Delhi District Court
Cbi vs Kulbhushan Jindal on 12 August, 2025
DLCT110003112019
IN THE COURT OF SPECIAL JUDGE (PC ACT) (CBI)-17
ROUSE AVENUE COURTS, NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CNR No. DLCT11-000311-2019
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037
In the matter of:
State (Central Bureau of Investigation)
versus
(1) Sh. Kulbhushan Jindal
S/o Sh. Kapoor Chand,
R/o House No.1907, Sec-12, Sonipat
(Haryana). ............ Accused
Date of Institution : 10.04.2018
Arguments concluded on : 29.07.2025
Judgment Pronounced on : 12.08.2025
For State : Sh. M. Saraswat, Ld. Senior Public Prosecutor
alongwith Mr. Neel Mani, Ld. Public Prosecutor.
For Defence : Sh. Anil Kumar, Ld. Advocate for accused.
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 1 of 102
JUDGMENT
INTRODUCTION
The present FIR bearing no. RC DAI-2017-A-0037 (D-1) under
Sections 7 & 13(2) readwith 13(1) (d) of The Prevention of Corruption Act,
1988 (hereinafter, referred as ‘The P.C. Act, 1988‘) emanates from a written
complaint dated 15.11.2017 (D-2) submitted by one Sh. Vaibhav Jain
(hereinafter, referred to as ‘the complainant’) (owner of factory bearing no.
H 1172, DSIDC, Industrial Park, Narela, New Delhi) alleging that the
accused, who was then Junior Engineer, North Delhi Municipal
Corporation, Narela Zone, Delhi (hereinafter, referred to as ‘J.E.’), had
demanded a bribe of Rs.2 lakhs (subsequently, on 11.11.2017, negotiated at
Rs.1,00,000/-) for not demolishing the construction carried out by the
complainant in his factory.
COMPLAINT
1. As per the complaint (D-2), the complainant approached the Worthy
SP, ACB, C.B.I. informing that a person who introduced himself from
MCD, Narela, visited the factory of the complainant and asked the
complainant to meet the accused who was the J.E. of the area, Narela Zone.
Accordingly, the complainant visited the MCD office, Narela Zone where
he met the accused who demanded a bribe of Rs. 2,00,000/- for not
demolishing the construction carried out by the complainant in his factory.
However, the complainant sought time to revert on the same. On their
second meeting, on 11.11.2017, at the aforementioned factory of the
complainant, the accused negotiated and settled the bribe amount at
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 2 of 102
Rs.1,00,000/- to be paid in the coming week. The complainant recorded the
conversation in his personal voice recorder which he also submitted to the
C.B.I.
VERIFICATION PROCEEDINGS
2. Thereafter, as per verification memo (D-3), verification was
conducted by Inspector Raman Kumar Shukla (Verification Officer) on
16.11.2017, in the presence of independent witness Sh.Pankaj Gupta, Tax
Assistant, PCCIT (NG Section) C.R. Building, I.P. Estate, New Delhi. On
that day, the verification team consisting of the complainant, the
independent witness and the Verifying Officer reached the office of the
accused at about 09.25 a.m. but he was not found there. Thereafter, at about
10.15 a.m., the complainant made a call from his mobile phone No.
xxxxxx8947 to the mobile phone of accused bearing no. xxxxxx7032 and
the accused informed the complainant that he would come to meet the
complainant at latter’s office, only. The verification team waited at the
vicinity of the factory. The independent witness was asked to visit the
factory and eavesdrop on the conversation between the complainant and the
accused. At about 10.42 a.m., the accused called the complainant on latter’s
mobile phone and informed that he would be reaching the factory in five
minutes. Thereafter, the accused visited the aforesaid factory of the
complainant. After 10 minutes, the complainant returned to the verifying
team and informed that the accused had demanded a bribe of Rs. 1,00,000/-
to be paid in two installments of Rs.75,000/- (on that day, itself) and Rs.
25,000/- (later), so, the complainant had sought time to arrange Rs. 75,000/-
in 2-3 hours. The entire conversation during verification proceedings had
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 3 of 102
been recorded in a DVR having number ICDVX 560F with a 8GB blank
micro SD Card which the CBI officers had arranged and handed over to the
complainant. The said memory card was sealed and is Q-1. The
complainant also produced his personal voice recorder which he had used to
record his conversation with the accused on the earlier occasion. The DVR
make CENIX along with a data cable and CD “Power VOICE II” was
sealed as Q-2. Pursuant to the verification, the Verification Officer
recommended registration of FIR under Section 7 and Section 13(1)(d) of
the P.C. Act, 1988, against the accused.
FIR
3. On the aforementioned complaint, FIR No. RC DAI-2017-A-0037
(D-1) was registered on 16.11.2017, under Section 7 and 13(2) r/w 13(1)(d)
of the P.C. Act, 1988 against the accused and investigation was marked to
Sh. H.V. Attri, TLO/Inspector of Police, Sh. Sudeep Punia and Sh.
Shitanshu Sharma, both Inspectors of Police.
THE TRAP
4. In a nutshell, as per the Handing Over Memo (D-4) and Recovery
Memo (D-5), on 16.11.2017 at about 3:30 PM, the trap team consisting of
the complainant, independent witnesses namely Sh. Pankaj Gupta and Sh.
Nitesh Shinghal, Sh. H.V. Atri, TLO, Inspector A.K. Singh, Inspector
Prakash Chand Mandiwal, Inspector Harnam Singh, Inspector Kamal
Singh, Inspector Raman Kumar Shukla (Verification Officer), S.I. Dinesh
Kumar and Sub-ordinate staff (all from ACB, CBI) after a briefing and after
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 4 of 102
following the modalities of trap proceedings, proceeded to the factory of the
complainant from the CBI Office, in two vehicles. Prior thereto, Rs.
75,000/- consisting of 37 G.C. notes of denomination of Rs. 2000/- and two
notes of Rs. 500/- which were produced by the complainant were treated
with phenolphthalein powder and after ensuring that there was nothing
incriminating in the left pocket of the trouser of the complainant, were kept
there by independent witness Sh. Nitesh Singhal. Complainant was allowed
to keep his mobile phone bearing No. xxxxxx8947 and also provided with a
DVR alongwith a blank memory card for recording of conversation during
the trap proceedings.
4.1 At about 03.55 p.m., the complainant received a call from the
accused inquiring about the former’s whereabouts. Again at 04.00 p.m., the
complainant received another call from the accused which he stated had
been wrongly dialed. At about 04.35 p.m., the trap team reached the vicinity
of the factory. The complainant and shadow witness Sh. Pankaj Gupta were
again briefed and thereafter, they entered into the factory of the
complainant. The other independent witnesses and the trap team members
took position in a disguised manner near the factory gate (as reflected in
site plan (D-6).
4.2 At about 06.02 p.m., a silver Santro bearing No. HR 10T 5568
arrived at the factory gate. It’s two occupants (including the driver) came
out of the car. One was seen making a call from his mobile phone and the
second was seen knocking at the gate of the factory. The complainant came
out of the factory and was seen having a conversation with the person who
was later identified as the accused. In some time, the complainant gave the
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 5 of 102
pre-decided signal and shouted as the accused was trying to sit in the car
after the transaction of bribe had been completed. Thereafter, the trap team
rushed to the spot. The accused when trying to run away, lost balance and
fell down and sustained abrasion on his left palm and knee. He was nabbed
by the trap team. The other person identified as Dinesh (private driver of the
accused) tried to flee from the spot but was also intercepted by SI Dinesh
and Const./Driver Rajiv Mann at a short distance. The TLO, confronted the
accused about having accepted bribe amount of Rs. 75000/- from the
complainant but he got perplexed and kept mum. At that time, the DVR was
taken back from the complainant and was switched off. The accused was
taken inside the factory. His hand washes confirmed presence of
phenolphthalein and the bottles containing them were capped, wrapped with
a cloth and sealed in the presence of independent witnesses. Independent
witness Sh. Nitesh Singhal recovered the bribe money from the left side
pocket of the trouser worn by the accused and on being tallied with the
handing over memo, the G.C. notes were found to be the same. The
recovered bribe amount was sealed in a brown envelope in the presence of
independent witnesses. Simultaneously, search was also conducted at the
residence of the accused by Insp. Arjun Singh [(on being authorized under
Section 165 of The Criminal Procedure Code, 1973 (hereinafter, referred to
as ‘Cr.P.C‘)]. The left side pant pocket wash also confirmed the presence of
phenolphthalein and was preserved and sealed as per requirement. Rough
site plan (D-6) was prepared at the spot. Inspector Raman Shukla searched
the Santro car in the presence of independent witness Sh. Nitesh Singhal
and during search, as per car search memo (D-7), incriminating documents
and Rs. 5,70,000/-1 of cash were recovered. The team along with the
1 Vide order dated 19.09.2003 the sum of Rs.5,70,000/- was released to the accused.
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 6 of 102
accused and his driver Dinesh returned to the CBI office. The DVR was
played and the conversation between the complainant and the accused
confirmed the version of the complainant and the shadow witness. The
sealed memory card containing the conversation during trap proceeding is
Q-3. The DVR used during the trap proceeding was also sealed separately
in the presence of independent witnesses. Thereafter, the accused was
arrested vide arrest memo-cum-personal search memo (D-8). Driver Dinesh
was interrogated, however, since there was no incriminating material qua
him, he was set free. Specimen voice voluntarily given by the accused was
recorded in the presence of independent witnesses using a new memory
card and blank DVR and sealed as S-1. The CBI brass seal used during the
trap proceeding was handed over to independent witness Sh. Nitesh
Singhal.
CHARGESHEET
5. Pursuant to the investigation, chargesheet under Section 7 and 13(2)
r/w 13(1)(d) of the P.C. Act, 1988 was filed on 09.04.2018.
6. Cognizance of offence was taken vide order dated 10.04.2018. Since
the accused had been granted bail vide order dated 05.12.2017, he was
summoned for 26.04.2018.
7. On 26.04.2018, the accused entered appearance before the Ld.
Predecessor of this Court. In compliance of Section 207 of Cr.P.C,
documents were supplied to the accused on 03.05.2018. Subsequently,
mirror image of DVR was supplied on 31.05.2018.
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 7 of 102 CHARGE
8. Vide order dated 01.06.2018, the Ld. Predecessor of this Court
framed charge against the accused under Section 7 and 13(2) r/w 13(1)(d)
of the P.C. Act, 1988 to which the accused pleaded not guilty and claimed
trial.
PROSECUTION EVIDENCE
9. In order to prove the allegation, the prosecution has examined the
following witnesses:
9.1 PW-14 – Sh. Vaibhav Jain / the complainant who inter alia testified
that the officials from MCD had demanded bribe of Rs. 2 lakhs from him
for not taking action against construction done by him in his factory, in
violation of directions of National Green Tribunal (hereinafter, referred to
as ‘NGT’). However, he did not identify the accused as the person who had
negotiated the bribe amount. He stated that he had met the accused only on
16.11.2017 when bribe money of Rs.75,000/- was handed over to him
during the trap proceedings. He also deposed about the verification and
trap proceedings. He relied upon the following documents :
Sl. no. Name of the document Exhibited as
1. Complaint dated 15.11.2017 Ex. PW14/A (D-2)
2. Verification memo dated 16.11.2017 Ex. PW13/F (D-3)
3. Handing over memo dated 16.11.2017 Ex. PW13/G (D-4)
(This witness stated
that contents of Ex.
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 8 of 102
13/G at point A to A,
B to B and C to C are
incorrect and rest
contents of the same
are correct).
4. Rough Site Plan dated 16.11.2017 Ex. PW13/H (D-6)
9.2 Considering that he was not disclosing all previous facts and was
resiling from his previous statements, he was cross-examined by the Ld.
Public Prosecutor. During his cross-examination, the following documents
were also tendered in evidence, by him :
Sl. Name of the document Exhibited as
1. Recovery memo dated 16.11.2017 Ex. PW13/L (D-5)
2. Micro SD Card (Q-1) Ex. PW9/A
(which was sealed in successive
envelopes Ex. PW9/B to Ex. PW9/D
alongwith its packaging cover Ex.
PW13/A)
3. Transcription memo - Q-1 Ex. PW13/B
(of audio file no.171116_0811 and File (D-15A)
no. 171116_0925)
4. Transcription memo - Q-1 Ex. PW13/C
(of audio file no.171116_1015) (D-15A)
5. Transcription memo - Q-1 Ex. PW13/D
(of audio file no.171116_1042) (D-15A)
6. Transcription memo - Q-1 Ex. PW13/E
(of audio file no.171116_1042_01) (D-15A)
7. Micro SD Card (Q-3) Ex. PW9/F
(which was sealed in successive
envelopes Ex. PW13/K and Ex. PW9/E
to Ex. PW9/E2)
8. Transcription memo - Q-3 Ex. PW13/N (part of
(of audio files no.171116_1453, D-15 A)
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 9 of 102
Sl. Name of the document Exhibited as
171116_1454, 171116_1555,
171116_1600 and 171116_1639)
Thereafter, he was cross-examined by Ld. Counsel for the accused.
10. Independent witnesses PW-13 Sh. Pankaj Gupta (Tax Assistant,
Income Tax Department) to prove verification and trap proceedings and
PW-15 Sh. Nitesh Singhal (Deputy Assistant Director, Income Tax) to
prove the trap proceedings. During their examination, the following
documents were relied upon in evidence :
Sl. Name of the document Exhibited as
1. Micro SD Card (Q-1) alongwith its paper Ex. PW9/A (Q-1)
packing cover and Ex. PW13/A
2. Transcript of Q-1 – portion of A to A in Ex.PW13/B
audio file no. 171116-0811 (D-15A)
3. Transcript of Q-1 – portion B to B in audio Ex.PW13/C
file no. 171116-0925 and C to C in audio (D-15A)
file no. 171116-1015
4. Transcript of Q-1 – portion D to D in file Ex.PW13/D
no 171116-1042 (D-15A)
5. Transcript of Q-1 – portion E-1 to E-1 & Ex. PW13/E
E-2 to E-2 in file No 171116-1042-01 (D-15A)
6. Verification memo dated 16.11.2017 Ex.PW13/F
bearing the signature of Sh. Pankaj Gupta (D-3)
(PW-13) (tendered by Sh.
Pankaj Gupta –
PW13, only)
7. Handing over memo dated 16.11.2017 Ex. PW13/G
(D-4)
8. Glass bottle containing Right Hand Wash of P-1
the accused
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 10 of 102
Sl. Name of the document Exhibited as
9. Glass bottle containing Left Hand Wash of P-2
the accused
10. Glass bottle containing Left Side Pocket P-3
Pant Wash of the trouser of the accused
11. Trouser of the accused alongwith its P-4 and P-5,
envelope respectively.
12. Rough Site plan dated 16.10.2017 Ex. PW13/H
(D-6)
13. Arrest cum Personal Search memo dated Ex. PW13/J
16.11.2017 (D-8)
14. Recovery memo dated 16.11.2017 Ex. PW13/L
(D-5)
15. Envelope in which the trap money was Ex. PW13/M
sealed
16. 39 currency notes Ex. P-1 (colly)
17. Transcript of Q-3 (6 pages) Ex. PW13/N (part
of D15A)
18. Transcript of S-1 (3 pages) Ex. PW13/O (part
of D15A)
19. Voice identification cum transcription Ex. PW13/P
memo dated 27.12.2017 (D-15A)
20. Brass seal with impression of 38/2017 CBI Ex. PW15/1
ACB ND (tendered by Sh.
Nitesh Singhal
PW-15)
21. Car search memo dated 16.11.2017 Ex. PW15/2
(D-7)
(tendered by Sh.
Nitesh Singhal
PW-15)
Thereafter, both the witnesses were cross-examined by Ld. Counsel
for the accused.
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 11 of 102
11. PW-1 Sh. Surender Kumar / Nodal Officer Bharti Airtel to prove
issuance of mobile phone connection bearing no. xxxxxx7032 to Executive
Engineer, MCD under CUG connections and its Call Detail Record
(hereinafter, referred to as ‘CDR’) from 01.11.2017 to 17.11.2017. He
tendered the following documents in evidence :
Sl no Name of the document Exhibited as
1. Copy of CDR of mobile phone no. Ex. PW1/A
xxxxxx7032 from 01.11.2017 to 17.11.2017 (D-20 A)
2. Forwarding letter sent by Nodal Officer Ex. PW1/B
Bharti Airtel Limited to Inspector Sudeep (D-20)
Punia alongwith CDR of mobile no.
xxxxxx7032
3. Certificate under Section 65B(4) of Indian Ex. PW1/C
Evidence Act (hereinafter, referred to as (D-20 A)
‘IEA’) given by Nodal Officer Bharti Airtel
Limited
4. Certified copy of application submitted by Ex. PW1/C-1
the customer with Bharti Airtel Limited (D-20 A)
5. Copy of electricity bill of Executive Ex. PW1/D
Engineer namely Sh. Jagdish Baboo (D-20 A)
(objected to on
the mode of
proof being
photocopy)
6. Copy of identity card of Jagdish Baboo Ex. PW1/E
(D-20 A)
(objected to on
the mode of
proof being
photocopy)
7. Copy of letter dated 28.10.2011 addressed to Ex. PW1/F
Bharti Airtel Co. by Executive Engineer, (D-20 A)
MCD (objected to on
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 12 of 102
Sl no Name of the document Exhibited as
the mode of
proof being
photocopy)
He was duly cross-examined by Ld. Counsel for the accused.
