before the court along with the necessary documents and statements.
98 PW-21, Sh. K.Y. Guru Prasad, further stated that while he was posted in AC-1, New Delhi, he was also entrusted with the investigation of RC 5 of 2004, one of the Tehlka.com cases i.e. CBI Vs. Jaya Jaitly. During the investigation of that case, HI8 tapes , DV tapes and VHS tapes were seized by him on 14.12.2004 form Sh. S.K. Das Gupta, the then designated officer and secretary of Justice S.N. Phukan Commission of Enquiry in the presence of Sh. J.P. Mehta under Secretary under a seizure memo Ex. PW1/F (D-5) bearing his signatures on all sheets at point X and signature of J.P. Mehta at point Y. The tapes seized included the tapes required in the present matter also but these were formally taken over in the present case by his predecessor IO Sh. Das. AP FSL report, Ex. PW20/A, was also received by CBI on 21.6.2006 and was eventually handed over to him as the same day, which bears his acknowledgment at point X. 99 In his cross-examination, PW21, K.Y. Guru Prasad, has stated CC No. 56/2011 CBI Vs Narender Singh 54 of 71 that HI8 tapes, DV tapes and VHS tapes were seized from the office of the Commission of Enquiry. As far as he recollected, some other officers of Tehlka.com were also present at that time. Again said, no one was present from Tehlka.com. Their officers and officials of Commission were also present. Sh. S.K. Das Gupta had handed over all these tapes etc to him. Seizure was made on 2-3 dates. Tapes were seized on 14.12.2004 (witness has apprised the date after seeing the records). That day only tapes were seized but other records were also seized subsequently. He did not remember as to whether the proceedings as such of Commission were also seized/received but he had taken over the transcripts from Commission. Those transcriptions were prepared by Union of India as well as by Tehlka.com. One transcription was also prepared by previous IO. He did not himself compare the cassettes with any transcription.
100 This witness stated that numbers were already mentioned, when those cassettes etc were seized. Cassettes were seized separately and were put in separate envelopes having cloth lining inside. Those were also sealed separately and pullandas were signed by the concerned witnesses besides himself. Seal was of CBI. He did not remember the exact description of seal. He further stated that Mr. S.K. Das Gupta had taken out these cassettes from his vault. Seizure memo was prepared in the office of Commission.
101 PW-22, Sh P.K. Tripathi, deposed that, in the year 2006, he was posted as Director (Vigilance) with Government of India, Department of Personnel & Training. In his said official capacity, he was authorized and competent to authenticate the orders issued by and in the name of the President of India.
102 PW-22, Sh. P.K. Tripathi, identified his signatures in token of CC No. 56/2011 CBI Vs Narender Singh 55 of 71 authentication on the sanction order, Ex. PW21/A, signed by him. This
witness stated that Narender Singh was posted as Assistant Financial Advisor (02), Finance Division MoD, New Delhi and Central Government was the competent authority to remove him from his office and the entire material was, accordingly, made available to Central Government and Central Government accorded sanction of his prosecution u/s 19 of Prevention of Corruption Act. Their Department i.e. DOPT was the competent cadre controlling authority. The matter was examined in the Department and all facts and material were placed before the competent authority, in the present case, the Prime Minister as the Minister in-charge and such competent authority after examining the material so placed accorded aforesaid sanction. File was, accordingly, returned to their Department with accord of sanction and he, being authorized and competent to authenticate such order, signed sanction order Ex. PW21/A. Such order had been signed by order and in the name of President of India.
103 PW-23, Sh. Biswajit Das, deposed that, in the year 2004-05, he was posted as Dy. SP in ACU/CBI, New Delhi. This case was entrusted to him for investigation on 06.12.2004. After getting the case, he collected the HI8 and VHS video and audio cassettes from malkhana, which had already been collected from the designated officer of the then Justice S.N. Phukan Commission by Sh. KY. Guruprasad, who was IO of another similar type of case i.e. RC 5A 2004 i.e. case against Ms. Jaya Jaitely & Others. Such memo, whereby Sh. Guruprasad had seized the same from Commission, was exhibited as Ex. PW1/F (D-5).
