Cbi vs . Maj. Gen. S.P. Murgai (Retd.) on 22 August, 2019

[Cites 13, Cited by 0]

Delhi District Court

Cbi vs . Maj. Gen. S.P. Murgai (Retd.) on 22 August, 2019

     IN THE COURT OF SH.SHAILENDER MALIK, SPECIAL JUDGE
     (P.C. ACT) (CBI)22, ROUSE AVENUE COURT COMPLEX, NEW
                                DELHI

CC No.33/2019
RC No.AC3/2006/A0002CBI/ACUIII
CNR No.DLCT110000732019


CBI           vs.                  Maj. Gen. S.P. Murgai (Retd.)
                                   S/o Late Sh.B.R. Murgai
                                   R/o C62, Ist Floor, Anand Niketan,
                                   New Delhi.
                                   Also R/o D8/1, Vasant Vihar, New Delhi.


Date of Institution                     :     31.10.2007
Date of charge framed                   :     23.02.2012
Date of arguments heard                 :     06.08.2019
Date of Judgment                        :     21.08.2019
                                   JUDGMENT

1. During the year 200001 functionaries of News Portal by name "Tehelka.com" of M/s Buffalo Networks Pvt. Ltd., Delhi undertook a sting operation which was given discreet name as "Operation Westend", to expose corruption in defence procurement. In pursuance to such discreet operation functionaries of Tehelka.com had met with various persons including government servants, defence persons, businessmen and politicians etc. purportedly to facilitate for obtaining of supply order of defence equipments.

2. Such "Operation Westend" was so executed by Tehelka.com team by projecting a company by name M/s Westend International U.K. (a CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 1 nonexistent company) stated to be subsidiary of M/s Wynn Instruments Group of Netherlands portraying to be world leader in optical and imaging technology. One of the functionary of Tehelka.com was Mr.Mathew Samuel who was a correspondent (investigation) who through a chain of references/ introduction including of one S.R. Suyal, UDC in Tender Cell (Procurement Cell) of Ministry of Defence, met with Lt. Col. V.P. Syal (Retd.). Said Mathew Samuel was introduced by Lt. Col. V.P. Sayal to Maj. Gen. S.P. Murgai (Retd.) as Chief Liaison Officer of M/s. Westend International of London.

3. During the earlier stage of operation carried out by Tehelka.com, its investigation team procured the information that process of supplying of "Hand Held Thermal Imagers" (HHTI) to Indian Army was going on and orders for supply of HHTI had already been placed with M/s ELOP of Israel and M/s CSF Thompson of France. However since there was still requirement of HHTI by the Indian Army, therefore such nonexistent company M/s Westend International sought to compete in the supply of HHTI to Indian Army. In this regard abovesaid Mathew Samuel wrote letters to various authorities including Additional Director General/WE, Master General Ordnance, Additional Secretary MOD, Joint Secretary MOD, Director, OSArmaments, Army Headquarters for evaluation of their product.

4. It is in this context regarding supply of HHTI to Indian Army, Mathew Samuel allegedly met with Maj. Gen. S.P. Murgai (Retd.) (accused herein). It is important to note here that Maj. Gen. S.P. Murgai served the Indian Army in various capacities from 1962 till 30.09.2000. Maj. Gen. S.P. Murgai worked in Directorate General of Quality Assurance (DGQA) of CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 2 Department of Defence Production, Director Quality Assurance (Stores) in DGQA from July 1998 till his retirement. Said Mathew Samuel when met with accused Maj. Gen. S.P. Murgai who had by then retired from the Office of DG, in that meeting Mathew Samuel talked with him regarding procedure and methodology of procurement of HHTI as well as regarding role of Master General Ordnance (MGO), Prospective Purchase Officer (PPO) and Additional Director General, Weapons and Equipments. Said Mathew Samuel portrayed before accused Maj. Gen. S.P. Murgai that his company is sound and ready to do anything for procuring the supply orders of HHTI. It came in the allegations that Maj. Gen. S.P. Murgai explained to said Mathew Samuel that role of money would come at later point of time when the product would be found suitable for technical evaluation that was the time when influence could be exercised. He further told Mr.Mathew Samuel that MGO Maj. Gen. Dhillon was an old friend and he could arrange meeting with him. He further told that meeting with the P.P.O. (Prospective Purchase Officer) could be arranged by Lt.Col. V.P. Sayal (Retd.). During such conversation Maj. Gen. S.P. Murgai agreed to use his influence. In that meeting accused Maj. Gen. S.P. Murgai also gave inputs regarding arranging of meeting with the then Defence Minister. He told Mathew Samuel that every visit means 4, 5, 6 crores. He also informed Mathew Samuel that there were clear cut instructions that intermediary should not be encouraged. Such meeting of Mathew Samuel and Maj. Gen. S.P. Murgai was recorded in a tape in sting operation. It was evident from such recorded conversation that Maj. Gen. S.P. Murgai was aware that middlemen were not allowed and still he became ready to offer role of intermediary. From the conversation between Maj. Gen. CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 3 S.P. Murgai and said Mathew Samuel, the motive of Maj. Gen. S.P. Murgai was to influence the concerned public servants by using of money as well as personal influence in order to make his services available. Towards the end of that meeting Maj. Gen. S.P. Murgai accepted a sum of Rs.20,000/ from Mathew Samuel as gratification.

5. It further came in the light that a second meeting between Mathew Samuel and Maj. Gen. S.P. Murgai took place on 08.12.2000 at the latter's house which was also recorded in the sting operation on tape no.55. In that meeting there was a talk between them regarding arranging of meeting of Mathew Samuel with Sh.L.M. Mehta, the then Additional Secretary in Ministry of Defence as well as Maj. Gen. P.S.K. Chaudhary, the then Additional Director General (Weapons & Equipments), Army Headquarters. In that meeting there was a conversation between the two regarding giving of gift/currency to Sh.L.M. Mehta. Maj. Gen. S.P. Murgai suggested Mathew Samuel that in the first meeting he could give small gift and currency could be given during the second meeting. It also came in the conversation in that meeting that when Mathew Samuel asked him as to "how much money he required for arranging second meeting", Maj. Gen. S.P. Murgai replied "how much money is convenient to you". When Mathew Samuel replied that he would give Rs.50,000/, Maj. Gen. S.P. Murgai agreed with the same. Maj. Gen. S.P. Murgai also asked Mathew Samuel whether he was keeping any account of payment made to him. He clearly asked Mathew Samuel that if he may be keeping any such account and later that account could be passed on to someone then he would be put into trouble. Thereupon Mathew Samuel stated to have satisfied Maj. Gen. S.P. Murgai by replying that amount was CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 4 paid from black money and in the accounts kept, there would be no mention of his name Maj. Gen. S.P. Murgai as it is only mentioned as 'X', 'Y' etc.

6. In the series of such meetings so recorded in the sting operation, next meeting took place on 16.12.2000 again at the residence of Maj. Gen. S.P. Murgai. This meeting was also recorded in tape no.96. In this meeting Maj. Gen. P.S.K. Chaudhary was also present beside Mathew Samuel and Maj. Gen. S.P. Murgai. In the said meeting, Maj. Gen. P.S.K. Chaudhary informed Mathew Samuel that they had already selected the firms for trial evaluation and matter had reached to the stage of price negotiation, as such a third party could not join the fray. At that stage Maj. Gen. S.P. Murgai requested Maj. Gen. P.S.K. Chaudhary that company could be trial evaluated at no cost, no commitment basis however Maj. Gen. P.S.K. Chaudhary told that he could not stop the process of trial evaluation. After this meeting Mathew Samuel paid a sum of Rs.25,000/ to Maj. Gen. S.P. Murgai. It further came in the investigation that Maj. Gen. S.P. Murgai and Mathew Samuel met with Sh.L.M. Mehta at his residence on 24.12.2000 for discussing about the product and process. Mathew Samuel and Maj. Gen. S.P. Murgai also made an attempt in that meeting, to give a gold chain to Sh.L.M. Mehta. This meeting was also recorded in tape no.67. Such recording on the tape would indicate that Sh.L.M. Mehta did not accept this gift of gold chain. After that meeting Mathew Samuel paid a sum of Rs.25,000/ to Maj. Gen. S.P. Murgai for arranging that meeting. From the recorded tapes, it was evident that Maj. Gen. S.P. Murgai willingly acted as a middleman for M/s Westend International in lieu of gratification which was paid by Mathew Samuel and such payment figured in all the four tapes. As CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 5 such from viewing such tapes, it came in the light that Maj. Gen. S.P. Murgai accepted total sum of Rs.70,000/ gratification for himself on three different occasions i.e. on 19.10.2000 when a sum of Rs.20,000/ was paid to him (recorded in tape no.16), on 16.12.2000 when Rs.25,000/ was paid to him (recorded in tape no.96) and on 24.12.2000 when Rs.25,000/ was paid (recorded in tape no.67).

7. As a matter of fact the entire sting operation was covered in all 105 original tapes and later Tehelka.com on 13.03.2001 held a press conference and showed 4½ hours edited version of all the tapes covering the meetings of Mathew Samuel and accused Maj. Gen. S.P. Murgai. After such publication of sting operation of Tehelka.com, a Judicial Inquiry Commission was appointed by the Government of India to inquire into tapes so released by Tehelka.com headed by Justice Venkataswamy. Later Justice Venkataswamy resigned in 2002 and in 2003 Justice S.N. Phukan was appointed Chairman of the Commission. However it is matter of record that the said Commission inquired into the tapes till 2004 and thereafter it was wounded up by a Notification dated 08.10.2004. Present case was registered on 03.02.2006 under Section 9 of the Prevention of Corruption Act against Maj. Gen. S.P. Murgai on receipt of information from Government of India, Department of Personnel and Training vide letter dated 29.10.2004 and 25.10.2004. As per letter dated 29.10.2004 decision of Government of India regarding abolition of Justice S.N. Phukan Inquiry Commission looking into the matter concerning Tehelka tapes and investigation thereof was entrusted to CBI, was communicated.