12. PW-4 Sh. Arun Kumar Rathore – Executive Engineer who deposed
that he was the Nodal Officer, MCD to maintain the record of concerned
mobile numbers issued under CUG. He testified that mobile phone no.
xxxxxx7032 was being used by the accused and after 2015, the accused
was using mobile phone no. xxxxxxx8405 issued by Vodafone. He also
handed over the original Vodafone enrollment form dated 31.03.2015 in the
name of the accused alongwith his I-card. The following documents were
tendered by him in evidence :
Sl no Name of the document Exhibited as
1. Production cum seizure memo dated Ex. PW4/A
29.03.2018 (D-21)
2. Original Vodafone Enrollment form dated Ex. PW4/B
31.03.2015 issued in the name of accused (D-21A)
3. Photocopy of ID Card of accused Ex. PW4/C
(D-21 A)
He was duly cross-examined by Ld. Counsel for the accused.
13. PW-3 Sh. Saurabh Aggarwal / Nodal Officer Vodafone Mobile
Services Limited to prove issuance of mobile phone connection bearing no.
xxxxxx8947 to the complainant and its CDR from 01.11.2017 to
17.11.2017. He tendered the following documents in evidence :
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 13 of 102
Sl no Name of the document Exhibited as
1. CDR of mobile phone no. xxxxxx8947 from Ex. PW3/A
01.11.2017 to 17.11.2017 (D-22)
2. Certificate under Section 65B(4) of IEA given Ex. PW3/B
by Nodal Officer, Vodafone Mobile Services (D-22)
Limited
3. Vodafone Delhi Cell ID Chart Ex. PW3/C
(D-22)
4. Copy of customer application form of the Ex. PW3/D
complainant (D-22)
5. Copy of identity card of the complainant Ex. PW3/E
(D-22)
6. Copy of PAN card of the complainant Ex. PW3/F
(D-22)
7. Copy of bank account statements of the Ex. PW3/G
complainant (D-22)
8. Copy of ration card of the complainant Ex. PW3/H
(D-22)He was duly cross-examined by Ld. Counsel for the accused.
14. PW- 5 Sh. Madhup Vyas – then Commissioner North MCD – to
prove order of sanction for prosecution issued by him against the accused as
Ex. PW5/A.
He was duly cross-examined by the Ld. Counsel for the accused.
15. PW-6 Sh. Surender Singh – Assistant Engineer, NDMC, Civic
Centre, Planning Department testified about the role of the accused as the
Junior Engineer to prevent unauthorized construction, violation of Building
Bye-laws and orders passed by NGT. He deposed that the accused wasCBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 14 of 102
working in the same jurisdiction as the witness during the relevant time. He
deposed that notice under Section 337 of NDMC Act (Ex. PW6/A) (D-7a)
had been prepared by him to be sent to the owner / occupier of property no.
H-1172, DSIDC, Narela, Delhi upon noting Ex. PW6/B (D-23A) prepared
by the accused who had visited the site. Photo of the site has been tendered
in evidence as Ex. PW6/C (D-23A) and the order passed in M.A. No. 284
of 2015 by the NGT is Ex. PW6/D (D-17C). He also stated on oath that the
aforesaid notice alongwith documents (submitted by the accused) were
handed over by the witness to the Executive Engineer for approval but since
he was not available, the same was not approved and therefore, no diary
number was given to it.
He was duly cross-examined by Ld. Counsel for the accused.
16. PW-10 Sh. Vijender Dahiya, then Executive Engineer, North MCD,
deposed on similar lines as that of PW-6 Sh. Surender Singh explaining the
duty of the Junior Engineer. Upon perusal Ex. PW6/B and Ex. PW6/C (both
in D-23A), he deposed that the documents were put up before him with
delay of 03 days and therefore, he had sought the current status alongwith
latest photographs and thus, the file had been returned by him. He also
tendered the following documents in evidence :
Sl no Name of the document Exhibited as
1. Letter bearing No. Ex. PW10/A
E.E(B)/NRZ/2017/D-421 dated (D-17A)
04.12.2017 issued by Office Incharge /
Record Keeper, Building Department
Narela Zone
2. Copy of office order bearing subject : Ex. PW10/B
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 15 of 102
Sl no Name of the document Exhibited as
Working of the Building Department (D-17B)
Under New Set-up
3. Noting made by the accused on order Also marked as Ex.
under Section 337 of DMC Act, 1957 PW10/B (D-23C)
read with Section 15 of the National
Green Tribunal Act, 2010 (Property
infront of pole No. 514-42A/14, near
Bharat Mata School, Narela Delhi-40)
4. Production cum Seizure memo dated Ex. PW10/C
05.12.2017 (D-17)
This witness was duly cross-examined by Ld. Counsel for the
accused.
17. PW-11 Sh. Vijay Verma – Senior Scientific Officer cum Assistant
Chemical Examiner (CFSL, CBI, Delhi) to prove voice analysis reports and
during his examination, the following documents were tendered in evidence
:
Sl no Name of the document Exhibited as
1. Letter bearing no. Ex. PW11/A
16962/DLI/ACB/DAI-RC-37(A)/1 Also Mark PW19/B
dated 22.12.2017 written to The (D-12)
Director CFSL by the Worthy SP, ACB,
C.B.I.
2. Annexure A to aforementioned letter Ex. PW11/B
3. Photograph of property in front of pole Ex. PW11/C
no. 514-42A Near Bharat Mata School,
Narela, Delhi bearing admitted signature
of accused
4. Noting made by the accused on order Ex. PW11/D
under Section 337 of DMC Act, 1957
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 16 of 102
Sl no Name of the document Exhibited as
read with Section 15 of the National
Green Tribunal Act, 2010 (Property
infront of pole No. 511-5/2, Village
Alipur, Delhi-40)
5. Photograph of property (Property Ex. PW11/E
infront of pole No. 511-5/2, Village
Alipur, Delhi-40) bearing admitted
signature of accused
6. Noting made by the accused on order Ex. PW11/F
under Section 337 of DMC Act, 1957
read with Section 15 of the National
Green Tribunal Act, 2010 (Property near
pole no. 511-4/40/1, near Syndicate
Bank village Alipur, Delhi)
7 Photograph of property (Property near Ex. PW11/G
pole no. 511-4/40/1, near Syndicate
Bank village Alipur, Delhi) bearing
admitted signature of accused
8. Report No. CFSL-2017/D-1420 dated Ex. PW11/H
31.10.2018 (D-23)
9. Forwarding letter dated 08.10.2018 vide Ex. PW11/J
which report was forwarded by the (D-23)
Director, CFSL to the Worthy S.P. ACB,
C.B.I.
He was duly cross-examined by Ld. Counsel for accused.
18. PW-2 Sh. Amarender Sahoo (Assistant Section Officer,
Doordarshan) and PW-12 Sh. Vijay Kumar Sharma (Office Incharge, Narela
Zone, MCD) to prove the voice identification proceedings and transcripts of
conversations. They tendered the following documents :
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 17 of 102
Sl no Name of the document Exhibited as
1. Transcription of Q-1 and Q-3 in Hindi Ex. PW2/A
(D-19A)
2. Voice Identification – cum – Transcription Ex. PW2/B
Memo dated 16.01.2018 (D-19)
3. Production cum Seizure memo dated Ex. PW12/A
08.12.2017 (D-18)18.1 PW-12 Sh. Vijay Kumar Sharma also tendered the following
documents in evidence :
Sl no Name of the document Exhibited as
1. Challan bearing no. Ex. PW12/B
A.E/B/NRZ/2017/D-376 dated 06.11.2017
to M/s Shirke Constructions Tech Pvt. Ltd.
having admitted signature of accused
2. Challan bearing no. Ex. PW12/C
A.E/B/NRZ/2017/D-402 dated 09.11.2017
to owner / builder / occupier of property in
front of pole no. 511-5/2, Village Alipore,
Delhi having admitted signature of
accused
3 Challan bearing no. Ex. PW12/D
A.E/B/NRZ/2017/D-365 dated 14.10.2017
to owner / builder / occupier of property in
front of pole no. 511-4/40/1, Near
Syndicate Bank, Delhi having admitted
signature of accused
4. Attendance Register w.e.f. January, 2016 Ex. PW12/E
upto 08.12.2017 (D-18D)
5. Copy of certified copy of office order Ex. PW12/F
bearing no. DA-1/Engg(HQ) /NDMC/ (D-18E)
2015/65 dated 29.10.2015 of transfer /
postings
6. Copy of joining report of accused dated Ex. PW12/G
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 18 of 102
Sl no Name of the document Exhibited as
12.11.2015 (D-18E)
7. Copy of office order bearing no. Ex. PW12/G-1
EE/B/NRZ/2015/D-685 dated 26.11.2015 (D-18E)
by Executing Engineer
8. Copy of office order bearing No. Ex. PW12/G-2
D/426/EE(Pr.)/KBZ dated 10.11.2015 (D-18E)
(order relieving the accused from previous
posting)He was duly cross-examined by Ld. Counsel for accused.
19. PW-16 Ms. Deepti Bhargav – Senior Scientific Officer CFSL to
prove her chemical analysis report confirming presence of phenolphthalein
and sodium carbonate in hand washes and pant pocket wash of the accused.
She tendered the following documents :
Sl no Name of the document Exhibited as
1. Copy of letter no. 15773/RC-37(A)/2017 Ex. PW16/A
dated 29.11.2017 written to The Director (D-10) also
CFSL by the Worthy SP, ACB, C.B.I. Mark PW19/A
(D-9)
2. Chemical Examination Report dated Ex. PW16/B (D-11)
13.12.2017
3. Yellow colour envelope containing 3 Ex. PW16/C
cloth wrappers
4. Wrapper of Left Hand Wash Ex. PW16/D
5. Wrapper of Right Hand Wash Ex. PW16/E
6. Wrapper of Left Side Pant Pocket Wash Ex. PW16/F
She was duly cross-examined by Ld Counsel for accused.
20. PW-17 Inspector H.V. Attri deposed that FIR (Ex. PW17/1)(D-1) was
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 19 of 102
marked to him and as the TLO, he conducted the trap proceedings. He
tendered the following documents in evidence :
Sl no Name of the document Exhibited as 1. FIR dated 16.11.2017 Ex. PW17/1 (D-1) 2. Complaint dated 15.11.2017 Ex.PW14/A (D-2) 3. Verification Memo dated 16.11.2017 Ex. PW13/F (D-3) 4. Handing over Memo dated 16.11.2017 Ex. PW13/G (D-4) 5. Recovery Memo dated 16.11.2017 Ex. PW13/L (D-5) 6. Rough Site Plan dated 16.10.2017 Ex. PW13/H (D-6)
7. Arrest-cum-Personal Search Memo of the Ex. PW13/J (D-8)
accused dated 16.11.2017
8. 37 currency notes alongwith its envelope Ex. P-1(colly) and
Ex. PW13/M,
respectively
9. Glass bottle containing Right Hand Wash of P-1
the accused
10. Glass bottle containing Left Hand Wash of P-2
the accused
11. Glass bottle containing Left Side Pocket P-3
Pant Wash of the trouser of the accused
12. Inner side of the left side pocket of pant of P-4
dark grey colour
13. Envelope containing the trouser of the P-5
accused
15. Digital Voice Recorder (DVR) (which was Ex. PW9/P
sealed in successive envelopes Ex. PW9/M
to Ex. PW9/N)
16. Micro SD Card (Q-3) Ex. PW9/F
(which was sealed in successive envelopes
Ex. PW13/K and Ex. PW9/E to Ex.
PW9/E2)
17. Micro SD Card (S-1) Ex. PW9/L
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 20 of 102
Sl no Name of the document Exhibited as
(which was sealed in successive envelopes
Ex. PW9/G to Ex. PW9/K)
The witness was duly cross examined by Ld. Counsel for the
accused.
21. PW-18 Inspector Raman Kumar Shukla, to prove the verification
proceedings as the Verifying Officer and trap proceedings being member of
the team. He relied upon the following documents :
Sl no Name of the document Exhibited as 1. Verification memo dated 16.11.2017 Ex. PW13/F (D-3) 2. Complaint dated 15.11.2017 Ex. PW14/A (D-2) 3. Handing over memo dated 16.11.2017 Ex. PW13/G (D-4) 4. Recovery memo dated 16.11.2017 Ex. PW13/L (D-5) 5. Rough Site Plan dated 16.11.2017 Ex. PW13/H (D-6) 6. Car search memo dated 16.11.2017 Ex. PW15/2 (D-7)
7. Notice under Section 337 of DMC Act, Ex. PW6/A (D-7a)
1957 read with Section 15 of National
Green Tribunal Act, 2010
8. Noting made by the accused on order under Ex. PW6/B
Section 337 of DMC Act, 1957 read with (D-23A)
Section 15 of the National Green Tribunal
Act, 2010 (Property No. H-1172, DSIIDC
Narela Delhi)
9. Photo of the site Ex. PW6/C
(D-23A)
10. Micro SD Card (Q-1) Ex. PW9/A
(which was sealed in successive envelopes
Ex. PW9/B to Ex. PW9/D alongwith its
packaging cover Ex. PW13/A)
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 21 of 102
This witness was duly cross examined by Ld. Counsel for the
accused.
22. PW-19 Inspector Sudeep Punia one of the investigating officers to
prove the investigation conducted by him and the documents prepared by
him. He also identified his signatures as well as the signatures of the other
members of the team on the documents prepared by him during
investigation. He relied upon the following documents :
Sl no Name of the document Exhibited as
1. Copy of letter no. 15773/RC-37(A)/2017 Ex. PW16/A
dated 29.11.2017 written to The Director (D-10) also
CFSL by the Worthy SP, ACB, C.B.I. Mark PW19/A
(D-9)
2. Letter bearing no. 16962/DLI/ACB/DAI- Mark PW19/B
RC-37(A)/1 dated 22.12.2017 written to The (D-12)
Director CFSL by the Worthy SP, ACB, Also Ex. PW11/A
C.B.I.
This witness was duly cross examined by Ld. Counsel for the
accused.
23. PW-20 Inspector Sitanshu Sharma, another Investigating Officer to
prove the investigation conducted by him. He proved the following
documents :
Sl no Name of the document Exhibited as
1. Production-cum-Receipt memo dated Ex. PW20/1
27.03.2018 (D-16)
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 22 of 102
Sl no Name of the document Exhibited as
2. Copy of Deed of Relinquishment dated Mark PW20/A
03.12.2012 (D-16A)
3. Production-cum-seizure memo dated Ex. PW4/A
29.03.2018 (D-21)
4. Enrollment form dated 31.03.2015 issued in Ex. PW4/B
the name of accused (D-21A)
5. Photocopy of ID of accused Ex. PW4/C
(D-21A)
6. Copy of Customer Application Form of the Ex. PW3/D (D-22)
complainant
7. De-coded Cell ID chart of the mobile phone Ex. PW3/C
of the complainant (D-22)
8. Copy of identity card of the complainant Ex. PW3/E (D-22)
9. Copy of PAN card of the complainant Ex. PW3/F (D-22)
10. Copy of bank statement of the complainant Ex. PW3/G (D-22)
This witness was duly cross examined by Ld. Counsel for the
accused.
24. PW-21 Sh. A.D. Tiwari – Dy. Director (Photo), CFSL, DFSS, Delhi
testified that he had received exhibits (03 memory cards and the DVR) for
preparation of copies which he had complied with. However, copy of DVR
could not be prepared as it was not compatible with the existing system in
the division.2 After completion of procedures, he had sealed the exhibits
and wrote to the CBI for collection of the copies. He tendered letter bearing
no. CFSL-2017/E-1334/4650 dated 19.12.2017 in evidence as Ex. PW21/A
(D-14).
This witness was duly cross examined by Ld. Counsel for the
2 As per letter dated 19.12.2017 (Ex. PW21/A) (D-14) Q-2 was not compatible and not the DVR
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 23 of 102
accused.
25. PW-7 Sh. Dinesh, was driver of Sh. Kapoor Chand (father of the
accused). However, he did not support the case of the prosecution. He was
duly cross-examined by Ld. Public Prosecutor for the State as well as by
Ld. Counsel for the accused.
26. PW-8 Head Constable Chander Pal Singh deposed that on
18.12.2017 he received a call from Control Room upon which he reached
CBI Office and met Inspector Sudeep Punia. He further deposed that a
person namely Kulbhushan Jindal was also present there and in his presence
the accused had given his signatures Ex. PW8/A (D-23B). However, he
failed to identify the accused.
Despite opportunity given, the accused did not cross-examine
this witness.
27. PW-9 Dr. Subrat Kumar Choudhury, Senior Scientific Officer to
prove his voice analysis report. He tendered the following documents in
evidence :
Sl no Name of the document Exhibited as
1. Report vide CFSL No. CFSL-2018/P-0015 Ex. PW9/A1
dated 22.11.2018 (D-24)
2. Micro SD Card (Q-1) Ex. PW9/A
(which was sealed in successive envelopes
Ex. PW9/B to Ex. PW9/D alongwith its
packaging cover Ex. PW13/A)
3. Micro SD Card (Q-3) Ex.PW9/F
(which was sealed in successive envelopes
Ex. PW9/E to Ex. PW9/E2)
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 24 of 102
Sl no Name of the document Exhibited as
4. Micro SD Card (S-1) Ex. PW9/L
(which was sealed in successive envelopes
Ex. PW9/G to Ex. PW9/K)
5. Digital Voice Recorder (DVR) (which was Ex.PW9/P
sealed in successive envelopes Ex. PW9/M
to Ex. PW9/N)
6. Forwarding letter bearing no.RC-DAI-2017- Ex. PW9/DA
A 0037/29 dated 03.01.2018 written by the (D-13)
Worthy SP, ACB, C.B.I. to the Director,
CFSL
He was duly cross-examined by Ld. Counsel for the accused.
28. Prosecution evidence was closed vide order dated 21.01.2025.
Statement Of Accused Under Section 313 Readwith Section 281 Cr.P.C.
29. Statement of accused Kulbhushan Jindal was recorded on
01.04.2025. During his examination he admitted that he was posted as
Junior Engineer, North DMC and Narela Zone was under his jurisdiction.