104 PW-23, Sh. Biswajit Das, has further deposed that he had also seized the devices used by the Tehalka. com in the sting operation from Sh. Arnab Pratim Dutta of Tehalka. Com and such memo is Ex. PW15/A and it bears his signatures at point B. In the present case i.e. case related to CC No. 56/2011 CBI Vs Narender Singh 56 of 71 Narender Singh, only briefcase device had been used in the sting operation. This witness identified the device as Ex. PX-8.
105 PW-23, Sh. Biswajit Das, further deposed that he prepared transcripts of all the related cassettes pertaining to present case i.e. cassettes no. 28 & 34. Such transcripts are Ex. PW16/A (related to cassette no. 28, pages 29, D-6/1) and Ex. PW16/B (related to cassette no. 34, pages 28, D- 6/2). These transcripts were prepared by him and Sh. Rajender Singh was present, during preparation of the transcripts, and he verified the transcripts with conversations stored in the cassettes and confirmed the authenticity of the same. He was Section Officer working under Narender Singh, and, therefore, he was able to identify his image and voice. He also identified the image of Narender Singh, in those two cassettes. Such transcripts were signed by Sh. Rajender Singh at point X on all pages. He had also taken the voice and image sample of Sh. Narender Singh. Such memorandum i.e. Ex. PW10/A (D-10, two pages) bears signatures of PW22, at point D. The matter which had been provided to Narender Singh for reading out for taking his voice sample was exhibited as Ex. PW10/B (part of D-10, five pages) and it bore signatures of this witness at point D. It bears signatures of Narender Singh and other officials of CFSL also.
106 PW23, Sh. Biswajit Das, further deposed that he had also signed on such cassettes on which specimen voice/image sample of Narender Singh had been taken. He identified the audio cassette as Ex. P- 8 contained in cover along with inlay card Ex. P-7 and also identified his signatures at point X. He also identified Sony Album video cassette Ex. P-7 contained in cover with inlay card Ex. P-6 which contains video footage regarding specimen sample of accused, which bear his signatures at point X. He has further deposed that both these cassettes were the same on which CC No. 56/2011 CBI Vs Narender Singh 57 of 71 the specimen of voice and image respectively were taken.
107 PW-23, Sh. Biswajit Das, further deposed that he had also taken the voice and image sample of Mathew Samuel, correspondent of Tehalka.com and such memorandum is Ex. PW12/A (D-11, two pages) which bore his signatures at point D. The matter, which had been provided to Mathew Samuel, for reading out for taking his voice sample is Ex. PW12/B (part of D-11, seven pages), which bears signatures of Mathew Samuel and other officials of CFSL. It, however, did not bear his (PW23) signatures. He further deposed that he had also signed on such cassettes on which specimen voice/image sample of Mathew Samuel had been taken. Thereafter, both the aforesaid cassettes along with VHS copies and transcription, prepared by him, were forwarded to AP/FSL vide letter already Ex. PW18/B (D-12 four pages) along with the sample voice and image of Narender Singh and Mathew Samuel. Such letter was signed by Sh. Arun Sharma, the then SP in ACU-II Branch. He had also sent the questionnaire, with respect to the issues, on which the opinion was sought and details of material forwarded to AP/FSL are mentioned in para-8. He had also taken requisite steps for the purposes of obtaining sanction of prosecution of accused Narender Singh. In between, he was transferred and remaining investigation was carried out by K.Y. Guruprasad.