8. During investigation original Hi8 tapes bearing nos.16, 55, 67 CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 6 and 96 were obtained in sealed parcels besides VHS copies thereof as also the transcripts containing details of conversation recorded in each of these Hi8 tapes from Sh.S.K. Dasgupta, the Designated Officer who was Secretary of the erstwhile S.N. Phukan Commission of Inquiry. Cameras/recording equipments used by the functionaries of Tehelka.com were also obtained from them. These 4 tapes were sent to CFSL, New Delhi for examination. CFSL examined the same with the help of Andhra Pradesh Forensic Science Laboratory, Hyderabad. The result of Audio Video examination of 4 tapes, except the result of video examination in respect of tape no.55 has been received. The Andhra Pradesh Forensic Science Laboratory, Hyderabad after scientific examination of the tapes with the specimen voices and images of Maj. Gen. S.P. Murgai and recording unit, furnished opinion vide report/ opinion dated 13.09.2007 that these original unedited Hi8 tapes marked as 16, 67 and 96 are genuine, there is no tampering/editing on it, the copies in VHS tapes are true copies of the original, the video images and voice on the questioned tapes and their samples pertaining to accused Maj. Gen. S.P. Murgai and Mathew Samuel match and that these original Hi8 tapes have been prepared by the briefcase unit of camera sent for analysis. Report in respect of the audio examination in respect of tape no.55 received from CFSL, New Delhi vide report dated 11.09.2007 established the voice of accused Maj. Gen. S.P. Murgai on the said tape matching with his sample voice.

9. Investigation has disclosed that Maj. Gen. S.P. Murgai accepted gratification of Rs.70,000/ for himself from Mathew Samuel for inducing public servants by corrupt or illegal means and by exercise of personal influence as a motive to favour to M/s West End International.



CC No.33/2019 (Judgment)
CBI Vs. Maj. Gen. S.P. Murgai (Retd.)                                  Page 7

10. After investigation charge sheet was filed in the case u/s 8 and 9 of the Prevention of Corruption Act, 1988 against accused Maj. Gen. S.P. Murgai.

11. A copy of charge sheet along with all the documents etc. were supplied to the accused in terms of Section 207 Cr.P.C. and thereafter considering the material available on the judicial record, the Predecessor of this Court passed the order on charge on 16.02.2012 and framed charged on 23.02.2012 for offence under Section 8 and 9 of the Prevention of Corruption Act, to which accused pleaded not guilty and claimed trial.

12. In order to substantiate the charge, prosecution in all has examined 22 witnesses, the details of which will be discussed in later part of this judgment. Prosecution has also relied upon different documents, more particularly four tapes being Cassette Nos.55, 16, 67 and 96, their transcript.

13. Upon completion of entire prosecution evidence the incriminating evidence was put to the accused in his statement recorded under Section 313 Cr.P.C. wherein accused S.P. Murgai has either denied the evidence or has expressed his inability to recollect the facts. In respect of certain incriminating circumstances put to him in his statement under Section 313 Cr.P.C., accused has simply denied those facts/circumstances. Accused S.P. Murgai has specifically denied having taken the total money of Rs.70,000/ for introducing anybody to senior officers, politicians and IAS officers for any purpose. Accused Maj. Gen. S.P. Murgai however has not disputed receipt of Rs.70,000/. In this regard accused has stated that he received the said amount under a bona fide belief and clear understanding that same was given towards his consultation profession charges, till he would be CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 8 retained permanently for his services. Accused further stated that a false case has been registered against him and he has not done anything wrong. He states that he is a victim of circumstance which culminated into initiation of proceedings in this case, out of political vendetta. Accused says that no witness has deposed against him except PW19 who was an interested witness being author of sting operation.

14. While pleading his innocence, accused went on to state about his service record in Indian Army. Accused states that his father had been a Government official in Central Government and he was commissioned in Indian Army in 1962 and retired in 2000 and has unblemished service of 38 years. Accused stated to be recipient of AVSM (Ati Visisht Seva Medal) from President of India for his outstanding services. Accused states that he is Graduate in Electronics and Post Graduate in Computer Science from IIT, Bombay and has also done prestigious courses including technical staff college while serving in Indian Army.

15. No evidence was led in defence being having opportunity.

16. I have heard Sh.Lalit Mohan, Ld. PP for CBI and Sh.S.P. Kaushal, Ld. Counsel for the accused. I have also gone through written submissions filed on behalf of prosecution as well as by defence. Undisputed Facts

17. In the facts and circumstances of the present case certain undisputed facts needs to be mentioned here. The fact that news portal Tehelka.com undertook a sting operation and that sting operation was published in the media on 13.03.2001. Because of such expose a Judicial Commission was constituted by the Government by name Justice K. CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 9 Venkataswamy Commission. Later when Justice K. Venkataswamy resigned from that Commission in November 2002, in January 2003 Justice S.N. Phukan was appointed Chairman of that Commission. It is also matter of record that such Judicial Commission inquired into the matter till October 2004 when it was wounded up vide Notification dated 08.10.2004 of Government of India. It is thereafter entire matter was handed over to CBI for investigation. It is in such factual background present RC No.AC 3/06A 2002/CBI/ND was registered on 13.02.2006 for offence under Section 9 of the P.C. Act. Charge sheet however has been filed under Section 8 as well as 9 of P.C. Act. As such it is matter of record that in respect of incidence which started only in the year 2000 culminated into a sting operation in March 2001, FIR in this case was registered only in the year 2006.

18. Before I advert into the evidence come on the judicial record and to assess the same in the light of submissions made at bar, I would also like to precisely discuss at the outset that accused herein Maj. Gen. S.P. Murgai is facing charge for offence under Section 8 and 9 of the P.C. Act. I would discuss the contents of the charge while meeting the arguments of ld. Counsel for the accused. However at this moment I would like to precisely reproduce herein the basic requirement of law for proving the charge for offence under Section 8 and 9 of the P.C. Act. In order to prove Section 8 of the P.C. Act following ingredients are required to be established : (i) that the accused accepted or obtained or agreed to accept or attempted to obtain from someone; (ii) for himself or for some other person; (iii) any gratification whatsoever as a motive or reward for inducing by corrupt or illegal means any public servant to do or forbear to do any official act or to show any favour or CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 10 render any service to any of the person specified in the section.

19. Provision of Section 8 of the P.C. Act appears to be corresponding to Section 162 of IPC and from the bare perusal of the provision it would be evident that prosecution only need to prove that accused accepted or obtained or agreed for the same any gratification as a motive or reward for inducing "by corrupt or illegal means" any public servant. It is however not necessary that the accused who has received such gratification has been actually succeeded in inducing the public servant or not. Only aspect which is necessary to attract Section 8 of the Act would be that there was receipt of gratification as a motive or reward for the purpose of inducing the public servant by corrupt or illegal means. Upon proving of such aspect it can be stated that offence is complete. Similarly, Section 9 of the P.C. Act which is more or less similarly worded as Section 8 of the Act with only difference that the inducement is "by exercise of personal influence". As such the scope of Section 9 and 8 of the P.C. Act is more or less the same.

20. Let us now consider the evidence as come on the record. Since the precise charge against the accused is that on 19.10.2000, 16.12.2000 and on 24.12.2000 he being retired Major General of Indian Army accepted gratification of total amount of Rs.70,000/ from Mr. Mathew Samuel who portrayed himself to be the representative of M/s Westend International (a fictitious company of UK) for inducing public servants like Mr. L.M. Mehta (the then Additional Secretary, Ministry of Defence), Sh. P.S.K. Chaudhary (the then Additional Director General (Weapons & Equipments) of Indian Army) for favouring above named company for getting orders for supply of 'Hand Held Thermal Imagers' (HHTI) to Indian Army. As such in the facts CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 11 and circumstances of the present case, most material evidence is of PW8 Mr. L.M. Mehta, PW18 Major General P.S.K. Chaudhary and of PW19 Mathew Samuel. Most of the arguments of learned counsel for the accused has also been around the evidence of these witnesses.

21. Before I proceed to discuss the evidence of PW8, PW18 and PW19, it is important here to refer first evidence of PW3 Sh. S.K. Dasgupta because his evidence connects the period when the sting operation was exposed in a press conference and a judicial commission was appointed to investigate those exposures and thereafter registration of FIR. PW3 Sh. S.K. Dasgupta was posted as Secretary in Justice K. Venkataswamy Commission of Inquiry. PW3 testifies that the commission was constituted by the Government of India to inquire into tapes released by Tehelka.com. PW3 says that later Justice K. Venkataswamy resigned from that commission in November 2002 and in January 2003 Justice S.N. Phukan was appointed Chairman of said commission. PW3 further testifies that commission inquired into the matter till October 2004, when it was winded up vide notification dated 08.10.2004 of Government of India. Witness says that after the Cessation of Inquiry Commission, he was nominated as "designated officer" for winding up of the commission by order dated 08.10.2004 issued by then Additional Secretary to Government of India and Gazette notification is Ex.PW3/A. PW3 says that Government decided to hand over the investigation of above said sting operation/expose to CBI. PW3 stated to have received letter dated 29.10.2004 Ex.PW3/B from Ms. Manjulika Gautam. PW3 says that commission had examined 15 defence deals during inquiry and examined witnesses. PW3 says authenticity of tapes were got CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 12 examined from London based forensic company which submitted its reports. Forensic expert were examined.

22. PW3 S.K. Dasgupta has further testified that after order dated 08.10.2004 and 29.10.2004, he wrote letter to Director, CBI for finalizing the modalities regarding the handing over of documents and tapes etc. to CBI, somewhere in October 2004 and later he handed over all the tapes, related documents to CBI in December 2004. PW3 went on to testify that vide two seizure memos prepared on 14.12.2004 and 15.12.2004, he handed over related documents and tapes to CBI which are Ex.PW3/D and PW3/E respectively. PW3 also says about seizure memo dated 16.12.2000 which is Ex.PW3/F. Witness also says that apart from the documents handed over to CBI vide above said seizure memos, he also handed over documents pertaining to Ministry of Defence to CBI and other documents were sent back to Department of Personnel and Training. PW3 further says that in November 2004, he prepared secret note running into 11 pages, which is Ex.PW3/H and Covering Letter is Ex.PW3/G.

23. PW3 says that though initially Tehelka.com had prepared written transcripts of recorded conversation in the original tapes but as per the order of the Inquiry Commission, Union of India through Ministry of Defence had also prepared revised transcripts of original tapes. PW3 says that two sets of each of the transcripts bearing signatures of Under Secretary, Ministry of Defence were handed over to CBI. Witness identified those transcripts D9 to D12 and D14 to D17. Transcript D9 (27 pages) is Mark PW3/9, transcript D10 (32 pages) is Mark PW3/10, transcript D11 (16 pages) is Mark PW3/11 and transcript D12 (11 pages) is Mark PW3/12 and transcript D14 (2 pages) is CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 13 Mark PW3/13, transcript D15 (38 pages) is Mark PW3/14, transcript D16 (8 pages) is Mark PW3/15 and transcript D17 (6 pages) is Mark PW3/16.