He also admitted that he had prepared note (Ex. PW6/B) (D-23A) and taken
photographs Ex. PW6/C (D-23A) of the violations of NGT guidelines at the
factory of the accused upon which, Sh. Surender Singh, Assistant Engineer,
North DMC had prepared notice under Section 337 of DMC Act (Ex.
PW6/A) (D-7a) but the same was not approved of by Sh. Vijender Dahiya
(Executive Engineer, North DMC) (PW-10) who had sought the current
status. Therefore, notice Ex. PW6/A (D-7a) was under process. He
admitted similar notices Ex.PW12/B, Ex. PW12/C and Ex. PW12/D. He
also did not deny his signatures on Ex. PW10/B(D-17B), Ex. PW11/C, Ex.
PW11/D, Ex. PW11/E, Ex. PW11/F and Ex. PW11/G which were used for
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 25 of 102
comparison of his writings / signature by the handwriting expert (PW-9).
He did not deny the findings of the handwriting expert on his noting (Ex.
PW6/B) (D-23A) and photograph of the factory of the complainant (Ex.
PW6/C) (D-23A). However, he denied that his specimen signatures Ex.
PW8/A (D-23B) were given in the presence of Sh. Chander Pal Singh
(PW-8). Though he stated that he had given his specimen signatures
voluntarily. He denied that any representative on his behalf had gone to the
factory of the complainant and instructed the complainant to meet him. He
also denied that any meeting was held with the complainant on 11.11.2017
or a week before it when the bribe amount was negotiated. He also denied
the complaint (Ex. PW14/A) (D-2). He stated that he had not met or
spoken to the complainant during verification proceedings. He claimed that
verification memo (Ex. PW13/F) (D-3) was manipulated. He also stated
that he was not using mobile phone number xxxxxx7032 on 16.11.2017. As
regards handing over memo (Ex. PW13/G)(D-4), he stated that it was
manipulated. He explained that in compliance of direction of Executive
Engineer (B) Sh. Vijender Dahiya (PW-10), he alongwith his driver (PW-7)
had gone to the factory of the complainant after 06.30 p.m. for site
inspection and taking photographs of the building material, if any, lying
outside the factory of the accused. However, he was illegally apprehended
by the C.B.I. He denied having received the bribe. He stated it was
forcibly inserted into his pocket by the complainant without any demand
from him and without his consent. He therefore, immediately, threw the
bribe money away and was not recovered by Sh. Nitesh Singhal (PW-15)
from his pocket. He stated that the hand washes and pant pocket wash were
fabricated at the C.B.I. office. He denied his voice in micro SD card Ex.
PW9/A (Q-1) and Ex. PW9/F (Q-3) and stated that the report (Ex.
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 26 of 102
PW9/A-1) is false and procured. On sanction for prosecution Ex. PW5/A,
he claimed that it was invalid for non application of mind.
DEFENCE EVIDENCE
30. In order to disprove the allegations, the accused only examined Sh.
Ravinder Kumar, then Law Officer (Vigilance) North MCD to prove that
the grant of sanction for prosecution was without application of mind.
During his examination following documents were tendered :
Sl no Name of the document Exhibited as
1. Request letter bearing No. RC-DAI-2017- Ex. DW1/A(colly)
A-0037/3653 sent by the Worthy SP, ACB,
C.B.I. to The Chief Vigilance Officer,
NDMC dated 26.03.2018
2. Noting page dated 27.03.2018 Ex. DW1/B
3. Forwarding letter bearing No. Ex. DW1/C
131/SIO(P)/Vig./CBI/2017/219 dated
27.03.2018
4. Request letter bearing No. RC-DAI-2017- Ex. DW1/DX
A-0037/3652 sent by SP CBI to The Chief
Vigilance Officer, NDMC dated 26.03.2018
He was duly cross examined by the Ld Public Prosecutor for the State
(through CBI).
30.1 Defence evidence was closed vide order dated 19.05.2025.
FINAL ARGUMENTS
31. Arguments on behalf of the State (through CBI) was advanced by
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 27 of 102
Sh. Neel Mani, Ld. Public Prosecutor and on behalf of the accused has been
led by Sh. Anil Kumar, Ld. Advocate. Written submissions alongwith
precedents have also been placed on record by Ld. Counsel for the accused.
32. Ld. Public Prosecutor for the State has submitted that the prosecution
has proved its case beyond reasonable doubts qua the offences the accused
has been charged with. Leading the Court through the examination of the
complainant (PW-14), it has been argued that the complaint (Ex. PW14/A)
(D-2) stands proved as per which it is specifically alleged that accused
Kulbhushan Jindal had demanded bribe from the complainant (PW-14).
Thereafter, leading the Court through verification memo (Ex. PW13/F)
(D-3) and referring to voice identification cum transcription memo (Ex.
PW13/P) (D-15A) it has been further argued that even during the
verification proceedings, the factum of demand stood established. Drawing
the attention of the Court to the handing over memo (Ex. PW13/G) (D-4)
and recovery memo dated 16.11.2017 (Ex. PW13/L) (D-5) which is stated
to have been duly proved, it is adumbrated that both the demand in presence
of independent witnesses and acceptance of bribe amount by the accused
has been established. Relying upon Ex. PW9/F (Q-3), it has been again
emphasized that the voice recording contains incriminating conversation
during which the factum of bribe is yet again, established. To demonstrate
that micro SD card Ex. PW9/A (Q-1), Ex. PW9/F(Q-3) and Ex. PW9/L
(S-1) has not been tampered with, reliance has been placed upon the
examination of Dr. Subrat Kumar Choudhury (PW-9) and his report dated
22.11.2018 Ex. PW9/A-1 (D-24) to show that it has been specifically
opined by the expert that there was no tampering as audio recordings are
continuous. Also, attention of the Court has been drawn to testimonies of
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 28 of 102
Sh. Pankaj Gupta (PW-13) and Sh. Nitesh Singhal (PW-15) to urge that it
has been established from their testimonies that the voice recordings were
sealed in their presence. So far as the identity of the accused as Kulbhushan
Jindal is concerned, it has been argued the prosecution seeks to rely upon
the mobile phone conversations between the accused and the complainant
(PW-14) duly proved through Sh. Surender Kumar (PW-1) and Sh. Arun
Kumar Rathore (PW-4), respectively to show that the accused and the
complainant had been communicating with each other w.e.f. 11.11.2017 and
the exchange of calls is contemporaneous with the verification and the trap
proceedings. Therefore, even though the complainant (PW-14) did not
identify the accused before the Court, it cannot be lost sight of that the
complaint (Ex. PW14/A)(D-2) is by name and both the complainant
(PW-14) and the accused have been proved to be communicating with each
other. Also, considering that notice under Section 337 of DMC Act (Ex.
PW6/A) (D-7a) was recovered from the car of the accused, it has also been
established that there was an occasion for the accused to demand bribe from
the complainant (PW-14) as he was Junior Engineer of the area where the
factory of the complainant (PW-14) was situated. It has been submitted that
even though the accused explained his presence at the spot by claiming that
he had gone to take photographs of violations of NGT orders, the claim is
contradictory to the testimony of Sh. Pankaj Gupta (PW-13) and thereafter,
no affirmative evidence was led by the accused to prove the same. It has
been further submitted that therefore, the explanation offered by the
accused as the ground to have visited the spot has remained a mere after
thought. So far as the Sanction under Section 19 of The P.C. Act is
concerned, Ld. Public Prosecutor for the State (through CBI) has led the
Court through the testimony of Sh. Madhup Vyas (PW-5) then
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 29 of 102
Commissioner, North MCD and it has been argued that his examination-in-
chief that he had applied his mind to the documents and facts produced
before him before granting sanction for prosecution, however, during cross-
examination, the defence failed to traverse the same. Hence, it has been
argued that it has not been proved by the defence that the sanction order
was without any application of mind and could not be acted upon.
33. Per contra, the defence has assailed the case of the prosecution on
the following broad grounds :
(i) Failure to lead evidence (oral or documentary) to prove demand of
bribe ;
(ii) No evidence to prove voluntary acceptance of the bribe amount ;
(iii) Failure to prove motive on the part of the accused to demand bribe ;
(iv) Chemical Examination Report (Ex. PW16/B)(D-11) lacking
evidentiary value ;
(v) Biased investigation on account of the following :
(a) Falsification of record.
(b) Biased investigation and
(vi) Invalidity of order for sanction for prosecution (Ex. PW5/A)
(i) Failure to lead evidence (oral or documentary) to prove demand of
bribe :
(A) Oral evidence : At the outset, reliance has been place upon Neeraj
Dutta Vs. State (Govt. of NCT of Delhi) 3, N. Sunkanna Vs. State of Andhra3 2022 INSC 1280
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 30 of 102
Pradesh4, State of Lokayuktha Police, Davanagere Vs. C.B. Nagaraj 5, P
Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra
Pradesh and Anr.6, Krishan Chander Vs. State of Delhi7, B. Jayaraj Vs.
State of Andhra Pradesh8, Rajesh Gupta Vs. State through CBI 9, K.
Shanthamma Vs. State of Telangana10, A. Subair Vs. State of Kerala11 and
Selvaraj Vs. State of Karnataka12, it has been submitted that the onus was
upon the prosecution to prove demand of illegal gratification / bribe and
voluntary acceptance thereof, by the accused. However, it has been
advocated that the prosecution has miserably failed to prove the same. Ld.
Counsel for the accused has led the Court through the testimonies of the
witnesses (especially, the complainant (PW-14) and shadow witness
Sh.Pankaj Gupta (PW-13) to demonstrate that there is no oral evidence that
either the demand from the accused had been made prior to 11.11.2017, on
11.11.2017, during verification proceedings dated 16.11.2017 or during the
trap proceedings.
(i) As regards the alleged transactions between the complainant (PW-14)
and the accused prior to 11.11.2017 it has been submitted that the
complainant (PW-14) deposed before the Court that one person namely
Anil, claiming to be the representative of the J.E., MCD, had visited his
tenant and the tenant had facilitated the conversation between Anil and the
complainant (PW-14) over telephone and the complainant (PW-14) was
4 Crl. Appeal no. 1355 of 2015 (Arising out of SLP (Crl.) no. 2958 of 2011) decided by Supreme Court
of India on 14.10.2015
5 Crl. Appeal no. 1157 of 2015 decided by Supreme Court of India on 19.05.2025
6 (2015) 10 Supreme Court Cases 152
7 2016 (3) SCC 108
8 (2014) 13 Supreme Court Cases 55
9 (2022) 20 Supreme Court Cases 793
10 (2022) 4 SCC 574
11 2009 6 SCC 587
12 2015 10 SCC 230CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 31 of 102
informed that as he was carrying out construction in the factory, he was
required to meet the J.E., Narela Zone, MCD. Thereafter, the complainant
(PW-14) went to the office of MCD, Narela and met a person who
introduced himself as Kulbhushan Jindal and he demanded bribe of
Rs.2,00,000/- stating that the construction being carried out by the
complainant (PW-14) was banned by NGT and he was liable for action.
While deposing before the Court, the complainant (PW-14) categorically
stated that he had met accused Kulbhushan Jindal for the first time only on
16.11.2017. Thereafter, the complainant (PW-14) had also deposed that the
person whom he met at the MCD office claiming to be Kulbhushan Jindal,
J.E., MCD was not the accused. During cross-examination dated
15.07.2022, the complainant (PW-14) reiterated the version and thus, it
could not be established by the prosecution that the accused himself had
made any demand of bribe on or before 11.11.2017.
(ii) Qua transaction dated 11.11.2017 at the factory of the complainant
(PW-14), the Court has been led through the testimony of the complainant
(PW-14) which is dated 17.12.2021 to argue that even though the witness
stated that 02 persons from MCD had come to his factory on that date and
negotiated the bribe amount of Rs. 2,00,000/- to Rs. 1,00,000/-, once again,
the identity of the accused as the negotiator was not confirmed by the
witness. Additionally, it has also been argued that the conversation was
recorded by the complainant (PW-14) however, the said conversation was
never tendered in evidence to corroborate the assertion.
(iii) As regards the verification proceedings, it has been submitted that
even though much emphasis has been placed upon the fact that the shadow
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 32 of 102
witness Sh. Pankaj Gupta (PW-13) having heard the conversation between
the complainant and the accused to verify the demand of bribe from the
accused, but it was not proved by the prosecution. It has been specifically
submitted that the independent witness / shadow witness Sh. Pankaj Gupta
(PW-13) deposed that the Verifying Officer had dropped him one kilometre
before the factory of the complainant and after sometime, when he received
the telephone call from the Verification Officer, he was directed to reach the
factory. The witness in his testimony has stated that in the interim, he was
left on the road and he was roaming around the area where he had been
dropped. As per his testimony he was subsequently picked up by the
Verification Officer, Sh. Pankaj Gupta (PW-13) and the driver of the official
vehicle and they went to the factory where the complainant was present and
he narrated that accused Kulbhushan Jindal had met him. Thereafter, it has
been submitted that the shadow / independent witness is not privy to the
conversation of the complainant and the accused whereby he was
competent to prove that the accused had made any demand of bribe from
the complainant. Hence, it has been argued that yet again, the prosecution
failed to establish that there was any demand of bribe from the accused.
(iv) In reference to the trap proceedings dated 16.11.2017, it has been
adumbrated that none of the prosecution witnesses namely the complainant
(PW-14), 02 independent witnesses (Sh. Pankaj Gupta – PW-13 and Sh.
Nitesh Singhal PW-15) have substantiated the claim of the prosecution that
there was any demand of bribe from the accused himself. Leading the Court
through the testimony of the complainant (PW-14) dated 26.03.2024, it has
been submitted that he was informed that two MCD officials were taking
photographs of his factory from outside and after confirming that they were
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 33 of 102
from MCD as the C.B.I. officials had instructed the complainant (PW-14),
he offered the tainted money to accused and put the money into his pocket,
however, thereafter, the accused panicked and tried to run away from the
spot when he was apprehended by the C.B.I. on being signaled by the
complainant (PW-14). Thus, it has been argued that the complainant
(PW-14) has not supported the case of the prosecution and even during
cross-examination, the prosecution has not been able to elicit any
favourable response from him.
(v) Thereafter, referring to the deposition of Sh. Pankaj Gupta (PW-13),
it has been submitted that he failed to act as the shadow witness considering
that he deposed that he remained inside the gate of the factory and the
complainant went outside the main gate of the factory and met the accused.
It has been argued that not only the complainant and the accused were
visible to him as silhouettes but he was also not within the proximity to
overhear the conversation between them. Hence, the prosecution has not
proved the demand of bribe. Additionally, from his testimony dated
06.11.2019, it is also sought to be demonstrated that he being a witness of
demand of bribe was merely, hearsay. So far as the evidence of Sh. Nitesh
Singhal (PW-15) is concerned, it has been argued that he has not deposed
anything incriminating against the accused qua the demand of bribe and
acceptance of the same. Further, as per his testimony dated 18.11.2022, he
stated that he was 60-70 metres away from the factory alongwith 2-3 C.B.I.
officials, it is improbable that he could have overheard the conversation
between the accused and complainant.
(B) No Documentary evidence to prove demand of bribe :
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 34 of 102
(a) Qua other corroborating evidences to prove the demand of the bribe
by the accused, it has been argued on behalf of the accused that recorded
conversation (Ex. PW9/A) (Q-1) at the stage of verification and Ex. PW9/F
(Q-3) at the stage of trap proceedings) are not only inadmissible in evidence
but also cannot be relied upon due to following reasons :
(i) Relying upon Nilesh Dinkar Paradkar Vs. State of Maharashtra 13 it
has been adumbrated that evidence of voice identification merely falls in
the domain of suspicion. It is also prone to extensive and sophisticated
tampering, doctoring and editing thus, requiring the courts to be extremely
cautious to premise conviction purely on the basis of voice identification.
(ii) Relying upon Mahabir Prasad Verma Vs. Dr. Surinder Kaur14 it has
been averred that tape recorded conversation can only have corroborative
value and is not substantive evidence. Reliance has been placed upon State
Vs. Ravi @ Munna15.
(iii) Also, relying upon Anvar P.V. Vs. P.K. Basheer & Ors.16, it has been
submitted that recorded conversations are not supported with certificate
under Section 65B(4) of IEA and so are inadmissible in evidence.
(iv) Also, the recorded conversations have not been proved by any of the
independent prosecution witnesses to have taken place in their presence.
13 Criminal Appeal no. 537 of 2009 decided by Supreme Court of India on 09.03.2011
14 AIR 1982 Supreme Court 1043
15 82 (1999) DLT 730 (DB) (Murder Reference No. 4 of 1997 with Criminal Appeal Nos. 309 & 320 of
1997 decided by Delhi High Court on 1.10.1999)
16 (2014) 10 Supreme Court Cases 473 (Civil Appeal no. 4226 of 2012 decided on 18.09.2014)
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 35 of 102
(v) There is contradiction in the testimony of Sh. Amrender Sahoo
(PW-2) and Sh. Vijay Kumar Sharma (PW-12). Whereas, Sh. Amrender
Sahoo (PW-2) deposed that Sh. Vijay Kumar Sharma (PW-12) had
identified the voice of the accused at the time of preparation of voice
identification cum transcription memo dated 16.01.2018 (Ex. PW2/B)
(D-19), Sh. Vijay Kumar Sharma (PW-12) deposed before the Court that
he was not able to recognize the voice of the accused in the recordings.
Additionally, Sh. Vijay Kumar Sharma (PW-12) when examined on the
authenticity of Ex. PW9/F (Q-3) denied that it contained the voice of the
accused and during cross-examination stated that he had signed the voice
identification cum transcription memo dated 16.01.2018 (Ex. PW2/B)
(D-19) without reading the same. He also denied that transcript (Ex.
