Delhi District Court
In (I) N. Shri Rama Reddy vs . V. Giri (1970) 2 Scc 340 (Ii) R. M. on 12 December, 2018
IN THE COURT OF DR. RAKESH KUMAR: SPECIAL JUDGE
(PC ACT) (CBI) SOUTH DISTRICT: SAKET COURTS
NEW DELHI
CC No. 14/2011(34/2016)
RC No. AC2 2004 A0008 CBI/New Delhi
U/s 7, 9 & Section 13 (2) read with 13(1)(d) of PC Act.
Central Bureau of Investigation
Versus
Hem Chandra Pant,
Son of Late B.D. Pant,
Resident of B-6, Type-IV,
Pandara Road,
New Delhi-110003.
Date of Institution : 31.08.2006
Date of Reserving Judgment : 13.11.2018
Date of Judgment : 03.12.2018
For CBI :Mr. Lalit Mohan,
Public Prosecutor
For Defence :Mr. Bharat Bhushan, Advocate.
JUDGMENT
1. A police report was put up by the State through the Central Bureau of Investigation (in short 'CBI') on 31.08.2006 with the view to take cognizance of offences under section 7 CC No. 14/11 (34/16) CBI v. H.C. Pant Page 1 of 116 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the P.C. Act') and to proceed against the accused, namely, Hem Chandra Pant for having committed the said offence.
2. As per the police report, on 06.12.2004, this case was registered against the accused H.C. Pant, Deputy Director, Ministry of Defence, Government of India, resident of House No. 598, Block No. 5, Lodhi Colony, New Delhi (under suspension) for the offences punishable under sections 7, 9 & 13 (2) read with section 13 (1) (d) of the P.C. Act consequent to the receipt of information / material from Government of India, forwarded by Smt Manjulika Gautam, Additional Secretary, Government of India, Department of Personnel & Training, New Delhi, vide letters dated 29.10.2004 and 25.11.2004 besides communicating the Government's decision regarding abolition of Justice S.N. Phukan Commission of Inquiry which had been looking into the matters concerning Tehelka tapes and the further decision of entrusting the investigation thereof, to Central Bureau of Investigation.
3. As per the police report, it is, inter-alia, alleged in the FIR that during the year 2000-2001, the functionaries of News Portal "Tehelka.com" conducted an operation to expose alleged corruption in defence procurements; that in CC No. 14/11 (34/16) CBI v. H.C. Pant Page 2 of 116 pursuance of this endeavour, they met various persons, including Government Servants, Defence Officers, Businessmen, Politicians etc., purportedly to facilitate obtaining of supply orders for defence equipments including Hand Held Thermal Cameras (HHTC)/ Hand Held Thermal Imagers (HHTI) for the Indian Army; that such meetings were secretly video taped, inter-alia, depicting various persons allegedly receiving illegal gratification; that in this exercise, the News Portal used the identity of a fictitious/non-existent firm 'M/s West End International, London'; that the contents of the transcripts of such video tapes, as aforementioned, depict acts of alleged omission and commission attributable to various individuals, who interacted with the representative(s) of the said fictitious firm; that such individuals, inter-alia, included H.C. Pant, Deputy Director (correct designation - Staff Officer), Ministry of Defence, Government of India, New Delhi; that H.C. Pant besides providing relevant information/guidance about various stages of the process involved in defence procurements by Indian Army, also introduced the said representative(s) to various other persons, including R.K. Gupta, Deepak Gupta, Mohinder Singh Sahni, etc. - Businessmen, who were also allegedly involved in facilitating defence procurements for Indian Army, besides rendering advice as to the manner in which M/s West End International should project its products to Indian Army; that in consideration of providing information and to facilitate CC No. 14/11 (34/16) CBI v. H.C. Pant Page 3 of 116 such meetings with other connected persons, H.C. Pant, received illegal gratification aggregating to Rs. 60,000/-, from the representative(s) of the said fictitious firm in various installments.
4. It is further alleged in the FIR that the accused H.C. Pant being a public servant obtained for himself or for any other person gratification other than legal remuneration as a motive or reward for showing favour as well as for rendering or attempting to render service to any person with the Central Government and also as a motive to exercise personal influence and induce various officers of Indian Army besides other persons to render service to any person with the Central Government and further provided certain official information to the representative(s) of the said fictitious firm unauthorisedly by abusing his official position as a public servant and thus, he has committed offences punishable under section 7, 9 & 13 (2) read with section 13 (1) (d) of the P.C. Act.
5. It is further reported in the police report that on the basis of the information given by Manjulika Gautam, on 06.12.2004, First Information Report (FIR) was registered at Anti Corruption Branch, Central Bureau of Investigation, CGO Complex, New Delhi and investigation started.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 4 of 116THE CHARGE-SHEET
6. It is reported in the police report that during investigations, original Video Tapes/ Digital Videos (DVs) bearing nos. 40, 41, 42, 43, 47, 56 & 94 were obtained in sealed packets, besides VHS copies thereof, as also the transcripts containing details of conversations recorded in each of these Video Tapes/DVs, from S.K. Dasgupta, the Designated Officer, who was Secretary of the erstwhile Justice S.N. Phukan Commission of Inquiry. Cameras/Recording equipments used by the said functionaries of Tehelka.com were also obtained from them.
Investigation has disclosed that during November 1999, a portal named 'Tehelka.com' was got registered by Aniruddha Bahal, S/o Kedarnath Bahal - a Journalist and Writer, through his relative Ashish Mehra, who is based in USA. Thereafter, during February/March, 2000, a group of Journalists/Free-Lancers including Tarun Tejpal, S/o Inderjit Tejpal and Aniruddha Bahal, conceived the idea to start a News & Views portal. In this context, they decided to make use of the domain - Tehelka.com, which had already been got registered by Aniruddha Bahal, as aforementioned. While Tarun Tejpal functioned as the CEO, Aniruddha Bahal operated as the Editor - Investigation. Their first exercise of CC No. 14/11 (34/16) CBI v. H.C. Pant Page 5 of 116 investigative journalism was the exposure of cricket match- fixing.
Investigation has further disclosed that consequent to the breaking of a huge fire in Bharatpur Ammunition Depot, there started various stories about this fire, including the one alleging that it was a deliberate incident for covering up various acts of omission and commission connected with the acquisition of defence related equipment, which was stored in the said Depot. At this stage, the above named functionaries of Tehelka.com planned to expose alleged corruption in defence procurements. In their above pursuit to expose corruption in Defence procurements, for field operations, they used Mathew Samuel, who had earlier been in the field of journalism, and had contacted Tarun Tejpal and Aniruddha Bahal for joining Tehelka.com. Mathew Samuel, thereafter, joined Tehelka.com and he later on introduced Anil Malviya of Mumbai (who assumed the name of Rajiv Sharma), who had some experience of dealing with Canteens Stores Department, a Defence establishment, to Aniruddha Bahal.
Investigation has further disclosed that as a part of operational planning, Aniruddha Bahal, Mathew Samuel and Anil Malviya under the guise of the representatives of M/s West End International, London (a fictitious firm - purportedly a supplier of defence related products), established contact CC No. 14/11 (34/16) CBI v. H.C. Pant Page 6 of 116 with various persons connected with Defence procurements, viz., officials of Ministry of Defence, Army Officers (both serving & retired) and Middlemen. One of the first such persons was one P. Sasi, an Assistant working in the Ministry of Defence, whom they met in August 2000. From the said P. Sasi, it was gathered that during that period, one of the processes under consideration was for procurement of Hand Held Thermal Imagers (HHTIs) by Indian Army and that the products of two vendors, one from Israel and another from France had already been short-listed. With this lead, the said functionaries got into the role of a potential supplier of HHTIs, purportedly manufactured by a company based in Netherlands. They prepared necessary documents, inter-alia, offering the said product and succeeded in bringing the same on record in the concerned wing in the Army Headquarters.
Investigation has further disclosed that during the month of November 2000, the said P. Sasi introduced the above named representatives of M/s West End International, U.K. to H.C. Pant, a senior officer in the Ministry of Defence, who was earlier posted in the Personal Staff of the then Minister of State for Defence Production, and was thereafter, reportedly, working as Dy. Director in Ministry of Defence.
Investigation has disclosed that the said H.C. Pant had joined Ministry of Defence as an Assistant Staff Officer CC No. 14/11 (34/16) CBI v. H.C. Pant Page 7 of 116 during the year 1985, in which position he continued till 30.10.2000. He was promoted as Staff Officer w.e.f. 01.11.2000. However, during the period 19.11.1999 to 14.11.2000 he was posted as Officer on Special Duty (OSD) to Haren Pathak, the then Minister of State for Defence Production. Thereafter, w.e.f. 14.11.2000 H.C. Pant joined as Staff Officer (Admn.) in Ordnance Factory Cell, Ministry of Defence Production, G Block, New Delhi, in which position he continued to work till 14.03.2001, when he was placed under suspension. During the period from 01.11.2000 to January 2001, he was residing in the Government accommodation alloted to him at Quarter No. 598, Block No.5, 1 st Floor, Type- III, Lodhi Road, New Delhi-110003. His telephone Nos., during this period, were 3010502, 3014219 & 3013371 (Office) and 4620900 & 4642968 (Residence).
Investigation has disclosed that during the period 22.11.2000 to 09.12.2000, 7 meetings were held between Mathew Samuel, as a representative of M/s West End International, UK and H.C. Pant and that all these 7 meetings were secretly video recorded by Mathew Samuel.
Investigation has further disclosed that during the above mentioned 7 meetings, discussions were held for pursuing the proposal of M/s West End International for supply of HHTIs to Indian Army. Relevant details, in brief, are CC No. 14/11 (34/16) CBI v. H.C. Pant Page 8 of 116 as under:-
(i) The first meeting between Mathew Samuel, as representative of M/s West End International, U.K., and H.C. Pant was held in the evening on 22.11.2000 at the residence of Pant in Lodhi Colony, New Delhi, this meeting was fixed by P. Sasi, who had also accompanied Mathew Samuel and was throughout present during the meeting. At the very start, H.C. Pant informed Mathew Samuel that he knew about the matter of purchase of Binoculars and provided him with certain documents relating to futuristic requirements of Bharat Electronics Ltd. and held discussions about potential business prospects between this PSU and Mathew Samuel's Company. Later on, Mathew Samuel handed over to H.C. Pant, a copy of the proposal, which had purportedly been submitted by M/s West End International to Indian Army for supply of Hand Held Thermal Imagers. H.C. Pant went through the said proposal and later on retained the same. Accused, besides assuring his help, also mentioned that he will prepare the 'Brief' for them. Towards the end of the meeting, Mathew Samuel handed over to H.C. Pant 'small presentation' in the form of a wad of currency notes (which is disclosed to be cash totaling Rs. 20,000/-), which Pant accepted. In this meeting, Pant also mentioned about his having till recently been posted in the personal section of the then Minister of State for Defence Production, apart from about his close personal CC No. 14/11 (34/16) CBI v. H.C. Pant Page 9 of 116 association with a number of senior officers and politicians.
This meeting is covered in Video Tape No.40.
(ii) The second meeting between Mathew Samuel and H.C. Pant was held again at Pant's residence in Lodhi Colony, New Delhi on 24.11.2000. In this meeting, Pant mentioned to Mathew Samuel about the availability of two Guest Houses of Ministry of Defence - one in Qutub Institutional Area and other in Asiad Village, which could be used for meetings. He, in fact, fixed the next meeting, the following day at the above mentioned Guest House in Qutub Institutional Area. He also provided his unlisted office telephone number to Mathew Samuel. There were discussions about the accessibility to George Fernandez through Jaya Jaitly and R.K. Jain. There were also discussions in which Pant mentioned about arranging meetings of Mathew Samuel with Gen. Chaudhary and Gen. Bhatnagar. This meeting is covered in Video Tape No.41.
(iii) The third meeting was held on 25.11.2000 in MOD Guest House in Qutub Institutional Area, New Delhi, in which Mathew Samuel is introduced by H.C. Pant to his friend Deepak Chhabra, a Businessman residing in Vasant Vihar. During discussions, Pant mentioned to Deepak Chhabra about the proposal of Mathew Samuel's Company which was pending in the Ministry of Defence/Army HQ. Deepak CC No. 14/11 (34/16) CBI v. H.C. Pant Page 10 of 116 Chhabra promised to arrange Mathew Samuel's meeting with Gen. Chaudhary, while H.C. Pant undertook to arrange his meetings with Gen. Bhatnagar, Gen. Shankar Prasad and L.M. Mehta. During this meeting, Mathew Samuel handed over to H.C. Pant Rs.20,000/-, which was duly accepted by Pant. This meeting is covered in Video Tape No.42.
(iv) The fourth meeting was also held on the same day, i.e. on 25.11.2000, at the same venue, i.e. MOD Guest House in Qutub Institutional Area, New Delhi, between Mathew Samuel, H.C. Pant and Deepak Chhabra. H.C. Pant mentioned that the file was with Col. Tiwari, Director in WE Directorate, who will put it up to Gen. Chaudhary. Simultaneously, there is discussion about the investments from Mathew Samuel's Company in certain Diamond project being pursued by Deepak Chhabra. There were further discussions about meetings with Gen. Bhatnagar, Col. Tiwari. This meeting is covered in Video Tape No.43.
(v) The fifth meeting was held on 28.11.2000 in Vasant Vihar, residence/office of one Mohinder Pal Sahni when H.C. Pant had taken Mathew Samuel to him. Mohinder Pal Sahni is a Businessman who was the Consul General of Bellitez (a South American Country) in India and his son was the Consul General of Eritrea (a South African Country) in India. Pant had already spoken to Sahni about the pending HHTI CC No. 14/11 (34/16) CBI v. H.C. Pant Page 11 of 116 proposal of M/s West End International, U.K. Sahni mentioned that there were already two Companies - Thomson CSF and El-Op, who were in line to procure the said Order from the Defence Ministry. When Mathew Samuel mentioned that the product being offered by his Company was better than that of the above named two vendors, Sahni told him that he was well aware of the subject and informed Mathew Samuel that he was having a team of 120 consultants, which operate in different fields like Power, Mining, Defence, Petroleum, etc. He thereafter, spoke to Lt. Col. V.K. Berry (Retd.) and referred the proposal of Mathew Samuel to him. Sahni further mentioned that he will first study the products and would thereafter guide him to make the deal technically and commercially sound. Pant towards the end of the meeting informed Mathew Samuel that Deepak Chhabra had already talked to the wife of Maj. Gen. Chaudhary. He even mentioned of giving something as 'token' to Maj. Gen. Chaudhary, i.e. Rs. 1 lakh to start with and balance later on. While talking about George Fernandez, Pant informed Mathew Samuel that Ashok Subramaniam looks after his itinerary of foreign dinners, lunch etc., whereas Rajiv Gaba looks after his all personal and official things. As regards the Prime Minister's office, Pant mentioned that it was Sunder Rajan, an officer of Revenue Services, who looks after the Defence matters. Pant further claims that they were known to him. This meeting is covered in Video tape No.47.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 12 of 116(vi) The sixth meeting was held on 01.12.2000, between H.C. Pant and Mathew Samuel at the residence of Mohinder Pal Sahni. H.C. Pant informed Sahni that talks had been held with Gen. Chaudhary and it was conveyed that PNC meetings had already been held with both the vendors. Sahni advised that they should operate through BEL where he had good connections. Pant suggested that they could have a TOT with BEL. Thereafter, Sahni spoke on telephone to somebody and mentioned in detail about the product details of West End International's HHTI, but after the talks, informed Mathew and Pant that TOT with BEL was not possible for the present, but could be promised for the future. Mohinder Pal Sahni further mentioned that he could get political pressure exerted from Bangaru Laxman, who could make a call and say "entertain this party". He further claimed that the second channel could be Prasad, the Cabinet Secretary, who was very well known to him. Sahni further clarified that both the political field and also the users' side had to be taken care of. Regarding Bangaru Laxman, Mohinder Pal Sahni, however added that 'trouble with him is ...... we have to pay money straight away'. He thereafter advised them that first he will have to make a full case on their behalf as to why they should be entertained. He advised Mathew Samuel to first provide him with the comparative details of Sophie and CSF Thomson products. He again cautioned that they have to project that CC No. 14/11 (34/16) CBI v. H.C. Pant Page 13 of 116 their product was the best and once it is so, even there can be a re-tender. He further added "Bangaru noo kaun rok sakda hai, ji? He will call George directly..... I have got this complaint. This product is better. Entertain them". H.C. Pant informed Mohinder Pal Sahni that they had already given the proposal which is with MGO. He further added that "General de nal gal baat vi chal payee ..... Gen. Dhillon nal". In the later part of this meeting, Mohinder Pal Sahni and H.C. Pant went out of the said room, for sometime. Thereafter, H.C. Pant returned alone to the room where Mathew Samuel was sitting. H.C. Pant mentioned to Mathew Samuel that he had been giving lots of work to Mohinder Pal Sahni and that he had now decided to take money from him, since he required money for paying installments of a plot that he had taken. Pant further mentioned that he had told Sahni to start paying him @ Rs.20,000/- per month, so that he can have some corpus of money and that his immediate requirement was of Rs.60,000/Rs.56,000/- for payment of quarterly installments. He further added that he would be putting Rs.20,000/- per month either in his own account or in the account of his daughter. Pant further mentioned that Sahni had told him that he would be giving money the next day and also mentioned that he (Pant) had to rotate Rs.50,000/- quarterly. Pant further mentioned that he did not have money in his mobile phone, and there was left balance of Rs.75 only (in prepaid card). Thereafter, H.C. Pant asked Mathew Samuel CC No. 14/11 (34/16) CBI v. H.C. Pant Page 14 of 116 "Give me Rs.10,000/- today. Because I said, I have to put some money.................". Accordingly, Mathew Samuel gave Rs.10,000/- to H.C. Pant. This meeting is covered in video tape no.94.
(vii) The seventh meeting was held on 09.12.2000, between Mathew Samuel and H.C. Pant at the latter's residence in Lodhi Colony. There are further discussions in which H.C. Pant mentioned about utilising various channels/persons for pursuing/promoting the interest of M/s West End International. Pant specifically mentioned about contacting Bangaru Laxman through R.K. Gupta - a Businessman and alternatively through one Dr. Bhim Sen, who was considered close to Sahib Singh Verma. There is also mention of utilising the services of Mohinder Pal Sahni. Pant even undertook to contact Yoginder Narain, the then Defence Secretary, and even spoke on telephone with somebody, who as per Pant was Mrs. Mathur, sister of Yoginder Narain. In this meeting, Mathew Samuel made further payment of Rs.20,000/- to H.C. Pant, which he accepted. This meeting is covered in video Tape No.56.
Investigation has further disclosed that correspondingly during the relevant period i.e. between 23.11.2000 to 01.01.2001, various amounts were deposited in cash in the Savings Bank accounts of H.C. Pant, Rajni Pant CC No. 14/11 (34/16) CBI v. H.C. Pant Page 15 of 116 (his wife) and Latika Pant (his daughter), as detailed below:-
a. SB A/c No. 01190/ 029136 of H.C. Pant with State Bank of India, Nirman Bhawan, New Delhi.
Sl. No. Date Amount (in Rs.)
1. 23.11.2000 7,800.00
2. 24.11.2000 3,000.00
3. 28.11.2000 10,220.00
4. 30.11.2000 3,850.00
5. 06.12.2000 6,120.00
6. 11.12.2000 18,870.00
Total Rs. 49,860.00
b. SB A/c No. 45207 of Smt. Rajni Pant with Punjab
National Bank, Lodhi Road, New Delhi.
Sl. No. Date Amount (in Rs.)
1. 26.11.2000 11.000.00
2. 06.12.2000 9,120.00
3. 13.12.2000 10,000.00
4. 22.12.2000 5,000.00
Total Rs. 35,120.00
c. SB A/c No. 52079 of Ms. Latika with Punjab
National Bank, Lodhi Road, New Delhi.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 16 of 116
Sl. No. Date Amount (in Rs.)
1. 28.11.2000 5,000.00
2. 03.12.2000 4,000.00
3. 06.12.2000 4,300.00
4. 12.12.2000 7,660.00
Total Rs. 20,960.00
Investigation has further disclosed that H.C. Pant for arranging meeting of Mathew Samuel with Bangaru Laxman, obtained assistance of one Mohan Singh [who was also earlier working with him in the personal staff of Haren Pathak, the then Minister of State for Defence Production], Bangaru Laxman, the then MP and President, BJP, was known to Mohan Singh.