108 In his cross-examination, PW23, Sh. Biswajit Das, stated that he had done part investigation and subsequent to him, Sh. Guruprasad had conducted the remaining investigation. Since, the investigation during his tenure was almost complete, he had initiated the process for obtaining sanction for prosecution of accused. Entry was made, in the malkhana register, when he collected those cassettes. No such entries are part of record. He was entrusted investigation by SP Arun Sharma. He had only CC No. 56/2011 CBI Vs Narender Singh 58 of 71 seized the briefcase device from Mr. Arnab Pratim Dutta. He further stated, in his cross-examination, that he did not operate the briefcase unit on the date of its seizure, to ensure, if it was functional, as on the date of seizure. He had not made any inquiry, from Sh. Arnab Pratim Dutta, as to under what conditions had the briefcase unit been kept by them. He further stated that transcripts were already available before he also prepared another set of the same. Such previous transcripts were two different transcripts i.e. one prepared by Tehalka.com and one by Union Government. He did not compare these two transcripts with each other. He is not aware about anything contained against Narender Singh in "Rogue Gallery" on portal of Tehalka.com. In his cross-examination, PW23, Sh. Biswajit Das, stated that he did not enquire as to what steps were taken by Tehalka.com to ensure that there was no interference with the tapes till those were taken over by Commission.
109 After conclusion of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. In his statement u/s 313 Cr.P.C., accused Narender Singh denied all the incriminating evidence. He claimed that he had been falsely implicated, in the present case. Accused, Narender Singh, claimed that he had not done anything wrong. Accused had chosen to lead defence evidence and he had examined DW1, Sh. Brij Mohan.
110 Accused, Narender Singh, had examined DW-1, Brij Mohan. He deposed that he was posted in Ministry of Defence (Finance Division) on the ordnance side. He stated that he was promoted as Under Secretary and was posted to another Ministry i.e. Ministry of Shipping. DW-1, Brij Mohad, had stated that Hand Held Thermal Imager (HHTI) was also being handled by him. He had stated that the work, that he was handling, was never routed through Narender Singh. DW-1 deposed that Narender Singh was handling CC No. 56/2011 CBI Vs Narender Singh 59 of 71 indigenous proposals only and not any proposal related to any arm to be procured from foreign.
111 I have heard Ld PP for CBI and Ld counsel for accused persons and have gone through the evidence adduced and material produced before the Court.
112 It has been contended by Ld. APP for CBI that, in the present matter, accused had accepted an amount of Rs.10000/- from the complainant, namely, Mathew Samuel. It has further been stated that there was voluntary acceptance on behalf of accused. Ld. APP has further argued that prosecution has been able to prove its case against the accused beyond all reasonable doubts for the offence u/s 7, 9, 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act.
113 It has been argued by Learned APP for CBI that where there is clear acceptance on behalf of the accused, CBI is not bound to prove that there was any specific demand on behalf of the accused. Ld. APP for CBI has argued that there is voluntary acceptance on behalf of the accused, namely, Narender Singh. It has further been argued by Ld. APP for CBI that there is sufficient evidence on the record file to prove that there was voluntary acceptance on behalf of the accused. Ld. APP for CBI has further argued that there is evidence of "video tapes" showing the conversation between the accused, Narender Singh, and complainant, Mathew Samuel. The said tapes have been exhibited as Ex. PW16/A. Learned APP has contended that the said video tapes are reliable and can be taken into account by the court. Ld. APP for CBI has further contended that even if we assume that the video tapes are not admissible, in the present matter, there is sufficient ocular evidence on behalf of the witnesses of CBI to prove that accused, Narender CC No. 56/2011 CBI Vs Narender Singh 60 of 71 Singh, had accepted an amount of Rs. 10000/- from the complainant. It has been stated that when there is clear oral evidence on behalf of the witnesses of CBI, the tape recorded conversation between accused, Narender Singh, and Mathew Samuel can be used as corroboration for bringing home the guilt of the accused.
114 On the other hand, it has been contended by learned counsel for the accused that there was no demand, on behalf of the accused, from the complainant, in the present matter. It has further been contended that demand is sine qua non i.e. one of the essential requisite and has not been proved in the present case. Thus, the offences u/s 7, 9, 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act is not made out in the present matter. Learned counsel for the accused has further stated that, if there is no demand, then, by mere acceptance, no case is made out, under any of the provisions of the above mentioned sections.