PW2/A) (D-19A) was prepared in his presence. He alleged that the
transcript had been prepared by the CBI officials in advance and he had
merely tallied the same with the voice recording played in his presence. He
maintained that he had told the Investigating Officer that it did not contain
the voice of the accused. Inspector Sudeep Punia (PW-19) has also admitted
during his deposition that he had not taken or investigated the hash value in
respect of recorded conversation in verification proceedings Ex. PW9/A
(Q-1), trap proceedings Ex. PW9/F (Q-3) and Ex. PW9/L (S-1) and that the
exhibits were sent to CFSL without any road certificate.
(vi) Ld. Counsel for the accused also doubted the genuineness of the
voice identification cum transcription memo dated 16.01.2018 (Ex. PW2/B)
(D-19) as it mentions that the same was prepared between 11.30 a.m. to
03.10 p.m. on 16.01.2018 whereas Sh. Amrender Sahoo (PW-2) during his
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 36 of 102
cross examination dated 28.07.2018 stated that the proceedings had been
conducted from 03.00 p.m. to 04.30 p.m. thus, suggesting that the
documents had already been prepared by the investigating agency and the
witnesses merely appended their signatures thereupon. Hence, it has been
argued that biased investigation can not be ruled out.
(vii) Drawing the attention of the Court to the testimony of the
complainant (PW-14), it has been argued that he did not identify the voice
of the accused in the recorded conversations. On 15.07.2022, during his
examination, he merely deposed that on comparing the conversations with
Ex. PW9/A (Q-1) and Ex. PW9/F (Q-3) with the transcription, the same
were correct. He merely identified his own voice and stated that the
conversations had taken place with Kulbhushan Jindal but he could not
confirm his identity.
(viii) Ld. Counsel for the accused also referred to the testimony of Sh.
Vijay Kumar Sharma (PW-12), complainant (PW-14) and Sh. Nitesh
Singhal (PW-15) and argued that the prosecution witnesses have admitted
that due to background voices and traffic, the entire conversations were not
audible.
(ix) The Court has also been urged not to act on the recorded
conversation contained in Ex. PW9/A (Q-1) and Q-2 suggesting that the
same may not be authentic due to the following reasons :
(a) Sh. Pankaj Gupta (PW-13) stated that Sh. Dinesh (PW-7) had
conversed with the complainant and both had moved to the main factory
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 37 of 102
gate. However, the said conversation was not found part of Ex. PW9/F
(Q-3).
(b) Inspector H.V. Attri (PW-17) admitted that after the transaction, the
complainant had shouted but the same was again not found in the recorded
conversation. Thus, the bias in the investigation has been urged by referring
to the examination of complainant (PW-14) and Sh. Nitesh Singhal (PW-15)
who deposed that no recorded conversation had been played on 27.12.2017.
(x) Conclusively, it has also been argued that the Court cannot rely upon
the CFSL expert Dr. Subrat Kumar Choudhury (PW-9) as the prosecution
failed to establish his competency as an expert as he did not place on record
certificate under Section 79(A) of Information and Technology Act, 2000
(hereinafter, referred to as ‘The IT Act‘). Also, the report dated 22.11.2018
Ex. PW9/A-1(D-24) has been assailed on account of following reasons :
(i) The questionnaire was suggestive and from the report Ex. PW9/A1
(D-24), it can be discerned that the expert (PW-9) was influenced by it.
(ii) Speech of a person can be affected due to his physiological and
psychological condition and production of voice is a complex phenomenon.
The witness also deposed that examination of voice by hearing has lot of
subjectivity involved in it. He also deposed that the editing or substitution
in digital voice recordings is possible through softwares and by mimicry,
similar voice could be generated. PW-9 also deposed that he understood the
meaning and importance of hash value and no hash value was provided by
CBI in this case.
(iii) The witness also deposed that there are seven possibilities of opinion on voice examination, namely positive identification, probable CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 38 of 102 identification, positive elimination, probable elimination, possible
identification, no decision and beyond reasonable doubt. It is pertinent to
mention here that the report, Ex.PW9/A-1 (D-24) opined that voices
marked exhibits Q-1(3)(k) to Q-1(5)(k); Q-3(3)(k) to Q-3(5)(k) are the
probable voices of the person “Sh.Kulbhushan Jindal” whose specimen is
marked S-1(3)(k).
(iv) The report Ex. PW9/A-1 (D-24) does not mention the linguistic and
phonetic parameters used in examination of the recordings.
(v) No detailed reasons have been mentioned in the report for arriving at
the conclusion.
(vi) No enclosures in the form of spectrograms, rough notes, etc have
been attached with the report for consideration of this Court to arrive at its
own independent opinion.
(vii) No reasons and basis have been provided in the report to opine that
there is no tampering in the present case.
(viii) It is pertinent to mention here that bare perusal of the report shows
the vagueness of the report and non-application of mind while giving the
said report. The report itself at pages 4-5 mentions that Ex. Q-3 (3)(k) and
Q-3(4)(k) could not be considered for spectrographic examination as no
sufficient common clearly audible sentences / words could be detected with
respect to specimen voice of Kulbhushan Jindal recorded in micro-SD card
S-1. The report itself shows that only few words were compared. Only the
name of the test method has been mentioned but the details thereof and the
detailed reasoning thereof has not been mentioned.
(ix) There was no recording found in the DVR. There report has opined
that comparison of format and characteristics of test audio recordings done
in exhibit DVR and audio files exhibits Q-1 and Q-3 and S-1 reveal that the
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 39 of 102
digital voice recorder marked as Ex. PW9/P could have been used to record
the contents of the memory cards Q-1 and Q-3 and S-1. As such, the expert
is also not sure as to whether the said DVR was actually used for the said
recordings. No detailed reasoning, basis has been provided in the report on
the basis of which the said opinion has been given. It has not been
mentioned as to what audio files were existing in the DVR.
(x) In view of deposition of PW-12 Sh. Vijay Kumar Sharma (who has
denied the voice to be of the accused in questioned conversations in Q-1
and Q-3), the deposition of PW-9 Dr. Subrat Kumar Choudhury, including
his report Ex. PW9/A1 (D-24), is of no evidentiary value in the eyes of
law.
(xi) The specimen voice of the accused (S-1) was admittedly taken when
he was taken in custody of the police and no permission was taken from the
Hon’ble Court for taking the specimen voice of the accused.
34. Hence, relying upon Mukut Bihari and Anr Vs. State of Rajasthan 17,
B. Jayaraj Vs. State of Andhra Pradesh (supra) , T.K. Ramesh Kumar Vs.
State through Police Inspector, Bangalore18, Neeraj Dutta Vs. State (Govt.
of NCT of Delhi) (supra), Soundarajan Vs. State19 it has been argued that
foundational facts have not been established for this Court to raise the
presumption under Section 20(1) of The P.C. Act.
35. On merits, the case of the prosecution is also stated to be not proved
as it has not been established that mobile phone number xxxxxx7032 was
used by the accused while conversing with the complainant as it has also
17 (2012) 6 SCR 710
18 (2015) 15 SCC 629
19 2023 Crl. L.J. 2123
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 40 of 102
not been proved that it was being used by him after 31.03.2015. However,
Sh. Surender Kumar (PW-1) deposed that mobile phone no. xxxxxx7032
was issued in the name of Executive Engineer MCD. Sh. Arun Kumar
Rathore (PW-4) confirmed that the said number earlier used by the accused
was disowned by the MCD and mobile phone no. xxxxxx8405 was issued
to him on 31.03.2015. Therefore, the prosecution could not prove as to who
was using the mobile phone no. xxxxxx7032 after 31.03.2015. The said
instrument was also not seized and sent for examination.
(ii) No evidence to prove voluntary acceptance of the bribe amount
36. It has been argued that the factum of voluntary acceptance of alleged
bribe amount has also not been established by the prosecution. Leading the
Court through the examination of the complainant (PW-14), it has been
submitted that he himself offered the tainted bribe money to the accused, as
per instructions of the CBI and put the money in the latter’s trouser’s
pocket. Also, by referring to the examination of Sh. Pankaj Gupta (PW-13),
it has been argued that he has not acted as a shadow witness and thus, there
is no independent version of what transpired between the accused and the
complainant (PW-14) on the evening of 16.11.2017 at the gate of the
factory and thus, his evidence is immaterial on the aspect of voluntary
acceptance of the bribe amount by the accused. It has further been argued
that similarly, testimony of PW Sh. Nitesh Singhal (PW-15) cannot come to
the rescue of the prosecution to prove voluntary acceptance by the accused
of illegal gratification from the complainant (PW-14) as the witness was
stationed 60-70 metres away from the factory. Also, it has been pointed out
that Sh. Dinesh (PW7) has stated that the bribe amount was put into the
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 41 of 102
pocket of the accused from his behind and when the accused later learned
that there were currency notes, he threw the packet.
37. Additionally, it has also been emphasized by the Ld. Counsel for the
accused that there is material contradiction as under regarding recovery of
the bribe amount from the accused. Even though, it is the case of the
prosecution that Sh. Nitesh Singhal (PW-15) recovered the bribe amount
from the left side pocket of the trouser worn by the accused, the witness
himself has not supported the case of the prosecution on his aspect. He has
merely confirmed that the currency notes recovered by the C.B.I. were
given to him for tallying with the list in which the serial number of said
currency notes were noted down.
(iii) Failure to prove motive on the part of the accused to demand bribe :
38. It has also been submitted that the basis for demand of bribe has
been attributed to certain construction being raised in the factory premises
at H-1172, DSIDC, Industrial Park, Narela, Delhi in violation of order of
NGT. However, no evidence has been led on any such unauthorized
construction on the site. Sh. Vijender Dahiya (PW-10) has established that
the property was not booked for any unauthorized construction and no
action was contemplated under Section 343, 344(1) and 345(a) of DMC
Act. Reliance has been placed upon letter dated 04.12.2017 (Ex. PW10/A)
(D-17A). Thus, no action was initiated under unauthorized construction to
demonstrate that no unauthorized construction was noticed at the spot.
Testimony of Inspector H.V. Attri, TLO (PW-17) has been referred to,
wherein, he has admitted that he did not notice any on going construction.
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 42 of 102
Similarly, testimony of Inspector Raman Kumar Shukla (PW-18) has been
relied upon wherein, he stated that he did not see any illegal construction in
the factory and Inspector Sudeep Punia (PW-19) admitted that the had
conducted no investigation regarding unauthorized construction in the
factory. Thus, it has been argued that the very premise upon which the graft
charge were made have either not been investigated or have not been
noticed by the members of the trap team or Investigating Officer. Thus, in
the absence of proof thereof, the motive to seek any bribe or demand has
not been established. Rather, it has been argued that the accused was
diligently performing his duties of ensuring any unauthorized construction
and no irregularity in discharge of his duties have been proved. Hence, it
has also be adumbrated that no irregularity in the proceedings under Section
337 of DMC Act has been proved by the prosecution.
(iv) Chemical Examination Report (Ex. PW16/B) (D-11) has no
evidentiary value
39. It has been further argued on behalf of the accused that both
complainant (PW-14) and Sh. Dinesh (PW-7) have testified that the bribe
amount was thrusted into the left side pocket of the trouser of the accused
and that the accused threw it away, thus, the hand washes of the accused
lose their relevancy to prove present of phenolphthalein powder on his
hands. Further it has also been canvassed that on account of cross-
examination of Ms. Deepti Bhargav (PW-16), her report (Ex. PW16/B)
(D-11) has no evidentiary value because the requisition letter (Ex. PW16/A)
(D-10) was suggestive, no worksheet has been provided by her alongwith
her report, no details of chemical tests are mentioned by her, it lacks
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 43 of 102
reasoning and considering that CFSL was under the administrative control
of CBI, her report is not given by her independently.
(v) Biased investigation on account of the following :
40. Ld. Counsel for accused has also drawn the attention of the Court to
the deficiencies in investigation on the following grounds and alleged the
same to be biased and perfunctory and has therefore, urged that the accused
has been falsely implicated :
(a) Falsification of Record :
41. It has been argued that verification memo (Ex. PW13/F) (D-3) is
fabricated as it is humanly impossible to prepare the verification memo (Ex.
PW13/F) (D-3) within 30 minutes.
42. Handing over memo (Ex. PW13/G) (D-4) has also been prepared
subsequently as it is not humanly possible to have prepared the documents
within 60 minutes as stated by the prosecution witnesses. Relevantly,
drawing the attention of the Court to the cross-examination of complainant
(PW-14), it has also been argued that he had denied certain portion i.e. A to
A, B to B and C to C of handing over memo (Ex. PW13/G) (D-4). Also,
certain contradiction in the testimony of Sh. Pawan Gupta (PW-13) and Sh.
Nitesh Singhal (PW-15) has also been referred to demonstrate that the
contents of the handing over memo is contrary to the oral evidence led by
these witnesses.
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 44 of 102
43. Recovery proceedings, as recorded in the recovery memo Ex.
PW13/L (D-5) has also been assailed for being manipulative by leading the
Court through the examination of Sh. Pankaj Gupta (PW-13), Sh. Nitesh
Singhal (PW-15) an driver of the accused Sh. Dinesh (PW-7), Ld. Counsel
for the accused has demonstrated that there are contradictions as regards the
averments in the recovery memo (Ex. PW13/L) (D-5) for example – Sh.
Pankaj Gupta (PW-13) did not remember how many DVRs had been used
in the case and whether the same was seized on the spot by CBI or not,
could not ascertain whether the DVR which was used was blank or not. It
has also been pointed out that the complaint (PW-14) had stated that he had
sought amendments in the recovery memo (Ex. PW13/L) (D-5) which was
not acceded to.
(b) Biased investigation : (i) It has been argued that from the testimony of Inspector Sandeep
Punia, Investigating Officer (PW-19), it is transpiring that he had examined
the complainant (PW-14), Sh. Pankaj Gupta (PW-13) and Sh. Nitesh
Singhal (PW-15) on a single day i.e. 27.12.2017 and as such 32 pages of
their statements had been typed. In addition, on the same day, he had also
conducted voice identification proceedings and prepared transcripts. It is
stated that as per his own statement he had worked for 8-9 hours on
27.12.2017. However, it is very unlikely that all such proceedings could
have been conducted on the same day.
(ii) He has admitted that he did not investigate about the person who had
visited the office / factory of the complainant allegedly, on behalf of the
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 45 of 102
accused and had not collected any CCTV footage of 16.11.2017.
(iii) However, as per the case of the prosecution, Inspector Raman Kumar
Shukla (PW18) Verification Officer was called by the Worthy SP on
15.11.2017 at about 06.10 p.m. and was introduced with the complainant.
However, from the examination of Sh. Pankaj Gupta (PW-13) it is evident
that on 15.11.2017 at about 03.00 – 04.00 p.m. he was handed over the order
for joining investigation. Similarly, Sh. Nitesh Singhal (PW-15) also
deposed that he was directed to report to CBI office on 15.11.2017 at 05.00
p.m. Thus, appointment of independent witnesses seems to have been done
in advance or appointment of Verification Officer which has not been
explained by the prosecution.
(iv) There are material contradictions in the testimonies of the
prosecution witnesses regarding the availability of the accused at his office
on 16.11.2017, whereas complainant (PW-14) and Sh. Nitesh Singhal
(PW-15) deposed that from their inquiries the accused was not found at the
office on the morning of 16.11.2017. Sh. Vijay Kumar Sharma (PW-12)
stated that the accused used to share the same office on the first floor of the
building and was available at the office throughout the day. Thereafter, by
referring to the cross-examination of Sh. Pankaj Gupta (PW-13) it is stated
that he and the complainant (PW-14) had remained at the ground floor only.
Therefore, the allegation of verification to have been conducted on
16.11.2017 as alleged appears to be concocted.
(v) Sh. Pankaj Gupta (PW-13) deposed that the left pocket of the trouser
of the accused was examined for presence of phenolphthalein, then the
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 46 of 102
trouser was seized and sealed. However, during trial the trouser which was
produced before the Court was in unsealed condition.
(vi) It has not been proved by the Inspector Sudeep Punia, Investigating
Officer (PW-19) or by Inspector Sitanshu Sharma (PW-20) as to how the
documents Ex. PW3/A, Ex. PW3/D and Ex. PW3/F to Ex. PW3/H (all in
D-22) were seized and collected during investigation. There is also
contradiction in the statements of independent witnesses whether they were
together in the same vehicle while going for the raid. Whereas Sh. Pankaj
Gupta (PW-13) stated that he was with the complainant in one vehicle but
could not recollect about the presence of the other independent witness Sh.
Nitesh Singhal (PW-15). Sh. Nitesh Singhal (PW-15) deposed that he was
sitting with the complainant in the same vehicle and Sh. Pankaj Gupta
(PW-13) was sitting in another car.
(c) Invalidity of order for sanction for prosecution (Ex. PW5/A)
44. Ld. Counsel for the accused urged the Court that the present criminal
proceedings qua the accused needs to be dropped and he is required to be
discharged as the sanction order (Ex. PW5/A) has been proved by the
defence to have been issued mechanically and without due application of
mind. To bolster the same, the Court has been led through the examination
of Sh. Madhup Vyas (PW-5), Inspector Sudeep Punia (PW-19), Inspector
Sitanshu Sharma (PW-20) and Sh. Ravinder Kumar (DW-1) and it has been
summarized as under :
(a) It is evident from the testimony of Sh. Ravinder Kumar (DW-1) that
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 47 of 102
there was exemplary swiftness in grant of sanction for prosecution within a
day and the duration within which the sanction had been granted, the
sanctioning authority could not have applied his mind to the material on
record.
(b) Whereas, Sh. Madhup Vyas (PW-5) stated that he had perused the
report given by SP, ACB C.B.I. accompanied with documents, including
statements of witnesses, no such documents appear to have been placed
before him as is evident from the sanction file produced by Sh. Ravinder
Kumar (DW-1) as :
(i) All the documents could not have been sent to the sanctioning
authority on the date of grant of sanction i.e. 27.03.2018 as the voice
examination record dated 22.11.2018 (Ex. PW9/A1)(D-24) and handwriting
experts opinion dated 31.10.2018 (Ex. PW11/H)(D-23) were not available
with the investigating agency.