Investigation has further disclosed that during the period 25.11.2000 to 23.12.2000, there were 20 calls exchanged between Telephone numbers, 4620900 and 4642968, then installed at the residence of H.C. Pant and Mobile Telephone No. 98-102-74694 of Mathew Samuel.
Investigation has further revealed that during the period when the above meetings were held, the offer/ documents submitted on behalf of M/s West End International, in respect of Hand Held Thermal Imager were under consideration in the Army Headquarters and that the CC No. 14/11 (34/16) CBI v. H.C. Pant Page 17 of 116 Infantry Directorate had consequent to paper evaluation opined that the enhanced version of the equipment of M/s West End International was better than the equipment procured by them from other companies. Further, Major General PSK Chaudhary, the then Addl. Director General - Weapons & Equipments (ADGWE) had, on 09.02.2001, recorded a note to the effect that the HHTI of M/s West End should be considered at a later stage.
Investigation has further revealed that during investigation, samples/specimen of voice and image of H.C. Pant and Mathew Samuel were recorded/taken and the tapes covering the same were sent to the Andhra Pradesh Forensic Science Laboratory (APFSL), Hyderabad along with the aforesaid secretly recorded 7 Video Tapes for opinion. APFSL, Hyderabad has, vide their opinion No. ENG/9/2005 dated 18.07.2006, inter-alia, opined that the said 7 Video Tapes covering the aforementioned meetings (between H.C. Pant and Mathew Samuel and others), so sent to them have not been tampered with and the images and voices of both these persons recorded in the specimen Video Tapes match with those in the questioned Video Tapes.
Investigation has, therefore, disclosed that between the period 22.11.2000 to 09.12.2000, H.C. Pant, the then Staff Officer, Ministry of Defence Production, CC No. 14/11 (34/16) CBI v. H.C. Pant Page 18 of 116 Government of India, New Delhi had demanded & accepted illegal gratification totaling to Rs. 70,000/- on four different dates from Mathew Samuel, purportedly the representative of M/s West End International, London (a fictitious firm purportedly concerned with supply of Defence products to Indian Army) as a motive or reward for facilitating procurement of order for supply of Hand Held Thermal Imagers to the Indian Army.
Investigation has further disclosed that the motive of the functionaries of Tehelka.com was to expose corruption in Defence procurements, which is evident from the manner in which they had, in a largely attended press conference convened / held on 13.03.2001 at New Delhi, made public, the results of the above Operation conducted by them. Besides playing the 4½ hours video tapes revealing select portions/ abstracts of their meetings with a number of persons (including H.C. Pant), in the above mentioned context, they also released a compilation titled as ''OPERATION WESTEND
- A STORY OF HOW THE SUITCASE PEOPLE ARE COMPROMISING INDIAN DEFENCE". Later on, excerpts from the above mentioned 4½ hours video tapes were telecast by certain TV Channels. Apart from the above, the investigation has not brought out any other motive and no malafides can be attributed to the above acts of the said functionaries.CC No. 14/11 (34/16) CBI v. H.C. Pant Page 19 of 116
It is also reported that since H.C. Pant has already been dismissed from Government Service, vide Order No. 4(1)/2001/D(FY-1) dated 13.06.2006, therefore, it is not required to obtain sanction of the competent authority under section 19 of the P.C. Act for prosecution of H.C. Pant.
It is further reported in the charge-sheet that the aforesaid acts on the part of H.C. Pant reveal commission of offence punishable under section 7 of the Prevention of Corruption Act, 1988.
It is, therefore, prayed that cognizance of the offence committed by H.C. Pant may be taken and summons for his appearance be issued and he should be tried as per the provisions of law.
7. On the police report, on 31.08.2006, the Learned Predecessor of this Court, having taken the cognizance of the offence, issued summons for the attendance of the accused.
8. Pursuant to summons issued against him, the accused appeared before the court. Copies of police report and other documents in compliance of section 207 Cr.P.C.
were supplied to the accused.
9. On 25.07.2007, upon considering the police report CC No. 14/11 (34/16) CBI v. H.C. Pant Page 20 of 116 and the documents sent with it under Section 173 Cr.P.C. and after hearing the Public Prosecutor and counsel for the accused, the charge was framed against the accused for his having committed offence punishable under section 7 of the P.C. Act.
10. The charge was read over and explained to the accused and he was asked if he pleaded guilty of the offence charged or claimed to be tried. The accused did not plead guilty and claimed trial.
11. In support of its case, the prosecution got examined PW1 Captain Rakesh Bakshi, Nodal Officer, Bharti Airtel Ltd., PW2 B.M. Verma, Divisional Engineer MTNL, PW3 Mahinder Budhiraja, AGM SBI, PW4 Rajinder Sood, Under Secretary, Ministry of Finance, PW5 K. Seshaiah, Additional Controller, Finance & Accounts in Ordnance Factory, PW6 Lt. Colonel Sher Bahadur Bhandari, Sena Bhawan, New Delhi, PW7 Deepak Gupta, PW8 Deepak Chhabra, PW9 Raj Kumar Gupta, PW10 Tarun Tejpal, Journalist and founder of Tehelka.com, PW11 Ashok Kumar Sharma, Ministry of Defence Production, PW12 Mohan Singh Rawat, Ministry of Defence Production, PW13 S.K. Dasgupta, Secretary to Justice S.N. Phukan Commission of Inquiry and Designated Officer for winding up of the Commission, PW14 Prakash Ekka, independent witness to taking of voice and image samples, CC No. 14/11 (34/16) CBI v. H.C. Pant Page 21 of 116 PW15 Rajesh Kumar Singh, Nodal Officer, Bharti Airtel Ltd., PW16 Brij Kishore Sharma, Account Executive of M/s Buffalo Network Pvt. Ltd., PW17 Shankar Sharma, Investor of M/s Buffalo Network Pvt. Ltd., PW18 Mohinder Singh Sahni, PW19 Manjulika Gautam, Additional Secretary in the Department of Personnel & Training, PW20 P. Sasi, PW21 J.P. Mehta, Under Secretary in Justice S.N. Phukan Commission of Inquiry, PW22 Sudhir Verma, Chartered Accountant of M/s Buffalo Network Pvt. Ltd., PW23 Arnab Pratim Dutta, Reporter of Tehelka.com, PW24 Deonis Kujur, another independent witness to taking of voice and image samples, PW25 S. Ingrasal, Sr. Scientific Officer (photo) CFSL, CGO Complex, New Delhi, PW26 Aniruddha Bahal, Editor Investigation of Tehelka.com, PW27 Mathew Samuel, main reporter of Tehelka.com and maker of the tapes, PW28 Brig. A.P. Singh, Director (Weapon & Equipment-4) at Army Headquarter, New Delhi, PW29 Deputy Superintendent of Police(DSP) Vipin Kumar Verma, PW30 Additional Superintendent of Police(ASP) Biswajit Das, PW31 Deputy Superintendent of Police(DSP) K.Y. Guruprasad, PW32 Additional Superintendent of Police(ASP) D.S. Dagar, Investigating Officer of the case and PW33 D. Venkateswarlu, Assistant Director, Engineering Section of APFSL who gave expert opinion. During the examination of the prosecution witnesses, the documents Ex. PW1/A, Ex. PW2/1, Ex. PW2/2, Ex. PW2/3, Ex. PW3/1, Ex. PW3/2, Ex. PW3/3, Ex. PW4/1, Ex.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 22 of 116PW4/2, Ex. PW4/3, Ex. PW4/4, Ex. PW4/5, Ex. PW4/6, Ex. PW5/1, Ex. PW6/1, Ex. PW6/2, Ex. PW6/3, Ex. PW14/A, Ex. PW14/A1, Ex. PW16/A, Ex. PW16/B, Ex. PW16/C, Ex. PW16/D, Ex. PW19/A, Ex. PW19/B, Ex. PW19/C, Ex. PW19/D, Ex. PW19/E, Ex. PW21/A, Ex. PW21/B, Ex. PW21/C, PW21/D, Ex. PW21/E, Ex. PW21/F, Ex. PW21/G, Ex. PW21/H, Ex. PW21/J, Ex. PW21/K, Ex. PW21/L Ex. PW21/M, Ex. PW21/N, Ex. PW21/O, Ex. PW21/P, Ex. PW21/Q, Ex. PW21/R, Ex. PW21/S Ex. PW21/T, Ex. PW21/U, Ex. PW22/A, Ex. PW22/B, Ex. PW22/C, Ex. PW23/A, Ex. PW26/A, Mark PW28/A, Mark PW28/B, Mark PW28/C, Ex. PW29/A, Ex. PW32/A, Ex. PW32/B, Ex. PW32/C, Ex. PW32/D, Ex. PW32/E; and Hi8 tapes Ex. P6, Ex. PA, Ex. PB, Ex. PC, Ex. PD, Ex. PE and Ex. PF; and briefcase device Ex. PW27/A were also tendered in evidence.
12. On 01.06.2017, prosecution evidence was closed and the matter was posted for examination of the accused under section 313 of Cr.P.C. and of his statement.
13. On 25.04.2018, the court examined the accused under Section 313 Cr.P.C. and his separate statement was recorded. During his examination under section 313 of Cr.P.C., the accused H.C. Pant denied the correctness of the incriminating circumstances appearing in the evidence against him. During his examination under section 313 of Cr.P.C., the accused took the defence that purpose of CC No. 14/11 (34/16) CBI v. H.C. Pant Page 23 of 116 'Operation Westend' was to get cheap publicity and not to expose corruption in the Government. It is further stated by the accused that he had never offered Mathew Samuel to introduce any government official, bureaucrats or politicians and he had also never introduced Mathew Samuel to any arms dealer. It is further stated by the accused during his examination under section 313 Cr.P.C. that no money was given to him and this money was paid by Mathew Samuel to a travel contractor who had prepared a detailed report of the travel and other functions which their company intended to do in Agra, Jaipur and some other place which he did not recall at that time. It is further stated by the accused during his examination under section 313 Cr.P.C. that the tapes were doctored. The accused expressed his desire to lead evidence in his defence.
14. No evidence has been led by the accused in his defence.
15. I have heard Mr. Lalit Mohan, Public Prosecutor for the CBI and Mr. Bharat Bhushan, Advocate for the accused and have gone through the record of the case carefully.
16. Having drawn my attention on the testimonies of PW1 Captain Rakesh Bakshi, PW2 B.M. Verma, PW3 Mahinder Budhiraja, PW4 Rajinder Sood, PW5 K. Seshaiah, CC No. 14/11 (34/16) CBI v. H.C. Pant Page 24 of 116 PW6 Lt. Colonel Sher Bahadur Bhandari, PW7 Deepak Gupta, PW8 Deepak Chhabra, PW9 Raj Kumar Gupta, PW10 Tarun Tejpal, PW11 Ashok Kumar Sharma, PW12 Mohan Singh Rawat, PW13 S.K. Dasgupta, PW14 Prakash Ekka, PW15 Rajesh Kumar Singh, PW16 Brij Kishore Sharma, PW17 Shankar Sharma, PW18 Mohinder Singh Sahni, PW19 Manjulika Gautam, PW20 P. Sasi, PW21 J.P. Mehta, PW22 Sudhir Verma, PW23 Arnab Pratim Dutta, PW24 Deonis Kujur, PW25 S. Ingrasal, PW26 Aniruddha Bahal, PW27 Mathew Samuel, PW28 Brig. A.P. Singh, PW29 DSP Vipin Kumar Verma, PW30 ASP Biswajit Das, PW31 DSP K.Y. Guruprasad, PW32 ASP D.S. Dagar and PW33 D. Venkateswarlu; and the documents Ex. PW1/A, Ex. PW2/1, Ex. PW2/2, Ex. PW2/3, Ex. PW3/1, Ex. PW3/2, Ex. PW3/3, Ex. PW4/1, Ex. PW4/2, Ex. PW4/3, Ex. PW4/4, Ex. PW4/5, Ex. PW4/6, Ex. PW5/1, Ex. PW6/1, Ex. PW6/2, Ex. PW6/3, Ex. PW14/A, Ex. PW14/A1, Ex. PW16/A, Ex. PW16/B, Ex. PW16/C, Ex. PW16/D, Ex. PW19/A, Ex. PW19/B, Ex. PW19/C, Ex. PW19/D, Ex. PW19/E, Ex. PW21/A, Ex. PW21/B, Ex. PW21/C, PW21/D, Ex. PW21/E, Ex. PW21/F, Ex. PW21/G, Ex. PW21/H, Ex. PW21/J, Ex. PW21/K, Ex. PW21/L Ex. PW21/M, Ex. PW21/N, Ex. PW21/O, Ex. PW21/P, Ex. PW21/Q, Ex. PW21/R, Ex. PW21/S Ex. PW21/T, Ex. PW21/U, Ex. PW22/A, Ex. PW22/B, Ex. PW22/C, Ex. PW23/A, Ex. PW26/A, Mark PW28/A, Mark PW28/B, Mark PW28/C, Ex. PW29/A, Ex. PW32/A, Ex. PW32/B, Ex. PW32/C, Ex. PW32/D and Ex. PW32/E; and original Hi8 tapes Ex. P6, CC No. 14/11 (34/16) CBI v. H.C. Pant Page 25 of 116 Ex. PA, Ex. PB, Ex. PC, Ex. PD, Ex. PE and Ex. PF; and briefcase camera device Ex. PW27/A; and expert opinion report Ex. PW32/C it is submitted by the Learned Public Prosecutor for CBI that from the evidence led by the prosecution it has been proved that a sting operation was carried out by Tehelka.com with motive to expose corruption in defence procurement and thereafter a Commission of Inquiry was constituted to look into the cases relating to the Tehelka tapes. It is further submitted by the Learned Public Prosecutor that from the evidence led by the prosecution it has also been proved that the Commission of Inquiry had ceased to exist and the cases relating to Tehelka tapes were handed over to CBI. It is further submitted by the Learned Public Prosecutor that after registration of FIR, the tapes, instruments and transcripts were seized by CBI. It is further submitted by Learned Public Prosecutor that during investigation, to rule out every possibility of tampering with the tapes during investigation, voice and image samples of the accused were taken by CFSL, New Delhi and the same were sent to APFSL, Hyderabad alongwith the questioned tapes and other material for comparison. It is further submitted by the Learned Public Prosecutor that it has been proved that APFSL has submitted its report wherein it was found that the tapes were neither tampered nor doctored nor edited. It is further submitted by the Learned Public Prosecutor that it has also been proved that the tapes were kept in safe custody CC No. 14/11 (34/16) CBI v. H.C. Pant Page 26 of 116 at various stages. It is further submitted by the Learned Public Prosecutor that it has been proved that the proposal for supply of HHTI was submitted by Tehelka people under the name of M/s Westend International which was in fact considered by Infantry School of Indian Army. It is further submitted by the Learned Public Prosecutor that from the evidence led by the prosecution it has been proved, beyond doubt, that the accused accepted a total sum of Rs. 70,000/- (in four meetings with Mathew Samuel) which amount was received as gratification other than legal remuneration, as a motive or reward for facilitating procurement of order of Hand Held Thermal Imagers from Indian Army to Mathew Samuel, being representative of M/s Westend International Pvt. Ltd. and the identity of the accused is duly established who is seen in the tapes accepting illegal gratification from Mathew Samuel, therefore, he may be convicted for commission of offence punishable under section 7 of the Prevention of Corruption Act.
17. Per-contra, having drawn my attention on the testimonies of PW1 Captain Rakesh Bakshi, PW2 B.M. Verma, PW3 Mahinder Budhiraja, PW4 Rajinder Sood, PW5 K. Seshaiah, PW6 Lt. Colonel Sher Bahadur Bhandari, PW7 Deepak Gupta, PW8 Deepak Chhabra, PW9 Raj Kumar Gupta, PW10 Tarun Tejpal, PW11 Ashok Kumar Sharma, PW12 Mohan Singh Rawat, PW13 S.K. Dasgupta, PW14 Prakash CC No. 14/11 (34/16) CBI v. H.C. Pant Page 27 of 116 Ekka, PW15 Rajesh Kumar Singh, PW16 Brij Kishore Sharma, PW17 Shankar Sharma, PW18 Mohinder Singh Sahni, PW19 Manjulika Gautam, PW20 P. Sasi, PW21 J.P. Mehta, PW22 Sudhir Verma, PW23 Arnab Pratim Dutta, PW24 Deonis Kujur, PW25 S. Ingrasal, PW26 Aniruddha Bahal, PW27 Mathew Samuel, PW28 Brig. A.P. Singh, PW29 DSP Vipin Kumar Verma, PW30 ASP Biswajit Das, PW31 DSP K.Y. Guruprasad, PW32 ASP D.S. Dagar and PW33 D. Venkateswarlu; and Hi8 tapes Ex. P6, Ex. PA, Ex. PB, Ex. PC, Ex. PD, Ex. PE and Ex. PF; and briefcase camera device Ex. PW27/A; expert opinion report Ex. PW32/C; and the law laid down in Rajat Prasad v. CBI, 2014 LawSuit (SC) 337, Court on its own motion v. State, 2008 LawSuit (Del) 1640, Court on its own motion v. State, 2007 LawSuit (Del) 2219, Anwar P.V. v. P.K. Bashir, Civil Appeal No. 4226 of 2012 it is submitted by the Learned counsel for the accused that sting operations by private individuals are not permitted. It is further submitted by counsel for the accused that as per the prosecution witnesses copies were prepared from original Hi8 tapes but CBI has not seized the computer with which copies were prepared and the prosecution has not produced certificate under section 65B of Evidence Act. It is further submitted by counsel for the accused that the expert witness was unable to tell if the tapes were original or copies so tapes cannot be read in evidence. It is further submitted by counsel for the accused that tapes were handled by many persons at various stages so tapes CC No. 14/11 (34/16) CBI v. H.C. Pant Page 28 of 116 cannot relied upon. It is further submitted by counsel for the accused that the representatives of Tehelka claimed that their aim was to expose corruption but, in fact, their aim was to corrupt people. It is further submitted by counsel for the accused that Mathew Samuel has committed the crime and not the accused. It is further submitted by counsel for the accused that the accused did nothing for pushing the proposal submitted by M/s Westend International Pvt. Ltd. and he has not influenced any public servant as Deepak Chhabra and Mohinder Singh Sahni were businessman. It is further submitted by counsel for the accused that the accused had arranged the meetings and he was paid only the expenses incurred. It is further submitted by counsel for the accused that even if it is assumed that everything alleged by the prosecution is correct, no case under section 7 of the P.C. Act is made out, therefore, the accused is entitled to be acquitted.
18. I have given my thoughtful consideration to the submissions made on behalf of the parties.
19. The accused has been charged for the offence punishable under section 7 of the P.C. Act. Section 7 of the P.C. Act reads thus:-
7. Public servant taking gratification other than legal remuneration in respect of an official act.-Whoever, being, or expecting to be a public servant, accepts or obtains CC No. 14/11 (34/16) CBI v. H.C. Pant Page 29 of 116 or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of official functions, favour or disfavour to any person or for rendering or attempting to render any service or this service to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in Clause (c) of section 2, or with any public servant, whether named or otherwise shall be punishable with imprisonment which shall not be less than 1[three years] but which may extent to 2 [seven years] and shall also be liable to fine.
Explanations.- (a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The words "legal remuneration"
are not restricted to remuneration which is a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organization, which he serves, to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a CC No. 14/11 (34/16) CBI v. H.C. Pant Page 30 of 116 title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.
1. Subs. by Act 1 of 2014, sec. 58 and Sch., Part III, for "six months" (w.e.f. 16-1-2014, vide S.O. 119 (E), dated 16 th January, 2014).
2. Subs. by Act 1 of 2014, sec. 58 and Sch., Part III, for "five years" (w.e.f. 16-1-2014, vide S.O. 119 (E), dated 16 th January, 2014).
20. The facts of the case have already been noticed earlier, here, I would like to only focus on the evidence that has been adduced by the prosecution.