24. PW3 has also testified regarding envelopes containing Hi8 cassette. The outer most envelope is Ex.PW3/ME1, inner most envelope was Ex.PW3/ME2 and Hi8 cassette along with its plastic cover bearing figure 'Tehelka 16' is Ex.PW3/ME3. Similarly, PW3 also referred to another envelope which was sealed with the seal of CFSL the outer most envelope is Ex.PW3/ME4 containing other open envelope and the inner most envelope is Ex.PW3/ME5 which contained the cassette with a white slip mentioning 'Tehelka 67' the said cassette is Ex.PW3/ME6. Witness also proved another envelope sealed with the seal of CFSL that envelope is Ex.PW3/ME7 containing other open envelope and the small envelope contained cassette with a slip mentioning 'Tehelka 96' said cassette is proved as Ex.PW3/ME9. PW3 also proved envelope vide Ex.PW3/ME7 containing envelopes and cassettes which also found contained one small envelope which also found contained in one small envelope with cassette with plastic cover mentioning No.55 is Ex.PW3/ME14. PW3 also proved envelope Ex.PW3/ME15 containing another envelope which contained cassette no.16 which is Ex.PW3/ME16.

25. PW3 again testified regarding envelope Ex.PW3/ME17 with seal of CFSL the inner most envelope contained cassette no. 96 which is Ex. PW3/ME19. PW3 has also testified that he had received certificate from Ministry of Defence regarding the preparation of the revised transcripts by them. The certificates were handed over by him to the CBI as per seizure memo mark PW3/7. Photocopy of two such certificates viz dated 08.03.2002 CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 14 and 13.03.2002 are mark PW3/17 and PW3/18. PW3 has also testified that Mark PW3/2 is a photocopy of original letter (D2 original was seen and returned). PW3 also deposed after seeing the original order dated 08.10.2004 of Ms. Manjulika Gautam that the photocopy of the same which is already marked as PW3/1 is now exhibited as PW3/C (original seen and returned).

26. Thus, it is evident from the testimony of PW3 that all the relevant tapes and documents were earlier in the custody of Judicial Inquiry Commission and same was later handed over to CBI in December 2004. Evidence of PW3, therefore, is connecting evidence to establish that original Hi8 cassettes and the written transcripts were earlier in the possession of Judicial Commission and later were handed over to CBI.

27. Now I proceed to examine the relevant witnesses in this case.

28. As noted above one of the most important witness examined by the prosecution to prove the charge against the accused is Sh.L.M. Mehta. PW8 Sh.L.M. Mehta has deposed that in the year 200001 while he was serving as Additional Secretary, Department of Defence he was looking after the procurement of weapons and equipments for army and also acquisition of arms and ammunitions from ordnance factories and other sources. He deposed that he knew Maj. Gen. S.P. Murgai as he came to know about him during the year 199899 in a routine official interaction. PW8 says that he never had any social relation and had never met with him after December 1999, when he left the Ministry. Witness says that his relations with accused Maj. Gen. S.P. Murgai were official. He further deposed that except on 24.12.2000 accused had never visited his house. Witness says that he came to know about Mathew Samuel (PW19) when on 24.12.2000 accused Maj. Gen. CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 15 S.P. Murgai came to his residence along with him without any intimation or notice much less any appointment and accused introduced Mathew Samuel to him.

29. PW8 further deposed that on 24.12.2000 when accused Maj. Gen. S.P. Murgai came along with Mathew Samuel at his residence, S.P. Murgai talked about miscellaneous matters. He then introduced Mathew Samuel. PW8 says that he initially ignored his introduction but later Mathew Samuel introduced himself as Chief Representative of "Westend International Limited" which was claimed to be manufacturing electronics. PW8 says that he asked him about the product range of the company, then said Mathew Samuel did not understand the interjectory and PW8 says that accused Maj. Gen. S.P. Murgai explained. Thereupon in response Mathew Samuel disclosed the product range of his company as tanks, navigation system, smart ammunition and typical types of bombs.

30. Witness went on to testify that since he was not dealing with Hand Held Thermal Imagers, which fell within the domain of other Additional Secretary Sh.Ajay Prasad, who controlled the ordnance wing of the Ministry. PW8 says that this was the first time when Samuel Mathew's interest in the defence came to the fore. PW8 says that he warned him if he was an agent, nobody in the defence set up shall allow him in. PW8 says that he however claimed not to be an agent but shareholder in the company. PW8 says that he did not allow the talk to be progressed in the direction of defence items and he became circumspect in his approach. Witness says that discussion then started on nondefence subjects like power, tourism, energy etc. PW8 says that towards the closure of the meeting Mathew Samuel CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 16 suddenly took out a small box to give him, however he (PW8) spurned the offer at the very sight uttering the words "no no". PW8 says that thereafter Mathew Samuel gave that small packet to Maj. Gen. S.P. Murgai who further passed it to him (PW8). PW8 says that at that stage Maj. Gen. S.P. Murgai while pushing aside his resisting arm placed that packet beneath the table. PW8 says that he all along consistently refused to accept the gift with no knowledge of it's content and further deposed that at the time of their leaving, he handed back that packet to Maj. Gen. S.P. Murgai by saying "Yeh Rakhiye Aap".

31. PW8 further testifies that efforts of accused Maj. Gen. S.P. Murgai and of Mathew Samuel were concerted to hand over that packet. Witness further says that Mathew Samuel made a last ditch effort to foist upon that gift, thereupon he snubbed him by saying "no no this is not good". PW8 says that thereafter Mathew Samuel and Maj. Gen. S.P. Murgai left his place together. He further says that during such conversation no favour was sought by Maj. Gen. S.P. Murgai and Mathew Samuel for any matter whatsoever. Hand Held Thermal Imagers were never touched upon in the said conversation. At the time of recording deposition of PW8 when the cassette of video sting operation of that meeting held on 24.12.2000 at the residence of PW8 was played in the open Court which is Ex.PW3/ME6 (cassette no.67), witness identified the video to be of that meeting of Maj. Gen. S.P. Murgai and Mathew Samuel which took place in his house on 24.12.2000. Witness further acknowledged the conversation recorded in that video and further identified the written transcript of video of cassette no.67 which is Ex.PW3/11 (16 pages) to be truly transcribed with accuracy.



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CBI Vs. Maj. Gen. S.P. Murgai (Retd.)                                    Page 17

32. I have seen the video tape no.67 Ex.PW3/ME6 as referred to in the evidence of PW8 in my Chamber. Watching the said video tape would indicate that accused Maj. Gen. S.P. Murgai went along with Mathew Samuel at the residence of PW8 Sh.L.M. Mehta. In the video it is evident that before arrival of Sh.L.M. Mehta in the drawing room of his residence, accused S.P. Murgai and Mathew Samuel kept on talking with each other. It is at duration 43:56 in the tape no.67, Sh.L.M. Mehta enters in the drawing room of his house and till 54:59 duration in that video tape PW8 Sh.L.M. Mehta, accused S.P. Murgai and Mathew Samuel talked with each other at his residence. Here I find that evidence of PW8 as discussed above can be well assessed with evidence of Mathew Samuel (PW19). Since it is evident from the deposition of PW8 Sh.L.M. Mehta and the video cassette Ex.PW3/ME6 prepared in the sting operation that accused S.P. Murgai took Mathew Samuel along with him to the residence of PW8 Sh.L.M. Mehta. It is therefore important to note as to why accused S.P. Murgai had taken Mathew Samuel along with him to the residence of Sh.L.M. Mehta while PW8 was working as Additional Secretary, Department of Defence and was looking after procurement of weapons and equipments. Therefore let us now discuss the evidence of PW19 Mathew Samuel here.

33. PW19 Mathew Samuel in his deposition recorded on 06.02.2016 has stated that he has been working as reporter since 1996 and worked with various media organizations. He says that in the year 2000 he joined as Special Correspondent with Tehelka.com. PW19 says that Mr.Anirudha Bahal was head of Special Investigating Team. Before joining Tehelka.com in the year 2000, Tehelka stated to have broken out one story on match fixing.



CC No.33/2019 (Judgment)
CBI Vs. Maj. Gen. S.P. Murgai (Retd.)                                  Page 18

PW19 says that therefore he appreciated the said sting operation work carried out by Tehelka. He therefore contacted Tarun Tejpal and joined Tehelka after a meeting in the office of Tarun Tejpal. While stating various other facts, PW19 in his deposition stated that he was introduced by Anirudha Bahal with Mr.Anil Malviya who gave various tips to Tehelka.com about the corruption in Ministry of Defence, specifically in procurement. PW19 further says that he along with Mr.Malviya met with one P.Sasi, who at that time was working in the Ministry of Defence. PW19 says that said P.Sasi had given lots of inputs relating to several deals in defence sector and thereafter he, Mr.Malviya and P.Sasi met at YMCA Blue Triangle Hostel and such meeting was duly recorded in sting operation. Witness says that in that meeting said P.Sasi disclosed many informations relating to procurement of arms and ammunitions, binoculars, HHTIs. PW19 further testifies that he met with one gentleman in P.Sasi's office in South Block and that gentleman introduced him with Col. Sayal who was doing similar liaising work. PW19 says that Col. Sayal introduced him with Maj. Gen. S.P. Murgai who had just retired by then from his services. PW19 Mathew Samuel further says that he met with Murgai and paid money to him for introducing him to many senior officers, politicians and IAS Officers for getting a dealt for Westend International Company for product HHTI. PW19 in his deposition further says that Maj. Gen. S.P. Murgai introduced him with Maj. Gen. P.S.K. Chaudhary (PW18) and regarding that meeting PW19 paid S.P. Murgai Rs.25,000/. Witness further says that S.P. Murgai also introduced him with Sh.L.M. Mehta IAS, who was working as Additional Secretary in Ministry of Defence and for that meeting also PW19 stated to have paid Rs.25,000/ to accused S.P. Murgai.



CC No.33/2019 (Judgment)
CBI Vs. Maj. Gen. S.P. Murgai (Retd.)                                 Page 19

PW19 says that before those meetings he paid Maj. Gen. S.P. Murgai Rs.20,000/ in his residence at Vasant Vihar to get help in pushing the product HHTI for Ministry of Defence.