(ii) Infact, statement of Sh. Arun Rathore (PW-4) was recorded only on
29.03.2018.
(iii) Investigation by Sh. Sitanshu Sharma (PW-20) continued even after
grant of sanction for prosecution.
(iv) Mere draft sanction order was signed by Sh. Madhup Vyas (PW-5).
45. Ld. Counsel for the accused has also placed reliance upon the
following judgments :
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 48 of 102
(i) Darshan Lal Vs. The Delhi Administration20 to urge need for independent
and trustworthy corroboration of evidence of trap witnesses.
(ii) CBI Vs. Ashok Kumar Aggarwal21, State of Maharashtra through
Deputy Superintendent of Police ACB Nagpur Vs. Devidas s/o Narayanrao
Bobde22 and Shri Anand Murlidhar Salvi Vs. The State of Maharashtra 23 on
validity of sanction for prosecution.
46. Rebuttal arguments have been advanced by Sh. M. Saraswat, Ld.
Senior Public Prosecutor alongwith Sh. Neel Mani, Ld. Public Prosecutor
for the State (through CBI).
47. On the aspect of identity of the accused, it has been submitted that
complaint (Ex. PW14/A) (D-2) has been filed by the name of accused and it
specifically mentions the demand of bribe. Thereafter, the Court has been
led through the examination of the complainant (PW-14) dated
17.12.202124. The Court has also been led through CDR of the complainant
(Ex. PW3/A) (D-22) and the accused (Ex. PW1/A) (D-20A) to show that
contemporaneously calls have been exchanged between the accused and the
complainant corroborating the testimony of the complainant to that effect.
Attention of the Court has also been drawn to transcripts in Hindi (Ex.
PW2/A) (D-19A) in corroboration of the submission.
48. Ld. Public Prosecutor for the State (through CBI) thereafter, has
20 AIR 1974 SC 2018
21 Criminal Appeal no.1838 of 2013 decided by the Supreme Court on 22.11.2013
22 Criminal Appeal No. 345 of 2002 decided by High Court of Bombay on 08.09.2014
23 Crl. Appeal No. 1107 of 2004 decided by High Court of Bombay
24 “…Thereafter, on 11.11.2017, I went to the MCD Office, Narela and met one person who told his
name as Kulbhushan Jindal. He demanded Rs.2,00,000/- (Rs. Two Lakhs) as a bribe by saying that
the construction are banned by NGT and therefore he would take action against me….”
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 49 of 102
submitted that the chain of custody of the mobile phone bearing IMEI no.
358158/07/017913/4 has been clearly established and its allotment through
the testimony of Sh. Surender Kumar (PW-1) and Sh. Arun Kumar Rathore
(PW-4) as well as through seizure memo dated 29.03.2018 (Ex. PW4/A)
(D-21) wherein the complainant (PW-14) has declared that mobile phone
number xxxxxx8947 was his number. So far as mismatch of IMEI number
mentioned in the Arrest cum Personal Search Memo (Ex PW13/J) (D-8) and
CDR (EX. PW3/A)(D-22) is concerned that the 15 th digit of IMEI number
has a mismatch as the check digit calculator does not take into account
software version number (SVN) of a mobile phone.
49. Additionally, it has also been stated that the accused has not lead
any evidence or put any suggestion to any of the witness of MCD that there
was any other Junior Engineer in MCD in the name of Kulbhushan Jindal.
Also, recovery of the notice in the name of the complainant from the
possession of the accused is a material circumstance pointing towards the
accused. Placing reliance upon Neeraj Dutta Vs. State (Govt of NCT of
Delhi) (supra) it is submitted that even if the complainant (PW-14) has
turned hostile, through circumstantial evidence, the demand can be
established which the prosecution has subsequently, proved.
50. Reliance has been placed upon the following judgments :
(i) M. Narsinga Rao Vs. State of Andhra Pradesh 25 and Madhukar
Bhaskar Rao Joshi Vs. State of Maharashtra26 on invocation of presumption
under Section 20 of The P.C. Act.
25 2001 Crl. L.J. 515
26 2000 AIR SCW 4018
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 50 of 102
(ii) C.M. Sharma Vs. State of A.P. Th. I.P. 27, Neeraj Dutta Vs. State
(Govt. of NCT of Delhi)28 and Hazari Lal Vs. State29 on ingredients of
offences under consideration.
(iii) R.M. Malkani Vs. State of Maharashtra30 and Ram Singh Vs. Col.
Ram Singh31 on admissibility, proof and probative value of recorded
conversations.
(iv) Vinod Kumar Vs. State of Punjab32, State of Rajasthan Vs. Kalki33 and
State of Maharashtra Vs. Narsingrao Gangaram Pimple34 on appreciation of
evidence in trap cases.
(v) Indu Bhushan Chatterjee Vs. State of W.B.35, Ram Sagar Pandit Vs.
The State of Bihar36, State of Maharashtra Through CBI Vs. Mahesh G
Jain37 and C.S. Krishnamurthy Vs. State of Karnataka38 on validity of
sanction for prosecution.
(vi) Vikram Singh @ Vicky Walia and Anr Vs. State of Punjab and Anr. 39
and Yusufalli Esmail Nagree Vs. State of Maharashtra40 to urge that tape
recorded conversation is not secondary evidence requiring certificate under
Section 65B(4) of The Indian Evidence Act.
(vii) K. Ramajayan @ Appu Vs. The Inspector of Police, T-4,
27 Criminal Appeal No. 232 of 2006 Supreme Court decided on 25.11.2010
28 Criminal Appeal No. 1669/2009, Supreme Court of India decided on 15.12.2022
29 AIR 1980 Supreme Court 873
30 1973 Crl. L.J. 228
31 1986 AIR, 3 1985 SCR Supl. (2) 399
32 2015 Crl. L.J. 1442
33 AIR 1981 Supreme Court 1390
34 1984 Crl. L.J. 4
35 1958 Crl. L.J. 279
36 1964(2) Crl. L.J. 65
37 Criminal Appeal No. 2345/2009 Supreme Court of India decided on 28.05.2013
38 2005 Crl. L.J. 2145
39 Criminal M.P. Nos. 16673-16674 of 2016 & Criminal M.P. Nos. 16675-16676 of 2016 in Review
Petition (Crl.) Nos. 192-193 of 2011 In Criminal Appeal Nos. 1396-1397 of 2008, Supreme Court of
India decided on 07.07.2017
40 1968 AIR 147
CBI vs Sh. Kulbhushan Jindal
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Maduravoyal Police Station, Chennai41 on appreciation of expert evidence.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
51. The Court has gone through the entire record of the case, considered
the submissions, evidence led by the prosecution as well as the accused and
documents proved by the parties during trial.
52. Before the Court ventures into appreciation of the evidence on
record, it deems it appropriate to recapitulate the relevant tenets of law that
would enable this Court to arrive at a just decision.
53. The accused has been charged under Section under Section 7 and
13(1)(d) of The P.C. Act, 1988. In Neeraj Dutta Vs. State (Govt of NCT of
Delhi) (supra) the Apex Court observed as under :
“Relevant provisions of the Act
3. Before proceeding further, it would be useful to refer to the relevant
provisions of the Act. Sections 7,13(1)(d)(i) and (ii) and 20 of the Act
as they stood prior to their amendments are extracted as under:
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 or agrees to
accept or attempts to obtain from any person, for himself or for
any other person, any gratification whatever, other than legal
remuneration, as a motive or reward for doing or forbearing to
do any official act or for showing or forbearing to show, in the
exercise of his official functions, favour or disfavour to any
person or for rendering or attempting to render any service or
disservice to any person, with the Central Government or any
State Government or Parliament or the Legislature of any State
or with any local authority, corporation or Government company
referred to in clause (c) of section 2, or with any public servant,
whether named or otherwise, shall be punishable with
imprisonment which shall be not less than six months but which41 Referred Trial No. 1 of 2015 Criminal Appeal No. 110 of 2015 High Court of Judicature at Madras
decided on 27.01.2016CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
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may extend to 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 a public servant can
lawfully demand, but include all remuneration which he is
permitted by the Government or the organisation, 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
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.
Section 13 -Criminal misconduct by a public servant. –
“(1)A public servant is said to commit the offence of criminal
misconduct,
-a)…..
b)….
c)….
(d) if he,–
(i)by corrupt or illegal means, obtains for himself or for any
other person any valuable thing or pecuniary advantage; or
(ii)by abusing his position as a public servant, obtains for
himself or for any other person any valuable thing or pecuniary
advantage; or
(iii)while holding office as a public servant, obtains for any
person any valuable thing or pecuniary advantage without any
public interest;
Explanation.-For the purposes of this section, “known sources of
income” means income received from any lawful source and
such receipt has been intimated in accordance with the
provisions of any law, rules or orders for the time being
applicable to a public servant.”
xxx xxx xxx
Section 20 – Presumption where public servant accepts
gratification other than legal remuneration. –
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 53 of 102
(1)Where, in any trial of an offence punishable under section 7
or section 11 or clause (a) or clause (b) of sub-section (1) of
section 13 it is proved that an accused person has accepted or
obtained or has agreed to accept or attempted to obtain for
himself, or for any other person, any gratification (other than
legal remuneration) or any valuable thing from any person, it
shall be presumed, unless the contrary is proved, that he accepted
or obtained or agreed to accept or attempted to obtain that
gratification or that valuable thing, as the case may be, as a
motive or reward such as is mentioned in section 7 or, as the case
may be, without consideration or for a consideration which he
knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12
or under clause (b) of section 14, it is proved that any
gratification (other than legal remuneration) or any valuable
thing has been given or offered to be given or attempted to be
given by an accused person, it shall be presumed, unless the
contrary is proved, that he gave or offered to give or attempted to
give that gratification or that valuable thing, as the case may be,
as a motive or reward such as is mentioned in section 7, or as the
case may be, without consideration or for a consideration which
he knows to be inadequate.
(3) Notwithstanding anything contained in subsections (1) and
(2), the court may decline to draw the presumption referred to in
either of the said subsections, if the gratification or thing
aforesaid is, in its opinion, so trivial that no inference of
corruption may fairly be drawn.”
4. The following are the ingredients of Section 7 of the Act:
i) the accused must be a public servant or expecting to be a public
servant;
ii) he should accept or obtain or agrees to accept or attempts to obtain
from any person;
iii) for himself or for any other person;
iv) any gratification other than legal remuneration;
v) as a motive or reward for doing or forbearing to do any official act or
to show any favour or disfavour.
…
6. In Subash Parbat Sonvane vs. State of Gujarat (2002) 5 SCC 86
(“Subash Parbat Sonvane”), it was observed that mere acceptance of
money without there being any other evidence would not be sufficient
for convicting the accused under Section 13(1)(d). In Sections 7 and
13(1)(a) and (b) of the Act, the legislature has specifically used the
word “accepts” or “obtains”. As against this, there is departure in the
language used in sub-section (1)(d) of Section 13 and it has omitted the
word “accepts” and has emphasized on the word “obtains”. In sub-
clauses (i), (ii) and (iii) of Section 13(1)(d), the emphasis is on the
CBI vs Sh. Kulbhushan Jindal
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ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 54 of 102
word “obtains”. Therefore, there must be evidence on record that the
accused “obtains” for himself or for any other person, any valuable
thing or pecuniary advantage by either corrupt or illegal means or by
abusing his position as a public servant or that he obtained for any
person any valuable thing or pecuniary advantage without any public
interest.
It was further observed with reference to Ram Krishan vs. state
of Delhi AIR 1956 SC 476 (“Ram Krishan”), that for the purpose of
Section 13(1)(a) and (b) of the Act:
“It is enough if by abusing his position as a public servant a man
obtains for himself any pecuniary advantage, entirely irrespective
of motive or reward for showing favour or disfavour.”
7. Moreover, the statutory presumption under Section 20 of the Act is
available for the offence punishable under Sections 7 or 11 or clauses
(a) and (b) of sub-section (1) of section 13 and not for clause (d) of
sub-section (1) of Section 13.
8. Reliance could also be placed on C.K. Damodaran Nair vs.
Government of India (1997) 9 SCC 477 (“C.K. Damodaran Nair”).
That was a case under the Prevention of Corruption Act, 1947 (‘1947
Act’ for the sake of convenience). Speaking of a charge under Section 7
of the Act, it was held that the prosecution was required to prove that:
(i) the appellant was a public servant at the material time;
(ii) the appellant accepted or obtained a gratification other than legal
remuneration; and
(iii) the gratification was for illegal purpose.
While discussing the expression “accept”, it was observed that “accept”
means to take or receive with a “consenting mind”. Consent can be
established not only by leading evidence of prior agreement but also
from the circumstances surrounding the transaction itself without proof
of such prior agreement. If an acquaintance of a public servant in
expectation and with the hope that in future, if need be, would be able
to get some official favour from him, voluntarily offers any
gratification and if the public servant willingly takes or receives such
gratification it would certainly amount to “acceptance”. Therefore, it
cannot be said, as an abstract proposition of law, that without a prior
demand, there cannot be “acceptance”. The position will, however, be
different so far as an offence under Section 5(1)(d) read with Section
5(2) of the 1947 Act is concerned. Under the said Section, the
prosecution has to prove that the accused “obtained” the valuable thing
or pecuniary advantage by corrupt or illegal means or by otherwise
abusing his position as a public servant and that too without the aid of
the statutory presumption under Section 4(1) of the 1947 Act as it is
available only in respect of offences under Section 5(1)(a) and (b) and
not under Section 5(1)(c), (d) or (e) of the 1947 Act. According to this
Court, “obtain” means to secure or gain (something) as a result of
request or effort. In the case of obtainment, the initiative vests in the
CBI vs Sh. Kulbhushan Jindal
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ID No. 73/19
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person who receives and, in that context, a demand or request from him
will be a primary requisite for an offence under Section 5(1)(d) of the
1947 Act unlike an offence under Section 161 of the Indian Penal Code
(for short, ‘IPC‘)., which, can be, established by proof of either
“acceptance” or “obtainment”.”
53.1 Further, it has been concluded as under :
“68. What emerges from the aforesaid discussion is summarised as
under:
(a) Proof of demand and acceptance of illegal gratification by a public
servant as a fact in issue by the prosecution is a sine qua non in order to
establish the guilt of the accused public servant under Sections 7 and 13
(1)(d) (i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has
to first prove the demand of illegal gratification and the subsequent
acceptance as a matter of fact. This fact in issue can be proved either by
direct evidence which can be in the nature of oral evidence or
documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and
acceptance of illegal gratification can also be proved by circumstantial
evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and
acceptance of illegal gratification by the public servant, the following
aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being
any demand from the public servant and the latter simply accepts
the offer and receives the illegal gratification, it is a case of
acceptance as per Section 7 of the Act. In such a case, there need
not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and
the bribe giver accepts the demand and tenders the demanded
gratification which in turn is received by the public servant, it is a
case of obtainment. In the case of obtainment, the prior demand for
illegal gratification emanates from the public servant. This is an
offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver
and the demand by the public servant respectively have to be
proved by the prosecution as a fact in issue. In other words, mere
acceptance or receipt of an illegal gratification without anything
more would not make it an offence under Section 7 or Section 13
(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section
7 of the Act, in order to bring home the offence, there must be an
offer which emanates from the bribe giver which is accepted by
the public servant which would make it an offence. Similarly, a
prior demand by the public servant when accepted by the bribeCBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
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giver and inturn there is a payment made which is received by the
public servant, would be an offence of obtainment under Section
13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance
or obtainment of an illegal gratification may be made by a court of law
by way of an inference only when the foundational facts have been
proved by relevant oral and documentary evidence and not in the
absence thereof. On the basis of the material on record, the Court has
the discretion to raise a presumption of fact while considering whether
the fact of demand has been proved by the prosecution or not. Of
course, a presumption of fact is subject to rebuttal by the accused and
in the absence of rebuttal presumption stands.
(f) In the event the complainant turns ‘hostile’, or has died or is
unavailable to let in his evidence during trial, demand of illegal
gratification can be proved by letting in the evidence of any other
witness who can again let in evidence, either orally or by documentary
evidence or the prosecution can prove the case by circumstantial
evidence. The trial does not abate nor does it result in an order of
acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the
facts in issue, Section 20 mandates the court to raise a presumption that
the illegal gratification was for the purpose of a motive or reward as
mentioned in the said Section. The said presumption has to be raised by
the court as a legal presumption or a presumption in law. Of course, the
said presumption is also subject to rebuttal. Section 20 does not apply
to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act
is distinct from presumption of fact referred to above in point (e) as the
former is a mandatory presumption while the latter is discretionary in
nature.”
emphasis supplied
54. Also, in The State of Karnataka Vs. Chandrasha42 once again,
reliance was placed upon Neeraj Dutta Vs. State (Govt. of NCT of Delhi)
(supra) and held as under :
“21. It is settled law that the two basic facts viz., ‘demand’ and
‘acceptance’ of gratification have been proved, the presumption under
Section 20 can be invoked to the effect that the gratification was
demanded and accepted as a motive or reward as contemplated
under Section 7 of the Act. However, such presumption is rebuttable.
Even on the basis of the preponderance of probability, the accused can
rebut the same…”
42 2024 INSC 928
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 57 of 102
55. In The State of Karnataka Vs. Chandrasha (supra) , the Supreme
Court has also opined that :
“23. … Insofar as the reference to sub section (3) to Section 20 regarding
the triviality of the gratification, the act sought or performed, and the
amount demanded cannot be considered in isolation to each other. The
value of gratification is to be considered in proportion to the act to be
done or not done, to forbear or to not forebear, favour or disfavour sought,
so as to be trivial to convince the Court, not to draw any presumption of
corrupt practice. It is also not necessary that only if substantial amount is
demanded, the presumption can be drawn. The overall circumstances and
the evidence will also have to be looked into…”
56. Thus, it is no longer res integra that even if the complainant turns
hostile or dies or is unavailable to depose during trial, the demand and
acceptance of bribe can be proved through circumstantial evidence.