21. To bring home the guilt of the accused, the prosecution has examined 33 witnesses.
22. PW1 Captain Rakesh Bakshi, Nodal Officer, Bharti Airtel Limited in his examination having seen the call details of phone No. 9810274694 in the name of Buffalo Networks Pvt. Ltd. deposed that this contains all call details of the said mobile phone and all the pages of call details for the period 01.08.2000 to 12.01.2001 are certified by him. PW1 has also identified his signatures to the call details (Ex. PW1/A).
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 31 of 11623. PW2 B.M. Verma, Divisional Engineer from MTNL Jor Bagh, New Delhi in his examination deposed that he had received a letter (Ex. PW2/1) dated 12.08.2005 from Arun Sharma, SP, CBI ACU-II, New Delhi for supply of certain documents in respect of telephone number 4620900 and 4642968 for the period October 2000 to February 2001 in reference to investigation of CBI case RC 8/2004. Having seen the documents (Ex. PW2/2-3) PW2 deposed that these are letters of MTNL, Jor Bagh Telephone Exchange, New Delhi dated 19.08.2005 addressed to Arun Sharma, SP, CBI whereby information concerning phone number 24620900 and 24642968 were provided under his instructions and the documents were signed by D.K. Dutta. PW2 further deposed that now-a-days, because of the increase in the consumer numbers a prefix '2' is added before all the numbers and similarly before these numbers as well.
24. PW3 Mahinder Budhiraja, Assistant General Manager, SBI Nirman Bhawan Branch, New Delhi deposed that they had received letters (Ex. PW3/1 and PW3/2) from CBI whereby some documents were asked for. PW3 further deposed that in reference to the letters (Ex. PW3/1 and Ex. PW3/2), they had sent one letter (Ex. PW3/3) alongwith the documents which were various cheques and pay slips. PW3 further deposed that these documents were handed over under his instruction and authority by the competent person, CC No. 14/11 (34/16) CBI v. H.C. Pant Page 32 of 116 B.K. Sharma. PW3 further deposed that these documents pertains to Rajni Pant, H.C. Pant and Litika Pant as they were maintaining accounts in the branch.
25. PW4 Rajinder Sood, Under Secretary, Ministry of Finance, Department of Financial Services deposed that CBI had sent letters whereby certain documents / informations in respect of H.C. Pant, Staff Officer (Under Suspension) at that time were required. PW4 further deposed that after receiving the letters / requests from CBI, his office had provided the documents / informations to the office of SP CBI vide covering letters. PW4 Rajinder Sood also identified his signature on the letter Ex. PW4/1. PW4 further deposed that bio-data (Ex. PW4/2) and suspension letter (Ex. PW4/3) dated 14.03.2001 of H.C. Pant was provided by his office. PW4 further deposed that vide letter (Ex. PW4/4) his office had also provided official address of H.C. Pant. PW4 further deposed that vide letter (Ex. PW4/5), CBI had asked about the exact details of posts/positions held by H.C. Pant during the period 01.01.2000 to 31.03.2001 in response of which his office asked Ministry of Defence, Ordnance Factory Cell to provide the information asked in Ex. PW4/5. PW4 further deposed that vide letter Ex. PW4/6 from Ministry of Defence information asked in Ex. PW4/5 was provided copy of which was sent to CBI Director.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 33 of 11626. PW5 K. Seshaiah, Additional Controller, Finance and Accounts in Ordnance Factory, Medek having seen the letter (Ex. PW5/1) deposed that it is the letter which was issued by him in reference to the investigation of case no. RC AC2 2004A 0007. PW5 identified his signature on the letter (Ex. PW5/1) containing two pages and deposed that he had given information regarding the supply orders issued by Army Headquarters to various agencies for supply of HHTI.
27. PW6 Lt. Colonel Sher Bahadur Bhandari, GSO-1, Infantry 5, Sena Bhawan, New Delhi deposed that he was working as GSO-I, Infantry 5 during the period February 1999 to June 2002 and his duties were to identify new weapon and equipments for infantry from analysis of technical upgrades and literature as available in the world which he used to do in consultation with infantry school and other agencies. PW6 further deposed that letter (Ex.PW6/1) number 86785/48/ infantry-5(b) dated 23.1.2001 bears his signature which was sent by him to WE-4 (Weapon and Equipment Directorate Section-4). PW6 further deposed that he received proposal papers (Ex. PW6/2) running into 18 pages already numbered from 9 to 26. PW6 further deposed that this letter pertains to the analysis of technical literature of HHTIs (Hand Held Thermal Imagers) regarding the literature from M/s West End International, London which was forwarded to infantry school for their analysis; the infantry school analyzed the literature CC No. 14/11 (34/16) CBI v. H.C. Pant Page 34 of 116 and forwarded a comparative table (Ex. PW6/3) and their recommendations. PW6 further deposed that thereafter, recommendations of infantry school were analyzed by his superior in the infantry directorate and these recommendations were further approved by DG, infantry. PW6 further deposed that after the approval of DG, Infantry, the infantry directorate recommendations were forwarded under his signatures to WE-4; HHTI is night vision device which is used for observation of the border during night.
28. PW7 Deepak Gupta in his examination-in-chief deposed that on one occasion, H.C. Pant had visited his residence situated at 17 Empire Street, Sultanpur, New Delhi- 30 with a gentleman named Mathew Samuel, who was exploring possibilities of manufacturing components of Night vision equipments. PW7 further deposed that in his meeting with Mathew Samuel he was also shown some brochures relating to Hand Held Thermal Imaging System belonging to M/s G.E.C. Marconi. PW7 Deepak Gupta further deposed that Mathew Samuel had informed him during the meetings that his company is manufacturing Hand Held Thermal Imaging System and he wanted to sell them to PS use.
29. PW8 Deepak Chhabra in his examination-in-chief deposed that somewhere in the year 2000, a telephone call was made to him by H.C. Pant whereby he was apprised that CC No. 14/11 (34/16) CBI v. H.C. Pant Page 35 of 116 some party of UK has come in India for the purpose of investment and he was called at Qutub Institutional Area in Delhi in Guest House type accommodation. PW8 further deposed that he reached in the said meeting at the appointed time where H.C. Pant and one more person was present and he was introduced by H.C. Pant to Mathew Samuel as a businessman. In response to the Court Question, "if he can identify the image of that person whom he has referred to as Mathew Samuel in his deposition" PW8 Deepak Chhabra deposed that since he had met only once or twice, he is not very sure whether he would be able to identify his voice but if the cassette is run, he would try; as regards voice of H.C. Pant he can identify. PW8 Deepak Chhabra in his examination-in- chief, when tape no. 42 was played in the court before him, deposed that he identified himself as well as the accused H.C. Pant and voice as well; as regards the third person (witness was referring to Mathew Samuel) he cannot properly recollect and identify him; if the recording is correct then he must be the same person. PW8 Deepak Chhabra having viewed the contents of the tape no. 42 deposed that as per the video that third person is offering Rs.20,000/- to H.C. Pant which has been accepted. PW8 Deepak Chhabra having viewed the contents of cassette no. 43 deposed that he has been able to identify his own image and H.C. Pant as well as voices. Having viewed the contents of cassette no. 40 also PW8 Deepak Chhabra deposed that as per video something has CC No. 14/11 (34/16) CBI v. H.C. Pant Page 36 of 116 been offered by the third person to the accused which has been accepted by the accused H.C. Pant. Having viewed the contents of cassette no. 56 also PW8 Deepak Chhabra deposed that he identifies the voice and image of H.C. Pant and as per audio video, a sum of Rs. 20,000/- bucks was offered to H.C. Pant by the third person which was accepted by H.C. Pant. PW8 Deepak Chhabra further deposed that he had two meetings in all and in such meetings, besides him, the accused H.C. Pant and that third person was present and no one else.
30. PW9 Raj Kumar Gupta in his examination-in-chief deposed that he met H.C. Pant (present in the court today) through Kailash Pant. PW9 Raj Kumar Gupta further deposed that sometime in the year 2000, H.C. Pant had called him up that one Mathew Samuel is coming to him and that he should talk with him and thereafter, Mathew Samuel came to him.
31. PW10 Tarun Tejpal in his examination-in-chief deposed that he is a journalist by profession and editor of weekly news magazine namely Tehelka. PW10 Tarun Tejpal further deposed that he started Tehelka news website in March 2000 which had a total staff of about 100 people. PW10 Tarun Tejpal further deposed that in order to implement the idea of starting the news website, formation of a company was required. PW10 Tarun Tejpal further deposed CC No. 14/11 (34/16) CBI v. H.C. Pant Page 37 of 116 that to quicken this process, they acquired a shell company called UD&MD which was one of the companies owned by First Global who were investors in Tehelka. PW10 Tarun Tejpal further deposed that they set up a company in Delhi called Buffalo Networks and this Buffalo Networks acquired Tehelka and all its assets from UD&MD and at that point they ceased to have anything with UD&MD. PW10 Tarun Tejpal further deposed that all websites were globally funded by Angel Investors including theirs and the Angel Investors had no role at all to play in daily running or the editorial decision making of the company. PW10 Tarun Tejpal further deposed that they used to receive unsecured loans from First Global whose promoter was Shankar Sharma who had been in college with him. PW10 Tarun Tejpal further deposed that Operation Westend was an investigation carried out by Aniruddha Bahal and Mathew Samuel who were part of investigation section of Tehelka. PW10 Tarun Tejpal further deposed that there had been a big fire at Ammunition dump at Bharatpur where crores of equipments were lost and there was a suspicion that this was a fraud, so, Aniruddha Bahal decided to carry out investigation into the possibility of corruption in defence procurements in India. PW10 Tarun Tejpal further deposed that Aniruddha Bahal's Chief Assistant was Mathew Samuel and they took help of Anil Malviya in this investigation. PW10 Tarun Tejpal further deposed that prior to this, Tehelka already had a reputation of doing public CC No. 14/11 (34/16) CBI v. H.C. Pant Page 38 of 116 interest investigations and they had broken a big expose on match fixing in the cricket. PW10 Tarun Tejpal further deposed that basically Aniruddha and Mathew Samuel approached different functionaries-political, military and bureaucratic to try and sell them a piece of equipment called the Thermal Hand Held Camera and they were testing these people to see if they were willing to push and purchase a piece of equipment that really did not exist purely lured by the prospect of bribes. PW10 Tarun Tejpal further deposed that in the course of investigation, they ended up video taping on hidden cameras very many officials receiving bribes to provide help. PW10 Tarun Tejpal further deposed that he was not directly involved in the investigation but he knew that the hidden cameras were concealed in briefcases, satchels and neck ties. PW10 Tarun Tejpal further deposed that the tapes used were Hi8 and DV and total quantum of tapes recorded in this investigation amounted to one hundred and five tapes. PW10 Tarun Tejpal further deposed that these tapes were kept always in the custody of Aniruddha Bahal and finally they were prepared into 4 ½ hour investigative film which was shown to the press and prominent citizens at a press conference on 13.03.2001 at Imperial Hotel, Delhi. PW10 Tarun Tejpal further deposed that all the 105 original tapes were subsequently submitted to the Justice Venkataswamy Commission set up by the Government to probe the incident. PW10 Tarun Tejpal further deposed that one set of VHS tapes CC No. 14/11 (34/16) CBI v. H.C. Pant Page 39 of 116 was also sent by him to the then President of India. PW10 Tarun Tejpal further deposed that several people were exposed on their tapes receiving graft for help in pushing their so called product. PW10 Tarun Tejpal further deposed that some of the names who featured on their tapes included Bangaru Laxman, Jaya Jaitley, Major General P.S.K. Chaudhary and many others. PW10 Tarun Tejpal further deposed that total amount given by the journalists as bribes was about Rs. Ten lakhs, detailed accounts of all the bribes were kept and submitted to the Commission. PW10 Tarun Tejpal further deposed that in few cases journalist had also offered bribes in the form of gold chain etc. PW10 Tarun Tejpal further deposed that an inquiry commission was set up by the State and the original tapes / cassettes were handed over to the Commission. PW10 Tarun Tejpal further deposed that later on, the Commission ordered for forensic examination of tapes / cassettes and the same were declared as genuine and untampered. In the cross-examination, PW10 deposed that he had not witnessed any of the recording or handing over the money.
32. PW11 Ashok Kumar Sharma, LDC in the Department of Defence Production, in his examination-in-chief deposed that in the year 1999, he joined as P.A. in the Office of Minister of State, Defence Production. PW11 Ashok Kumar Sharma further deposed that other staff members working CC No. 14/11 (34/16) CBI v. H.C. Pant Page 40 of 116 with the said Minister were Swaroop Singh, Sanjeev Kumar and H.C. Pant who was OSD to the Minister. PW11 Ashok Kumar Sharma further deposed that tape no. 42 was displayed in the office of SP, CBI in his presence. PW11 Ashok Kumar Sharma having viewed the contents of tape no. 42 played in the court identified the accused H.C. Pant as well as his voice. Having viewed the contents of tape no. 40 played in the court before PW11, the witness having heard the words "You are Delhi based" identified the same being the voice of accused H.C. Pant. Having seen the video-graph of tape no. 40 PW11 deposed that a packet was handed over to the accused by somebody which was accepted by him.
33. PW12 Mohan Singh Rawat in his examination-in- chief deposed that in the year 1999-2000, he was working in the personal staff of the then Kendriya Raksha Rajya Mantri (Production) and at that time H.C. Pant was also working in his personal staff as OSD to the Minister. PW12 further deposed that during the period December 2000 or January 2001, H.C. Pant called him on phone and told him that he will be sending one person in the name of Mathew Samuel and asked him to introduce the said person to Bangaru Laxman. PW12 further deposed that after about ten minutes, Mathew Samuel had come to him and he accompanied him to the residence of Bangaru Laxman who was residing at Bangla no.3, Kushak Road. Having seeing video-graph of tape no. 40 CC No. 14/11 (34/16) CBI v. H.C. Pant Page 41 of 116 PW12 Mohan Singh Rawat deposed that a packet was handed over to the accused by somebody which was accepted by him. PW12 Mohan Singh Rawat, after seeing the tape no. 40, also identified the voice of the accused.
34. PW13 S.K. Dasgupta in his examination-in-chief deposed that he had worked with Justice K. Venkataswamy Commission of Inquiry as Secretary to the Commission; Justice Venkataswamy Commission of Inquiry was subsequently known as Justice SN Phukan Commission of Inquiry. PW13 further deposed that he was also holding the additional charge of Registrar of Commission of Inquiry. PW13 S.K. Dasgupta further deposed that Justice S.N. Phukan, Commission of Inquiry ceased to exist w.e.f. 4 th October 2004 in view of the notification issued by Department of Personnel & Training, issued by Manjulika Gautam, the then Addl. Secretary in the Department of Personnel & Training. PW13 S.K. Dasgupta further deposed that he was nominated as a Designated Officer for winding up of the Commission and he took the tapes and documents etc. of the Commission under his charge and kept them in safe custody on behalf of the Department of Personnel & Training. PW13 S.K. Dasgupta further deposed that thereafter, the investigation relating to the tehelka tapes was entrusted to the CBI to determine further misconduct of charges etc. concerning the same and accordingly, he handed over the CC No. 14/11 (34/16) CBI v. H.C. Pant Page 42 of 116 tapes, documents etc. to the CBI as required by them. PW13 S.K. Dasgupta further deposed that the concerned officers of the CBI came to the office of erstwhile Commission at Vigyan Bhawan to finalise the handing over the tapes, documents etc. and the documentation regarding handing over and taking over of tapes, document was done. PW13 S.K. Dasgupta having seen the copy of seizure memo dated 14.12.2004 (Ex. PW21/A) running into 26 pages deposed that vide this memo, he had handed over the documents/materials/objects mentioned from serial 1 to serial 212 to CBI in the presence of J.P. Mehta. Having seen the seizure memo dated 15.12.2004 (Ex. PW21/B) running into 12 pages PW13 S.K. Dasgupta deposed that vide this memo, he had handed over the documents/materials/objects mentioned from serial 1 to serial 104 to CBI in the presence of J.P. Mehta. PW13 S.K. Dasgupta having seen copy of seizure memo dated 16.12.2004 (Ex. PW21/C) running into 11 pages deposed that vide this memo, he had handed over the documents/materials/objects mentioned from serial 1 to serial 94 to CBI in the presence of J.P. Mehta. PW13 S.K. Dasgupta further deposed that transcripts were also handed over to CBI.
35. PW14 Prakash Ekka in his examination-in-chief deposed that on 15.03.2005, he was posted as officer in the Department of Bio Technology, HRD Division, CGO Complex, New Delhi and on that day his office Superintendent had CC No. 14/11 (34/16) CBI v. H.C. Pant Page 43 of 116 given him a letter to attend the office of CBI and to report DSP, D.S. Dagar. PW14 Prakash Ekka further deposed that accordingly, he along with Deonis Kujur, Section Officer, went to CBI office and met DSP, D.S. Dagar where he was called for the purpose of taking the sample voice along with the videography of H.C. Pant. PW14 Prakash Ekka further deposed that the voice sample of accused H.C. Pant was taken in his presence as well as in the presence of other witness Deonis Kujur and other persons who were conducting the videography and taking the sample voice of the accused. Having seen the memorandum (Ex. PW14/A) dated 15.3.2005 running into two pages PW14 Prakash Ekka deposed that it bears his signatures on both sheets. Having seen the text (Ex. PW14/A) for taking sample voice PW14 Prakash Ekka deposed that this text was given to the accused. PW14 Prakash Ekka further deposed that after obtaining the specimen voice as well as videography of accused H.C. Pant which were recorded in the audio and video cassettes the same were sealed by affixing the specimen seal. Having seen the original audio cassette (Ex. P-2) make SONY UX-S having sample voice recording of accused H.C. Pant and inlay card (Ex. P-3) PW14 Prakash Ekka identified his signature. PW14 Prakash Ekka having seen original video cassette (Mark P-5) mark NTSC-8 and its plastic cover (Mark PX) which contained the video cassette deposed that it bears his signatures. Having the video, PW14 Prakash Ekka deposed that the CC No. 14/11 (34/16) CBI v. H.C. Pant Page 44 of 116 person who is reading the text Ex.PW14/A1 is the accused H.C. Pant to whom he identifies with voice.
36. PW15 Rajesh Kumar Singh, Nodal Officer, Bharti Airtel Limited in his examination-in-chief deposed that his duties further includes providing information regarding call details of mobile phone pertaining to Airtel to the investigating agencies. PW15 Rajesh Kumar Singh having seen the call details (Ex. PW1/A) containing the call details of customer account ID no. 530274 in the name of buffalo Networks Pvt. Ltd., belonging to mobile no.9810274694 identified the signatures of Captain Rakesh Bakshi appearing on the customer address letter (one page) and the call details running into 65 pages at point A along with the seal of Airtel. PW15 further deposed that he identified the signatures of Captain Rakesh Bakshi as he was well acquainted with his writing and signatures as he had seen him writing and signing during the official course of business. PW15 Rajesh Kumar Singh further deposed that the owner of aforesaid mobile number was M/s buffalo Networks Pvt. Ltd., Swamy Nagar. PW15 Rajesh Kumar Singh further deposed that the incoming and outgoing calls made from above-said cell number to telephone number 011-4620900 and 011-4642968 are apparent from the call details for the dates 25, 26, 28, 29 and 30 November, 2000 and 1, 3, 4, 5, 9 and 23 rd December, 2000 appearing on page no. 49, 50, 51, 52, 53, 54, 59 and 60.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 45 of 116PW15 Rajesh Kumar Singh further deposed that the call details Ex.PW1/A (1-66) are computer generated statement and the same are taken from the computer system in which data is regularly fed and maintained through automatically generated system and the details provided in the same are correct.