34. In the deposition of PW19 he stated that his meeting with S.P. Murgai at his residence as well as meetings with Sh. L.M. Mehta and Maj Gen. P.S.K. Chaudhary were recorded by a hidden camera. In the evidence of PW19 cassette no.16 Ex.PW3/ME3 was played. I have watched this cassette no.16 Ex.PW3/ME3. Watching the said video cassette would indicate that PW19 Mathew Samuel has gone to the house of Maj. Gen. S.P. Murgai with Col. Sayal and then there was a discussion among them regarding his fictitious company Westend International and about their interest in the defence field as well as for product HHTI. It is evident from the video that accused S.P. Murgai has explained the procedure of procurement and further explained that any middleman cannot be entertained in the Ministry of Defence. At 43:42 duration of the video accused S.P. Murgai offered for arranging meeting of Mathew Samuel with Deputy Defence Minister without an appointment. In the same video he is also referring to his proposed meeting with MGO regarding HHTI. In the same cassette at the duration 1:41 it is reflected that PW19 Mathew Samuel took out Rs.20,000/ and handed over the same to S.P. Murgai.

35. Since I have already discussed above the evidence of PW8 Sh.L.M. Mehta, now from the evidence of Mathew Samuel (PW19) it is evident that he and S.P. Murgai already had a meeting wherein accused S.P. Murgai claimed to help him (PW19) by considering him to be representative of M/s Westend International to introduce him to influential officers for CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 20 striking a deal regarding supply of HHTI from said fictitious company Westend International and it is in this factual context accused S.P. Murgai had taken Mathew Samuel to the residence of Sh.L.M. Mehta (PW18). I have already discussed regarding Cassette No.67 Ex.PW3/ME6 regarding visit of Mathew Samuel and S.P. Murgai at the residence of PW8 Sh.L.M. Mehta. PW19 Mathew Samuel has also referred to this cassette no.67 in his deposition recorded on 11.01.2019. At the time of recording evidence of PW19 this cassette no.67 Ex.PW3/ME6 was again played in the open Court. Witness Mathew Samuel has acknowledged the different stages recorded in that cassette including visiting to the house of Sh.L.M. Mehta and waiting for him in his drawing room till the duration 43:56 when Sh.L.M. Mehta enters in the drawing room and then there was a discussion among the three till duration 54:59 when Mathew Samuel and S.P. Murgai came out of the house of Sh.L.M. Mehta (PW8). Important here is that in this tape no.67 subsequently it is shown that after coming out of the house of PW8 Sh.L.M. Mehta, both Mathew Samuel and accused S.P. Murgai reached at the house of accused S.P. Murgai and at 1:08 duration of the said tape Ex.PW3/ME6 it is shown that accused Mathew Samuel took out Rs.25,000/ which he counted and thereafter handed over the same to Maj. Gen. S.P. Murgai. The entire transaction to the visiting to the house of Sh.L.M. Mehta and coming out of that house and reaching to the house of accused S.P. Murgai and then handing over of Rs.25,000/ to him by Mathew Samuel is recorded in this cassette Ex.PW3/ME6, which is also referred to in the evidence of PW19.

36. Ld. Counsel for the accused further criticized the evidence of PW8 by submitting that there were drastic discrepancies in the evidence of CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 21 PW8 visavis the affidavits given by him before the Judicial Inquiry Commission which were proved in his crossexamination as Ex.PW8/DA and Ex.PW8/DB. He argued that PW8 had rather given evidence entirely against the prosecution. However, Ld. PP for CBI did not get him declared hostile for reasons best known to him.

37. Having considered such submissions of Ld. Counsel for the accused, while no doubt PW8 in his crossexamination admitted affidavits Ex.PW8/DA and Ex.PW8/DB having given by him before the Judicial Inquiry Commission. However these affidavits could have been taken into consideration only if the witness (PW8) would have been confronted from those material aspects on which there were contradictions in his affidavits vis avis his previous statements in the form of affidavits. Any contradiction can be well understood and appreciated only when witness has been duly confronted from such material aspect as per Section 145 of the Indian Evidence Act. In the absence of the same merely pointing out certain contradictions may not be sufficient. Those material aspect on which witness has improved or contradicted himself were required to be highlighted. As such, such affidavits Ex.PW8/DA and Ex.PW8/DB can hardly be of any use by defence to challenge the testimony of PW8.

38. While I pause on further discussion of evidence of PW19 Mathew Samuel, I again revert back to the evidence of another important witness i.e. PW18 Maj. Gen. P.S.K. Chaudhary who has stated that he remained posted as Additional Director General (Weapon & Equipment), Army Headquarter from February 1998 till March 2001. He says that he knew accused S.P. Murgai as he was senior to him about three years. PW18 CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 22 says that somewhere in December 2000, accused called him up on phone and mentioned that he would like to meet him. PW18 says that he could not immediately say yes as he was going out of station at that time. Witness says that later when he returned, accused again made a call and made similar request that he wanted to meet him at his office. Witness stated to have agreed and accordingly gave appointment for 14.12.2000. On that day accused came and met him in his office at South Block, New Delhi. PW18 says that during such meeting accused S.P. Murgai mentioned him that he would like him to meet his friend. Thereupon General Chaudhary suggested accused that his friend can seek appointment and can meet him in his office. However accused S.P. Murgai told that due to certain formalities involved for meeting in the office at South Block, he would like him to meet with his friend outside the office.

39. PW18 further testifies that accused Murgai then asked him whether he would like to come to any hotel, for which he (PW18) refused and when accused suggested him that he could meet that person at his residence (residence of accused), PW18 stated to have agreed. Witness says that accordingly on 16.12.2000 he went to the house of accused S.P. Murgai and there he met with an individual by name Mathew Samuel, who was already present there. PW18 says that he was introduced with said Mathew Samuel being a person dealing in multinational company. Witness states that whatever conversation took place during that meeting in which he, accused Murgai and Mathew Samuel was present, was recorded in a tape by Mr.Samuel, recording of which he came to know later. PW18 went on to say that he had viewed that tape number of times during the Commission of CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 23 Inquiry as well as in CBI and Army office. Witness confirmed the conversation so recorded in the video to be correct.

40. On putting specific question from Court, PW18 has testified that he was told in that meeting that Mr.Samuel who was representing a multinational company, was interested in offering his equipment to the Indian Army and asked his advice regarding procurement process. PW18 further says that during the conversation Mr.Samuel said that his equipment on offer was "Hand Held Thermal Imager (HHTI)". On which PW18 told Mr.Samuel that selection process of the said equipment is already over and therefore he could not get his equipment to Indian Army. Witness further says that conversation had progressed on some other issues which were also recorded in the tape.

41. PW18 saw cassette no.96 in the open Court which is Ex.PW3/ME7. It was recorded in the evidence that in the entire cassette no.96 up to the duration 00:41:00 minutes there was a recorded footage of Mr.Samuel going to the house of accused and it is from period 00:44:00 PW18 reached the house of the accused. PW18 has seen the remaining portion of the cassette with the duration 2:31:51. PW18 further identified the faces of accused as well as of Mr.Samuel. Witness further identified the transcript though stated that the conversation recorded in the video was on a very low pitch. PW18 further testified that in the video he had seen that accused Murgai and Mr.Samuel discussed with each other even after PW18 left the house of the accused and in that footage he also saw Mr.Samuel handing over Rs.25,000/ to accused Murgai.

42. At this moment I would again revert back to the evidence of CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 24 PW19 Mathew Samuel. I have already referred above the tape no.16 Ex.PW3/ME3. In the deposition of PW19 recorded on 11.01.2019 another tape no.55 Ex.PW3/ME12 was played in the open Court. I have also watched the said tape in my Chamber. While watching the said tape it would indicate that that accused S.P. Murgai was asking from Mathew Samuel as to in which manner he can help his company with regard to pushing of deal for supply of HHTI from the Ministry of Defence. In this conversation between accused S.P. Murgai and Mathew Samuel, both discussed regarding meeting with Maj. Gen. P.S.K. Chaudhary. At the duration 42:59 of the said tape no.55 Ex.PW3/ME12 accused S.P. Murgai told PW19 that he would talk and meet Gen. Chaudhary on Monday or Tuesday and would call him for visiting in a hotel. In this cassette both PW19 and accused is also discussing meeting with Sh.L.M. Mehta, Additional Secretary, Ministry of Defence and then in respect of these meetings at the duration of 45:27 Mathew Samuel is seen telling accused S.P. Murgai that he would give Rs.50,000/ to him for arranging the meeting with above said persons. It is also evident in the same video tape that accused S.P. Murgai was inquiring about the details/accounts of money being paid as bribe.

43. PW19 in his deposition recorded on 28.01.2019 deposed regarding tape no.67 Ex.PW3/ME6, the same tape which was referred to in the evidence of PW9 Sh.L.M. Mehta. In this tape at the duration of 1.8 after return from the house of Sh.L.M. Mehta, there is a discussion between accused S.P. Murgai and Mathew Samuel regarding the meeting with Maj. Gen. P.S.K. Chaudhary. In tape no.96 Ex.PW3/ME9 it is reflected that witness PW19 Mathew Samuel was in the residence of accused S.P. Murgai CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 25 and there was a power failure which resumed around duration 39:41 in the tape. It is at the duration of 44:31 Maj. Gen. P.S.K. Chaudhary (PW18) reached at the residence of accused S.P. Murgai and then there was a discussion among Mathew Samuel, accused S.P. Murgai and Maj. Gen. P.S.K. Chaudhary. In this tape no.96 Ex.PW3/ME9 at the duration 51:45 it is reflected that accused S.P. Murgai is recommending the product of fictitious company Westend International to Maj. Gen. P.S.K. Chaudhary by asking him to give an opportunity for shortlisting their product whereas Maj. Gen. P.S.K. Chaudhary is stating that there would be no scope at this stage for opening of tender for new vendors of HHTI. In this recorded conversation Maj. Gen. P.S.K. Chaudhary has also mentioned that the process of procuring HHTI is at the final stage and also mentioned that 19 vendors have already come forward and reopening the tender would again delay for another two years. In the same video Mathew Samuel has also been showing handing over brochure regarding HHTI to Maj. Gen. P.S.K. Chaudhary. Later at the duration at 2:20 Maj. Gen. P.S.K. Chaudhary left the house of accused S.P. Murgai and in the same tape at the duration of 2:22 it is shown that Mathew Samuel was handing over Rs.25,000/ to accused S.P. Murgai regarding that meeting arranged with Maj. Gen. P.S.K. Chaudhary.