57. Now, while dealing with principles of law relating to appreciation of
Circumstantial Evidence, in The State of Maharashtra Vs. Balveer Singh 43
it has been held as under :
“60. In ‘A Treatise on Judicial Evidence’, Jeremy Bentham, an English
Philosopher included a whole chapter upon what lies next when the direct
evidence does not lead to any special inference. It is called Circumstantial
Evidence. According to him, in every case, of circumstantial evidence, there
are always at least two facts to be considered; (i) the Factum Probandum, or
say, the principal fact the existence of which is supposed or proposed to be
proved; and (ii) the Factum Probans or the evidentiary fact or the fact from
the existence of which that of the factum probandum is inferred.
61. Although there can be no straight jacket formula for appreciation of
circumstantial evidence, yet to convict an accused on the basis of
circumstantial evidence, the Court must follow certain tests which are
broadly as follows: –
(i) Circumstances from which an inference of guilt is sought to be drawn
must be cogently and firmly established;
(ii) Those circumstances must be of a definite tendency unerringly pointing
towards guilt of the accused and must be conclusive in nature;
(iii) The circumstances, if taken cumulatively, should form a chain so
43 2025 INSC 261CBI vs Sh. Kulbhushan Jindal
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complete that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and none else; and
(iv) The circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis than that of
the guilt of the accused but should be inconsistent with his innocence. In
other words, the circumstances should exclude every possible hypothesis
except the one to be proved.
[See: Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4
SCC 116]
62. In an Essay on the ‘Principles of Circumstantial Evidence’ by William
Wills by T. and J.W. Johnson and Co. 1872, it has been explained that
circumstantial evidence implies the existence of a certainty in the relation
between the facts and the inferences stemming therefrom. The relevant
extract reads as under: –
“In matters of direct testimony, if credence be given to the relators, the act
of hearing and the act of belief, though really not so, seem to be
contemporaneous. But the case is very different when we have to determine
upon circumstantial evidence, the judgment in respect of which is
essentially inferential. There is no apparent necessary connection between
the facts and the inference; the facts may be true, and the inference
erroneous, and it is only by comparison with the results of observation in
similar or analogous circumstances, that we acquire confidence in the
accuracy of our conclusions.
The term PRESUMPTIVE is frequently used as synonymous with
CIRCUMSTANTIAL EVIDENCE; but it is not so used with strict accuracy,
The word” presumption,” ex vi termini, imports an inference from facts; and
the adjunct “presumptive,” as applied to evidentiary facts, implies the
certainty of some relation between the facts and the inference.
Circumstances generally, but not necessarily, lead to particular inferences;
for the facts may be indisputable, and yet their relation to the principal fact
may be only apparent, and not real; and even when the connection is real,
the deduction may be erroneous. Circumstantial and presumptive evidence
differ, therefore, as genus and species.
The force and effect of circumstantial evidence depend upon its
incompatibility with, and incapability of, explanation or solution upon any
other supposition than that of the truth of the fact which it is adduced to
prove; the mode of argument resembling the method of demonstration by
the reductio ad absurdum.”
63. It is settled principle of law that an accused can be punished if he is
found guilty even in cases of circumstantial evidence provided, the
prosecution is able to prove beyond reasonable doubt the complete chain of
events and circumstances which definitely points towards the involvement
or guilt of the accused. The accused will not be entitled to acquittal merely
because there is no eye witness in the case. It is also equally true that an
accused can be convicted on the basis of circumstantial evidence subject to
satisfaction of the expected principles in that regard.”
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 59 of 102
58. Also, in Neeraj Dutta Vs. State (Govt. of NCT of Delhi) (supra) a
detailed analysis on direct and circumstantial evidence has been given
which is as under :
“Circumstantial Evidence
53.As already noted, all evidence let in before the court of law are
classified either as direct or circumstantial evidence. “Direct evidence”
means when the principal fact is attested directly by witnesses, things or
documents. For all other forms, the term “circumstantial evidence” which
is “indirect evidence” is referred, whether by witnesses, things or
documents, which can be received as evidence. This is also of two kinds
namely, conclusive and presumptive. Conclusive is when the connection
between the principal and evidentiary facts -the factum probandumand
factum probans-is a necessary consequence of the laws of nature;
“presumptive”is when the inference of the principal fact from the
evidence is only probable, whatever be the degree of persuasion which it
may generate (Best, 11thEdition, Section 293). Thus, circumstantial
evidence is evidence of circumstances as opposed to what is called direct
evidence. The prosecution must take place and prove all necessary
circumstances constituting a complete chain without a snap and pointing
to the hypothesis that except the accused, no one had committed the
offence vide Navaneethakrishnan vs. State by Inspector of Police AIR
2018 SC 2027(“Navaneethakrishnan”).
54.The principal fact can be proved indirectly by means of certain
inferences drawn from its existence or its connection with other
circumstantial evidence. It is often said that witnesses may lie but not the
circumstances. However, the court must adopt a cautious approach while
basing its conviction purely on circumstantial evidence. Inference of guilt
can be drawn only when all incriminating facts and circumstances are
found to be incompatible with the innocence of an accused. In other
words, circumstantial evidence is not direct to the point in issue but
consists of evidence of various other facts which are so closely associated
with the fact in issue that, taken together they form a chain of
circumstances from which the existence of the principal fact can be
legally inferred or presumed.
55. It is trite law that in cases dependent on circumstantial evidence, the
inference of guilt can be made if all the incriminating facts and
circumstances are incompatible with the innocence of the accused or any
other reasonable hypotheses than that of his guilt, and provide a cogent
and complete chain of events which leave no reasonable doubt in the
judicial mind. When an incriminating circumstance is put to the accused
and the said accused either offers no explanation or offers an explanation
which is found to be untrue, then the same becomes an additional link inCBI vs Sh. Kulbhushan Jindal
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ID No. 73/19
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the chain of circumstances to make it complete. If the combined effect of
all the proven facts taken together is conclusive in establishing the guilt
of the accused, a conviction would be justified even though any one or
more of those facts by itself is not decisive. (Sharad Birdhichand Sarda
vs. State of Maharashtra(1984) 4 SCC 116 (“Sharad Birdhichand Sarda”)
as reiterated in Prakash vs. State of Rajasthan (2013) 4 SCC
668(“Prakash”))
56.In Kundan Lal Rallaram vs. The Custodian, Evacuee Property
Bombay AIR 1961 SC 1316 (“Kundan Lal Rallaram”), this Court
speaking though K. Subba Rao, J. observed that the rules of evidence
pertaining to burden of proof are embodied in Chapter 7 of the Evidence
Act. The phrase “burden of proof” has two meanings :-one,the burden of
proof as a matter of law and pleading and the other,the burden of
establishing a case; the former is fixed as a question of law on the basis
of the pleadings and is unchanged during the entire trial, whereas the
latter is not constant but shifts as soon as a party adduces sufficient
evidence to raise a presumption in his favour. The evidence required to
shift the burden need not necessarily be direct evidence i.e.,oral or
documentary evidence or admissions made by opposite party; it may
comprise of circumstantial evidence or presumptions of law or fact.”
59. This Court is also cognizant that as the accused is facing
prosecution for commission of alleged criminal acts, the prosecution is
required to prove the case against the accused beyond reasonable doubts
and the accused is merely required to raise doubts on the case of the
prosecution. Further, the prosecution is also required to stand on its own
feet and cannot seek advantage of the lacunae if any, in the defence.
60. Before we proceed further, there are certain facts in issue which are
not contested. Firstly, that the accused is a public servant who vide office
order bearing no. DA-1/Engg(HQ)/NDMC/2015/65 dated 29.10.2015 (Ex.
PW12/F)(D-18E) was transferred from Project Division, Karol Bagh Zone
to Building Department, Narela Zone in the capacity of a Junior Engineer
and had joined his duty through his joining report Ex. PW12/G (D-18E)
accepted vide office order bearing no. EE/B/NRZ/2015/D-685 dated
CBI vs Sh. Kulbhushan Jindal
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ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 61 of 102
26.11.2015 (Ex. PW12/G-1)(D-18E) and was discharging his duties as the
Junior Engineer of Narela Zone and it was within his scope of duty to detect
unauthorized constructions / deviations against sanctioned building plans or
violation of Building Bye-laws and to implement guidelines of NGT under
DMC Act. Even though, the prosecution has through the report of the
handwriting expert Dr. Subrat Kumar Choudhury (PW-9) sought to prove
that notice under Section 337 DMC Act (Ex. PW6/A) (D-7a) qua factory of
the complainant was prepared on a noting Ex. PW6/B (D-23A) submitted
by the accused alongwith photographs of the building (Ex PW6/C)
(D-23A), the accused also has not denied either his noting, or the notice.
Admittedly, the notice (Ex. PW6/A) (D-7a) was put up before the Executive
Engineer Sh. Vijender Dahiya (PW-10), but he had not signed the same and
had sought present status within 03 days. Hence, the notice (Ex. PW6/A)
(D-7a) to the complainant was under process.
61. The contentious questions which now arise for consideration before
this Court to drive home the criminality of the accused are a.) Whether the
prosecution has through direct or circumstantial evidence established that
the accused had demanded bribe from the complainant? b.) Whether,
thereafter, the prosecution has also conclusively proved through direct or
circumstantial evidence that in pursuance of the demand raised, the accused
had also accepted the illegal gratification? c.) Whether the Sanction under
Section 19 of The P.C. Act is invalid for lack of application of mind by the
sanctioning authority?
a.) Whether the prosecution has through direct or circumstantial evidence
established that the accused had demanded bribe from the complainant?
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 62 of 102
62. As already discussed above, one of the essential ingredients to
establish offence under Section 7 and Section 13 (1)(d) of The P.C. Act is
“demand” emanating from the accused. To prove the same, the prosecution
has cited and examined certain witnesses Sh. Pankaj Gupta (PW-13), the
complainant (PW-14) and Sh. Nitesh Singhal (PW-15) as well as relied
upon certain documentary evidences.
63. So far as, Sh. Nitesh Singhal (PW-15) is concerned, he stated that as a
member of the trap team, he was directed to observe the proceedings. As
per his testimony dated 18.11.2022, he along with the complainant sat in the
same vehicle when they started from the C.B.I. office and claims to be a
privy to one or two conversations between the complainant and the accused
over mobile phone, in the vehicle. He stated that one call was regarding the
time when the complainant would reach the factory. Thereafter, he has
stated that he alongwith 2-3 C.B.I. officials waited at the part at a distance
of 60-70 metres from the factory. Thus, he is not a witness to the
conversation that took place between the accused and the complainant
(PW-14) at the gate of the factory when the trap proceedings were
conducted. During his examination dated 18.05.2023, when audio
recordings in memory card Ex. PW9/A were played, he has merely stated
that the relevant transcriptions of the conversation contained in audio files
171116_0811 (point A to A), 171116_0925 (point X to X), 171116_1015
(point C to C), 171116_1042 (point D to D) and 171116_1042_01 (point
E-1 to E-1 and point E-2 to E-2) having exhibits number Ex. PW13/B
(D-15A), Ex. PW13/B (D-15A), Ex. PW13/C (D-15A), Ex. PW13/D
(D-15A) and Ex. PW13/E (D-15A), respectively are correct but has
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 63 of 102
categorically denied that he can identify the voices as he stated as under:
“I could not identify the voices as I had met complainant and
accused Kulbhushan Jindal only once during trap proceedings.”
64. Similar has been his stand qua conversations contained in memory
card Ex. PW9/F (Q-3) as during his examination, he has testified qua the
correctness of relevant transcriptions Ex. PW13/N (D-15A) (qua audio file
no. 171116_1454), however, once again, he could not identify the voices
contained therein for reasons already mentioned above. Thus, not much can
be culled out from his testimony as regards accused having demanded bribe
from the complainant in his presence or within his hearing.
65. Thereafter, the material independent witness on the fact of “demand”
is Sh. Pankaj Gupta (PW-13), who was appointed as the shadow witness to
overhear the communication during verification proceedings as well as trap
proceedings. He stated before the Court that during verification proceedings
he was “… I was asked by Mr. Shukla to get down from the vehicle and I
had came down from the vehicle about km before the destination and I was
so instructed that we all may not be recognized together by Mr. Kulbhushan
Jindal. The other three had proceeded but I am not recollecting whether
they had gone together but it was Mr. Vaibhav Jain who went there to the
factory. After some time I received telephone call of Inspector Shukla to
reach the factory, in fact I was on the road and roaming there and I
informed Inspector Shukla that I was still there where I was dropped from
the vehicle; I was asked to reach the factory. Then Mr. Raman Shukla and
driver came in the vehicle and I was picked up from that place, we all came
outside the factory in the same vehicle, there Mr. Vaibhav Jain was present.
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 64 of 102
Mr. Vaibhav Jain narrated me that Mr. Kulbhushan Jindal had met him but
today I am not recollecting all those conversations, Mr. Vaibhav Jain had
also voice recorder and he told me that he had also recorded the
conversation took place with Mr. Kulbhushan Jindal, the said voice
recorder was not played to me by Mr. Vaibhav Jain. Then we came back to
the office of CBI…44″
66. Thus, he did not over hear the conversation between the complainant
and the accused at the time of verification proceeding. What he learnt about
the interaction of the complainant (PW-14) and the accused was reduced to
mere hearsay as he further deposed45″Mr. Vaibhav Jain narrated me that Mr.
Kulbhushan Jindal had met him but today I am not recollecting all those
conversations. Mr. Vaibhav Jain had also voice recorder and he tole me that
he had also recorded the conversation took place with Mr. Kulbhushan
Jindal, the said voice recorder was not played to me by Mr. Vaibhav Jain.
Then we came back to the office of CBI. The conversation recorded in the
voice recorder by Vaibhav Jain was listened by me in the office of CBI, I
am not recollecting whether it was listened by others”
67. When it comes to his participation in the trap proceedings as the
shadow witness who was entrusted with the specific duty to over hear the
conversation between the accused and the complainant, his examination in
chief records the following:
“… One person came down from the Santro car and reached near the
main gate of factory. He talked something with the complainant, then44 Page nos 3 and 4 of deposition sheets of Sh. Pankaj Gupta (PW-13) dated 27.05.2019.
45 Page no. 4 of deposition sheets of Sh. Pankaj Gupta (PW-13) dated 27.05.2019CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 65 of 102
complainant accompanied the said person and both went outside the main
gate of factory. Immediately on making exit of complainant and said
person, I also came near the gate of factory but I was inside the gate of
factory. Initially it was not known to me about that person but later on it
was revealed that he was the driver of the Santro car and his name was
Dinesh ; he was driver of accused Kulbhushan Jindal”46
68. Again, during his further examination he deposed as under:
“… This currency notes P-1 (39 notes colly) were recovered from
accused Kulbhushan Jindal and this amount came to him, as disclosed by
complainant, when I was standing behind the gate and there was some
conversation took place between between the complainant and the accused
Kulbhushan and during that conversation, the accused had demanded the
amount from complainant and the complainant had given this amount
which was already smeared with the said powder, consequently it was
recovered from him. I had not heard the conversation took place between
the complainant and the accused, the complainant had disclosed lateron
about the conversation took place between them and amount was handed
over to accused because of that conversation between the complainant and
the accused. I am not recollecting whether complainant had narrated me
that in the conversation between complainant and accused, there was
demand of amount by the accused (vol. that conversation is matter of
recording and what exactly was the conversation is not remembered by me
today”47.
46 Page no. 4 of deposition sheets of Sh. Pankaj Gupta (PW-13) dated 30.08.2019
47 Testimony of Sh. Pankaj Gupta (PW-13) pages no. 3-4 dated 06.11.2019CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 66 of 102
69. Hence, it is apparent from the examination that he has not been a
privy to the conversation that took place between the complainant and the
accused at the spot at the time of trap proceedings as contained in audio file
171116- 1639 (in memory card Ex. PW9/F and transcript of which is Ex.
PW13/N) (D-15A).
70. This leads us with the crucial testimony of the complainant
(PW-14). Now, so far as the testimony of the complainant (PW-14) is
concerned regarding demand of bribe what is emerging from record is that
he has confirmed the contents of the complaint (Ex. PW14/A)(D-2) which
was written in his own hand and was signed by him. The said complaint is
as under :
“To,
The SP
CBI-ACB
N. Delhi
Subject :- Complaint for bribary asked by Mr. Kulbhushan, JE, MCD –
Narela Zone.
Sir / Madam,
I want to bring to your kind notice that a person who introduced
himself from MCD, Narela visited my factory (H-1172, DSIDC, Industrial
Park, Narela, ND) & asked to meet Mr. Kulbhushan, JE or Area, Narela
Zone. I visited the MCD office & met Mr. Kulbhushan (JE) who asked me
to pay Rs.2.0 Lac as bribe for not demolishing the construction carried out
by me in my factory. I asked for some time to revert to his demand. Then
on second meeting on 11-11-2017 at my factory no. H-1172, DSIDC,
Narela he negotiated & settled the amount to Rs One Lac. He demanded
this amount in the coming week. This conversation between me and Mr
Kulbhushan was recorded by me in my personal voice recorder, that will be
provided to CBI. As I dont want to pay the bribe amount I request you to
take a legal action against Mr Kulbhushan, JE-MCD, Narela Zone.
Thanking you,
Your’s truly,
(VAIBHAV JAIN)
DDA-MIG 74, Punjabi Bagh Enclave
Shiv Mandir Rd, Madipur, ND-110063
M:-9899728947″
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 67 of 102
71. Thus, what can be deciphered from it is that :
(i) It is by name of Mr. Kulbhushan, J.E. (ii) The demand of bribe of Rs.2,00,000/- was made by Mr. Kulbhushan
(J.E.) at the MCD Office for not demolishing the construction carried out by
the complainant in his factory
(iii) On the second meeting on 11.11.2017 at his factory, Mr. Kulbhushan
(J.E.) negotiated and settled the amount to Rs.1,00,000/- to be paid in the
coming week.