37. PW16 Brij Kishore Sharma in his examination deposed that he had worked with M/s buffalo Networks Pvt. Ltd. as Account Executive since July 2000 to August 2000 and he was looking after Accounts Section of this company. PW16 Brij Kishore Sharma further deposed that he had handed over certain documents to the CBI concerning the ledger account of M/s buffalo Network Pvt. Ltd. PW16 Brij Kishore Sharma having seen (Ex. PW16/A and B) deposed that these are the certified copies of Ledger Accounts of investigative story expenditure and Imprest Ledger Account of Anirudh Bahal. Having seen the document Ex. PW16/C PW16 Brij Kishore Sharma deposed that this is a travel allowance account statement of Mathew Samuel. PW16 Brij Kishore Sharma further deposed that the closing balance in this account is Rs.97,955.00/-. PW16 Brij Kishore Sharma further deposed that the entries in Ex. PW16/A, B and C were made by him and the same are correct and true and correct as per the record and his knowledge.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 46 of 11638. PW17 Shankar Sharma in his examination-in-chief deposed that he is the owner / director of M/s First Global Stock Broking Pvt. Ltd. which deals with stock broking, financial services and investment activities. PW17 Shankar Sharma further deposed that his other subsidiaries were First Global Finance Pvt. Ltd. Category I Merchant Banker; II First Global (UK) Ltd.- Member of London Stock Exchange; III First Global (USA) Incorporated purposed Member NASD; IV First Global (Mauritius) Ltd.-Investment Activities; V M/s UD&MD Agencies Pvt. Ltd. etc. PW17 Shankar Sharma further deposed that he was the investor of M/s Buffalo Networks Pvt. Ltd. which was owned and promoted by Tarun Tejpal. PW17 Shankar Sharma further deposed that Buffalo Networks is better known by the name of Tehelka.com which is itself a portal owned by Buffalo Networks Pvt. Ltd. which came from UD&MD. PW17 Shankar Sharma further deposed that he had invested money to Buffalo Networks.
39. PW18 Mohinder Singh Sahni in his examination-in- chief deposed that the accused had introduced him to Mathew Samuel as a businessman. PW18 Mohinder Singh Sahni further deposed that in the meeting, Mathew Samuel started discussing about Thermal Imaging Camera and that he wanted to supply Thermal Imaging Cameras to the Defence Department in India. PW18 Mohinder Singh Sahni further CC No. 14/11 (34/16) CBI v. H.C. Pant Page 47 of 116 deposed that he met them four to five times. PW18 has correctly identified the accused in the court.
40. PW19 Manjulika Gautam in her examination-in- chief deposed that in the year 2004, she was posted as Additional Secretary in the Department of Personnel & Training. PW19 Manjulika Gautam having seen the letter (Ex. PW19/C collectively) dated 29.10.2004 bearing no. 403/9/2004-AVD.IV deposed that the said letter was addressed to the then Director, CBI containing the details of cessation of Justice S.N. Phukan Commission of Inquiry and the further decision of Department of Personnel & Training for handing over the Tehelka matter to CBI. PW19 Manjulika Gautam also identified her signature on Ex. PW19/C. PW19 further deposed that Ex. PW19/D is Gazette Notification regarding cessation of Justice S.N. Phukan Commission of Inquiry dated 08.10.2004. PW19 further deposed that remaining three pages are the copies of Winding Up Orders (Ex. PW19/E) whereby S.K. Dasgupta, Secretary of the erstwhile Commission was the Designated Officer for winding up of the Commission.
41. PW20 P. Sasi in his examination-in-chief deposed that in the year 1987, he was posted at Reception Office, South Block, New Delhi and he came into contact with H.C. Pant as he had to remain in touch with him for issuance of CC No. 14/11 (34/16) CBI v. H.C. Pant Page 48 of 116 passes to the visitors. PW20 P. Sasi further deposed that in the year 2000 Mathew told him that he had joined some UK based company which was engaged in the supply of Defence Arms and Equipments. PW20 P. Sasi further deposed that during one casual talk he asked him to give the procedural details to approach politicians and defence officers. PW20 P. Sasi further deposed that after few months Mathew asked him if he had any connection with H.C. Pant, APS to Union Minister, accordingly, he told him that he had good contacts with H.C. Pant and he can be helpful for further information which Mathew wanted to obtain. PW20 P. Sasi further deposed that in November 2000, a meeting was fixed between the accused and Mathew Samuel at his residence at Lodhi Road, New Delhi after office hours. PW20 P. Sasi further deposed that he accompanied Mathew Samuel they both went to the house of the accused. PW20 P. Sasi correctly identified the accused in the court. After seeing the cassette of Tehelka tape no. 40 (Ex. P6) which was played in the court, PW20 P. Sasi identified the accused H.C. Pant who was sitting in a chair at his residence, who is talking to Mathew Samuel and his voice in such tape and deposed that he identifies voices of H.C. Pant and Mathew Samuel, who are conversing with each other.
42. PW21 J.P. Mehta in his examination-in-chief deposed that he was posted as Under Secretary in the CC No. 14/11 (34/16) CBI v. H.C. Pant Page 49 of 116 Commission of Inquiry, Delhi and he remained associated throughout the inquiry conducted the Commission. PW21 J.P. Mehta further deposed that the records available with the Commission were sought by the CBI and accordingly the same were handed over to the CBI officials in his presence by S.K. Dasgupta, Secretary of Commission of Inquiry and the Designated Officer for winding up of the Commission. PW21 has identified signatures of S.K. Dasgupta on the seizure memos Ex. PW21/A, Ex. PW21/B and Ex. PW21/C. PW21 has also identified his signature as well on these seizure memos.
43. PW22 Sudhir Verma in his examination-in-chief deposed that he was Statutory Auditor for M/s Buffalo Networks Pvt. Ltd. which also owned portal Tehelka.com. PW22 further deposed that he had received letter (Ex. PW22/A) dated 24.02.2005 from Inspector A.B. Chaudhary of CBI. Having seen the reply (Ex. PW22/B), PW22 deposed that it was the same reply which was sent by him to CBI. PW22 Sudhir Verma further deposed that he had sent the requisite documents (Ex. PW16/A, PW16/B and PW16/C) alongwith the reply. PW22 Sudhir Verma further deposed that he had received letter (Ex. PW22/C) dated 11.07.2005 from SP CBI whereby CBI had sought certified copies of income tax returns of M/s Buffalo Networks Pvt. Ltd. for the financial year 2000-2001 and cash book and ledger etc. PW22 Sudhir Verma further deposed that he had replied the letter (Ex.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 50 of 116PW22/C) and sent the requisite documents alongwith the said reply.
44. PW23 Arnab Pratim Dutta in his examination-in- chief deposed that he joined Tehelka.Com as reporter in the year 2000 and remained there till 2003. PW23 Arnab Pratim Dutta further deposed that during investigation, CBI had seized one briefcase containing audio visual recording devices and he had produced the same to CBI when he was working in Tehelka.com. PW23 has also identified the impression of his signature on the seizure memo (Ex. PW23/A). Having seen the briefcase camera device (Ex. PW27/A) in the court, PW23 Arnab Pratim Dutta identified it and deposed that is the same device which was handed over by him under the said seizure memo.
45. PW24 Deonis Kujur in examination-in-chief deposed that he was posted as Section Officer in the Department of Bio Technology, CGO Complex, Delhi and on 15.03.2005 his Under Secretary had apprised him that he had to attend the office of CBI along with Prakash Ekka, Section Officer and they went to office of CBI. During his cross-examination by Public Prosecutor, PW24 deposed on the same line as PW14 Prakash Ekka deposed regarding taking of samples in his presence.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 51 of 11646. PW25 S. Ingrasal in his examination-in-chief deposed that he was deputed by Director, CFSL for video recording of accused H.C. Pant. PW25 S. Ingrasal correctly identified the accused H.C. Pant in the court. PW25 S. Ingrasal further deposed that his colleague A.D. Tiwari, SSO- II was also deputed for same purpose and they had made necessary arrangement for recording purpose i.e. video camera tape recorder and cassettes. PW25 S. Ingrasal further deposed that empty cassettes were played before starting the recording to ensure that the cassettes were empty and blank and thereafter, voice and video samples (simultaneously) of H.C. Pant were taken and recorded separately on audio cassette and video cassette. PW25 S. Ingrasal further deposed that thereafter, those cassettes containing voice sample and video samples were taken into possession and were signed by all concerns i.e. himself, accused H.C. Pant, both the witnesses and IO D.S. Dagar.
47. PW26 Aniruddha Bahal in his examination-in-chief deposed that his Journalist Career started in 1991 in India Today Magazine and they started Tehelka in the year 2000 and the company which owned Tehelka.com the Website was Buffalo Networks Private Limited. PW26 Aniruddha Bahal further deposed that in the month of April in 2000, there was a fire in an Ammunition Depot in Bharatpur which triggered him the need to investigate defence procurement as a subject.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 52 of 116PW26 Aniruddha Bahal further deposed that their intention from the start was to become an insider in the defence procurement process and to such end they i.e. Tehelka investigating team started a fictitious company called Westend International, ostensibly with offices out of London. PW26 Aniruddha Bahal further deposed that during the story, he assumed the role of President of Westend International with the alias of Alwyn D'souza, Mathew Samuel, the main reporter during the undercover investigation was the chief liaison officer with his original name and the third person who had helped them during the investigation was late Anil Malviya who took an alias of Rajiv Sharma. PW26 Aniruddha Bahal further deposed that in all, the number of tape shot during the Operation Westend were about 105 which were a mixture of Hi-8 tapes and mini-dv tapes. PW26 Aniruddha Bahal further deposed that the principal mean of communication with Mathew Samuel and the other people whom they approached in their investigation was Mathew's mobile number 9810274694 and the landline used was 6013817. PW26 Aniruddha Bahal further deposed that the recording devices used during the course of Operation Westend were four, the main device was a briefcase device with two cameras, second was a satchel device and then a lady's handbag and a tie device. PW26 Aniruddha Bahal further deposed that after the field work was over sometime in January of 2001, they deposited the tapes in a bank locker CC No. 14/11 (34/16) CBI v. H.C. Pant Page 53 of 116 in Grindlays Bank, Malcha Marg and before that, the tapes were in his personal custody in an office safe. PW26 Aniruddha Bahal further deposed that subsequently, they transcribed all the tapes and edited a four and half hours documentary called Operation Westend from the 105 tapes and this documentary was aired in a press conference on March, 13 2001. PW26 Aniruddha Bahal further deposed that Mathew would take the money from him when people asked for various sums during the course of investigation and nearly Rs. 10 lacs was paid to various people which amount is reflected in the Tehelka Imprest Account and he had also filed an affidavit dated 19.08.2002 mentioning therein the details of various amounts given to various people on various dates with respect to Operation Westend. PW26 Aniruddha Bahal further deposed that the entire operation was done with public interest in mind with the intention to bring out the corruption that takes place in the defence procurement process and they never intended to target any particular individual and in fact it was different middlemen who took them to meet different people whether politicians or bureaucrats or defence dealers. PW26 Aniruddha Bahal further deposed that the via media of the whole story was that they were selling night vision thermal binoculars and approaching various departments to procure a trial and evaluation order for the product for subsequent purchase. PW26 Aniruddha Bahal further deposed that it was Mathew CC No. 14/11 (34/16) CBI v. H.C. Pant Page 54 of 116 Samuel who came into contact with H.C. Pant sometime in the year 2000 and he was introduced to H.C. Pant by P. Sasi. PW26 Aniruddha Bahal further deposed that H.C. Pant then claimed great proximity to several Army officers as well as bureaucrats and defence dealers and some of the defence dealers that he introduced to them were R.K. Gupta, his son Deepak Gupta, Mohinder Singh Sahni, Deepak Chhabra etc. PW26 Aniruddha Bahal further deposed that the 105 tapes were deposited initially with Commission of Inquiry and the Commission conducted its own forensic analysis on the tapes by British Experts and found them to be totally untampered and undoctored. Having seen the briefcase device Ex. PW27/A PW26 Aniruddha Bahal identified the same to be the device which was used in the operation under the name of Operation Westend.
48. PW27 Mathew Samuel in his examination-in-chief deposed that from 1996 onwards he was working as Journalist with various media organizations. PW27 Mathew Samuel further deposed that in 2000, Tehelka.com had exposed story of cricket match-fixing scam and contacted Tarun Tejpal and there was a brief discussion. PW27 Mathew Samuel further deposed that in the year 2000, he had joined Tehelka.com and remained with them till 2003 and during his association with Tehelka.com, he carried out 'Operation Westend', a sting operation, directed by Aniruddha Bahal. PW27 Mathew CC No. 14/11 (34/16) CBI v. H.C. Pant Page 55 of 116 Samuel further deposed that he had first met P. Sasi and through him various defence officials etc. PW27 Mathew Samuel further deposed that aim and purpose of the operation was to expose how the defence deals had been taking place with the help of under table transactions and how suitcase people were comprising with Indian Defence. PW27 Mathew Samuel further deposed that during sting investigation, he was a special correspondent in special investigating team of Tehelka.com and he was assigned the field work to meet various people for the 'Operation Westend'.
49. PW27 is the maker of the tapes and main witness of the prosecution, his material testimonies regarding the sting operation and payment of gratification other than legal remuneration to the accused are reproduced as follows:
"Mr. Bahal had handed over said briefcase device to me for using in sting operation. He also had given me blank HI-8 tapes for using with such device. In the present case also, I had used blank HI-8 tape. During the process of 'Operation Westend', after recording, any such HI-8 tape used to be handed by me to Mr. Bahal.
Total 105 tapes, including Hi-8 and DV tapes, were used in said operation.
Mr. P. Sasi introduced me to H.C. Pant and Sasi told me, he already passed on information to Mr. Pant as to what was the meeting purpose. Myself and Sasi went and met Mr. H.C. Pant at his residence in Lodhi Colony somewhere in November, 2001. Again said, it was 2000. During the brief discussion, Mr. Pant offered many things and he also mentioned that he can introduce various level of officers, politicians and bureaucrats.
As far as I recollect there were 5-6 meetings between us from time to time during the period spread over two months i.e. November and December, 2000. I had paid a total sum of Rs.60000/- to him as bribe. Such money was paid in 3 installments. Meetings took place at various places like his CC No. 14/11 (34/16) CBI v. H.C. Pant Page 56 of 116 residence at Lodhi Colony, Guest House of Qutub Institutional Area and at the premises of one Mr. Mohinder Pal Sahni. Mr. Sahni was arms dealer who was introduced to me by Mr. Pant.
The first meeting, I paid Rs.20000/- as the bribe to Mr. Pant for further proceedings of Westend International. Such meeting took place at the residence of accused. As far as I recollect, Mr. Sasi was also there in such meeting. After I paid him said amount in the first meeting, he opened up and started indulging into conversation.
Second meeting must be also at his residence. In such meeting, I had not made any further payment to him.
The 3rd meeting was at said Guest House of Qutub Institutional Area. Besides myself and Mr. Pant, his one friend Mr. Deepak Chhabra, a businessman was also present in such meeting. In such meeting, Mr. Pant told Deepak Chhabra to introduce Maj. General PSK Chaudhary, ADG (WE) to me and also he mentioned names of some senior officers of MoD. I recollect that I had paid Rs.20000/- to Mr. Pant in such meeting also.
All such meetings were related to the same aspect i.e. how should we push our product into the Army.
Again, 4th meeting took place at the residence of Mr. Pant. I am not very sure but perhaps in such meeting, he had promised me to introduce me with Bangaru Laxman and he was also throwing name of Mr. L.M. Mehta, Additional Secretary, MoD and some Senior Bureaucrats. He tried to convince me his proximity with all the Sr. Officers, Bureaucrats and politicians in well equation. I now do not recollect whether I had made any payment to him in said meeting or not.
I had one more meeting with him at his house in which I had paid him another sum of Rs.20000/-. I do not now recollect as to whether anyone else was present in such meeting besides myself and him.
During the conversation which I had with him in various meetings, he voluntarily mentioned that he did have one unlisted telephone number in his office and he was doing all the misdeeds through such telephone number. He even gave me that number. I had even called him up on 2-3 occasions on said number. It was landline No. Now, I do not recall that number.
Mr. Pant also introduced me with R.K. Gupta, a businessman and his son Deepak Gupta. R.K. Gupta is a well known industrialist in Delhi. Moreover, he was treasurer of RSS. He (R.K. Gupta) claimed himself to be dealer and wheeler of Delhi and he claimed that he knew how to move the files. All these things were also recorded in the tapes. All the meetings which I had with him were taped."
50. The video cassettes which were recorded during CC No. 14/11 (34/16) CBI v. H.C. Pant Page 57 of 116 sting operation by PW27 Mathew Samuel were played in the court and after seeing the cassette No. 40, 42 and 56 he stated as follows:
"This footage contains the meeting captured by me when I had gone to his house of Lodhi Colony. Mr. Pant is found sitting in sofa and conversing with me. He is also looking into the brochure supplied by us which was related to M/s Westend. During the conversation, the voice of Mr. Sasi is also heard in the background. He was also present in such meeting. I have also been shown the transcript of said tape No.40 which is already exhibited as Ex. PW21/Q and the conversation has been found properly transcribed therein and I identify my voice, voice of H.C. Pant as well as voice of P. Sasi. In the background, voice of daughter of H.C. Pant is also heard. This conversation also contains reference for buying gifts for other senior officers. Mr. Pant had also suggested buying gold chains for senior officers. At 00:32:02 time, I am also in the frame as I come and sit next to Mr. Pant. At 00:33:19, Mr. Pant is found saying that he would prepare a brief on that. At around 00:33:50, I get up from my seat and Mr. Sasi is found saying "small presentation". Thereafter, there is some disturbance in the recording and at 00:34:01, I am seeing handing over Rs.20000/- in cash to Mr. Pant which he accepted and kept with him. At 00:35:30, I am heard affirming about arranging for MMTC coin. At 00:36:49, I finally get up and coming out from his room. Mr. Sasi also left along with me. The recording was on the same briefcase device but it remained on even after the meeting was over as it could not have been switched off in the presence of any one else. The total length is found to be of 00:54:53 duration. I have seen the contents of such cassette played today and it matches with the transcription. The cassette is original and completely unedited.
This footage relates to my visit to guest house of QIA. I reached first of all and I placed the device at a suitable place from where the proceedings could be captured. After about 00:07:00 minutes, accused H.C. Pant along with Deepak Chabra arrived. There is discussion and in the initial footage, Mr. Chabra is seen sitting right in front of camera. Thereafter, there is change in sitting but again Mr. Chabra is in the footage and I am sitting right to him and conversing with him and in between Mr. Pant is also coming and indulging in discussion. He is otherwise in the same room. Mr. Chabra is found looking the brochure of M/s Westend. Later Mr. Pant also sits next to me. Then we all are seen conversing and taking tea also. At 01:09:37, Mr. Chabra is seen leaving. Earlier to that only CC No. 14/11 (34/16) CBI v. H.C. Pant Page 58 of 116 myself and Mr. Chabra were into conversation and then Mr. Pant came later on. He arrives at 01:11:45. At 01.16:34, I am seen offering Rs.20000/- to Mr. Pant by saying its 20000/-. He keeps the same. The total duration of the cassette is 01:44:40.
Transcription is Ex. PW21/S (D-35) and I have been shown the same today and the aforesaid transcription is as per the cassette played today and is correct.
(At this stage, sealed envelop has been produced having No. mentioned as S-17 A. It contains one cassette and No. S-16 is mentioned on the inlay card. Let it be played.) This contains footage regarding my meeting with Mr. Pant at his house in Lodhi Colony. I am seen sitting on the right side and Mr. Pant is facing the camera and we are indulging in conversation. At 00:07:41, I am found offering Rs.20000 bucks to Mr. Pant. He accepts the same. This meeting is between me and Mr. Pant only and no one else was inside. Total length of the footage is 00:33:03 minutes.
Transcription is Ex. PW21/O (D-35) and I have been shown the same today and the aforesaid transcription is as per the cassette played today and is correct.
(At this stage, sealed envelop has been produced having No. mentioned as S-23 A. It contains one cassette S-23 and No. S-22 is mentioned on the inlay card. Let it be played.) This meeting is the one which I had at the premises of Mr. Sahni situated in Vasant Vihar. Mr. Sahni is the Sikh Gentleman seen sitting in his office. At 00:01:26, Mr. Pant is also found coming and sitting next to him. At 00:58:53, Mr. Pant is found saying "give me 10000 bucks today" from me. At 00:59:10, I am seen taking out Rs.10000/- from the same briefcase device and I am seen handing over the same to Mr. Pant at 00:59:16 which he accepts. At 00:01:11, I am seen leaving that room. Total length of recording is 01.21:45.
Transcription is Ex. PW21/M (D-35) and I have been shown the same today and the aforesaid transcription is as per the cassette played today and is correct.
All the cassettes are unedited cassettes and these were recorded by me using the same briefcase device. The transcriptions also match with the contents of the cassette played today. Since now I have seen the cassettes which were played in the court as well as the transcripts, now I recall that the total amount paid to Mr. Pant was Rs.70000/- and not Rs.60000/-."