44. These video tape no.16 Ex.PW3/ME3, tape no.55 Ex.PW3/ ME12, tape no.67 Ex.PW3/ME6 and tape no.96 Ex.PW3/ME7 clearly indicate the series of incidents beginning with introduction of Mathew Samuel with accused S.P. Murgai through Col. Sayal and thereafter accused S.P. Mugai arranging meeting with Sh.L.M. Mehta and Maj. Gen. P.S.K. Chaudhary. These cassettes/tapes further show handing over of money of CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 26 Rs.20,000/ on 19.10.2000 (tape no.16) and Rs.25,000/ on 16.12.2000 (tape no.96) as well as Rs.25,000/ on 24.12.2000 (tape no.67). I have also gone through the written transcript of the conversation recorded in the above mentioned cassettes which are Ex.PW17/D (D9tape no.16), ExPW17/E (D10tape no.55), Ex.PW17/F (D11tape no.67) and Ex.PW17/G (D12tape no.96). Watching these videos and going through the written transcription along with evidence as come on the record, it is atleast established on the record that accused S.P. Murgai in his capacity as retired Major General actively participated in helping Mathew Samuel who represented himself to be shareholder in M/s Westend International for getting in the process of procurement of deal for supply of HHTI to Indian Army. It is also evident from the above said tapes that money was handed over to accused S.P. Murgai by Mathew Samuel.

45. It is in this context Ld. Counsel for the accused has argued that taking the evidence on the face of it no case is made out for offence under Section 8 and 9 of the P.C. Act as there was no element of inducement by accused S.P. Murgai in relation to supply of HHTI. Ld. Counsel for the accused specifically referred to evidence of PW8 Sh.L.M. Mehta to show that he in his evidence has specifically stated that he was not nodally connected for procurement of weapons and equipments. He further referred to the portion of evidence of PW8 wherein he has deposed that he was not dealing with Hand Held Thermal Imagers which fell in the domain of other Additional Secretary Sh.Ajay Prasad who controlled the ordnance wing of the Ministry. He also referred to evidence of PW8 when he deposed that during the entire conversation no favour was sought by Maj. Gen. S.P. Murgai or CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 27 Mathew Samuel for any matter whatsoever and Hand Held Thermal Imagers were never touched upon in that conversation. Ld. Counsel for the accused has also stated that prosecution has conveniently relied upon video tapes and transcript selectively and has not given complete and true transcription of the conversation in the tapes, as such the tapes and written transcript are not legally admissible. He also argued that the tapes remained in the custody of different persons at different stages and prosecution has failed to establish the complete track of custodian of those tapes. As such, such tapes were used as admissible evidence against the accused.

46. Having given consideration to submissions made by the ld. Counsel for the accused while I take up the legal issue first. Section 8 of the P.C. Act speaks of gratification by corrupt or illegal means to induce a public servant. Section 8 speaks of receipt of gratification as a motive or reward for inducing public servant by corrupt or illegal means. If we dissect the bare provision of Section 8 of the Act for analysing its ingredients, it would read as: (i) whoever; (ii) accepts or obtains gratification for any person; (iii) for inducing any public servant (by corrupt or illegal means); (iv) to render or attempt to render any service or disservice; (v) on any public servant. So far as Section 9 of the Act, it is different from Section 8 only to the extent that such inducement is by exercise of personal influence. As such language of Section 8 and 9 of the Act relates only to include a private person or even any public servant in service or retired. Moreover Section 8 and 9 of the Act are wider as it envisage taking of "any gratification". Expression 'gratification' is not restricted to any pecuniary benefits. It include any type of gratification estimable in money. No doubt the element of inducement to any public CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 28 servant by corrupt or illegal means is most essential ingredient for proving Section 8 of the Act and element of personal influence is necessary for attracting Section 9 of the Act. However it may be noted here as I pointed out that there is no legal necessity that the person who receive the gratification (accused) must have actually succeeded in inducing the public servant. Offence of Section is complete when there is evidence on the record to show that accused received the gratification which was the motive or reward for inducing the public servant for doing or forbear to do some official work or to do some favour. This however hardly matter that such public servant had actually responded to such inducement or exercise of personal influence and had actually done act as desired or had given any favour or not. Therefore limited aspect to be seen is whether accused acted to induce the public servant or not. I do not accept the submissions of ld. Counsel for the accused that there was no element of inducement at all and thereby Section 8 and 9 of the Act do not get attracted. From the evidence of PW8 as discussed above, it came that accused S.P. Murgai went to the house of PW8 without any prior intimation or appointment. PW8 further testifies that accused S.P. Murgai came to his house along with Mathew Samuel whereas PW8 L.M. Mehta had not met with Mathew Samuel earlier. These facts so deposed by PW8 also reflected in the video tape no.67 Ex.PW3/ME6, however even if that tape or transcript is kept out of the consideration for the time being, it is still in the evidence of PW8 that towards the end of their meeting firstly Mathew Samuel and thereafter accused S.P. Murgai tried to hand over a box containing gold chain to PW8 L.M. Mehta. These facts have also been deposed by PW19 Mathew Samuel in his evidence.



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CBI Vs. Maj. Gen. S.P. Murgai (Retd.)                                      Page 29

47. PW8 L.M. Mehta further testified that he avoided such efforts of accused in handing over of any such box containing unknown contents to him but accused S.P. Murgai tried to resist him and put the same underneath the table in the house of L.M. Mehta. Moreover in the entire evidence of PW8 nowhere in the crossexamination it is suggested to the witness that accused S.P. Murgai had not visited to the house of the witness along with Mathew Samuel. It is also not the case of the accused that he did not take Mathew Samuel to the house of PW8 L.M. Mehta. Rather in the crossexamination of PW8 a question has been put to the witness as to whether Maj. Gen. S.P. Murgai and Mathew Samuel gave him a gift of gold chain during the said meeting. In reply to that question witness stated that they could not be successful in passing off such gift to him. As such evidence of PW8 in itself establishes the fact that accused S.P. Murgai went to his house along with Mathew Samuel and in that meeting he tried to hand over a box containing gold chain to the witness.

48. The argument of ld. Counsel for the accused that it came in the evidence of PW8 that no favour was sought by accused S.P. Murgai or Mathew Samuel in any matter whatsoever or that Hand Held Thermal Imager was never touched upon in the said conversation. One may no doubt agree with such aspect but even if there might not have been a specific discussion regarding Hand Held Thermal Imagers or any favour regarding supply of the same but the meeting of accused S.P. Murgai along with Mathew Samuel at the residence of PW8 in itself indicate that only object of their going to the house of PW8 was to promote the interest of a fictitious company by name M/s Westend International of which Mathew Samuel was representing.



CC No.33/2019 (Judgment)
CBI Vs. Maj. Gen. S.P. Murgai (Retd.)                                  Page 30

Further PW8 has testified that accused S.P. Murgai introduced Mathew Samuel with him and explained about the company.

49. It is not even case of accused that he went to house of PW8 as courtesy visit. Going to house of some one working as 'Additional Secretary', Department of Defence with someone ostensibly interested in supply of equipments to Indian Army. Such visit being without any prior appointment and then discussing about that company (though fictitious). PW8 further testifying that when he warned that no middleman can be entertained in Defence Ministry, then an explanation coming forth to justify the status of Mathew Samuel. All these facts show that it was an unscheduled first meeting with PW8 L.M. Mehta and therefore it is quite possible that accused might not have expressly told about the favour, sought from him. Moreover there could not have been any other logical reason for giving any gift by Mathew Samuel and then by accused S.P. Murgai insisting the same also to be foist upon to PW8 L.M. Mehta. Even otherwise evidence of PW8 is required to be appreciated in totality and in factual background. Moreover as it came in the evidence of PW19 recorded on 28.01.2019 that after coming back from the house of PW8 L.M. Mehta, Mathew Samuel went along with accused S.P. Murgai to his house where Mathew Samuel handed over Rs.25,000/ to accused S.P. Murgai which he accepted. Again there is no reason for accused S.P. Murgai to accept Rs.25,000/ immediately after meeting with PW8 L.M. Mehta. If there was any other reason for giving such money or even according to accused such money is a consultation charges, it was for the accused to explain as to how Rs.25,000/ was received immediately after coming from the house of PW8 L.M. Mehta. In this CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 31 context it be noted here that receiving of such money is not disputed by the accused. Although this aspect would be discussed later in the judgment but fact remains that nonmentioning of any issue relating to supply of HHTI or seeking for any favour in the evidence of PW8 in itself is not sufficient to infer that there was no inducement at all.

50. If I further proceed to consider the evidence of PW18, even this witness in his deposition has stated that accused S.P. Murgai came to meet him in his office at South Block on 14.12.2000 and during such meeting he mentioned that he would like him (PW18) to meet his friend. It also came in the evidence of PW18 that accused S.P. Murgai told him that his friend would not come to meet him in his office at South Block due to certain formalities, rather he insisted him to meet him outside his office. PW18 in his deposition also stated that on the insistence of accused S.P. Murgai, he went to his residence where Mathew Samuel was already present.

51. Now if I pause for a moment to further elaborate other circumstances, important here to note that even in the crossexamination of PW18 it is nowhere suggested to the witness that accused S.P. Murgai never asked PW18 to meet Mathew Samuel or that accused S.P. Murgai did not suggest PW18 to came to his residence where Mathew Samuel was already present. As such these circumstances are substantively not disputed by the defence. It is also substantively undisputed fact that accused S.P. Murgai had introduced Mathew Samuel to PW8 and PW18 as a shareholder in the fictitious company by name M/s Westend International. PW18 rather specifically deposed that issue of HHTI was discussed in that meeting and he told accused S.P. Murgai and Mathew Samuel that process of supply of that CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 32 equipment is at final stage and reopening of tender would delay the process. So evidence of PW18, leaves no doubt that entire exercise was done to influence or induce these witnesses for their help to a nonexistent company "M/s Westend" for supply of materials to Indian Army. As such even if all the four tapes and written transcript is kept out of consideration, I find that evidence of PW8 and PW18 establish on the record accused S.P. Murgai made active efforts of persuasion and to insist PW8 and PW18 to help the company M/s Westend International regarding supply of its product to Indian Army. Their evidence clearly show the element of inducement as required for the purpose of establishing Section 8 and 9 of the Act. The expression 'inducement' within the meaning of Section 8 of the Act, to my mind is simply an active persuasion, using of influence in the process by the accused to prevail upon the public servant for showing favour or to do some particular act. One must keep in mind that the inducement can only be established by circumstances. In the present case I have already elaborated above different circumstances to show that element of inducement was existing.