(iv) The said conversation was recorded.
72. While further deposing the complainant (PW-14) also proved the
contents of the verification proceedings (Ex.PW13/F)(D-3). However,
stated that he made a call to the person who had demanded Rs.2,00,000/-
from him and the said person told his name as “Anil”. When asked to
identify whether the person who had come to his factory and negotiated the
bribe amount, the witness after seeing the accused facing trial stated “… that
he was not the person who had negotiated the bribe amount but he met him
in the evening of 16.11.2017 when the bribe amount of Rs.75,000/- was
handed over to him and he had met accused Kulbhushan Jindal on the said
date for the first time in the evening of 16.11.2017 during the trap
proceedings.”48 Even when he was cross-examined by the Ld. Public
Prosecutor, he stated that “It is correct that I had spoken with someone but I
cannot confirm who was that speaker at the other end.”49 in reference to the
demand of bribe. He denied the suggestion that the accused present in the
48 Page no. 3 of deposition sheets of the complainant (PW-14) dated 17.12.2021
49 Page 1 of deposition sheets of the complainant (PW-14) dated 31.08.2022
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 68 of 102
Court had demanded Rs. 75,000/- from him and thereafter, negotiations had
been held. Thus, the witness has not completely supported the case of the
prosecution and turned hostile on the identity of the accused being tried as
“Kulbhushan Jindal” who had demanded bribe from him.
73. Thereafter, on being made to hear relevant audio files in memory
cards Ex. PW9/A (Q-1) and Ex. PW9/F (Q-3), he stated ” It seems that the
above voices which I have heard are mine but I cannot confirm the same.
The said conversation had taken place with Kulbhushan Jindal but I cannot
say about his identity…”50.
74. Hence, analysis of the electronic evidence becomes imperative to
prove that the bribe seeker was the accused facing trial, only and to evaluate
whether there is sufficient circumstantial evidence on the identity of the
accused. At the outset, it is worth mentioning that as per the complaint
(Ex. PW14/A)(D-2), the complainant (PW-14) stated that the conversation
which he had with the accused (dated 11.11.2017 at his factory where he
negotiated and settled the bribe amount at Rs. 1,00,000/-) was recorded by
him in his personal voice recorder. The said voice recorder (DVR make
Cenix along with data cable and a CD “Power VOICE II”) was handed over
by the complainant (PW-14) to the verifying officer on 16.11.2017 which is
Ex. PW13/F (D-3) as per the verification memo. The said recording was
sent to CFSL for making of copy vide letter dated 29.11.2017 (Ex. PW16/A
(D-10) also Mark PW19/A(D-9)) which as per reply dated 19.12.2017 (Ex.
PW21/A)(D-14) could not be copied “due to non-compatibility of the
exhibit with the standard existing system of this laboratory.” Thereafter,
50 Page no. 6 of deposition sheets of the complainant (PW-14) dated 15.07.2022
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 69 of 102
another letter dated 03.01.2018 (Ex. PW9/DA)(D-13) was sent to CFSL
seeking analysis only of exhibits Ex. PW9/A (Q-1) and Ex. PW9/F (Q-3)
only. Thus, the recording prepared by the complainant of the conversation
specific to negotiation of the bribe amount on 11.11.2017 has not been
relied upon51. It was for the investigating agency to take sufficient steps to
investigate exhibit Q-2 but from material on record, it only appears that a
material piece of evidence was not throughly probed by seeking analysis by
some other lab or use of some other compatible software and for reasons
best known to the investigating agency.
75. This leaves us with two exhibits Q-1 tendered in evidence as Ex.
PW9/A and Q-3 tendered in evidence as Ex. PW9/F compared with Ex. S-1
(EX. PW13/L)(D-5). In Ram Singh and others Vs. Col. Ram Singh (supra)
relied upon by both the parties and also followed in Nilesh Dinkar Paradkar
Vs. State of Maharashtra (supra), the Hon’ble Apex Court has held that for
the admissibility of tape recorded statements, the following conditions are
necessary :
“(1) The voice of the speaker must be identified by the maker of the
record or by others who recognise his voice. Where the voice is 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 voice of the speaker should be audible and not distorted by other
sounds or disturbances.
(3) The accuracy of the tape recorded statement has to be proved by the
maker of the record by satisfactory evidence.
(4) Every possibility of tampering with or erasure of a part of the tape
recorded statement must be ruled out;
(5) The statement must be relevant according to the rules of evidence and
(6) The recorded cassette must be carefully sealed and kept in safe
51 As per deposition sheet dated 03.06.2024 when Insp. Raman Kumar Shukla (PW18) was being
examined in chief, ld. PP for the State, insisted on getting Q-2 adduced in evidence, however,
objection was raised by ld. Counsel for the defence as it was not in Article relied upon police report
and copy was also not supplied to the accused u/S 207 of Cr. P.C., therefore, ld. Predecessor of this
Court sustained the objection.
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 70 of 102
custody.”
76. To prove the identity of the voice of the accused, in the
aforementioned recordings, the prosecution has also relied upon testimonies
of the complainant (PW-14), Sh. Pankaj Gupta (PW-13), Sh. Amrendra
Sahoo (PW-2), Dr. Subrat Kumar Choudhury (PW-9), Inspector H.V. Attri
(PW-17), Inspector Raman Kumar Shukla (PW-18), Inspector Sudeep Punia
(PW-19) and the following documents :
(i) Voice Identification -cum- Transcription Memo dated 27.12.2017 (Ex.
PW13/P) (D-15A) prepared by Inspector Sudeep Punia (PW-19) in the
presence of Sh. Pankaj Gupta (PW-13), the complainant (PW-14) and Sh.
Nitesh Singhal (PW-15)
(ii) Voice Identification -cum- Transcription Memo dated 16.01.2018 (Ex.
PW2/B) (D-19) prepared by Inspector Sudeep Punia (PW-19) in the
presence of Sh. Vijay Kumar Sharma (PW-12) and Sh. Amrendra Sahoo
(PW-2).
(iii) CFSL Voice Analysis Report Ex. PW9/A1 (D-24) tendered in
evidence by Dr. Subrat Kumar Chaudhury as per which he has opined that
Ex. PW9/A (Q-1) and Ex. PW9/F (Q-3) contained the probable voices of
accused Kulbhushan Jindal, the Ex. PW9/A (Q-1), Ex. PW9/F (Q-3) and
Ex. PW9/L (S-1) were not tampered with and the purported DVR (Ex.
PW9/P) had been used in recording audio files contained in Ex. PW9/A
(Q-1), Ex. PW9/F (Q-3) and Ex. PW9/L (S-1).
(iv) CDR of mobile phone no. xxxxxx8947 from 01.11.2017 to
17.11.2017 (Ex. PW3/A) (D-22) and copy of call details of mobile phone
no. xxxxxx7032 from 01.11.2017 to 17.11.2017 (Ex. PW1/A) (D-20A) and
the mobile set’s subsequent recovery from the possession of the accused
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 71 of 102
during his personal search as entered in his Arrest cum Personal Search
Memo (Ex PW13/J) (D-8).
77. So far as, voice identification-cum-transcription memo dated
16.01.2018 (Ex. PW2/B) (D-19) is concerned, the following material
observations can be gathered from record:
(a) Sh. Vijay Kumar Sharma (PW-12), colleague of the accused cited as a
witness by the prosecution to identify the voice of the accused deposed that
though he had gone to the office of CBI on 16.01.2018 and inquiries were
made from him about conversations between two persons played on a
laptop, he had responded that he could not recognize the voices and had
also declined a suggestion that one of the voice was of accused Kulbhushan
Jindal. At his request, the audio files 171116-1015 and 171116-1042 in
memory card Ex. PW9/A (Q-1) was played. Though, he confirmed that the
same conversation was played before him in the CBI office and the
transcript was tallied with it, he categorically stated upon audio file
171116-1015:
“I am not able to recognize which of the voice was of Kulbhushan
Jindal.”
78. To a Court question, he stated that he could recognize the voice of
Kulbhushan Jindal as he had heard him in his office as they usually sat in
one room. Thereafter, qua audio file No. 171116-1042, his stand has been
that it does not contain the voice of Kulbhushan Jindal. Similarly, when the
audio files No. 171116-1355, 171116-1600 and 171116-1639 in memory
card Ex. PW9/F (Q-2) was played before the Court, he stated that the first
audio file did not contain the voice of the accused and in the other two files,
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 72 of 102
he did not recognize the voice of the accused. He also declined to recognize
the sample voice of the accused stating that it was not recorded in his
presence. Therefore, the witness did not support the case of the prosecution
on voice identification. He was duly cross examined by the Ld. Public
Prosecutor for the State and even during cross examination, he remained
persistent that the audio files did not contain the voice of his colleague.
However, the prosecution attempted to question the credibility of the
witness being an interested witness who wanted to save his
colleague/accused, the suggestions were declined by the witness. No
evidence in rebuttal was led by the State (through C.B.I.). He denied his
statement recorded under Section 161 Cr.P.C. which was subsequently
proved by the IO as Ex. PW19/2. However, the contradictions are too
glaring and the witness has been rendered unreilable.
(b) A material contradiction thereafter, emanated from the testimony of
Sh. Amrender Sahoo (PW-2) who testified that he was a witness to the
preparation of voice identification-cum-transcription memo dated
16.01.2018 (Ex. PW2/B) (D-19) and in his presence witness Sh. Vijay
Kumar Sharma (PW-12) had identified the voice of accused Kulbhushan
Jindal in the audio files played before them. However, it is to be borne in
mind that testimony of Sh. Amrendra Sahoo (PW-2) is material on the
aspect of genuineness of the Voice Identification Procedure and per se the
witness is not competent for identification of the voice. However, here the
Ld. Counsel for the accused during cross examination has elicited responses
from both witnesses which raise doubts on their simultaneous availability at
the time of preparation of Voice Identification-cum-transcription Memo
(Ex. PW2/B) (D-19). It is worth noting that whereas Sh. Amrendra Sahoo
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 73 of 102
(PW-2) stated that the proceedings about which he had deposed in his
examination in chief started at 03:00 p.m. and concluded at 04:30 p.m., Sh.
Vijay Kumar Sharma (PW-12) stated that on 16.01.2018, he had visited the
office of CBI at about 11:00/ 11:30 a.m. and left at around 02:30 p.m.
Thereafter, when Inspector Sudeep Punia (PW-19) who has prepared the
Voice Identification-cum-transcription Memo (Ex. PW2/B) (D-19) was
examined on aforementioned specific contradiction. During his cross-
examination52 he stated “…. I cannot tell the date and time during which
IO copy of Q- 1 and Q-3 was played in the presence of Vijay Kumar
Amrendra Sahu. (Vol.) I can tell the same only after seeing the
documents…” Though he maintained the genuineness if the preparation of
the document. However, the contradictions in the statements of the
witnesses could not be reconciled.
79. The next document to be considered is the Voice Identification cum
Transcription Memo dated 27.12.2017 (Ex. PW13/P) (D-15A). The said
document has been prepared by Inspector Sudeep Punia (PW-19)
purportedly in the presence of Sh. Pankaj Gupta (PW-13), the complainant
(PW-14) and Sh. Nitesh Singhal (PW-15). The analysis of the document in
context of the oral testimonies of the aforementioned witnesses to the
document leads to following inferences :
(i) Sh. Nitesh Singhal (PW-15) during examination in chief 53 stated that
on 27.12.2017 he may have gone to the office of CBI but denied the
suggestions that on the said date, his voice and voices of accused and
independent witness Sh. Pankaj Gupta (PW-13) were played or that he had52 Page no. 3 of deposition sheet of Inspector Sudeep Punia (PW-13) dated 03.10.2024
53 Page no.2 of deposition sheets of Sh. Nitesh Singhal (PW-15) dated 18.05.2023CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 74 of 102
identified their voices. Further, he categorically denied the suggestion that
Sh. Pankaj Gupta (PW-13) was also present in the CBI office. He stated
that he had only met the Investigating Officer on that date. Further, when
Sh. Pankaj Gupta (PW-13) was examined 54 on Ex. PW13/P (D-15A), stated
before the Court that when Ex. PW13/P (D-15A) had been prepared in his
presence at the CBI office and had been signed by him at point S-1.
Subsequently, during his cross-examination, the following response was
elicited from him55 “I do not remember whether it was endorsed in that
transcript or in the memo that I had identified the voices. [The witness is
shown memo Ex. PW13/P and he is asked whether this memo mentions that
you had identified the voices] I have seen the memo and also read it, the
memo does not reflect that ‘I had identified the voices’ but it is mentioned
at Portion-A to A that ‘Pankaj Gupta confirmed that this is the same
conversation which he had heard on 16.11.2017 and 17.11.2017….
Que – How much time was taken in respect of the proceedings as well as
the voice identification-cum-transcription memo Ex. PW-13/P?
Ans – I do not remember the duration today.
I do not remember whether I had narrated identification of voices to
the IO while recording my statement u/s 161 Cr.P.C….”
80. Thus, a material improvement in his testimony was brought to the
fore. It was demonstrated that he sought to identify the voice of the accused
for the first time in the Court, only and its probative value would depend on
how familiar was he with the voice of the accused and the fact being
unresolved questions the reliability of the testimony of the witness on the
54 Page no.8 of deposition sheets of Sh. Pankaj Gupta (PW-13) dated 06.11.2019
55 Page no. 4 of deposition sheets of Sh.Pankaj Gupta (PW-13) dated 16.01.2020
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 75 of 102
said aspect.56 Inspector Sudeep Punia (PW-19)57 when cross-examined on
preparation of Ex. PW13/P (D-15A) deposed as under :
“…I had not played the original articles Q-1, Q-3 and S-1 before the
complainant and independent witnesses at any point of time. It is correct that
IO copy of Q-1, Q-3 and S-1 is not part of the court record as the same was
not filed with the charge sheet. I cannot tell the date and time during which IO
copy of Q-1 and Q-3 was played in the presence of Vijay Kumar Amrendra
Sahu. (Vol.) I can tell the same only after seeing the documents. I myself had
taken Q-1, Q-3 and S-1 to CFSL but I do not remember the date when I had
taken the same to the CFSL. No road certificate was issued /prepared for
handing over the said articles to CFSL. I had handed over the present case to
Inspector Shitanshu Sharma during the summer of the year 2018 but I do not
remember the date and month when the case was handed over. It is correct
that generally concluding voice of independent witnesses is taken while
recording the questioned voice or the sample voice. I cannot say whether the
concluding voice of the independent witnesses or the complainant was taken
in the recorded conversations Q-1, Q-3 and S-1. It is correct that there is no
concluding voice of independent witnesses in transcriptions of Q-1 and Q-3
marked Ex.PW13/B, Ex.PW13/C, Ex.PW13/D, Ex.PW13/E and Ex.PW13/N.
I have seen document Ex.PW13/P in the court file. It is correct that the timing
during which the said proceedings were conducted is not mentioned in
Ex.PW13/P. Independent witness Nitesh Singhal was present in the
proceedings on 16.11.2017 in this case. It is incorrect that I am deposing
falsely in this regard. It had taken three-four hours to conduct the proceedings
mentioned in Ex.PW13/P. It is wrong to suggest that no such proceedings as
mentioned in Ex.PW13/P were conducted. It is wrong to suggest that
document Ex.PW13/P is a concocted document.”
81. Hence, there is contradiction in the statement of witnesses to the
document regarding their presence when the document was prepared.
82. Unlike substantive evidence given before the Court58 where the
complainant (PW-14) stated “It seems that the above voices which I have
heard are mine but I cannot confirm the same. The said conversation had
taken place with Kulbhushan Jindal but I cannot say about his identity.” , the
complainant (PW-14) had confirmed his voice as well as the voice of the
56 Refer to paragraph no. 82 and 83 of the judgment
57 Pages no. 3 and 4 of deposition sheets dated 03.10.2024
58 Page no. 6 of deposition sheets dated 15.07.2022
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 76 of 102
accused in copies of Ex. PW9/A (Q-1) and Ex. PW9/F (Q-3) and Ex.
PW9/L (S-1). However, the complainant (PW-14) was not confronted with
the document Ex. PW13/P (D-15A) when he was examined before the
Court.
83. The only independent witness who has identified the voice of the
accused in Ex. PW9/A (Q-1) and Ex.PW9/F (Q-3) is Sh. Pankaj Gupta
(PW-13). So far as contents of exhibit Q-1 are concerned, it has already
emerged from the examination in chief of Sh. Pankaj Gupta (PW-13) that he
had not overheard the conversation between the accused and the
complainant as he was dropped a kilometre before the factory of the
complainant. As regards the conversation that took place between the
complainant and the accused at the time of trap as contained in Ex. Q-3, as
already recorded above, the witness had not heard the conversation and had
heard the same from the complainant, later on. However, before the Court
when the witness was made to hear the original audio files in Ex.PW9/F
(Q-3) , he stated that “I am able to recognize their voices since I heard
Vaibhav speaking and there was also occasion for me to hear physically
Kulbhushan in the evening of 16.11.20117.”59 During cross-examination on
16.01.2020 when he was confronted with aforementioned statement, he
deposed “I never talked to Kulbhushan Jindal prior to 16.11.2017. It is
wrong to suggest that I have deposed falsely with regard to portion X to
X …60” On further, cross-examination as he claimed that he had identified
the voice of the accused on 27.12.2017 when Voice identification cum
transcription memo dated 27.12.2017 (Ex. PW13/P) (D-15A) was prepared,
59 Pages no. 5 of deposition sheet of Sh. Pankaj Gupta (PW-13) dated 06.11.2019
60 Pages no. 2 of deposition sheet of Sh. Pankaj Gupta (PW-13) dated 16.01.2020
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 77 of 102
the witness was confronted with the document where it was not so recorded.