51. PW28 Brigadier A.P. Singh in his examination-in- chief deposed that he had served as Director (Weapon & Equipment-4) from June 1999 to July 2002 at Army CC No. 14/11 (34/16) CBI v. H.C. Pant Page 59 of 116 Headquarter, New Delhi and his job profile as Director was to look after weapons and equipments related to infantry i.e. identifying modernization of new weapons and equipments. PW28 Brigadier A.P. Singh further deposed that generally they used to receive literature through Army Headquarters, Sr. Officers, MoD, Infantry Directorate as well as from vendors directly and after that, their section used to analyze these literatures containing details of various equipments and then they used to forward it to the Infantry Directorate for further detailed analysis to assess their suitability. PW28 Brigadier A.P. Singh further deposed that that Infantry Directorate used to send the same to Infantry School located in Mhow for analysis of the literature and via the same process, it was used to return to them with appropriate recommendations of Director General, Infantry Directorate whether these equipments were required to be trial evaluated or not. PW28 Brigadier A.P. Singh further deposed that thereafter, he used to give his recommendation regarding suitability since he was also involved with the process of procurement and used to send his request to DDG (WE) and on their recommendation, he then used to form his own opinion and used to forward the same to ADG (WE). PW28 Brigadier A.P. Singh further deposed that if the equipment was required to be trial evaluated then ADG (WE) used to send the whole matter to Dy. Chief of Army Staff (P&S) and in certain cases, Dy. Chief of Army Staff also used to take further CC No. 14/11 (34/16) CBI v. H.C. Pant Page 60 of 116 opinion from Vice Chief of Army. Having seen the proposal of M/s Westend International London for supply of Thermal Imaging Camera/binocular to the Indian Army PW28 Brigadier A.P. Singh further deposed that this proposal was received in their section from Major General P.S.K. Chaudhary, and as per the procedure, their section sent it to Infantry Directorate for necessary analysis/recommendation.
52. PW29 DSP Vipin Kumar Verma in examination-in- chief deposed that in the year 2005, he was posted as Inspector in ACU-II, CBI and on 11.08.2005, he gone to the office of Bharti Cellular Ltd and met Captain Rakesh Bakshi who handed him over Call Detail Report (Ex.PW1/A) of mobile No. 9810274694 in the name of M/s Buffalo Network for the period 1.8.2000 to 12.1.2001 he had seized the same vide memo Ex.PW29/A which bears impression of my signatures, the original memo is in the case of CBI v. M. Raghupathy.
53. PW30 Additional Superintendent of Police Biswajit Das in examination-in-chief deposed that in the year 2005 he was posted in CBI, ACU-III, New Delhi as Deputy Superintendent of Police and he was entrusted with the investigation of case RC6/2004 ACU-III, CBI v. Narinder Singh, one of the Tehelka cases. PW30 ASP Biswajit Das further deposed that during investigation of said case, on 01.06.2005 he had seized the briefcase camera device from CC No. 14/11 (34/16) CBI v. H.C. Pant Page 61 of 116 Arnab Pratim Dutta, Senior Correspondent of Tehelka.com in presence of Mukesh Jain, Manager, Oriental Bank of Commerce and copies of the said seizure memo were handed over to the Investigating Officers of other Tehelka cases. Having seen the seizure memo (Ex.PW23/A) dated 01.06.2005 PW30 ASP Biswajit Dass deposed that it was copy of said original seizure memo (Original of such seizure memo is lying in judicial record of CBI v. Narinder Singh). Having seen the camera briefcase device (Ex.PW27/A) PW30 deposed that he identified it to be the same which had been seized under said memo.
54. PW31 DSP K.Y. Guruprasad in his examination-in- chief deposed that from January 2003 to February 2010 he was posted at CBI/AC-I/New Delhi and during this period he was entrusted with the investigation of case RC 5A/2004-AC- III titled as CBI v. Jayalakshmi Jaitly and during the course of investigation of that case he had seized HI8 Tapes, DV Tapes and VHS working copies and two master tapes of Operation Westend vide seizure memo dated 14.12.2004 (Ex. PW21/A) from S.K. Dasgupta, Designated Officer and Secretary of the then Justice S.N. Phukan Commission of Inquiry on 14.12.2004 in the presence of witness J.P. Mehta, Under Secretary. PW31 Dy. SP K.Y. Guruprasad further deposed that on 15.12.2004 he had again visited office of Inquiry Commission, Vigyan Bhawan, New Delhi and seized the CC No. 14/11 (34/16) CBI v. H.C. Pant Page 62 of 116 transcripts of the tapes prepared by Union of India and other documents vide seizure memo dated 15.12.2004 (Ex. PW21/B) from S.K. Dasgupta, Designated Officer of the Commission of Inquiry in the presence of witness J.P. Mehta. PW31 Dy. SP K.Y. Guruprasad further deposed that on 16.12.2004 he had again visited office of Inquiry Commission, Vigyan Bhawan, New Delhi and seized the transcripts of the tapes prepared by Tehelka.com vide seizure memo dated 16.12.2004 (Ex. PW21/C) from S.K. Dasgupta, Designated Officer of the Commission of Inquiry in the presence of witness J.P. Mehta. PW31 Dy. SP K.Y. Guruprasad further deposed that all the seized tapes and documents were kept in the office 'malkhana' and these documents and tapes were used by the concerned investigating officers as per the needs of their respective cases pertaining to Tehelka.com.
55. PW32 ASP D.S. Dagar, Investigating Officer of present case in his examination-in-chief deposed that in the year 2004 he was posted in CBI, ACU-II Branch as DSP and this case RC-AC2 2004 A0008 New Delhi was registered on 06.12.2004 against the accused H.C. Pant. PW32 ASP D.S. Dagar further deposed that the said FIR was registered by Arun Sharma, SP, CBI and was entrusted to him for investigation; earlier the said Commission was inquiring into the matter but later on the matter had been entrusted to CBI and, therefore, a separate FIR in present case had been CC No. 14/11 (34/16) CBI v. H.C. Pant Page 63 of 116 registered. Having seen the FIR (Ex. PW32/A), PW32 ASP D.S. Dagar identified the signature of Arun Sharma, SP, CBI as well as the accused present in court. PW32 ASP D.S. Dagar further deposed that DSP K.Y. Guruprasad, AC1 Zone, IO of case RC AC3/2004A 0005 had obtained original Hi8 cassettes and its working copies along with transcripts from Justice Phukan Commission of Inquiry vide relevant seizure memos (Ex. PW21/A, Ex. PW21/B and Ex. PW21/C) and deposited the same in the 'malkhana' situated in the ACI Zone. PW32 ASP D.S. Dagar further deposed that during investigation he had taken out the relevant copies of the cassettes i.e., tape numbers 40, 41, 42, 43, 47, 56 and 94 alongwith the seizure memos. PW32 ASP D.S. Dagar further deposed that investigation revealed that in the year 1999, Aniruddha Bahal, a Journalist had got registered a news portal named Tehelka.com and in the year 2000, Aniruddha Bahal with his colleagues Mathew Samuel and Anil Malviya conceived an idea to expose the corruption spread in procurement of defence equipments and for that purpose they had conducted a sting operation called Operation Westend. PW32 ASP D.S. Dagar further deposed that for that purpose they had formed a fictitious firm named West End International purportedly dealt in supply of arms equipments and in that context, they had met a number of businessmen, suppliers and officials of defence and got recorded their meetings in the cassettes. PW32 ASP D.S. Dagar further deposed that during such CC No. 14/11 (34/16) CBI v. H.C. Pant Page 64 of 116 operation, Mathew Samuel had come in contact with P. Sasi an Assistant working in the Ministry of Defence who had got him introduced with H.C. Pant who was working in the Ministry of Defence as Staff Officer. PW32 ASP D.S. Dagar further deposed that Mathew Samuel had come to know that equipment named Hand Held Thermal Imager (HHTI) was under consideration for procurement in the MoD and he offered to supply HHTI to MoD and in that regard he had met H.C. Pant for seeking his help. PW32 ASP D.S. Dagar further deposed that in that connection, Mathew Samuel had met H.C. Pant seven times and he got recorded all the 7 meetings in the cassettes. PW32 ASP D.S. Dagar further deposed that investigation further revealed that in 4 meetings Mathew Samuel had given Rs.70000/- as bribe to H.C. Pant which he had recorded in the following cassettes i.e. cassette No. 40, 42, 56 and 94. PW32 ASP D.S. Dagar further deposed that during the course of investigation, voice and image samples of H.C. Pant were taken by CFSL, New Delhi vide memorandum already exhibited as Ex. PW14/A bearing his signatures and the text given to H.C. Pant is already Ex. PW14/A1. PW32 ASP D.S. Dagar further deposed that thereafter all the relevant HI8 cassettes, its copies and relevant transcripts and voice and image samples taken by CFSL were sent to Director, APFSL for expert opinion by the then SP Arun Sharma vide Letter Ex. PW32/B bearing signatures of SP Arun Sharma and vide letter No. ENG/9/2005 dated 18.7.2006 CC No. 14/11 (34/16) CBI v. H.C. Pant Page 65 of 116 APFSL had sent its opinion Ex. PW32/C to SP CBI. PW32 ASP D.S. Dagar further deposed that he had got identified voice of H.C. Pant through Ashok Sharma and Mohan Singh Rawat who were earlier working with him in Ministry of Defence. PW32 ASP D.S. Dagar further deposed that during investigation, on 24.2.2005 SP Arun Sharma had written a letter Ex. PW32/D to Ranjan Chaterjee, Joint Secretary and CVO, MoD for providing information in respect of H.C. Pant and A. Subramanium, DDG and CVO vide letter dated 24.3.2005 Ex. PW32/E provided the required information in respect of H.C. Pant to CBI. PW32 ASP D.S. Dagar further deposed that during investigation, K. Seshaiah, Dy. Secretary, Special Cell, MoD vide letter dated 27.1.2005 Ex. PW5/1 had provided photocopies of supply orders issued by Army Headquarters/MoD to various agencies for supply of HHTI. PW32 ASP D.S. Dagar further deposed that during investigation, on 11.8.2005 Inspector Vipin Kumar had obtained CDRs of various cell phone numbers from Bharti Cellular Ltd. vide production cum seizure memo Ex. PW29/A and on 1.6.2005 B. Dass, the then DSP had seized the briefcase device from Arnab P. Dutta, correspondent of Tehelka.com in RC AC3/2004 A 0006 vide seizure memo Ex. PW23/A. PW32 ASP D.S. Dagar further deposed that he was the investigation officer of this case from registration of FIR till the filing of charge sheet. PW32 ASP D.S. Dagar further deposed that during investigation he had also recorded CC No. 14/11 (34/16) CBI v. H.C. Pant Page 66 of 116 statements of relevant witnesses under section 161 Cr.P.C and after completion of investigation, he had filed charge sheet against H.C. Pant for offence punishable under section 7 of the P.C. Act. PW32 ASP D.S. Dagar further deposed that since H.C. Pant had already been dismissed from government service, it was not required to obtain sanction of the competent authority under section 19 of the P.C. Act.
56. PW33 D. Venkateswarlu, Assistant Director, Engineering Section of Andhra Pradesh Forensic Science Laboratory (APFSL) in his examination-in-chief deposed that he had received 11 sealed covers on 22.06.2005, through B. Dass, Deputy SP, CBI, New Delhi, seals of which were found intact and tallied with the sample provided by the CBI. PW33 D. Venkateswarlu further deposed that the sealed covers had contained unedited original audio video recording in Hi8 tape no. 40 of the conversation among three persons in the meeting dated 22.11.2000, Hi8 tape no. 41 containing unedited original audio video recording of meeting dated 24.11.2000 of conversation between H.C. Pant and Mathew Samuel, Hi8 tape no. 42 containing unedited original audio- visual recordings of the meeting dated 25.11.2000 of conversation amongst three persons H.C. Pant, Deepak Chhabra and Mathew Samuel, Hi8 tape no. 43 containing unedited original recording of meeting dated 25.11.2000 of conversation amongst H.C. Pant, Deepak Chhabra and CC No. 14/11 (34/16) CBI v. H.C. Pant Page 67 of 116 Mathew Samuel, Hi8 tape no. 47 unedited original recording of the meeting dated 28.11.2000 of conversation amongst H.C. Pant, Mohinder Singh Sahni and Mathew Samuel, Hi8 tape no. 56 containing unedited original recording of meeting dated 09.12.2000 of conversation between H.C. Pant and Mathew Samuel, Hi8 tape no. 94 containing unedited original recording of the meeting dated 01.12.2000 of conversation amongst H.C. Pant, Mohinder Singh Sahni and Mathew Samuel. PW33 D. Venkateswarlu further deposed that he had received total seven Hi8 tapes, seven Sony VHS tapes, seven transcripts and specimen voice and image samples of H.C. Pant. PW33 D. Venkateswarlu further deposed that specimen and image samples of Mathew Samuel and briefcase camera device were received in their office vide File No. Eng/11/2005 in RC No. AC-3/2004/A0006 in case titled as CBI v. Narender Singh. PW33 D. Venkateswarlu also identified envelopes containing tapes in the court and also identified the seal of APFSL. PW33 D. Venkateswarlu further deposed that the seal was intact. PW33 D. Venkateswarlu also identified his signatures on the tapes as well as on inlay cards, outer plastic covers and envelopes. PW33 D. Venkateswarlu further deposed that all the above mentioned cassettes i.e. Hi-8 tapes, VHS tapes and specimen audio and image/video tapes were the same, which were received in sealed condition from CBI by APFSL for the purpose of audio and video examination. PW33 D. Venkateswarlu also identified the briefcase camera CC No. 14/11 (34/16) CBI v. H.C. Pant Page 68 of 116 device (Ex. PW27/A) when produced before him in the court and deposed that it was the same briefcase camera device which was received by APFSL from CBI and also examined by him along with above mentioned cassettes. PW33 D. Venkateswarlu further deposed that while examination of Hi-8 tapes, VHS tapes and sample audio and video recording of the concerned persons, in this case, he had gone through the transcriptions T1 to T7 at the time of audio video examination. PW33 D. Venkateswarlu further deposed that all the tapes were neither tampered nor doctored nor edited and the recording was continuous. PW33 D. Venkateswarlu further deposed that he had gone through the questioned original tapes and compared the same with the specimen audio and video/image samples and found that the concerned persons were same in both questioned and specimen cassettes. PW33 D. Venkateswarlu further deposed that he had also examined the questioned audio regarding the continuity by examining the wave form and also by listening to the conversations by taking the meaning of the conversations into consideration in relation to the context and found to be continuous. PW33 D. Venkateswarlu further deposed that he had also taken specimen recording by using the briefcase camera device for the purpose of ascertaining whether the same was in working condition or not and he found it to be in working condition and he had used the recording for the purpose of examining the questioned video. PW33 D. Venkateswarlu further CC No. 14/11 (34/16) CBI v. H.C. Pant Page 69 of 116 deposed that he had examined the video by using waveform monitor and also frame by frame with the help of computer software. PW33 D. Venkateswarlu further deposed that he had found the video in synchronization with the audio which was the prevalent method at that time to examine audio video samples. PW33 D. Venkateswarlu further deposed that his detailed examination regarding this case is mentioned in his report/opinion (Ex. PW32/C).
57. In the light of the charge framed against the accused and the arguments advanced before the court, following are the points for determination:-
1. Whether the accused was holding office as a public servant at the relevant time.
2. Whether the accused has, being a public servant employed as Deputy Director / Staff Officer (Admn.) in Ordnance Factory, Ministry of Defence Production accepted an amount of Rs. 70,000/- from Mathew Samuel in various meetings for himself or for any other person, as gratification, other than legal remuneration, as a motive or reward for facilitating procurement of order of Hand Held Thermal Imagers from Indian Army.
DISCUSSION ON THE POINTS FOR DETERMINATION Whether the accused was holding office as a public servant at the relevant time.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 70 of 11658. On this point, evidence of PW13 S.K. Dasgupta, PW19 Manjulika Gautam, PW21 J.P. Mehta, PW32 Addl. SP D.S. Dagar and PW4 Rajinder Sood are relevant. As per the testimonies of PW19 Manjulika Gautam and PW32 Addl. SP D.S. Dagar, this case was registered on the information given by Manjulika Gautam, the then Additional Secretary in the Department of Personnel & Training. As per testimony of PW19 Manjulika Gautam and the letter (Ex.PW19/C collectively), the Gazette Notification (Ex.PW19/D) and Winding Up Orders (Ex.PW19/E), information was sent to the then Director, CBI containing the details of cessation of Justice S.N. Phukan Commission of Inquiry w.e.f. the 4 th day of October 2004; that the Government had then decided that the investigation relating to the tapes would be entrusted to the CBI to determine the extent of offences, procedural violations, misconduct, impropriety and guilt of individuals involved and S.K. Dasgupta, Secretary of Erstwhile Commission would be the Designated Officer for winding up of the Commission.
59. As per the testimony of PW32 ASP, CBI D.S. Dagar, Investigating Officer of this case that after registration of FIR case RC-AC2 2004 A0008 New Delhi on 06.12.2004 against the accused H.C. Pant it was entrusted to him for investigation and vide letter (Ex. PW32/D) relevant information in respect of accused were requisitioned and by CC No. 14/11 (34/16) CBI v. H.C. Pant Page 71 of 116 way of the letter Ex. PW32/E and reply Ex. PW4/1 personal details and bio-data of the accused including the details regarding his suspension were provided.
60. To prove the fact that the accused H.C. Pant was holding office as a public servant, at the time of commission of offence, evidence of PW4 Rajinder Sood is relevant. As per the testimony of PW4 Rajinder Sood, Under Secretary, Ministry of Finance, Department of Financial Services in response to letters of CBI whereby certain documents / informations in respect of H.C. Pant, Staff Officer (Under Suspension) at that time were required, he had provided the documents / informations to the office of SP CBI. These letters Ex. PW32/D and Ex. PW4/5, and replies Ex. PW32/E, Ex. PW4/1, Ex. PW4/4 and Ex. PW4/6 have been duly proved by PW4 Rajinder Sood as well as PW32 D.S. Dagar in their evidence. As per letter (Ex. PW32/D) CBI had requisitioned the information / details in respect of accused H.C. Pant for the period from September 2000 to January 2001 and which was replied by A. Subramanium DDG & CBO Ordnance Factory Board, Ministry of Defence by way of letter Ex. PW32/E and reply Ex. PW4/1 wherein personal details and bio-data of the accused including the details regarding his suspension were given. As per the letter Ex. PW4/4, PW4 Rajinder Sood had also replied to SP CBI about the residential official accommodation of the accused for the period from CC No. 14/11 (34/16) CBI v. H.C. Pant Page 72 of 116 September 2000 to January 2001. As per the testimony of PW4 Rajinder Sood and letter Ex. PW4/4, the residential address of the accused was Block No. 5, Quarter No. 598, 1 st Floor, Type-III, Lodhi Road, New Delhi-110003. As per letter Ex. PW4/5 sent by CBI to Rajinder Sood, exact details of post / position held by the accused H.C. Pant during the period from 01.01.2000 to 31.03.2001 were required and in response to the same vide letter Ex. PW4/6 the desired information were furnished. As per the letter Ex. PW4/1, information Ex. PW4/2 contained bio-data, date of birth, parentage, official address, residential address, telephone numbers, designation, pay scale during the relevant period, appointing / removing authority, date of superannuation, whether suspended by the department on its own or on the recommendation of any investigating agency, copy of order of suspension in respect of the accused H.C. Pant. It also contained the order of suspension Ex. PW4/3 of H.C. Pant.
61. During his examination under section 313 Cr.P.C., the accused has also admitted the correctness of letter Ex. PW4/1 under which his bio-data (Ex.PW4/2), suspension letter dated 14.03.2001 (Ex.PW4/3) and official address (Ex.PW4/4) were supplied by PW4 Rajinder Sood.
62. As per Ex. PW4/1, the designation of the accused at the relevant time was Staff Officer in Ordnance Factory Cell, CC No. 14/11 (34/16) CBI v. H.C. Pant Page 73 of 116 Ministry of Defence, New Delhi.
63. In the light of evidence discussed above, it is proved that the accused H.C. Pant was holding the office as a public servant during the relevant period.