52. Beside the different circumstances already discussed above, there is other evidence also showing that what accused S.P. Murgai in his capacity as retired Major General did was nothing except the inducement, which can be deduced from the evidence of PW12 Brig. A.P. Sngh who inter alia testified that from June 1999 to July 2002 he was working as Director (Weapon & Equipment) at Army Headquarters and was looking after weapon and equipment related to infantry i.e. identifying modernization of new equipments and weapons. PW12 has also stated that generally he used to receive literature through Army Headquarters, Senior Officers, Ministry of CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 33 Defence as well as from the vendors directly and after their section used to analyze these literatures containing various details of different equipments and then they used to forward it to the Infantry Directorate for further analysis. This witness while deposing regarding the procedure of considering and recommending of various equipments for Indian Army has deposed that he had seen proposal of M/s Westend International regarding supply of Thermal Image Camera/Binoculars to Indian Army which was received to his Section from Maj. Gen. P.S.K. Chaudhary. PW12 further says that as per the procedure his Section sent the said proposal of Westend International to Infantry Directorate for necessary analysis/recommendation. They sent it to Infantry School for comparison with in service equipments of similar kind. PW12 further says that he then received information from DG (Infantry) to the effect that two equipments already in service of the Army were better than the basic equipments of Westend International. Witness has referred to the proposal of M/s Westend International as mark PW12/A and also proved his recommendation in D5 as Ex.PW12/B. Witness further referred to the recommendation of ADG which is Ex.PW12/C. Thus the evidence of PW12 also indicate that the proposal of such fictitious company by name Westend International for supply of HHTI was forwarded through PW18 Maj. Gen. P.S.K. Chaudhary. It also came in the evidence of PW12 that when such proposal was sent to Directorate (Infantry) for comparison with in service equipments, the in service equipments were found to be better. Again in the crossexamination of PW12 such aspect deposed by PW12 have not been denied and nothing substantive could come out in his crossexamination.

53. Similarly there is evidence of PW13 Col. Sher Bahadur Bhandari CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 34 who has deposed that he joined the investigation of this case with CBI. Witness further says that while he was working as GSO1 of Infantry, papers of M/s Westend London regarding HHTI came for his consideration. PW13 says that while working as GSO of Infantry it was his duty to study the papers and identify suitable weapons and equipments for Infantry and recommending to DG Infantry for approval. This witness further deposed that WE4 forwarded those papers to Directorate to evaluate the product and Infantry School returned the same with a table of comparison, comparing it with in service HHTIs. Witness proved that document as D5 Mark PW13/A. Those evidence of PW12 and PW13 also show that proposal of Westend London was not only in air rather it was actually forwarded to Indian Army for its consideration. This circumstance in itself shows that whatever steps taken by accused S.P. Murgai along with Mathew Samuel was only to induce public servant like PW8 and PW18 for promoting the products of that fictitious company whom Mathew Samuel was representing.

54. As such I do not buy the arguments of ld. Counsel for the accused that there is no evidence on the record to establish the contents of the charge as framed against the accused. I also do not agree that evidence of PW8 does not incriminate the accused.

55. At this stage I would like to precisely discuss about the evidence of PW19 Mathew Samuel. As it is evident from the above discussion of facts and evidence that all along Mathew Samuel prepared the video recording by hidden camera in a sting operation carried out by him. Mathew Samuel handed over money to accused S.P. Murgai on three different occasions. As such the evidence of Mathew Samuel is required to be appreciated with CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 35 circumspection and greater scrutiny. He acted like an accomplice ostensibly for striking a deal for supply of HHTI to Indian Army. Even if the evidence of PW19 is examined critically, reading the evidence of Mathew Samuel in totality would clearly indicate that he was essentially a press reporter and joined with Tehelka.com in the year 2000 and thereafter undertook a discreet operation in which he with the help of Anirudha Bahal (PW19) and another person Anil Malviya started the operation to unearth the corrupt practices in defence procurement. PW19 in his deposition recorded on 22.08.2017 has mentioned that initially Anil Malviya gave him certain tips about the corruption in Ministry of Defence and then he and Malviya met with P.Sasi who was working in Ministry of Defence. It is in the meeting of Mathew Samuel, Malviya and P.Sasi at YMCA Blue Triangle Hostel information was received regarding procurement of arms and ammunition including binoculars and HHTI and then Mathew Samuel worked in that operation whom they named as "Operation Westend". Under this operation Mathew Samuel being a reporter carried out the sting operation with the help of hidden gadgets in his briefcase and whomever he met he prepared the video tapes. As it came in the charge sheet in all 104 video tapes were prepared in that sting operation although four tapes are relevant in the facts of the present case. It is while undertaking this operation, PW19 Mathew Samuel met with accused through Col. Sayal and then accused S.P. Murgai helped Mathew Samuel in his meeting with PW8 and PW18.

56. Evidence of Mathew Samuel has to be read along with evidence of PW9 Anirudha Bahal who was Head of Special Investigating Team. Anirudha Bahal has been examined as PW9. He has also deposed that CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 36 Tehelka.com being the website of Buffalo Networks Pvt. Ltd. had earlier carried out a sting operation in cricket match fixing and thereafter in order to highlight corruption in defence procurement, operation Westend was undertaken. PW9 Anirudha Bahal has stated that their intention was to become an insider in the defence procurement process and for that purpose his investigating team started a fictitious company called Westend International. PW9 further deposed that he assumed the role of President in that company and Mathew Samuel was the main reporter in such undercover investigation as Chief Liaison Officer of that fictitious company. PW9 further deposes that address of that fictitious company was though a genuine address as he procured the address of his friend in London and mentioned that address in the catalog/literature prepared for that purpose. PW9 went on to testify that the entire operation was covered in about 105 tapes of mixture Hi8 tapes and mini DV tapes recorded with the help of four recording devices used in the briefcase and in the handbags. PW9 Anirudha Bahal also stated that during the entire operation he deposited the original tapes in bank locker of Grindlays Bank of Malcha Marg. He deposed that after completion of operation, a press conference was held in which a tape of 4½ hours was shown in the press conference to expose the corrupt practices in defence procurement.

57. Evidence of PW9 and PW19 would show that entire exercise was initiated only with sole object to highlight the corrupt practice in defence procurement. Their evidence has also got corroboration by evidence of PW10 Tarun Tejpal who started the news portal Tehelka.com. Evidence of PW10, PW5 and PW7 Shiv Shankar would also indicate as to how the company by CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 37 name Buffalo Network Pvt. Ltd. was taken over and started its operation through news portal Tehelka.com. Nothing came in the evidence of PW9, PW19 and PW10 or even in the evidence of PW5 and PW7 to show that there was any political or personal ill will of either of these witnesses against the accused S.P. Murgai. Reading the evidence of PW19, PW9 and PW10 would rather show that it was only an operation undertaken by a group of press correspondents. May be one may criticize the entire operation only to the extent that they ostensibly undertook the operation in the manner which was not in accordance with law but from the deposition of PW19, PW9 and PW10 it is evident that their ultimate object was to expose and highlight the corrupt practices in defence procurement. Evidence of these witnesses is to assessed in such factual background. As observed above PW9, PW10 and PW19 have been reporters and editors etc. in different media organizations. This Court need not to go into details of propriety of the manner in which that "Operation Westend" was conducted. If these witnesses have deposed that their ultimate object was to highlight corruption. This Court confines its examination to see whether this so called operation has collected evidence showing commission of offence, for which accused has been charged.

58. Accused though in his statement under Section 313 Cr.P.C. has taken the plea that he is victim of circumstance and was implicated out of political vendetta, however neither in the shape of anything coming in the crossexamination of PW19, PW9, PW10 or other witnesses or by leading any specific evidence on the record, such facts could be established by defence. No doubt as I noted above witness Mathew Samuel worked as an accomplice with accused S.P. Murgai but his testimony has to be read in totality and not CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 38 in isolation. In such like circumstances the requirement of law is to assess the evidence of such witness with great circumspection and scrutiny and it is also to be seen if the evidence of such witness is getting corroboration from other evidence or not. I have already noted above the deposition of PW8, PW18, PW12 and PW13 to show that evidence of Mathew Samuel is getting due corroboration from different circumstances highlighted above. Till this moment I have consciously not dealt with video tapes and written transcript, as independent evidence against the accused as I would deal this aspect separately in the light of submission made by ld. Counsel for the accused. Point I would like to make here is that even if for the time being tapes etc. are not taken into consideration, I find that there is sufficient circumstance and evidence on record to show that accused S.P. Murgai committed the offence under Section 8 and 9 of the P.C. Act.

Admission regarding receipt of Rs.70,000/-

59. One of the most important aspect of the matter is this that as per the prosecution allegations and in the evidence of PW19, Mathew Samuel gave to accused S.P. Murgai Rs.20,000/- on 19.10.2000, Rs.25,000/- on 16.1.2.2000 and Rs.25,000/- on 24.12.2000. Receipt of such money from Mathew Samuel has not been disputed by the accused S.P. Murgai. Although in his statement recorded u/s 313 Cr.P.C. accused denied having taken any money for introducing anybody with Senior officers, politicians, IAS officers etc. Accused states that he received the amount of Rs.70,000/- under a bona fide belief and clear understanding that such amount has been paid towards the consultation profession charges, till the time he would be retained permanently his services with Westend International company of London. Ld. Counsel for the accused has submitted in this regard that the said sum of CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 39 Rs.70,000/- has been shown in the ITR of the accused as such there was never any doubt to conceal that fact. He submits that rather it show the bona fide of the accused.

60. Once the receiving of amount of Rs.70,000/- is not disputed, question for consideration would be whether accused has been able to establish that such amount was accepted only as a consultation charges. Important to note here is that no evidence has been led in this regard. Even evidence regarding ITR of the accused reflecting receiving of such amount has not been given for reasons best known to the accused. Importantly since such amount has been accepted from Mathew Samuel (PW19) who has deposed in this regard in his examination in chief, however in his cross- examination PW19 when was asked a specific question in this regard in deposition recorded on 15.02.2019 page 5 & 6, PW19 has stated that such amount was not given as a consultation fee rather it was given as a bribe to accused S.P. Murgai for the appointments he fixed. PW19 however expressed his ignorance if such amount has been shown in the ITR of the accused. PW19 was asked a specific question in cross-examination regarding issuance of any letter of appointment from Westend International, in favour of the accused. PW19 specifically denied issuance of any such letter. PW19 simply stated that it is accused S.P. Murgai who wanted to be defence consultant of Westend International.