115 Learned counsel for the accused, Narender Singh, has further contended that mere acceptance of the gift on behalf of the accused, in the present matter, does not amount to any offence under Prevention of Corruption Act. It has been vehemently argued that the acceptance, in the present matter, was not proceeded by any demand. In the absence of the same, accused, Narender Singh, cannot be convicted for the offences, as already mentioned in the charge framed against the accused. Learned counsel for the accused, Narender Singh, has further argued that the accused had only told the procedure to be adopted by the complainant. The accused, Narender Singh, did not disclose any secret of the army to the complainant. Learned counsel for the accused has further stated that the video tapes relied upon, in the present matter, are of no assistance to the prosecution, since, the possibility of "tampering" cannot be ruled out. It has been argued that the CC No. 56/2011 CBI Vs Narender Singh 61 of 71 evidence of video tapes is not admissible due to the fact that there was a possibility of manipulation of the tapes on behalf of the CBI.
116 Section 7 of Prevention of Corruption Act, 1988 provides that.- Public servant taking gratification other than legal remuneration in respect of an official act.-
Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting 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 which shall be not less than six months but which may extend to five years and shall also be liable to fine.
117 Section 9 of Prevention of Corruption Act, 1988 provides that.- 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 CC No. 56/2011 CBI Vs Narender Singh 62 of 71 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.
118 Section 13 of The Prevention of Corruption Act, 1988 is quoted herein below for ready reference:-
13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct,-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward or such as is mentioned in section 7: or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable things without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to concerned in any proceeding or business transacted or about to be transacted by him, or having nay connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he,_
(i) by corrupt or illegal means obtains for himself or for any CC No. 56/2011 CBI Vs Narender Singh 63 of 71 other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation.- For the purposes of this section, " known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than (four years) but which may extend to (ten years) and shall also be liable to fine.
119 It is well settled preposition of criminal law that prosecution has to establish its case against the accused beyond reasonable doubt. Reference in this connection can be made to the decision of Hon'ble Supreme Court in, Tika Vs. State of UP, AIR 1974 SC 155, wherein it has been held that:-
"One of the cardinal principles which has always to be kept in view, in our system of administration of justice for criminal cases, is that an accused is presumed to be innocent, unless, that presumption is rebutted by the prosecution by production of evidence which may show him to be guilty of the offence with which he is charged."
CC No. 56/2011 CBI Vs Narender Singh 64 of 71 120 Reference can be made to the decision of Hon'ble High Court of
Punjab and Haryana in Balraj Singh Vs. The State of Punjab, 1976 Cr.L.J. 1471 (DB) (Punjab) in which it was observed as follows:-
"The guilt of accused is to be established by the prosecution beyond the possibility of any reasonable doubt on the basis of legal evidence and material on record. Even if, there may be an element of truth in the prosecution story against the accused and considered as a whole, the prosecution may be true, but between 'may be true' and 'must be true', there is invariably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted".
121 In Bhikari Vs State of U.P. AIR 1966 SC1, the Supreme Court has held that:-
"Undoubtedly, it is for the prosecution to prove beyond reasonable doubt that the accused has committed offence with the requisite mens rea. Once it is done, the accused can rebut this presumption either by leading evidence or by relying on the prosecution evidence itself. If upon evidence adduced in the case, either by the prosecution or by defence, a reasonable doubt is created in the mind of the Court, regarding one or more ingredients of the offence including mens rea, then he would be entitled to the acquitted."
122 The Hon'ble Supreme Court of India in a case titled as Takdir Samsuddin Sheikh Vs State of Gujarat & Anr. AIR 2012, Supreme Court 37 has held that:-
CC No. 56/2011 CBI Vs Narender Singh 65 of 71 "It is settled legal preposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/omissions/improvements/embellishments etc had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, omissions or improvements on trivial matters without affecting the case of the prosecution should not be made the court to reject the evidence in its entirety. The court after going through the entire evidence must form an opinion about the credibility of the witnesses.