64. Now, I proceed to discuss the second point for determination.
Whether the accused has, being a public servant employed as Deputy Director / Staff Officer (Admn.) in Ordnance Factory, Ministry of Defence Production accepted an amount of Rs. 70,000/- from Mathew Samuel in various meetings for himself or for any other person, as gratification, other than legal remuneration, as a motive or reward for facilitating procurement of order of Hand Held Thermal Imagers from Indian Army to Mathew Samuel.
65. As regards formation of Tehelka.com, testimonies of PW10 Tarun Tejpal, PW17, Shankar Sharma, PW26 Aniruddha Bahal, PW27 Mathew Samuel and PW32 ASP D.S. Dagar are relevant.
66. As per the testimonies of PW10 Tarun Tejpal, PW26 Aniruddha Bahal, PW27 Mathew Samuel and PW32 ASP D.S. Dagar, IO, Tehelka news website was started in March, 2000 and in the month of April 2000 and there was a fire in an CC No. 14/11 (34/16) CBI v. H.C. Pant Page 74 of 116 Ammunition Depot, Bharatpur where crores of equipments were lost and there was a suspicion of fraud which triggered Aniruddha Bahal the need to investigate into the possibility of corruption in defence procurement in India. As per the testimonies of PW10 Tarun Tejpal, PW26 Aniruddha Bahal and PW27 Mathew Samuel, the entire sting operation was a journalistic operation done with public interest in mind with intention to bring out the corruption that takes place in the defence procurement process.
67. The via media of the whole story, as per the testimonies of PW10 Tarun Tejpal, PW26 Aniruddha Bahal and PW27 Mathew Samuel, was that they were selling Night Vision Thermal Binoculars and approaching various departments to procure a Trial and Evaluation Order for the product for subsequent purchase; and the sting investigation was carried out by Aniruddha Bahal (PW26) and Mathew Samuel (PW27) who were part of the investigation section of Tehelka and they had approached different functionaries - political, military and bureaucratic to try and sell a piece of equipment called Hand Held Thermal Camera and they were testing these people to see if they are willing to push and purchase a piece of equipment that really did not exist, purely lured by the prospects of bribe.
68. The Hon'ble Supreme Court in R.K. Anand v.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 75 of 116Registrar of Delhi High Court, (2009) 8 SCC 106 considered the admissibility of tape recorded statements in evidence and as follows:-
72. In regard to the admissibility in evidence of tape recorded statements Mr. Ahmed cited a number of decisions of this Court in (i) N. Shri Rama Reddy vs. V. Giri (1970) 2 SCC 340 (ii) R. M. Malkani vs. State of Maharashtra (1973) 1 SCC 471
(iii) Mahabir Prasad Verma vs. Dr. Surinder Kaur (1982) 2 SCC 258 and (iv) Ram Singh vs. Col. Ram Singh (1985) Suppl SCC
611. He also referred to two foreign decisions on the point, one in (i) R vs. Stevenson, 1971 (1) All ER 678, and the other of the Supreme Court, Appellate Division of the State of New York in The People of State of New York vs. Francis Bell (taken down from the internet). We need here refer to the last among the decisions of this Court and the English decisions in R vs. Stevenson. In Ram Singh, a case arising from an election trial the Court examined the question of admissibility of tape recorded conversations under the relevant provisions of the Indian Evidence Act. The Court lay down that a tape recorded statement would be admissible in evidence subject to the following conditions "Thus, so far as this Court is concerned the conditions for admissibility of a tape- recorded statement may be stated as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by other who recognise his voice. In other words, it manifestly follows as a logical corollary that in the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. (2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence- direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in a safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."CC No. 14/11 (34/16) CBI v. H.C. Pant Page 76 of 116
73. In R vs. Stevenson too the Court was dealing with a tape recorded conversation in a criminal case. In regard to the admissibility of the tape recorded conversation the court observed as follows:
"Just as in the case of photographs in a criminal trial the original un-retouched negatives have to be retained in strict custody so in my views should original tape recordings. However one looks at it, whether, as counsel for the Crown argues, all the prosecution have to do on this issue is to establish a prima facie case, or whether, as counsel for the defendant Stevenson in particular, and counsel for the defendant Hulse joining with him, argues for the defence, the burden of establishing an original document is a criminal burden of proof beyond reasonable doubt, in the circumstances of this case it seems to me that the prosecution have failed to establish this particular type of evidence. Once the original is impugned and sufficient details as to certain peculiarities in the proffered evidence have been examined in court, and once the situation is reached that it is likely that the proffered evidence is not the original-is not the primary and the best evidence -that seems to me to create a situation in which, whether on reasonable doubt or whether on a prima facie basis, the judge is left with no alternative but to reject the evidence. In this case on the facts as I have heard them such doubt does arise. That means that no one can hear this evidence and it is inadmissible."
(emphasis added)
74. Mr. Ahmed also referred to another decision by a US Court on the admissibility of video tapes. This is by the Court of Appeal of the State of North Carolina in State of North Carolina vs. Michael Odell Sibley (downloaded from the internet). In this decision there is a reference to an earlier decision of the same court in State vs. Cannon. 92 N C App. 246 etc. in which the conditions for admissibility of video tape in evidence were laid down as under:
"The prerequisite that the offer or lay a proper foundation for the videotape can be met by:
(1) testimony that the motion picture or videotape fairly and accurately illustrates the events filmed (illustrative purpose); (2) "proper testimony concerning the checking and operation of the video camera and the chain of evidence concerning the videotape..."; (3) testimony that "the photographs introduced at trial were the same as those [the witness] had inspected immediately after processing," (substantive purposes); or (4) "testimony that the videotape had not been edited, and that the CC No. 14/11 (34/16) CBI v. H.C. Pant Page 77 of 116 picture fairly and accurately recorded the actual appearance of the area photographed."
69. As regards the recordings of video tapes the sting operation and payment of gratification other than legal remuneration to the accused, evidence of PW27 Mathew Samuel, the maker of the tapes, is relevant.
70. As per the testimony of PW27 Mathew Samuel, he was introduced to the accused H.C. Pant by P. Sasi (PW20) who had already passed on information to the accused H.C. Pant about the meeting purpose and they met accused H.C. Pant at his residence in Lodhi Colony and during the brief discussion, the accused H.C. Pant had offered many things and he had also mentioned that he could introduce various level of officers, politicians and bureaucrats; and he (PW27) had paid a total sum of Rs.60,000/- to the accused as bribe in 3 installments in 5-6 meetings taken place between them during the period spread over two months i.e. November and December, 2000 at various places like residence of the accused at Lodhi Colony, Guest House of Qutub Institutional Area and at the premises of one Mohinder Singh Sahni (PW18).
71. As regards the first such meeting, as per the testimony of PW27 Mathew Samuel, it had taken place at the CC No. 14/11 (34/16) CBI v. H.C. Pant Page 78 of 116 residence of the accused where P. Sasi (PW20) was also present and he had given Rs.20000/- as the bribe to the accused H.C. Pant for further proceedings of Westend International and after he had paid him said amount H.C. Pant had opened up and started indulging into conversation.
72. In his 3rd meeting with the accused, as per the testimony of PW27 Mathew Samuel, at Guest House at Qutub Institutional Area, besides them, Deepak Chhabra (PW8), a businessman and friend of the accused was also present. As per the testimony of PW27 Mathew Samuel, in such meeting, H.C. Pant had told Deepak Chhabra to introduce Maj. General PSK Chaudhary, ADG (WE) to him and also he had mentioned names of some senior officers of MoD; and in fourth meeting he had paid Rs.20000/- to H.C. Pant who had tried to convince him about his proximity with all the Senior Officers, Bureaucrats and Politicians in well equation. As per the testimony of PW27 Mathew Samuel, he had one more meeting with H.C. Pant at his house in which he had paid him another sum of Rs. 20000/-.
73. As per the testimony of PW27 Mathew Samuel, all such meetings were related to the same aspect i.e. how should they push their product into the Army; and all the meetings which he had with him were taped and all these things were also recorded in the tapes.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 79 of 11674. During the evidence of PW27 Mathew Samuel, the video cassettes No. 40, 42, 56 and 94, which were recorded during sting operation by him, were played before him in the court.
75. Having viewed the contents of cassette no. 40, PW27 had identified H.C. Pant looking into the brochure supplied by them which was related to M/s Westend International Pvt. Ltd., as well as his voice and voice of P. Sasi (PW20) in the background. As per the testimony of PW27 Mathew Samuel, that conversation also contained reference for buying gifts for other senior officers and he had also suggested buying gold chains for senior officers. As per the testimony of PW27 Mathew Samuel, in that video, the accused H.C. Pant was found saying that he would prepare a brief on that. As per the testimony of PW27 Mathew Samuel, P. Sasi (PW20) was found saying "small presentation" and thereafter, he was seen handing over Rs.20000/- in cash to H.C. Pant which he had accepted and kept with him and he was heard affirming about arranging for MMTC coin. As per the testimony of PW27 Mathew Samuel, as per footage of cassette no. 42, Deepak Chhabra is found looking the brochure of M/s Westend International Pvt. Ltd.; and he (Mathew Samuel) was seen offering Rs. 20000/- to H.C. Pant by saying its 20000/- and the H.C. Pant had kept the same. As per the testimony of CC No. 14/11 (34/16) CBI v. H.C. Pant Page 80 of 116 PW27 Mathew Samuel, as per footage of cassette no. 56, it is regarding his meeting with H.C. Pant at his house in Lodhi Colony and he was found offering Rs. 20000 bucks to H.C. Pant who had accepted the same. As per the testimony of PW27 Mathew Samuel, as per video of cassette no. 94, he had that meeting at the premises of Mohinder Singh Sahni situated in Vasant Vihar who is the Sikh Gentleman seen sitting in his office and H.C. Pant was found saying "give me 10000 bucks today" and he (Mathew Samuel) was seen taking out Rs.10000/- from the same briefcase device and handing over the same to H.C. Pant which he had accepted. As per the testimony of PW27 Mathew Samuel, transcripts Ex. PW21/S, Ex. PW21/O, Ex. PW21/M and Ex. PW21/Q of the above-said cassettes are as per the cassette played and were correct and matched with the contents of the cassettes played in the court. As per the testimony of PW27 Mathew Samuel, all the cassettes are unedited cassettes and these were recorded by him using the same briefcase device (Ex. PW27/A). As per the testimony of PW27 Mathew Samuel, since he had seen the cassettes which were played in the court as well as the transcripts, he had recalled that the total amount paid to H.C. Pant was Rs.70000/- and not Rs.60000/-.
76. The testimony of PW27 Mathew Samuel regarding above said meetings with the accused H.C. Pant have been corroborated by other witnesses, namely, P. Sasi (PW20), CC No. 14/11 (34/16) CBI v. H.C. Pant Page 81 of 116 Deepak Chhabra (PW8) and Mohinder Singh Sahni (PW18) who were present in these meetings.
77. As per the testimony of PW20 P. Sasi, he had accompanied Mathew Samuel to the house of the accused. PW20 P. Sasi correctly identified the accused in the court. Having seeing the contents of the cassette no. 40 (Ex. P6) in the court, PW20 P. Sasi, identified the accused H.C. Pant and his voice.
78. Even otherwise, the accused has, during his examination under section 313 Cr.P.C., admitted that he had met Mathew Samuel a few times; that Mathew Samuel had come to his residence along-with P. Sasi; that first meeting was held at his residence and P. Sasi was also there and P. Sasi had introduced Mathew Samuel to him at his residence.
79. The testimony of PW27 Mathew Samuel regarding presence of Deepak Chhabra in the third and fourth meetings between him and accused H.C. Pant held in Guest House at Qutub Institutional Area on 25.11.2000 has been corroborated by PW8 Deepak Chhabra. As per the testimony of PW8 Deepak Chhabra, sometime in the year 2000 on asking of the accused he had gone to Guest House at Qutub Institutional Area, Delhi and in that meeting H.C. Pant had introduced him to Mathew Samuel. PW8 Deepak Chhabra had also identified CC No. 14/11 (34/16) CBI v. H.C. Pant Page 82 of 116 himself as well as accused H.C. Pant and their voices as well when the cassette no. 42 and 43 were played in the court. As per the testimony of PW8 Deepak Chhabra, the third person was seen in the video and offering Rs 20,000/- to accused which has been accepted by him. Having seen the video of cassette no. 40 in the court PW8 Deepak Chhabra had identified the image and voice of H.C. Pant and as per his testimony, something has been offered by that third person to accused which had been accepted by the accused H.C. Pant. Having seen the cassette no. 56 PW8 Deepak Chhabra had identified the voice and image of H.C. Pant and as per his testimony, a sum of Rs. 20,000/- was offered to H.C. Pant by that third person which was accepted.
80. The accused has admitted during his examination under section 313 Cr.P.C. that in one meeting between him and Mathew Samuel, Deepak Chhabra were present and he had told Deepak Chhabra that a party from UK wanted to invest money and there was a meeting between Mathew Samuel, Deepak Chhabra and the accused.
81. During the fifth and sixth meeting with the accused, as per the evidence of PW27 Mathew Samuel, Mohinder Singh Sahni (PW18) was present with them. As per the testimony of PW18 Mohinder Singh Sahni, the accused had introduced him to Mathew Samuel as a businessman and CC No. 14/11 (34/16) CBI v. H.C. Pant Page 83 of 116 in their meeting Mathew Samuel had started discussing about Thermal Imaging Camera he wanted to supply to the Defence Department. PW18 Mohinder Singh Sahni has correctly identified the accused in the court.
82. As per the testimony of PW7 Deepak Gupta, on one occasion, H.C. Pant had visited his residence with Mathew Samuel and he was shown some brochures relating to Hand Held Thermal Imaging System. As per the testimony of PW9 Raj Kumar Gupta, sometimes in the year 2000 H.C. Pant had called him up that one Mathew Samuel was coming to him and he should talk to him and thereafter Mathew Samuel had come to him.
83. As per the testimonies of PW11 Ashok Kumar Sharma and PW12 Mohan Singh Rawat, the accused H.C. Pant had worked with them in the office of the then Minister of State, Defence Production. PW11 Ashok Kumar Sharma and PW12 Mohan Singh Rawat had identified the accused and his voice when tapes no. 42 and 40 were played in the court. The accused has admitted during examination under section 313 Cr.P.C. that since PW11 Ashok Kumar Sharma and PW12 Mohan Singh Rawat were working in his department and therefore, they had identified him.
84. As per the testimony of PW17 Shankar Sharma, CC No. 14/11 (34/16) CBI v. H.C. Pant Page 84 of 116 being the investor, he had invested money in the Buffalo Networks Pvt. Ltd. which was better known by the name of Tehelka.com.
85. As per the transcripts Ex. PW21/Q and contents of cassette no. 40, the relevant portion of exchange between H.C. Pant and Mathew Samuel the following are the extracts from the transcripts of sting recording of the meetings that would give an idea what was said in the meeting:-
Pant: I prepare a brief on this and then you consider on those items only.
Mathew: Okay. Okay, tomorrow, 6.30pm-7.00PM. I will be here. You will be here?
Pant: Haan, I come by 6.00pm-6.15pm. Mathew: Okay, I will come and talk to you. Can I move? Shashi: Tomorrow, nahin ab hi dedo. Mathew: Kuchh nahin, I want to give you a small.... Shashi: Small Presentation, bitiya ke liye hum dukaan nahin gaya. Mathew: Twenty thousand. Pant: Nahin, who toh maine kaha tha na, presentation karrenge uske liya, then we will go for it. Shashi: Dukaan maim bhool gaya tha, bitiya ta awaaz toh
main samjha tha bitiya ke liye phir jaanapadega, Mehrasons main.CC No. 14/11 (34/16) CBI v. H.C. Pant Page 85 of 116
Pant: Nahin, nahin.......I will prepare the brief on the basis you discuss with them.
Mathew: Okay. Pant: General Chaudhary we will meet at Vasant Vihar. Mathew: Okay.
86. As per the transcripts Ex. PW21/S and contents of cassette no. 42, the relevant portion of exchange is extracted as follows:-
Pant: Then it goes to the Minister. Mathew: Okay. Pant: Secretary DP is my man. Secretary, Defence
Production and Supplies. I know 1 secretary. I was With Tiwariji. He was our Principal Secretary there. Defence Secretary.
Mathew: Aaah. Pant: So my channel is coherent. So well knit channels are there. Mathew: Okay. Pant: So you can go slowly, slowly and.......We will talk with all the people there. Mathew: Okay, sir. Pant: All DGs are known to me because I have been
interacting with all of them. SGO, SMGO, and your Shankar Prasad and DGI and DGM............CC No. 14/11 (34/16) CBI v. H.C. Pant Page 86 of 116
87. As per the transcripts Ex. PW21/O and contents of cassette no. 56, the relevant portion of exchange is extracted as follows:-
Pant: Mein kaha, Kuch kaam kar ke do (I said, do some work first), then we'll give you something. "Then he was..."Woh to aisse hi kharcha hojaata hai itna. Bees- pacchees toh aise hi..."oh pehle de dein "Meine kaha, aise kaam nahin hota".., He rang me up also. I said, "Let him...he's getting for the first time. Let him get some result then only this company will pay.
Mathew: Naturally hai, na? Pant: Aisa thodi hi hai. Ek a ad do ho toh chalega, I said,
"You are asking ten times of that. "Ek-do tak tioh chalega, w'oh iss tarah ki aisse de do, vaise de do..vaise kaise de dega? Mathew: Sir, this is twenty thousand perks.
88. As per the transcripts Ex. PW21/M and contents of cassette no. 94, the relevant portion of exchange is extracted as follows:-
Mathew: Okay.
Pant: Now I have decided to take money from this chap,
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 87 of 116
because...........I have some flat now. I said, I cannot show
more than Rs.20,000/- per month, so....just start paying me Rs.20,000/- so that I have some corpus fund to give installment for three months or Rs.60,000/- per month per quarter. For what? For that flat for some lump sum then 56,000 rupees in three months, quarterly installment, told this chap. So now start rotating this money... so that I have some corpus money.
Mathew: Ya Pant: Yesterday, I was telling for this flat, I need some
money. So don't give me... give me monthly, I will put my bank. Rs. 20,000/- rupees in my name, in daughter's name like this.
Mathew: That it will be white.
Pant: Hum.
Mathew: That thinking is a good idea.
Pant: That's why, I am telling you............tomorrow.
Mathew: This is also a big project.
Pant: which one.
Mathew: This is.
Pant: Thomson is good company.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 88 of 116
Mathew: it is a Indian company.
Pant: This is a Indian Company Hyderabad based.
Mathew: Their spare parts.
Pant: They have spares some for TATA trucks..Shaktiman
Trucks ........
Mathew: We can move, ...anything else.
Pant: Money, I have told you, he said he will be 'giving
tomorrow because I have to rotate some 56,000 rupees in a quarter, I have to pay them.......
Mathew: Okay. Pant: I have told, he said, Yes tomorrow, I will give you.
That's why, I have discussed with him, so I have....the money...........
Mathew: ....Defence Secretary... in the defence also.
Pant: I said, mobile, I don't have money, in my mobile. I have bloody 75..... rupees.....what the hell... younger brother basically is .....That I have blocked my mobile. Kept it because I don't have money in my mobile.
Mathew: Then take Sim Card. Otherwise, I will give you. Tomorrow I will give you sim card. Tomorrow I will bring sim card.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 89 of 116Pant: Give me 10,000 bucks today. Because I said, I've to put some money.....For sim card.....
(Mathew takes out money and hands it over to Pant).
89. As per the transcripts, its contents matches with the contents of the cassettes No. 42, 56, 94 and 40 played in the court.
90. From the testimonies of PW27 Mathew Samuel, PW7 Deepak Gupta, PW8 Deepak Chhabra, PW9 R.K. Gupta, PW11 Ashok Kumar Sharma, PW12 Mohan Singh Rawat, PW18 Mahinder Singh Sahni, the voice and image of the accused H.C. Pant have been duly identified by the maker of the tape and those who were present in the meetings as well as by those who know the accused; and the accuracy of the tape recorded statements has also been proved.