61. As such this court has no evidence at all to merely accept the statement of the accused, in the absence of any evidence led in this regard, showing that amount was in fact consultation fee and not received as a gratification. Even if I for the time being assume that accused accepted that amount as consultation charges, obvious question would arise as to under which agreement such consultation was tendered. Moreover no evidence of CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 40 income tax return has been led to show that at the relevant time accused was earning by giving consultation, because of his expertise. In the absence of any evidence and consistent testimony of PW19 rather show that such amount was accepted as a gratification being motive for the accused to introduce Mathew Samuel (PW19) with PW8 and PW18. Receiving of such money immediately after the meetings with PW8 and PW18 is also shown in the video tapes, leaving no doubt at all in the mind of this Court to conclude that prosecution has been able to establish giving of such money as gratification and accused having failed to prove even by preponderance of probability that such amount was so received as consultation charges. Mere stating certain facts in the statement u/s 313 Cr.P.C. ipso facto does not absolve the accused to prove that fact. No doubt onus for proving the defence of the accused is not that heavy but still there must be some evidence to prove a fact even by preponderance of probability. Any assertion from the accused cannot be accepted on the face of it when nothing has even come in the cross- examination of prosecution witnesses as well.

62. It was argued on behalf of the accused that accused has never taken any step to induce any officer or politician in the defence procurement rather evidence led on behalf of the prosecution would itself indicate that the accused told at the very outset that defence authorities do not deal with intermediaries in the process of procurement of equipment from abroad. It is further argued that regarding receipt of Rs.70,000/- PW19 in his cross- examination recorded on 15.02.2019 has admitted that accused himself never demanded any amount. He submitted that as such there was never any evidence of demand of gratification from the accused.

63. Taking such submissions on the face of it and considering the evidence on the record, first of all it be noted that even if at any point of time CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 41 accused has informed regarding non-entertaining of intermediaries/agents by defence set up in the process of procurement of weapons and equipments etc. That fact in itself nullify when the accused S.P. Murgai himself claimed as reflected in tape no.16 that he can meet even with the Defence Minister without appointment or also stated regarding the procedure and methodology of procurement of HHTI and role of Master General Ordnance (MGO) and Prospective Purchase Officers. It further came in the evidence of PW8 as well as PW18 that it is accused S.P. Murgai who introduced Mathew Samuel as the shareholder in the company and not mere agent or intermediary. So far as regarding deposition of PW19 recorded on 15.02.2019. PW19 Mathew Samuel though admitted the suggestion that accused never demanded any amount. However PW19 went on to explain that money was given under a mutual understanding to accused for each of the work what he was going to deliver. PW19 made it clear that it was not consultancy. As such testimony of PW19 has to be read in totality and not in extracts.

Video tapes and written transcript and their authenticity

64. Most significant aspect of this case are four tapes no.16 (Ex.PW3/ME3), 55 (Ex.PW3/ME12), 67, 96. These tapes have been played in the open court at the time of recording deposition of PW19. Hi8 tape no.67 Ex.PW3/ME6 and tape no.96 Ex.PW3/ME7 were respectively played at the time of recording evidence of PW8 and PW18. The written transcript of the conversation recorded in the above said cassettes has also been proved on the record as Ex.PW17/D to Ex.PW17/G.

65. I have already discussed above that these original Hi8 cassettes were prepared with recording gadgets exhibited as Ex.PW20/C. Ld. Counsel for the accused has challenged the very admissibility of these video cassettes. It was argued that these tapes remained in the custody of various persons at CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 42 various stages and therefore the track of custodian of these tapes has not been established till the time it came in custody of prosecuting agency. Regarding written transcript of recorded conversation of these tapes, it is argued that prosecution has selectively used certain portions of recording and given dots in written transcript in respect of certain portion in recorded conversation. He submitted that as per the certificate of Sh.A.S. Anand, Assistant Financial Advisor, the audio quality of these tapes was not good and at certain places it was not possible to understand the exact words spoken. He submits that the prosecution has taken advantage of poor audio quality and twisted the facts.

66. Before I meet the arguments raised on behalf of the defence, I would like to refer evidence of PW1, PW2, PW4 and PW6 in whose presence voice sample of the accused S.P. Murgai was taken. PW1 is independent witness Naresh Kumar Chopra who was working in a Bank and on receipt of request, he joined the proceedings in CBI office on 13.04.2006 where he met with K.Y. Guruprasad, D.S.P., accused S.P. Murgai and experts. PW1 has stated that he was introduced with the accused and a new cassette was opened in his presence and was played to ensure that the same was blank and thereafter K.Y. Guruprasad gave questionnaire/text to accused S.P. Murgai to speak/recite the same loudly. FSL experts stated to have recorded the voice sample. Video recording was also done simultaneously. Entire proceedings were reduced into writing which is Ex.PW1/A and the text/questionnaire is Ex.PW1/B. The cassette in which voice sample was recorded is Ex.PW1/D which bear signature of PW1 on that cassette.

67. PW2 is S.Ingersal, Sr. Scientific Officer of CFSL who has also deposed regarding taking of voice sample of the accused on 13.04.2006 in the presence of independent witness, DSP K.Y. Guruprasad as well as the another CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 43 expert A.D. Tiwari, present there. PW2 also deposed regarding recording of images of the accused and voice sample on 07.06.2007. His deposition is also on the similar facts. PW4 is A.D. Tiwari who is also Sr. Scientific Officer of CFSL. This witness also testified regarding taking of voice sample and video images of accused S.P. Murgai on 13.04.2006 as well as on 07.06.2007. PW4 spoke same facts as stated by PW1 and PW2. PW4 states that he recorded the voice sample of the accused in the audio cassette. Beside that PW4 testified that on 07.06.2007 he again recorded the voice sample of the accused S.P. Murgai in the presence of Insp. S.K. Sharma of CBI, S.Ingersal, M.K. Jain and one independent witness. For proving the similar facts another witness examined by the prosecution is PW6 Mr.S.P. Khanna who was working as Sr. Scientific Assistant in CFSL. He deposed similar facts as stated by other witnesses.

68. PW20 is Sh.D.Venkateshwarlu, Assistant Director (Computer Forensics and Incharge Engineering Section) of Andhra Pradesh FSL. Since the voice samples, video images were sent along with the tapes in question by Sh.D.K. Tanwar, SSO-II of CFSL, CBI. Same were examined by PW20. PW20 deposed that he examined the questioned video tape no.55 and compared the same with specimen video of accused S.P. Murgai with the help of briefcase camera seized in RC No.A0006/CBI/ACU-III/2004 and he with the help of waveform monitor and computer software studied the video frame by frame and found that questioned cassette no.55 contained the same recording which was continuous and without any editing or morphing. PW20 further testifies that the video in the frames of suspect S.P. Murgai were compared with the specimen video and found to be similar in facial features, images. His report is Ex.PW20/A.

69. PW20 further testifies that on 06.03.2007 he again received 8 CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 44 sealed covers through Sh.D.K. Tanwar, SSO-II of CFSL, CBI with forwarding letter for examination of video contents of questioned cassettes by comparing the same with the specimen video of the suspect. PW20 then went on to testify regarding the comparing of questioned tapes with the specimen video and audio and found that suspected person shown in the questioned tape was similar to the person i.e. S.P. Murgai shown in the specimen video and video was not morphed. His report in this regard is Ex.PW20/B. PW20 also identified the different Hi8 cassette no.96 Ex.PW3/ME9, tape no.55 Ex.PW3/ME12, tape no.67 Ex.PW3/ME6 and tape no.16 Ex.PW3/ME3. Witness further testified regarding examining the briefcase camera device with the help of which those cassettes were recorded. That briefcase camera is Ex.PW20/C. VHS cassettes of above said tape nos.55, 96, 16 and 67 are Ex.PW20/D1 to Ex.PW20/D4. Witness also identified the specimen audio cassette Ex.PW4/ME2 and Ex.PW4/ME4 as well as video cassette Ex.PW1/D.

70. PW21 is Deepak Kumar Tanwar, Sr. Scientific Officer of CFSL, CBI who had forwarded the questioned tapes and specimen audio and video images of the accused to Andhra Pradesh FSL.

71. Thus, from the above discussion of the evidence it is evident that after the registration of the present case when the relevant cassettes no.16, 67, 96 and 55 were got examined from the Senior Scientific Officer of Andhra Pradesh FSL, he vide his report Ex.PW20/A and Ex.PW20/B has specifically stated that those tapes were genuine and were not edited or morphed in any manner. Peculiar aspect of this matter is that FIR in this case was registered at very later stage. Immediately after the expose of sting operation in March 2000, a Judicial Inquiry Commission was constituted which remained functional till year 2004. It came in the evidence of PW3 that from 2000 to CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 45 2004 the custody of the tapes remained with said Judicial Commission. It came even in the evidence of PW3 S.K.Dasgupta that authenticity of these tapes as well as other tapes were got examined from forensic company of London. Said forensic company gave its report to the Commission and forensic expert was also examined before that Commission. No doubt that report of London based forensic company is not on the judicial record of this case but from the reports Ex.PW20/A and Ex.PW20/B and the deposition of PW3, it is clear that tapes in question remained in lawful custody and there has never been any confusion about the track of the custody in which those tapes remained. I have already noted above that expert of A.P. FSL found the 4 relevant tapes in this case to be genuine without any editing or morphing. That aspect remained unrebutted even in the cross-examination of PW20. Therefore, this Court can lawfully take into consideration the tape nos.16, 67, 96 and 55.

72. As I have noted above that the above said cassettes were watched by me thoroughly and I have noted that in tape no.16 accused S.P. Murgai has explained to PW19 about the entire procedure and methodology by which one can participate in the process of procurement of weapons or equipments. In the tape no.16 which is upto the duration of 1:42 minutes approximately it is evident that PW19 Mathew Samuel went along with Col. Sayal at the residence of S.P. Murgai and accused S.P. Murgai explained in detail about the procedure of procurement and directions in the Ministry of Defence. In the same cassette it is reflected that accused S.P. Murgai claimed that he can arrange meeting with Defence Minister without appointment.

73. In this regard ld. Counsel for the accused submitted that in none of the cassettes accused has suggested to anybody for meetings with anyone. It is submitted that rather it was Mathew Samuel (PW19) who insisted on CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 46 meeting MGO Lt. Gen. Dhillon, Mr.L.M. Mehta, Addl. Secretary and Maj. Gen. P.S.K. Chaudhary, ADG (Weapon and Equipment). He submits that even PW19 in his deposition recorded on 11.01.2019 has simply stated that Maj. Gen. Murgai responded in general way of doing to first select the vendor. He submits that PW19 in his deposition has admitted that he requested accused Murgai for arranging meetings with L.M. Mehta.