123 It is well settled through a catena of judicial pronouncements that, burden of Proof means the obligation of a party to prove his allegations during a trial. This phrase is employed to signify the duty of proving the facts in dispute on an issue raised between the parties in a cause. In criminal cases, as every man is presumed to be innocent until the contrary is proved, the burden of proof always lies on the party who takes the affirmative in pleading, unless a different provision is expressly made by statute. Thus, the prosecution has to prove its case beyond reasonable doubt by clear, convincing and unimpeachable evidence.
124 Thus, the prosecution/CBI has to discharge its burden by bringing clear evidence against the accused persons regarding the commission of the offences as mentioned in the charges framed u/s 7, 9, 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act.
125 At the outset, it may be pointed out that there is nothing on the record file to prove that accused, Narender Singh, had at any point of time demanded an amount of Rs. 10000/- from Mathew Samuel. Even during the course of arguments, learned counsel for the accused has contended that the prosecution has not been able to show that there was any demand of Rs.
CC No. 56/2011 CBI Vs Narender Singh 66 of 71 10000/- on behalf of the accused, Narender Singh, from Mathew Samuel. The relevant part of the evidence of PW16 Mathew Samuel dated 19.02. 2014 is reproduced below for ready reference.
"During my such meeting, I also offered him Rs.10,000/ by saying, "can I give a gift to you" and his answer was "you can". I gave him said amount".
126 Thus, it is clear from the above quoted sentences from the evidence of PW16, Mathew Samuel, dated 19.02.2014, that there was no demand on behalf of the accused, Narender Singh, regarding the said amount. There is nothing in the evidence of any of the witnesses produced by prosecution that accused, Narender Singh, had at any point of time demanded Rs. 10000/- from Mathew Samuel.
127 The evidence of PW16, Mathew Samuel, is clear on the point that there was discussion about the product i.e. Hand Held Thermal Imager (HHTI). Narender Singh had informed him that he had to go and cultivate Major General P.S.K. Chaudhary. He further told this witness that Major General P.S.K. Chaudhary was a right person who could help him in that regard at the initial stage. It is clear from the evidence of PW16 as well as other witnesses produced on behalf of CBI that accused, Narender Singh had not given any positive assistance regarding the purchase of Hand Held Thermal Imager (HHTI). There were talks between accused, Narender Singh, and Mathew Samuel regarding the modalities of the manner by which the product i.e. HHTI could be purchased by the Indian Army. There is nothing in the evidence of this witness or in the evidence of any other witness to show that accused, Narender Singh, had, at any point of time, shown any CC No. 56/2011 CBI Vs Narender Singh 67 of 71 favour to any of the persons so as to render him liable u/s 7, 9 , 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988.
128 So far as the recording of the conversation with accused Narender Singh is concerned, it may be pointed out that PW16, Mathew Samuel, had deposed that in the footage of the cassette, he was seen offering Rs. 10000.- to Narender Singh. The relevant part of evidence of this witness is reproduced below for ready reference.
"Then I am seen offering Rs.10,000/- to him claiming "10,000/- bucks and making him arrange the meetings. I am offering the notes in loose condition i.e. not in any envelope and accused accepts the same and put the same below the table".
129 The relevant part of the evidence reproduced above goes to show that there was no demand of Rs. 10000/- on behalf of accused, Narender Singh. Simply, there was an offer of Rs. 10000/- by PW Mathew Samuel to the accused, Narender singh.
130 None of the CBI witnesses has been able to show that there was any demand of any gratification by the accused, Narender Singh. Further, it has not been proved that accused, Narender Singh, had, at any point of time, helped Mathew Samuel in any manner, while working as public servant. Nothing has come in the evidence of any of the witness that accused, Narender Singh, was instrumental in demanding Rs. 10000/- from Mathew Samuel.
131 The relevant part of judgment cited as B. Jayaraj Vs state of Andhra Pradesh (2014) 13 Supreme Court Cases 55 reads as under:-
"In the present case, the complainant did not support the prosecution CC No. 56/2011 CBI Vs Narender Singh 68 of 71 case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. So far as the offence under Section 13 (1) (d) (I) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established."