91. During investigation, as per the testimonies of PW14 Prakash Ekka, PW24 Deonis Kujur, PW25 S. Ingrasal, PW32 ASP D.S. Dagar, voice and video samples of the accused were taken in the presence of the witnesses (PW14 and PW24) and vide letter Ex. PW32/B sent to CFSL for seeking opinion regarding genuineness of those tapes, and also with regard to matching of sample voices and images of H.C. Pant with their questioned voices and images. In this regard, evidence of PW25 S. Ingrasal is relevant.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 90 of 11692. As per the testimony of PW25 S. Ingrasal, SSO-II, he along-with his colleague A.D. Tiwari, SSO-II was deputed by Director, CFSL for video recording of accused H.C. Pant and after making necessary arrangements voice and video samples of H.C. Pant were simultaneously taken and recorded separately on audio cassette and video cassette in the presence of independent witnesses (PW14 and PW24) and the Investigating officer. PW25 S. Ingrasal has also correctly identified the accused H.C. Pant in the court.
93. As per the testimonies of PW14 Prakash Ekka and PW24 Deonis Kujur, the voice and video samples of the accused were taken in their presence.
94. As per the testimony of PW32 D.S. Dagar, Investigating Officer of the case during investigation, voice and image samples of H.C. Pant were taken by CFSL, New Delhi vide memorandum Ex. PW14/A.
95. As per memorandum Ex. PW14/A, on 15.03.2005 samples of voice and video-graph of H.C. Pant as required for purpose of the investigation were taken in the presence of independent witnesses, namely, Prakash Ekka (PW14) and Deonis Kujur (PW24), as per his willingness, by S. Ingrasal (PW25) and A.D. Tiwari at CFSL New Delhi.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 91 of 11696. The accused has also admitted during his examination under section 313 Cr.P.C. that PW25 S Ingrasal from CFSL New Delhi alongwith A.D. Tiwari had taken his voice and video samples / specimen in presence of two witnesses.
97. As per the testimonies of PW32 ASP D.S. Dagar and PW33 D. Venkateswarlu, the voice and image samples so taken were sent to APFSL alongwith relevant questioned Hi8 tapes, its copies and relevant transcripts; and APFSL had vide letter no. ENG/9/2005 dated 18.07.2006 sent its opinion Ex. PW32/C.
98. To prove the expert opinion Ex. PW32/C, the prosecution has examined PW33 D. Venkateswarlu, Assistant Director, APFSL, Hyderabad. As per the testimony of PW33 D. Venkateswarlu he had received original Hi8 tape no. 40 (Ex. P6), tape no. 41 (Ex. PA), tape no. 42 (Ex. PB), tape no. 43 (Ex. PC), tape no. 47 (Ex. PD), tape no. 56 (Ex. PE) and tape no. 94 (Ex. PF), seven VHS tapes, seven transcripts and specimen voice and image samples of the accused H.C. Pant. As per testimony of PW33 D. Venkateswarlu, specimen and image samples of Mathew Samuel and briefcase device were received in the case titled as CBI v. Narender Singh. As per the testimony of PW33 D. Venkateswarlu, all the tapes were CC No. 14/11 (34/16) CBI v. H.C. Pant Page 92 of 116 neither tampered nor doctored nor edited and the recording was continuous and the video were in synchronization with audio. As per the testimony of PW33 D. Venkateswarlu he had gone through the questioned original tapes and compared the same with the specimen audio and video / image samples and found that the concerned persons were same in both questioned and specimen tapes and also found the questioned audio to be continuous. As per the testimony of PW33 D. Venkateswarlu the briefcase camera device was in working condition.
99. As per the opinion report Ex. PW32/C, prepared by PW33 D. Venkateswarlu following observation & findings were made:-
i) The voicegrams of selected common words from the questioned voice samples marked as A1Q1 to A1Q7 are similar to those of specimen voice samples marked as S1;
ii) The voicegrams of selected common words from the questioned voice samples marked as A2Q1 to A2Q7 are similar to those of specimen voice samples marked as S2; in acoustic features such as number of formants, formant frequency distribution, pitch striations, energy distribution, intonation pattern and other spectral details.CC No. 14/11 (34/16) CBI v. H.C. Pant Page 93 of 116
OPINION:- Based on the above examination & observations, we are of the opinion that:
i) The contents in each of items 1 to 7 represent true depiction of single incident.
ii) Items 1 to 7 had not been subjected to any process of tampering.
iii) The recordings in items 8 to 14 are same as in items 1 to 7 respectively.
iv) The recordings made in items 1 to 7 could have been recorded by the briefcase camera unit (BC-1) item 10 of this Office File No. ENG/11/2005.
v) The facial features of the person suspected to be Sri H.C. Pant present in the recordings of items 1 to 4 are same as the facial features of the person present in the specimen recordings of item 16.
vi) The facial features of the person suspected to be Sri H.C. Pant present in the recordings of items 5 to 7 and the facial features of the person present in the specimen recordings of item 16 appear to be similar.
vii) The facial features of the person suspected to be Sri Mathew Samuel present in the recordings of items 4 & 7 are same as the facial features of the person present in the specimen recordings of item 8 of this Office File No. ENG/11/2005.
viii) The facial features of the person suspected to be Sri Mathew Samuel present in the recordings of items 1, 3 & 5 and the facial features of the person present in the specimen recordings of item 8 of this Office File No. ENG/11/2005 appear to be similar.
ix) No identifiable facial images of Sri Mathew Samuel are visible in the recordings of items 2 & 6.
x) The questioned voice marked A1Q1 to A1Q7 (segregated from items 1 to 7) and specimen voice marked S1 (item15 belong to the same individual (Sri H.C. Pant).
xi) The questioned voice marked A2Q1 to A2Q7 (segregated from items 1 to 7) and specimen voice marked S2 (captured from item 6 of this Office File No. ENG/11/2005) belong to the same individual (Sri Mathew Samuel).
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 94 of 11699. As per the expert opinion Ex. PW32/C, the items no. 1 to 7 i.e. original Hi8 tapes had not been subjected to any process of tampering and the contents in these items represent true depiction of single incident; and facial features of the person suspected to be H.C. Pant and Mathew Samuel present in the recordings and facial features of the person present in specimen recording appeared to be similar; and the questioned voice and the specimen voice belonged to same individuals H.C. Pant and Mathew Samuel. The contents of the tapes are clearly audible and the video is also not lossed or distorted by any disturbance.
SAFE CUSTODY OF CASSETTES
100. As per the testimonies of PW26 Aniruddha Bahal and PW27 Mathew Samuel, briefcase camera device and blank Hi8 tapes for using with such device were given by Aniruddha Bahal to Mathew Samuel and in the present case also, Mathew Samuel had used blank Hi8 tapes and after recording, any such Hi8 tapes used to be handed over by him to Aniruddha Bahal. As per the testimonies of PW10 Tarun Tejpal and PW26 Aniruddha Bahal also, these tapes were always kept in the custody of Aniruddha Bahal. As per the testimonies of PW26 Aniruddha Bahal, after the field work was over, sometime in January 2001, he had deposited the CC No. 14/11 (34/16) CBI v. H.C. Pant Page 95 of 116 tapes in a bank locker in Grindlay's Bank, Malcha Marg and before that, the tapes were in his personal custody in an office safe. As per the testimonies of PW10 Tarun Tejpal and PW26 Aniruddha Bahal, 105 tapes recorded during sting operation were deposited with Justice Venkataswamy Commission of Inquiry.
101. To prove the safe custody of the tapes during the period it remained with the Commission of Inquiry, evidence of PW13 S.K. Dasgupta is relevant. As per the testimony PW13 S.K. Dasgupta, being Secretary and Designated Officer for winding up of the Commission of Inquiry in view of the notification (Ex. PW19/D) he had taken the tapes and documents etc. of the Commission under his charge and kept them in safe custody on behalf of the Department of Personnel & Training and when the investigation relating to the Tehelka tapes was entrusted to the CBI, he had handed over the tapes, documents etc. to the CBI as required by them.
102. As per the testimonies PW13 S.K. Dasgupta and PW21 J.P. Mehta, documentation regarding handing over and taking over of tapes was done by him in presence of PW21 J.P. Mehta.
103. From S.K. Dasgupta, as per the testimonies of PW13 S.K. Dasgupta, PW21 J.P. Mehta, PW31 DSP K.Y. CC No. 14/11 (34/16) CBI v. H.C. Pant Page 96 of 116 Guruprasad and PW32 ASP D.S. Dagar, after the investigation of case RC 5A/2004/ACU-3 entitled CBI v. Jayalakshmi Jaitly was entrusted with PW31 DSP K.Y. Guruprasad, during investigation of that case, he had seized Hi8 Tapes, DV Tapes and VHS working copies and two master tapes of 'Operation Westend' vide Ex. PW21/A; and transcripts of the tapes prepared by Union of India and other documents vide seizure memo Ex. PW21/B; and transcripts prepared by Tehelka vide seizure memo Ex. PW21/C, in presence PW21 J.P. Mehta. The seizure memo Ex. PW21/A, Ex. PW21/B and Ex. PW21/C have been proved by PW13 S.K. Dasgupta, PW21 J.P. Mehta and PW31 DSP K.Y. Guruprasad. As per the seizure memo Ex. PW21/A, Hi8 tape no. 40, tape no. 41, tape no. 42, tape no. 43, tape no. 47, tape no. 56 and tape no. 94, VHS tape no. 40, tape no. 41, tape no. 42, tape no. 43, tape no. 47, tape no. 56 and tape no. 94 were seized vide this document. As per the seizure memo Ex. PW21/B, transcripts of conversations recorded / contained in unedited VHS tape no. 40, 41, 42, 43, 47, 56 and 94 prepared by Union of India were seized by PW31 K.Y. Guruprasad.
104. As per the testimonies of PW31 DSP K.Y. Guruprasad and PW32 ASP D.S. Dagar, all the seized tapes and documents were kept in office 'malkhana' and these documents and tapes were used by the concerned CC No. 14/11 (34/16) CBI v. H.C. Pant Page 97 of 116 investigating officers as per the needs of their respective cases pertaining to Tehelka.com.
105. In view of the above testimonies of the prosecution witnesses PW10 Tarun Tejpal, PW26 Aniruddha Bahal, PW27 Mathew Samuel, PW13 S.K. Dasgupta, PW21 J.P. Mehta, PW31 DSP PW31 K.Y. Guruprasad and PW32 ASP D.S. Dagar, it has been proved that Hi8 tapes recorded during sting operation were carefully sealed and kept in safe and official custody.
SAFE CUSTODY OF DEVICES
106. As per the testimonies of PW26 Aniruddha Bahal and PW27 Mathew Samuel the briefcase device was handed over to him by Aniruddha Bahal for using in sting operation. Having seen the briefcase device (Ex. PW27/A) PW26 Aniruddha Bahal, PW27 Mathew Samuel have identified it to be the same device which was used in the present sting operation which could also capture audio.
107. As per the testimonies of PW23 Arnab Pratim Dutta and PW30 ASP B. Dass, the briefcase device was handed over by PW23 Arnab Pratim Dutta, a reporter of Tehelka and seized by PW30 ASP B. Dass under seizure memo (Ex. PW23/A). PW32 D.S. Dagar, investigating officer of this case CC No. 14/11 (34/16) CBI v. H.C. Pant Page 98 of 116 has also, in his evidence, corroborated the above evidence regarding the seizure of the briefcase device.
108. From the testimonies of PW26 Aniruddha Bahal, PW27 Mathew Samuel, PW23 Arnab Pratim Dutta and PW30 ASP B. Dass, it has been proved that the briefcase camera device (Ex. PW27/A) which was used for sting operation was kept in the safe and proper custody.
109. As per the testimonies of PW10 Tarun Tejpal and PW26 Aniruddha Bahal, subsequently, they had transcribed all the tapes and edited a four and half hours documentary called ''Operation Westend'' from 105 tapes and this documentary was telecast in a press conference on 13 th March 2001.
110. To establish the fact that calls were exchanged between Mathew's mobile number 9810274694 and land line numbers (4620900 and 4642968) of the accused, the prosecution has examined PW1 Captain Rakesh Bakshi, PW15 Rajesh Kumar Singh and PW2 B.M. Verma.
111. As per the testimony of PW26 Aniruddha Bahal and PW27 Mathew Samuel mobile number 9810274694 was used by Mathew Samuel. As per the testimonies of PW1 Captain Rakesh Bakshi and PW15 Rajesh Kumar Singh, both Nodal Officers of Bharti Airtel Limited, the call details (Ex. PW1/A) CC No. 14/11 (34/16) CBI v. H.C. Pant Page 99 of 116 of phone No. 9810274694 in the name of Buffalo Networks Pvt. Ltd for the period 01.08.2000 to 12.01.2001 are certified by PW1 Captain Rakesh Bakshi.
112. As per the testimony of PW2 B.M. Verma, Divisional Engineer from MTNL Jor Bagh, New Delhi, in response to the letter (Ex. PW2/1) from CBI for supply of certain documents in respect of telephone numbers (2)4620900 and (2)4642968 for the period October 2000 to February 2001, vide the letters (Ex. PW2/2-3) information concerning these numbers were provided under his instructions. From the letters Ex. PW2/2- 3, it has been proved that land line telephones having number (2)4620900 and (2)4642968 had been installed in the name of H.C. Pant and Rajni Pant at the residence of the accused i.e., 5/598, Lodhi Colony, New Delhi.
113. Call detail report (Ex. PW1/A) of mobile number 9810274694 in the name of Buffalo Networks were, as per the testimony of PW29 DSP Vipin Kumar Verma, seized by him vide memo (Ex. PW29/A). PW32 D.S. Dagar has also, in his evidence, proved production cum seizure memo (Ex. PW29/A) whereby the CDR was seized.
114. From the testimonies of PW1 Captain Rakesh Bakshi, PW2 B.M. Verma, PW15 Rajesh Kumar Singh, PW29 DSP Vipin Kumar Verma and PW32 ASP D.S. Dagar and Call CC No. 14/11 (34/16) CBI v. H.C. Pant Page 100 of 116 Details Record (Ex. PW1/A, 1-66 pages), it has been proved that during the period of November and December 2000, calls were exchanged between mobile phone used by Mathew Samuel and land line phones installed at the residence of the accused.
115. Even otherwise, during the examination of the accused under section 313 Cr.P.C., a specific question was put to the accused that during the period of November and December 2000, incoming and outgoing calls were made from the mobile number 9810274694 to telephone numbers 011-(2) 4620900 and (2) 4642968. The accused had not denied correctness of these circumstances appearing in the prosecution evidence. There was no explanation by the accused that such calls were not exchanged.
116. As per the testimonies of PW10 Tarun Tejpal and PW26 Aniruddha Bahal, the total amount given out by the journalist as bribes was about Rs. ten lakhs, the detailed accounts of the same were kept and were submitted to the Commission of Inquiry.
117. To prove the accounts, the prosecution has also examined Statutory Auditor (PW22 Sudhir Verma) and Account Executive (PW16 Brij Kishore Sharma) of M/s Buffalo Networks Pvt. Ltd.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 101 of 116118. As per the testimonies of PW22 Sudhir Verma, Chartered Accountant, being Statutory Auditor for M/s Buffalo Networks Pvt. Ltd. which also owned portal Tehelka.com; letters (Ex. PW22/A and Ex. PW22/C) from CBI were replied by him vide reply (Ex. PW22/B) along with the requisite documents (Ex. PW16/A, PW16/B and PW16/C) and certified copies of income tax returns of M/s Buffalo Networks Pvt. Ltd. for the financial year 2000-2001 and cash book and ledger etc.
119. As per the testimonies of PW16 Brij Kishore Sharma being Accounts Executive, accounts of M/s Buffalo Networks Pvt. Ltd. from July 2000 to August 2003 were looked after by him and he had handed over certain documents Ex. PW16/A, Ex. PW16/B and Ex. PW16/C, which were Ledger Accounts of investigative story expenditure, Imprest Ledger Account of Aniruddha Bahal and travel allowance account statement of Mathew Samuel, respectively.
120. As per the ledger account of Investigative Story Expenditure Ex. PW16/A of Buffalo Networks Pvt. Ltd., a sum of Rs. 10,15,000/-, being imprest of Aniruddha Bahal was debited on account investigative story account, expenses incurred by Aniruddha Bahal for investigation.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 102 of 116121. To prove transactions in the account of the accused H.C. Pant at the relevant time, the prosecution has also examined PW3 Mahinder Budhiraja, Assistant General Manager, State Bank of India, Nirman Bhawan Branch, New Delhi. As per the testimony of PW3 AGM Mahinder Budhiraja vide the letter Ex. PW3/1 CBI had asked for up to date transcript and original vouchers / instructions in respect of various credit / debit entries mentioned in said letter in respect of SB Account No. 01190/029136 since 01.10.2000 being maintained with the bank by the accused H.C. Pant and the bank vide letter Ex. PW3/3 provided to CBI original vouchers in respect of such entries.
122. During his examination under section 313 Cr.P.C, the accused had not disputed the correctness of cheques and pay in slips relating to his bank accounts.
123. As per the testimonies of PW5 K. Seshaiah, Deputy Secretary Special Cell MoD and PW32 ASP D.S. Dagar, IO, the photocopies of the supply order issued by Army Headquarter / MoD to various agencies for supply of HHTI was provided by PW5 vide letter dated 27.01.2005 Ex. PW5/1. From the evidence of PW5 and letter (Ex. PW5/1), it has been proved that Army Headquarter had issued supply orders to various agencies for supply of HHTI.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 103 of 116124. To prove the fact that the proposal for supply of HHTI was actually submitted by M/s Westend International, the prosecution has examined PW28 Brigadier A.P. Singh who has described the procedure of trial of new equipment for use in the Army. As per the testimony of PW28 Brigadier A.P. Singh, being Director (Weapon & Equipment-4) at Army Headquarter, New Delhi from June 1999 to July 2002, his job profile was to look after weapons and equipments related to infantry i.e. identifying modernization of new weapons and equipments; and the proposal of M/s Westend International for supply of Thermal Imaging Camera/binocular to the Indian Army was received in their section and as per the procedure, their section sent it to Infantry Directorate for necessary analysis/recommendation. From the testimony of PW28, it has been proved that the proposal for supply of HHTI was actually submitted by M/s Westend International, London and was sent for analysis to Infantry Director.
125. As per the testimony of PW32 ASP D.S. Dagar, investigative officer of this case, after the FIR in present case was entrusted to him for investigation and he had taken out tape no. 40, 41, 42, 43, 47, 56 and 94 from 'malkhana'; during investigation it was revealed that during four meetings the accused H.C. Pant had accepted Rs. 70,000/- as bribe from Mathew Samuel (PW27) which conversation was recorded in cassette no. 40, 42, 56 and 94. As per the testimony of PW32 CC No. 14/11 (34/16) CBI v. H.C. Pant Page 104 of 116 ASP D.S. Dagar, during investigation he had also recorded statements of relevant witnesses under section 161 Cr.P.C and after completion of investigation, he had filed a police report for taking cognizance of the offence punishable under section 7 of the P.C. Act against the accused H.C. Pant and to try and proceed against him for the said offence. As per the testimony of PW32 ASP D.S. Dagar the sanction for prosecution against the accused was not required as he had already been dismissed from government service.
126. It is noteworthy here that nothing material has been elicited from the cross-examination of above prosecution witnesses by counsel for the accused.
127. The only contradiction in testimonies of the prosecution witnesses pointed out by counsel for the accused is that Aniruddha Bahal claimed that 'Operation Westend' was his brain child whereas in cross-examination, Mathew Samuel deposed that it was not brain child of Mr. Bahal and volunteered that it was his idea. Such contradiction is not a material contradiction and is not fatal for the prosecution case.
128. It is vehemently argued on behalf of the accused that allegations against the accused in FIR was that he had taken Rs. 60,000/- whereas, in the evidence, it the case of the CC No. 14/11 (34/16) CBI v. H.C. Pant Page 105 of 116 prosecution that he had taken Rs. 70,000/-, therefore, the tapes were not reliable.