74. I find that such arguments do not have much bearing when in the video tapes no.67 and 96 it is very much evident that accused S.P. Murgai took Mathew Samuel along with him to the house of L.M. Mehta and thereafter Maj. Gen. P.S.K. Chaudhary also came to the residence of S.P. Murgai where Mathew Samuel was already present. The argument that accused S.P. Murgai never offered for meeting, pales into any significance when in the video tapes in itself it is shown that accused S.P. Murgai is introducing Mathew Samuel as representative of Westend International Company of London to both L.M. Mehta and Maj. Gen. P.S.K. Chaudhary. Not only that in the video tape no.67 it is explicitly evident that accused S.P. Murgai tried to hand over the box to L.M. Mehta who resisted for receiving the same. Those visuals in the tape of going to the house of L.M. Mehta with Mathew Samuel and Maj. Gen. P.S.K. Chaudhary coming to the house of accused S.P. Murgai in the presence of Mathew Sameul speak volumes for itself. L.M. Mehta and Maj. Gen. P.S.K. Chaudhary could not have met with Mathew Samuel on their own. It is not even the case of accused that those officers were already known to Mathew Samuel. As such necessary conclusion one can easily draw is that it is none else than accused S.P. Murgai who was instrumental in arranging these meetings with PW8 and PW18.

75. Though fact regarding receipt of money is not disputed, it is evident in tape no.55 that there was a discussion between Mathew Samuel and CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 47 accused regarding how much money Mathew Samuel will pay for arranging the meeting. Beside this handing over of money is also reflected in tape no.96 and 67. All these facts give corroboration to the testimony of different witnesses already discussed above. As such I find that these video tapes give most corroborative evidence regarding involvement of the accused to induce public servants for taking favour/ involving the fictitious company of Mathew Samuel in the process of supply of HHTI to Indian Army.

76. This brings us to the question of considering the written transcript of recording of above mentioned tapes. ld. Counsel fore the accused has questioned these transcripts by submitting that prosecution has conveniently picked up certain conversation in the written transcript and mentioning dots wherever certain conversation was favourable to the accused.

77. Having watched the above said tapes along with written transcript while one may get clear idea that written transcripts were clearly stating what was being conversed by different persons shown in the video. The dots have been mentioned at some places of the transcript where the voice is not at all audible. I did not find any portion of the tape or written transcript, in which any conversation has been not recorded in the transcript. Nor during the recording of evidence of PW19 or other witnesses any such portion of written transcript has been pointed out, wherein some conversation is audible but same has not been recorded in the written transcript. Initially these written transcript were proved in the evidence of PW3. At that time the proof of those written transcript were objected to in the evidence of PW3 as PW3 has not recorded/written those transcriptions. However PW3 testified that earlier a transcript of conversation recorded in the tapes was prepared by Tehelka.com but in order to ensure due authenticity, written transcripts in CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 48 question were got prepared on the orders of Judicial Inquiry Commission by Union of India through Ministry of Defence. These written transcripts are Ex.PW17/D to Ex.PW17/G. PW17 IO DSP Sandeep Kumar Sharma of CBI has referred to these documents in his deposition and testified that after receiving of such transcripts from the Judicial Commission, same were again compared by PW17 for corroboration with VHS tapes. Nothing came either in the evidence of PW3 or in the evidence of PW17 to anyway challenging the authenticity of these written transcripts. I have already observed above that while I watched the relevant tapes in my Chamber I also went through the written transcripts and find the same to be strictly in accordance what was recorded in those tapes. As such, such written transcript rather supplement the tapes no.16, 55, 67 and 96 and is another incriminating evidence against the accused to prove the charge.

78. Ld. Counsel for the accused relied upon judgment of Hon'ble Apex Court in Tika vs. State of UP AIR 1974 SC 155, Bhikari vs. State of U.P. AIR 1966 SC 1, Takdir Samsuddin Sheikh vs. State of Gujarat and Anr. AIR 2012 SC 37 as well as judgment of Punjab and Haryana High Court in Balraj Singh vs. State of Punjab 1976 Cr.L.J. 1471 (DB). Ratio of all these judgments is the same that the guilt of the accused must be established by the prosecution beyond possibility of any doubt whatsoever and only on the basis of legal evidence and material on record. The court must appreciate the evidence as per settled legal propositions and contradiction/embellishment in the evidence must be examined critically.

79. One can hardly dispute the ratio laid down in the above mentioned judgments as relied upon. It is needless to mention here that this Court has appreciated the evidence on the judicial record strictly based on CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 49 legal proposition and also considering all the contradictions or other aspects highlighted by the defence. By giving due reasons this Court has found that evidence in the shape of PW8, PW18 and PW19 is not only getting corroboration from video tapes and written transcript but also from circumstances coming in the evidence of PW11 and PW12 as well as from the expert evidence in the shape of PW20 and PW21. Beside the evidence on the record, this Court also find the admission of receipt of Rs.70,000/ as a clinching circumstance to prove the charge against the accused. As such, I hold the accused guilty for offence under Section 8 as well as 9 of P.C. Act and convict him for the said offences.

Announced in the open Court                     (Shailender Malik)
on August 21st, 2019                        Special Judge (PC Act) CBI
                                         Rouse Avenue Courts, New Delhi




CC No.33/2019 (Judgment)
CBI Vs. Maj. Gen. S.P. Murgai (Retd.)                                  Page 50
      IN THE COURT OF SH.SHAILENDER MALIK, SPECIAL JUDGE

(P.C. ACT) (CBI)22, ROUSE AVENUE COURT COMPLEX, NEW DELHI CC No.33/2019 RC No.AC3/2006/A0002CBI/ACUIII CNR No.DLCT110000732019 CBI vs. Maj. Gen. S.P. Murgai (Retd.) S/o Late Sh.B.R. Murgai R/o C62, Ist Floor, Anand Niketan, New Delhi.

Also R/o D8/1, Vasant Vihar, New Delhi.

ORDER ON SENTENCE

1. The convict S.P. Murgai has been convicted for commission of offence punishable under Section 8 and 9 of the Prevention of Corruption Act vide judgment dated 21.08.2019.

2. I have heard Sh.S.P. Kaushal, ld. Counsel for the convict as well as Sh.Lalit Mohan, ld. PP for CBI on the quantum of sentence.

3. Ld. Counsel for the convict submitted that the convict is aged about 80 years and suffering from age related ailments. It is submitted that wife of the convict is also an aged lady and she is also suffering from various age related ailments. He further submitted that only son of the convict is settled abroad and the daughter of the convict is also his responsibility as the son-in-law is suffering from Parkinson disease. At the end it is submitted that keeping in view the protracted trial faced by the convict, a lenient and liberal view may be taken while awarding sentence to him.


CC No.33/2019 (Judgment)
CBI Vs. Maj. Gen. S.P. Murgai (Retd.)                                    Page 51

4. On the other hand ld. PP for CBI has submitted that the convict is none other than a senior officer in Indian Army. He submits that in case when a senior Army officer has been found guilty of corruption, the sentence may be awarded in such a way that it should settle an example and must have a deterrence effect as corruption in Army can shake the very confidence of the society.

5. I have heard the rival submission made at the bar on the question of sentence and has given thoughtful consideration. At the outset it be noted here that minimum/maximum sentence provided under Section 8 and 9 of the P.C. Act had changed from time to me. Under the Prevention of Corruption Act, 1988 as it existed prior to Amendment of 2014, the minimum sentence was six months and maximum sentence was five years in both Section 8 and 9 of the Act. However subsequently the above said provisions were amended by Amendment Act of 2014 vide which the minimum sentence was not less than 3 years and maximum sentence was upto seven years. Provision of Section 8 and 9 have again changed by another amendment vide Prevention of Corruption (Amendment) Act, 2018 which came into force w.e.f. 26.07.2018.

6. Keeping note of the above said changes made in the provision of Section 8 and 9 of the Act, now I consider the submissions made by ld. Counsel for the accused. As submitted the most significant aspect of the matter is that the convict before me is one who served upto the rank of Major General in Indian Army. It is also important to note that the offence in question was committed by him when he had already retired from his services. The fact that the convict before me has had an unblemished career in Indian Army, to me a most mitigating circumstance to be kept into consideration while deciding the quantum of sentence. It is important also CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 52 that the convict is presently touching 80 years of age. On the other hand this Court has also to ensure that sentence to be awarded should have a deterrent effect also and must set an example, particularly in case of corruption in Indian Army. Corruption in any department cannot be tolerated but when it comes to corruption in Indian Army, this fact substantially shaken the very confidence of the society and therefore convict requires to be sentenced appropriately. As such keeping all the mitigating and incriminating circumstances nto mind, I sentence the convict S.P. Murgai (Retired Major General) :

(I) To undergo rigorous imprisonment for 03 years with fine of Rs.25,000/- for the offence punishable under Section 8 of the P.C. Act. In default of payment of fine, convict is directed to further undergo simple imprisonment for 06 months.

(II) To undergo rigorous imprisonment for 03 years with fine of Rs.25,000/- for the offence punishable under Section 9 of the P.C. Act. In default of payment of fine, convict is directed to further undergo simple imprisonment for 06 months.

7. Both the sentences of the convict shall concurrently. Benefit of Section 428 of the Cr.P.C., if any, be given to the convict.

8. At this stage, ld. Counsel for the convict has moved an application under Section 389 Cr.P.C. seeking bail and suspension of sentence to present an appeal before the Hon'ble High Court.

9. Consequently, as per provision of Section 389(3) Cr.P.C., application is allowed and convict is granted bail on furnishing the personal bond in the sum of Rs.50,000/- with one surety in the like amount. Fine amount not paid. Bail bonds and surety bonds have been furnished and CC No.33/2019 (Judgment) CBI Vs. Maj. Gen. S.P. Murgai (Retd.) Page 53 accepted. The sentence shall remain suspended for a period of one month to enable the convict to prefer an appeal before the higher court. The convict is directed to furnish the order of the Appellate Court by 20.09.2019, failing which he has to surrender before this Court.

10. File be consigned to record room.

Announced in the open Court                    (Shailender Malik)
on August 22nd, 2019                       Special Judge (PC Act) CBI
                                        Rouse Avenue Courts, New Delhi



                                                   Digitally
                                                   signed by
                                                   SHAILENDER
                                        SHAILENDER MALIK
                                        MALIK      Date:
                                                   2019.08.23
                                                   14:17:03
                                                   +0530




CC No.33/2019 (Judgment)
CBI Vs. Maj. Gen. S.P. Murgai (Retd.)                                  Page 54

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Delhi District Court

Cbi vs . Maj. Gen. S.P. Murgai (Retd.) on 22 August, 2019