132 The relevant part of judgment cited as N. Sunkanna Vs State of Andhra Pradesh 2015 Legal Eagle (SC) 850 reads as under:-
"It is settled law that mere possession and recovery of currency notes from the accused without proof of demand will not bring home the offence under Section 7, since demand of illegal gratification is since-qua-non to constitute the said offence. The above also will be conclusive insofar as the offence under Section 13 (1) (d) is concerned as in the absence of any proof of demand for illegal gratification the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. It is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Unless there is proof of demand of illegal gratification proof of acceptance will not follow. Reference may be made to the two decisions of three-Judge Bench of this Court in B. Jayaraj v. State of Andhra Pradesh [(2014) 13 SCC 55] and P. Satyanarayana Murthy v. The District Inspector of Police and Another [(2015 (9) Scale724]."
133 It may be mentioned that the authenticity of HI8 tape No.28 Ex. PY3, HI8 tape No. 34 Ex. PY1 and VHS tapes Ex. PW20/B1 & Ex. PW20/B2 CC No. 56/2011 CBI Vs Narender Singh 69 of 71 as well as cassettes Ex. P6 to P8 alleged to have been recorded on behalf of Tehelka.com is doubtful. The recording of cassettes by Mathew Samuel does not inspire the confidence of this court as he is an interested witness. He is interested in getting the conviction of accused, Narender Singh. Even otherwise, there is nothing on the record file to show that any demand being made by the accused, Narender Singh, is being shown in any of the cassettes referred above. There is nothing in any of the cassettes recorded by Mathew Samuel to show that accused, Narender Singh was demanding any amount from him. Further, there is nothing in any of the cassettes to show that accused, Narender Singh, had given any assurance to help Mathew Samuel regarding the procurement of Hand Held Thermal Imager (HHTI) by the Army. In view of these facts, the cassettes recorded by Mathew Samuel cannot be given much weightage, in the present matter. The possibility of tampering or doctoring of the cassettes cannot be ruled out in the present matter as they remained in the custody of Tehelka.com for a considerable long time. Further, the computers or tools have not been taken into possession by the CBI on which the copies were prepared from the cassettes (alleged to be originals as claimed by Tehelka.com). Thus, it is clear that the tape recorded cassettes cannot be used even as corroborative evidence, in the present matter.
134 It may be mentioned that, in the present matter, there is nothing on the record file to show that accused, Narender Singh had, at any point of time, given any favour or disfavour to any person so as to attract Section 7 of Prevention of Corruption Act. Further, there is nothing on the record file to show that he had taken any gratification for exercising personal influence to show favour or disfavour to any person. Since, there is no demand on behalf of the accused, Narender Singh, no criminal misconduct can be imputed to him. No criminal liability can be fastened in the absence of CC No. 56/2011 CBI Vs Narender Singh 70 of 71 positive demand by the accused, Narender Singh from Mathew Samuel. In this view, I am also fortified by the decision of Hon'ble Supreme Court in B. Jayaraj v. State of Andhra Pradesh [(2014) 13 SCC 55] and P. Satyanarayana Murthy v. The District Inspector of Police and Another [(2015 (9) Scale724]' (already quoted above). Similar view has also been taken by the Hon'ble Supreme Court of India in N. Sunkanna Vs State of Andhra Pradesh 2015 Legal Eagle (SC) 850 as well.
135 In view of the above discussion, I am of the considered view that evidence produced on behalf of the CBI is not sufficient enough to convict the accused, Narender Singh for the offences u/s 7, 9, 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988. Hence, accused, Narender Singh, is acquitted of all the charges levelled against him.
136 His bail bonds are cancelled and surety is discharged. He is, however, directed to furnish bonds u/s 437A Cr.P.C. in a sum of Rs. 50,000/- with one surety in the like amount.
137 Ahlmad is directed to paginate and book-mark for digitization purpose.
138 File be consigned to Record Room.
Announced in the open Court (RAMESH KUMAR) On this 05th day of April, 2016. Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC No. 56/2011 CBI Vs Narender Singh 71 of 71