129. As per FIR Ex. PW32/A, it was alleged that the accused had taken Rs. 60,000/- from Mathew Samuel as gratification other than legal remuneration, however, after completion of investigation, in the police report filed by CBI, it has been specifically stated that the accused had taken Rs. 70,000/-. In the evidence of PW27 Mathew Samuel also, it has been clarified after seeing the cassettes which were played in the court as well as in the transcripts that the total amount paid to the accused was Rs. 70,000/- and not Rs. 60,000/-. Moreover, the sting operation was carried out in November and December 2000. PW27 Mathew Samuel was examined in the year 2014 i.e. after 14 years of the sting operation and therefore, it was quite probable that the witness may not remember everything exactly. However, as noted above, after seeing the tapes, PW27 Mathew Samuel, the maker of the tapes, has clearly stated in his examination- in-chief that total amount paid to the accused was Rs. 70,000/-. In the case of Subodh Nath & Anr v. State of Tripura, Criminal Appeal 1551/2007, it has been held by Hon'ble Supreme Court of India as follows:
13. Once we find that the eye witness account of PW-13 is corroborated by material particulars and is reliable, we cannot discard his evidence only on the ground that there are some discrepancies in the evidence of PW-1, PW-2, PW-13 and PW-19.CC No. 14/11 (34/16) CBI v. H.C. Pant Page 106 of 116
As has been held by this Court in State of Rajasthan v. Smt. Kalki and Another [(1981) 2 SCC 752], in the deposition of witnesses there are always normal discrepancies due to normal errors of observation, loss of memory, mental disposition of the witnesses and the like. Unless, therefore, the discrepancies are material discrepancies so as to create a reasonable doubt about the credibility of the witnesses, the Court will not discard the evidence of the witnesses.
130. In the case of Mritunjoy Biswas v. Pranab @ Kuti Biswas and another, Criminal Appeal 378/2007 also similar view has been taken by Hon'ble Supreme Court of India and held as follows:
28. ....It is worthy to note that the High Court has referred to the some discrepancies which we find are absolutely in the realm of minor discrepancies. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence.
131. In the light of law laid down in Subodh Nath's case (supra) and Mritunjoy Biswas's case (supra), minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 107 of 116132. The original Hi8 tapes recorded during Sting operation are available and I have viewed the contents. I have also gone through the transcripts of such tapes. As noted above, the accuracy of the tape-recorded statement has been proved by PW27 Mathew Samuel, the maker of the record by satisfactory direct evidence; and the testimony of PW27 Mathew Samuel regarding his meetings with the accused H.C. Pant has been corroborated by other prosecution witnesses P. Sasi (PW20), Deepak Chhabra (PW8) and Mohinder Singh Sahni (PW18) who were present during these meetings. It has also been noted above that PW8 Deepak Chhabra and PW20 P. Sasi have correctly identified the accused H.C. Pant when the tapes were played before them in the court; and identity of the accused been duly proved by PW11 Ashok Kumar Sharma and PW12 Mohan Singh Rawat who had worked the accused when the tapes were played before them. PW8 Deepak Chhabra, PW11 Ashok Kumar Sharma and PW12 Mohan Singh Rawat have also, after seeing the video-graph of the tapes, identified the accused who, as per their testimonies, was seen accepting something from Mathew Samuel (PW27) being representative of Westend International. It has also been proved by from the testimonies of PW7 Deepak Gupta, PW8 Deepak Chhabra, PW18 Mohinder Singh Sahni, PW20 P. Sasi and PW27 Mathew Samuel that those meetings were in connection with the CC No. 14/11 (34/16) CBI v. H.C. Pant Page 108 of 116 proposal submitted by Westend International for supply of their product HHTI to Indian Army.
133. From the contents of the tapes, it has been proved that in the first meeting itself, Mathew Samuel handed over the browser of HHTI prepared by M/s Westend International to the accused H.C. Pant. It has also been proved that there was discussion between Mathew Samuel, P. Sasi and the accused H.C. Pant as to how to push the product 'HHTI' of M/s Westend International and the accused assured Mathew Samuel that he will prepare a 'brief' on that. From contents of the tapes, it has also been proved that the accused was seen telling Mathew Samuel about his proximity with Secretary, Defence Production etc. and with Tiwari, the Principal Secretary. Accused H.C. Pant has also been seen saying that his channel was coherent, so knit channel was there. From the video of cassette no. 40 it has been proved that accused H.C. Pant took very active part for furtherance of the proposal of HHTI submitted by M/s Westend International. From the testimonies of PW7 Deepak Gupta, PW8 Deepak Chhabra, and PW18 Mohinder Singh Sahni, it has also been proved they were introduced to Mathew Samuel (PW27) being representative of Westend International by the accused H.C. Pant.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 109 of 116134. Even otherwise, the accused has admitted during his statement under section 313 Cr.P.C that he had meetings with Mathew Samuel, being representative of M/s Westend International.
135. From the contents of the tapes recorded during sting operation, it has been proved that the accused readily accepted the money from Mathew Samuel (PW27), being representative of M/s Westend International. From the contents of tape no. 94, it has been proved that the accused even demanded money from Mathew Samuel (PW27) by saying, "give me 10,000/- bucks today" which amount was given by PW27 Mathew Samuel. From the testimonies of prosecution witnesses, it has been proved that the accused H.C. Pant had, being a public servant accepted and obtained for himself an amount of Rs. 70,000/- from Mathew Samuel in various meetings, as gratification, other than legal remuneration, as a motive or reward for facilitating procurement of order of Hand Held Thermal Imagers from Indian Army to Mathew Samuel.
136. The contention raised by counsel for the accused that since the expert was unable to tell if the tapes were original or copies, therefore, the tapes are not reliable, is not sustainable. The reason is obvious. PW33 D. Venkateswarlu, an expert from APFSL, Hyderabad has duly proved the expert CC No. 14/11 (34/16) CBI v. H.C. Pant Page 110 of 116 opinion report Ex. PW32/C. PW33 has been cross-examined at length on behalf of the accused. There is sufficient evidence on record to prove that the original Hi8 tapes were sent to APFSL, Hyderabad for seeking expert opinion. I have also viewed the video available in the original Hi8 tapes and have also gone through the transcripts of the exchange between Mathew Samuel, the accused H.C. Pant and other persons present in the meetings. On a careful consideration of material on record, I do not have any doubt the authenticity and integrity of recordings of tapes which were even not disputed by the accused. The accused has not denied his meetings with Mathew Samuel. During his examination under section 313 Cr.P.C., the accused has very vaguely stated that the tapes are doctored. The contents of the tapes have been duly corroborated by the testimonies of PW7 Deepak Gupta, PW8 Deepak Chhabra, PW11 Ashok Kumar Sharma, PW12 Mohan Singh Rawat and PW18 Mohinder Singh Sahni.
137. Another contention raised by counsel for the accused that certificate under section 65B of Evidence Act is not produced so the tapes are not reliable, is also not sustainable. The original Hi8 tapes which were recorded in the present sting operation are in analog form and not in digital form so to rely upon the tapes, a certificate under section 65B of Evidence Act is not required.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 111 of 116138. It has also been vehemently argued by counsel for the accused that sting operation by private individuals are not permitted and the sting operation do not have much scope in India. This contention raised by counsel for the accused is also not sustainable. The legality of the sting operations has been upheld by several judgments of Hon'ble Supreme Court as well as Hon'ble Delhi High Court. It has been held by Hon'ble High Court of Delhi in Aniruddha Bahal v. State, Crl. M.C. 2793/2009 as follows:
6. The question that arises in these petitions is whether a citizen of this country has a right to conduct such sting operation to expose the corruption by using agent provocateurs and to bring to the knowledge of common man, corruption at high strata of society.
7. The Constitution [Part-IVA] lays down certain fundamental duties for the citizens of this country and Article 51A(b) provides that it is the duty of every citizen of India to cherish and follow the noble ideas which inspired our national struggle for freedom. I consider that one of the noble ideals of our national struggle for freedom was to have an independent and corruption free India. The other duties assigned to the citizen by the Constitution is to uphold and protect the sovereignty, unity and integrity of India and I consider that sovereignty, unity and integrity of this country cannot be protected and safeguarded if the corruption is not removed from this country. Another duty of every citizen is to defend the country and render national service when called upon to do so.
I consider that a country cannot be defended only by taking a gun and going to border at the time of war. The countgry is to be defended day in and day out by being vigil and alert to the needs and requirements of the country and to bring forth the corruption at higher level. The duty under article 51A(h) is to develop a spirit of inquiry and reforms. The duty of a citizen under Article 51A(j) is to strive towards excellence in all spheres so that the national constantly rises to higher level of endeavour and achievements I consider that it is built-in duties that every citizen must strive for a corruption free society and must expose the corruption whenever it comes to his or her knowledge and try to Crl.MC No. 2793.09& 3194.09 Page 4 Of 8 remove corruption at all levels more so at higher levels of management of the State.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 112 of 1168. This Court can take judicial notice of the fact that of widespread corruption on a large scale which was unheard of before was now a common place. In 1988 (2) SCC 602 (Antulay's case), Justice Sabyasachi Mukharji observed as under:
"Values in public life and perspective of these values in public life, have undergone serious changes and erosion during the last few decades. What was unheard of before is common place today. A new value orientation is being undergone in our life and in our culture. We are at the threshold of the cross-roads of values. It is, for the sovereign people of the country to settle those conflicts yet the Courts have vital roles to play in such matters."
These observations were made in 1988. Situation today is much worse.
9. I consider that it is a fundamental right of citizens of this country to have a clean incorruptible judiciary, legislature, executive and other organs and in order to achieve this fundamental right, every citizen has a corresponding duty to expose corruption wherever he finds it, whenever he finds it and to expose it if possible with proof so that even if the State machinery does not act and does not take action against the corrupt people when time comes people are able to take action either by rejecting them as their representatives or by compelling the State by public awareness to take action against them.
10.
11.
12.
13. The corruption in this country has now taken deep roots. Chanakaya in his famous work 'Arthshastra' advised and suggested that honesty of even judges should be periodically tested by the agent provocateurs. I consider that the duties prescribed by the Constitution of India for the citizens of this country do permit citizens to act as agent provocateurs to bring out and expose and uproot the corruption.
139. It has been held by Hon'ble Supreme Court of India in R.K. Anand' case (supra) as follows:
83. Keeping this in mind when we turn to the facts of this case we find that the correctness of the sting recordings was never in doubt or dispute. RK Anand never said that on the given dates and time he never met Kulkarni at the airport lounge or in the car and what was shown in the sting recordings was fabricated and false. He did not say that though he met Kulkarni on the two occasions, they were talking about the weather or the stock market or the latest film hits and the utterances put in their mouth were fabricated and doctored.
Where then is the question of proof of authenticity and integrity CC No. 14/11 (34/16) CBI v. H.C. Pant Page 113 of 116 of the recordings?
95. On a careful consideration of the materials on record we don't have the slightest doubt that the authenticity and integrity of the sting recordings was never disputed or doubted by RK Anand. As noted above he kept on changing his stand in regard to the sting recordings. In the facts and circumstances of the case, therefore, there was no requirement of any formal proof of the sting recordings. Further, so far as RK Anand is concerned there was no violation of the principles of natural justice inasmuch as he was given copies of all the sting recordings along with their transcripts. He was fully made aware of the charge against him. He was given fullest opportunity to defend himself and to explain his conduct as appearing from the sting recordings. The High Court viewed the microchips used in the spy camera and the programme telecast by TV channel in his presence and gave him further opportunity of hearing thereafter. The sting recordings were rightly made the basis of conviction and the irresistible conclusion is that the conviction of RK Anand for contempt of court is proper legal and valid calling for no interference.
140. In the light of law laid down in the judgments Aniruddha Bahal's case (supra) and R.K. Anand's case (supra), the sting operations are legal and valid and can be made the basis of conviction.
141. The judgment referred to on behalf of the accused in Court on its own motion' case (supra) is not applicable in the present case as it was an example of negative sting operation and the facts of that case were entirely different from the facts of the instant case.
142. Sting operations are undertaken with a view to look into the working of government or to see whether the acts of any individual is against the public order. On the basis of the purpose Sting Operation can be classified as positive CC No. 14/11 (34/16) CBI v. H.C. Pant Page 114 of 116 and negative. Positive Sting Operation is one which results in the interest of the society, which pierces the veils of the working of the Government. It is carried out in the public interest. Due to positive Sting Operation society is benefited because it makes the Government responsible and accountable. It also leads to the transparency in the Government. On the other hand, Negative Sting Operations do not benefit the society, but they do harm the society and its individuals. It unnecessarily violates the privacy of the individual without any beneficial results in the society. These types of Sting Operations if allowed then it will hamper the freedom of the individuals and restricts their rights. The Sting Operation, in the present matter, carried out by Tehelka.com to catch politicians and officers taking bribes from journalist posing as businessman is an example of Positive Sting Operation. The motive of Tehelka.com behind this sting operation is very much demonstrated by the fact that after the sting operation they had prepared into a four and half hour investigative film which was shown to the press and other prominent citizens at the Press Conference on 13.03.2001 at Imperial Hotel, New Delhi which proves that their purpose behind the sting operation was to serve public interest.
143. It has also been contended by counsel for the accused that the accused had arranged the meetings and he was paid only the expenses incurred by him. However, during CC No. 14/11 (34/16) CBI v. H.C. Pant Page 115 of 116 the examination of the accused under section 313 Cr.P.C., he had taken the defence that this money was paid by Mathew Samuel to a travel contractor who had prepared a detailed report of the travel and other functions which their company intended to do in Agra, Jaipur and some other place which he did not recall at that time. In view of the above, the accused has kept on changing his stand. The accused has also not proved any defence taken by him. The accused has not offered any reasonable explanation of his conduct.
144. To sum up, in view of above discussion, the prosecution has proved beyond all reasonable doubt the charge under section 7 of the Prevention of Corruption Act against the accused Hem Chandra Pant (H.C. Pant), so accused H.C. Pant is found guilty of having committed the offence and hence he is convicted of offence punishable under section 7 of the Prevention of Corruption Act.
145. Let the convict be heard on the question of sentence.
Pronounced in the open court (DR. RAKESH KUMAR) on 3rd of December 2018 Special Judge (PC Act) (CBI) South District, Saket Courts, New Delhi CC No. 14/11 (34/16) CBI v. H.C. Pant Page 116 of 116 IN THE COURT OF DR. RAKESH KUMAR: SPECIAL JUDGE (PC ACT) (CBI) SOUTH DISTRICT: SAKET COURTS NEW DELHI CC No. 14/2011(34/2016) RC No. AC2 2004 A0008 CBI/New Delhi U/s 7 of the P.C. Act, 1988 Central Bureau of Investigation Versus Hem Chandra Pant, Son of Late B.D. Pant, Resident of B-6, Type-IV, Pandara Road, New Delhi-110003.
Present: Mr. Lalit Mohan, Public Prosecutor for CBI Convict with Mr. Bharat Bhushan, Advocate.
(Judgment dated 03.12.2018 continued.) ORDER ON SENTENCE On filing of the police report, convict H.C. Pant was put on trial for having committed offence punishable under section 7 of the Prevention of Corruption Act, 1988. By judgment dated 03.12.2018 passed by this Court, the convict was found guilty of having committed the offence punishable under section 7 of the Prevention of Corruption Act, 1988; and he was, accordingly, convicted for having committed the said offence. After passing of judgment on 03.12.2018, the matter was posted for hearing the convict on the question of sentence.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 117 of 1162. I have heard the convict and his counsel on the question of sentence. I have also heard the Public Prosecutor for the CBI and have gone through the material on record carefully.
3. Counsel for the convict has referred to the judgments in Naresh & Ors. v. State of Uttrakhand Criminal Appeal Nos. 394-395 of 2018, State of Himachal Pradesh v. Nirmala Devi 2017 LawSuits (SC) 399, State of Maharashtra v. Rashid B. Mulani Appeal (crl.) 557 of 1999, B.G. Goswami v. Delhi Administration AIR 1973 SC 1457 and Ramashraya Chakravarti v. State of Madhya Pradesh AIR 1976 SC 392 and submitted that in the instant case the incident is of 2001 and the FIR was registered in 2004, the convict has appeared before the Inquiry Commission from 2001 and thereafter facing trial before this court. It is further submitted that the convict had lost the job in 2006, consequent to suspension in 2001, he has not got any terminal dues and is not getting even pension and is thus in a very stringent financial condition. It is further submitted that the convict is 70 years of age, his wife is also very old. It is further submitted that the convict has two daughters and has no son and the daughters are married and are in their respective maternal homes. It is further submitted that there is no one at his home to look after his wife. It is further submitted that the wife of the convict is suffering from severe Kidney problem called CC No. 14/11 (34/16) CBI v. H.C. Pant Page 118 of 116 CKD-V and has to undergo hemodialysis and investigations thrice a week and the convict has to stay with her as she is not in a position to get dialysis done alone.
4. It is further submitted that the convict had served the Government for 30 long years without any blemish when he was placed under suspension in 2001 and one removed from the service in 2006. It is further submitted that after removal from service the convict is not getting any terminal dues, not even pension. It is further submitted that the principles of punishment enumerated through various judgments above invite attention to above circumstances and to the fact that the conduct of the offender during the proceedings from 2001 onwards has been above board and he is not having any other criminal case against him and therefore, a lenient view may be taken against the convict.
5. On the other hand, it is submitted by Learned PP for CBI that maximum punishment should be awarded to the convict by applying deterrent theory of punishment that a message should go in the society that no one is above the law and has to face the consequences of the misdeed done by the accused. It is further submitted by Learned PP for CBI that fine may also be imposed upon the convict as per the section.
6. I have given my thoughtful consideration to the CC No. 14/11 (34/16) CBI v. H.C. Pant Page 119 of 116 submissions made on behalf of the parties.
7. As I have already observed, the convict was put on trial for having committed offence punishable under section 7 of the Prevention of Corruption Act, 1988. The convict has been found guilty of having committed offence punishable under section 7 of the Prevention of Corruption Act, 1988.
8. From the evidence led by the prosecution it has been proved that the convict has, being a public servant employed as Deputy Director / Staff Officer (Admn.) in Ordnance Factory, Ministry of Defence Production accepted an amount of Rs. 70,000/- from Mathew Samuel in various meetings during November and December 2000 for himself or for any other person, as gratification, other than legal remuneration, as a motive or reward for facilitating procurement of order of Hand Held Thermal Imagers from Indian Army.
9. The offence punishable under section 7 of the Prevention of Corruption Act, 1988 attracts punishment of imprisonment of either description for a term which shall be not less than three years but which may extend to seven years and fine.
10. The offence punishable under section 7 of the CC No. 14/11 (34/16) CBI v. H.C. Pant Page 120 of 116 Prevention of Corruption Act, 1988, prior to amendment by way of Act No. 1 of 2014, entailed punishment with imprisonment for a term which shall not be less than six months but which may be extend to five years and fine.
11. There are certain mitigating factors deserving leniency in this case. The convict has suffered 14 years of long trial and prior to that inquiry before the Inquiry Commission. The convict has also lost his job and also suffered loss of superannuation benefits.
12. Keeping in view all the facts and circumstances of the case, old age of the convict, his wife's illness, prolongation of trial and inquiry proceedings and loss of job and superannuation benefits, lenient view is taken and the convict H.C. Pant is sentenced to undergo rigorous imprisonment for a period of six months and to pay fine in the sum of Rs. 1,00,000/- (Rs. One Lakh Only) for having committed offence punishable under section 7 of the Prevention of Corruption Act, 1988. In the event of his failure to pay the fine amount convict H.C. Pant shall further undergo simple imprisonment for a period of 30 days.
13. Previous bail bonds and surety bonds of the convict is cancelled. Surety is discharged. Copy of the judgment and order on sentence be given free of cost to the convict.
CC No. 14/11 (34/16) CBI v. H.C. Pant Page 121 of 11614. Separate application under Section 389 Cr.P.C. made by the convict praying for suspension of sentence as he wants to file appeal. Heard. In view of the contents of the application and submissions made, convict is accordingly admitted to bail on his furnishing personal bond and surety bond in a sum of Rs. 50,000/- in terms of Section 389 (3) of Cr.P.C. and depositing of fine.
15. Bonds have been furnished by convict. Such bonds would be valid for thirty days to enable the convict to file appeal. Bonds have been accepted for a period of thirty days accordingly.
16. Separate file be opened for aforesaid limited purpose and bonds be placed before me on 14.01.2019.
17. Ahlmad is directed to paginate and book-mark the file to enable digitization of the entire record. File be consigned to record room.
Pronounced in the open Court (DR. RAKESH KUMAR)
On this 12th December 2018 Special Judge (PC Act) (CBI)
Digitally South District, Saket Courts
signed by New Delhi
RAKESH
RAKESH KUMAR
KUMAR Date:
2018.12.12
17:11:51
+0530
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