Thus, to merely rely upon the identification of the voice of the accused in
Ex. PW9/A (Q-1) and Ex. Q-2 by Sh. Pankaj Gupta (PW-13) who had
heard the accused only on 16.11.2017 and identified the voice of the
accused for the first time before the Court after a lapse of two years, would
not be prudent especially as the prosecution’s material witnesses
complainant (PW-14) and Sh. Vijay Kumar Sharma (PW-12) who were
more competent to recognize his voice have not supported the case of the
prosecution. Thus, the identity of the voice of the bribe seeker as that of the
accused has not been conclusively proved by Sh. Pankaj Gupta (PW-13) as
reasonable doubt has been raised on his familiarity with the voice of the
accused.
84. Qua CFSL Voice Analysis Report Ex. PW9/A1(D-24), challenge has
been raised which can be categorized as under :
(a) Since there is no oral evidence of alleged conversations recorded in
Ex. PW9/A (Q-1) and Ex. PW9/F (Q-3), per se the exhibits being mere
corroborative in nature cannot be relied upon.
(b) Even otherwise, Sh. Vijay Kumar Sharma (PW-12), the complainant
(PW-14) and Sh. Nitesh Singhal (PW-15) have not identified the voice of
the accused in the audio files contained in Ex. PW9/A (Q-1) and Ex. PW9/F
(Q-3) and the identification, if any by Sh. Pankaj Gupta (PW-13) is
unreliable as he was not competent to identify the voice of the accused not
being acquainted with it.
(c) The report has been obtained on suggestive questionnaire.
(d) Tampering of the exhibits cannot be ruled out because Inspector
Sudeep Punia (PW-19) stated that he had not taken or investigated the hash
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 78 of 102
value of Ex. PW9/A (Q-1), Ex. PW9/F (Q-3) and Ex. PW9/L (S-1), the
exhibits were not sent to the CFSL through any road certificate, from the
testimony of Sh. Dinesh (PW-7) and admission by Inspector Sudeep Punia
(PW-19), it is evident that concluding voices in Ex. PW9/F (Q-3) (when
alarm was raised) and of the witnesses both in Ex. PW9/A (Q-1) and Ex.
PW9/F (Q-3) have not been recorded and as even Sh. Pankaj Gupta
(PW-13) deposed that he had no personal knowledge whether conversation
and transcriptions Ex. PW13/C to Ex. PW13/E (all in D-15/A) are
manipulated.
(e) The report has not been given by an expert notified under Section
79(A) of Information and Technology Act, 2000 and also that he is not
qualified to be an expert, the report (Ex. PW9/A1)(D-24) lacks material
particulars of what examination tools were used to arrive at the opinion, is
biased being under the control of CBI, even otherwise, is merely premised
on probability, per se, as speech of a person can be affected due to
psychological and physiological condition, voice analysis report is not
reliable and it cannot be lost sight of that specimen voice of accused Ex.
PW9/L (S-1) was taken in police custody and was not given voluntarily.
85. Before proceeding further, it would be appropriate to evaluate
whether Dr. Subrat Choudhary (PW-9) is not a competent witness because
his deposition is not backed by notification under Section 79(A) of
Information and Technology Act, 2000 (hereinafter, referred to as ‘The I.T.
Act‘)and he is also not qualified expert? As far as the defence is concerned,
much hype has been sought to be created on absence of certification under
Section 79A of the I.T. Act. Per contra, Ld. Public Prosecutor for the State
has relied upon K. Ramajayam @ Appu Vs. The Inspector of Police, T-4,
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 79 of 102
Maduravoyal Police Station, Chennai (supra) to urge as under :
“It is axiomatic that the opinion of an expert, which is relevant under
Section 45 of the Indian Evidence Act, 1872, when accepted by the Court
graduates into the opinion of the Court. The Central Government has not yet
issued notification under Section 79A of the Information Technology Act,
2000 on account of which Section 45 A of the Indian Evidence Act, 1872
remains mute. Therefore, the methods evolved by Kala (PW-23) and
Pushparani (PW-24), Scientific Officers of the Tamil Nadu Forensic
Sciences Department to analyze and give their opinions on the electronic
data, are correct and cannot be faulted.”
85.1 Thus, the objection remains theoretical and not of much
consequence.
86. Moving to the issue of qualification of PW-9 Dr. Subrat Kumar
Choudhury, it is inferred from record that he is a Senior Scientific Officer,
Grade II (Physics) who has undergone training in the field of Forensic
Speaker Identification and Tape Authentication and has examined more
than 450 cases and deposed in 110 cases in different courts. He has also
published research papers. During cross-examination, not much could be
elicited to traverse the claim of the witness on his qualification as an expert
having been trained in physical forensic science. Therefore, the objection
also looses its relevance.
87. The apprehension of the accused that the report (Ex. PW9/A-1) is
also biased as the CFSL was under the Administrative control of CBI
without any tangible material proved through evidence as to how the
accused has been prejudiced cannot be of much relevance.
88. The next material issue is qua chain of custody of exhibits Ex.
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 80 of 102
PW9/A (Q-1) , Ex. PW9/F (Q-3) and Ex. PW9/L (S-1) and the possibility of
them being tampered with. The question assumes importance as sequential
documentation and paper trail to record seizure, custody, control transfer,
testing and disposition of or any evidence is a crucial process in
ascertaining during criminal trial that the evidence tendered in Court is the
original evidence which was collected from the crime scene and has not
been interfered with or altered in any manner. Proper chain of custody is
also recognized as a critical task in the field of audio video forensics to
maintain reliability of results in the field. Thus, certain guildelines have also
been issued through the CBI (Crime) Manual 2020.61 The question is also
61Custody of Seized Documents and Records
9.17 All the documents/records/material objects/other items seized during the course of investigation
should be promptly sealed/packed in a scientific manner and deposited in the Malkhana. The details of
these must be entered in the Malkahna Sub-Module of CRIMES Module and in the Malkhana Register.
The documents/items could be got issued by the Investigating Officer, as and when required, for the
purpose of investigation etc. against proper receipt. These must be returned to the Malkhana as soon as
these are no longer required by the Investigating Officer. All such issues and receipt shall be entered in the
Malkahna Sub-Module of CRIMES Module and in the Temporary Issue Register. Every IO shall be
personally responsible for the safe custody of these documents at all stages of the investigation. The IO
shall return all documents/items issued to him by the Malkhana before he is relieved by the Branch/Unit
on transfer. Malkhana in-charge will ensure that the issued items are not retained by the IO for an unduly
long time and are returned to the Malkhana promptly. He will make sure that the officer, who is
transferred from the Branch/ Unit, has returned all the documents/items issued to him by the Malkhana
before he is relieved by the Branch/Unit. The Head of Branch will monitor this matter.
Handing over Charge of Documents
9.18 When a CBI Officer is required to relinquish charge of enquiry /investigation of any case due to any
reason, such as, retirement from service, repatriation to his parent department, transfer from one Branch to
another, the Head of Branch shall issue an order requiring such Officer to hand over all original seized
records to the Malkhana of the Branch and all other documents relating to cases under investigation,
pending trial or pending Departmental action and any other documents, to another Officer of the Branch
named for the purpose. The relieved Officer shall prepare list of documents/articles along with four copies
of the detailed charge report, which he hands over to the Nominated or Relieving Officer. Both the
Relieved and the Relieving Officer will sign these charge reports and the Head of Branch will countersign
the same. Thereafter, the Head of Branch shall keep one copy of the same in his personal confidential
almirah, one copy shall be retained by the Relieved Officer and one by the Relieving Officer. The fourth
copy shall be deposited with the Malkhana Officer. These reports will be kept in yearly files with an index
showing the name of the Relieved Officer, the name of the Relieving Officer, the date of handing over of
the documents and the page reference of the report so filed.
Chain of custody
12.24 Whenever evidence is collected, Continuity of possession until it is presented in the court as an
exhibit or the Chain of custody of evidence is an important aspect. The Chain of custody assures
continuous accountability. If it is not properly maintained, an item may become inadmissible in the court.
Failure to substantiate the chain of custody may lead to serious questions regarding the authenticity and
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 81 of 102
of importance as in Ram Singh Vs. Col. Ram Singh (supra) while deciding
the admissibility of tape recorded statements, safe and official custody is of
material relevance. Further, it is also to be remembered that the C.B.I.
manual is required to be adhered to scrupulously. Reliance is placed upon
Vineet Narain and Ors. Vs. Union of India and Another 62 and CBI Vs.
Ashok Kumar Aggarwal (supra).
integrity of the evidence and the examination rendered upon it, making the whole process as an exercise in
futility. There are cases where failure to mark the items for subsequent identification in the court of law
has resulted in the acquittal of the accused. Similarly, failure to account for certain items during a certain
period or with a particular agency such as court, laboratory, police station etc., at a particular time results
in inadmissibility of the evidence itself.
Records of seized Property deposited in Malkhana
12.25 As soon as any property is seized, the Investigating Officer should hand over the property along
with a copy of the seizure memo to the Officer-in-charge of the Malkhana who will make an entry in the
Malkhana Sub-Module or Seized Property Register. Each item of seized property shall be given individual
Malkhana number, which will be marked on the seized property. Entries in the Malkhana Sub-Module or
Seized Property Register should be made chronologically and blank spaces should not be left for entering
subsequent seizures in the case. Seizure of cash (including trap money), jewellery and other valuables
shall also be entered in this register. In case, entries are made in the register, the same pertaining to the
cash should be made in red ink. All such money and valuables will be deposited with the Malkhana by the
Investigating Officer in the first instance in sealed covers and will be entered in the Malkhana Register by
the Officer-in-charge of the Malkhana. Thereafter, the sealed cover will be re-sealed in bigger covers or in
small box in the presence of Sr.PP or any other Law Officer for safe custody in a safe/locker. A record of
sealing of the covers or the boxes, as the case may be and their contents will be made in the Malkhana
Register and will be signed by the Officer in charge of the Malkhana and the Sr.PP or any other Law
Officer. Valuable jewellery and cash whose identity is required to be established in the Court, must be
kept in the locker of a Nationalized Bank, which should be hired by the Branch for Joint operation by the
Head of Branch and the Malkhana in-charge of the Branch. The cash whose identity is not required to be
established, should be deposited in the Nationalized Bank in a Bank Current Account operable jointly by
the Head of Branch and the officer in-charge of the Malkhana and a remark to the said effect must be
made against the relevant entries in the Malkhana Register/Sub-Module of CRIMES for ready reference
and further necessary action for disposal of the properties so seized by CBI.
Despatch of Exhibits for Examination-General Instructions
14.9 Great care has to be exercised while collecting, packing and despatching exhibits to various
experts for the purpose of examination, analysis, test or opinion to ensure their relevance, continuity,
integrity and purity. Each of the concerned organizations has a set of instructions about the manner in
which this has to be done. These instructions differ in certain details according to the nature of the
material to be despatched and the type of opinion required. In general terms, however, it should be ensured
that in the process of collecting, packing and despatching exhibits to the experts, the identity and the
integrity of the exhibits are kept intact and chain of custody maintained. Where opinion based on
comparison is required, sufficient quantity of control sample should be sent. Responsibility for the safety
of the exhibits should be ensured through detailed instructions to the messengers carrying the exhibits.
Steps should be taken to eliminate the risk of loss, damage to or substitution of exhibits in transit and,
thereafter, till their production in the concerned Court. In the case of perishable articles and articles liable
to quick decomposition, evaporation/sublimation, care should be taken to preserve them from such
transformation. The organizations concerned would advise further, when contacted, about the manner of
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 82 of 102
89. During cross-examination of material official witnesses, the Ld.
Counsel for accused has sought to raise doubt as to whether Verifying
Officer, TLO and successive IOs documented the chain of custody of the
material exhibits Ex. PW9/A (Q-1), Ex. PW9/F (Q-3) and Ex. PW9/L (S-1)
and the DVR. Much emphasis has been laid on certain admissions by
despatch etc. of such articles. The identity of CBI cases, Branch, etc. should always be indicated in the
forwarding letters. The CBI Branches located in respective States should follow the practice prevalent in
the State concerned. Every change in the custody of the consignment should be supported by a receipt to
be kept on record to ensure a sense of responsibility in each person and to pinpoint the responsibility in
the event of loss, etc.
IMPORTANCE OF DIGITAL EVIDENCE TO INVESTIGATION
16.20 The definition of ‘evidence’ includes electronic records. The definition of ‘documentary evidence’
includes all documents, including electronic records produced for inspection by the court. The definition
of ‘admission’ (section 17 of the Indian Evidence Act, 1872) includes a statement in oral, documentary or
electronic form which suggests an inference to any fact at issue or of relevance. Section 22 A of the Indian
Evidence Act, 1872, provides for the relevancy of oral evidence regarding the contents of electronic
records. It provides that oral admissions regarding the contents of electronic records are not relevant
unless the genuineness of the electronic records produced is in question. Section 65 A of the Indian
Evidence Act, 1872 provides that the contents of electronic records may be proved in accordance with the
provisions of section 65 B of the Act.
16.23 It is of utmost importance to emphasize collection, recovery and analysis of digital evidence during
searches and during the course of investigation. The following steps relating to digital evidence are
crucial in proper investigation of cases including cases of corruption, bank frauds, economic offences,
cyber crimes and special crimes:
a) Investigation must prioritize identification and recovery of digital evidence during searches and in the
course of investigation. The Supervisory officers must give due importance to this aspect at every stage of
investigation.
b)Procedural adherence in handling digital evidence in consonance with the requirements of law while
making seizure. Investigating officers have to be aware of procedural compliance at the time of seizure in
order to meet the authentication process as laid by the Court regarding the admissibility of
electronic/digital evidences.
c)Chain of custody while handling digital evidence has to be ensured to maintain integrity of the digital
evidence recovered. Chain of custody of electronic evidence is imperative. Hashing of digital evidence
collected should be ensured to ascertain integrity of digital evidence seized. Once packed and sealed in
front of the witnesses, a clear record of chain of custody should be kept in writing for each package till it
is handed over to the CFSL for forensic examination.
d)Imaging: Expeditious scrutiny and analysis of seized digital evidence is of utmost importance. Delay in
scrutiny and analysis of digital evidence may be detrimental to successful investigation of the case. The
IO should create a working copy by following proper procedure for investigation purposes of seized
digital evidence at the time of seizure before packing and sealing of the digital devices. The image should
also be hashed and tally with the hashing of the seized data to ensure data integrity.
e)Expeditious scrutiny and analysis of mirrored images of seized digital evidence is vital for unearthing
clinching evidence and key leads in investigation. The scrutiny and analysis must be done by the
Investigation officer under close supervision of Head of Branch. Assistance of TAFSU unit may be taken
for analysis. The Head of Branch should closely supervise scrutiny and ensure that a detailed scrutinyCBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 83 of 102
Inspector Sudeep Punia (PW-19) during his cross-examination. As per the
prosecution vide Mark PW19/A(D-9) which is a letter dated 29.11.2017
addressed to the Director, CFSL by Sh. Anuj Arya, Superintendent of
Police, CBI/ACB/New Delhi, exhibits Ex. PW9/A (Q-1), Q-2, Ex. PW9/F
(Q-3) and Ex. PW9/L (S-1) had been sent to the CFSL lab for preparing
copies for the purpose of investigation. The same was complied with and
vide letter bearing no. CFSL-2017/E-1334/4650 dated 19.12.2017 (Ex.
PW21/A)(D-14) issued by Sh. N. Ravi, Incharge Director, CFSL, CBI New
Delhi, copies were prepared of Ex. Q-1, Q-3 and S-1 by Sh. A.D. Tiwari,
SSO-I (PW-21) and alongwith Q-2, in all six parcels were returned back to
the SP, ACB, CBI with seal of ‘ADTIWARI’. Thereafter, vide another letter
bearing no.RC-DAI-2017-A 0037/29 dated 03.01.2018 (Ex. PW9/DA)
(D-13), exhibits Ex. PW9/A (Q-1), Ex. PW9/F (Q-3) and Ex. PW9/L (S-1)
and DVR were sent for voice analysis as per the questionnaire annexure
‘B’. Pursuant to such analysis, a report dated 22.11.2018 Ex.
PW9/A1(D-24) was given by Dr. Subrat Kumar Choudhury (PW-9).
90. However, regarding the chain of custody, it is relevant to allude to
the examination of Inspector Sudeep Punia (PW-19) who stated in his
examination in chief as under63 :
“… On 29.11.2017, the exhibits i.e. Q-1, Q-2, Q-3, S-1 of the case which
were already deposited in the Malkhana of CBI, ACB, Delhi sent to CFSL
through my Superintendent of Police Sh. Anuj Arya by letter for preparation
of copy of exhibits. Another exhibit i.e. both hand washes and pocket wash
of the case which were already deposited in the Malkhana, CBI. ACB, Delhi
sent to CFSL through my Superintendent of Police Sh. Anuj Arya by letter
for chemical examination of the exhibits.”
report is prepared no later than a week of conducting searches and a special report should be sent to the
competent authority through the Head of Zone detailing the outcome of scrutiny and evidence available.
62 AIR 1998 SC 889
63 Pages no. 1 and 2 of deposition sheet dated 03.06.2024 of Inspector Sudeep Punia (PW-19)
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 84 of 102
90.1 During cross-examination Inspector Sudeep Punia (PW-19)64 stated
as under :
“I had not prepared any handing over/taking over memo in respect of
documents handed over by Inspector Haukumvir Atri, Trap Laying
Officer to me on 24.11.2017. The documents, that is FIR, verification
documents, handing over memo and recovery memo etc., which were
handed over to me by Hukumvir Atri were not deposited in Malkhana at
the time of handing over. I am not aware whether Shri Hukumvir Singh
Atri had collected the documents from Malkhana before handing over to
me. I do not remember as to what other documents, in addition to copy
of FIR, verification memo, handing over memo and recovery memo,
were handed over to me by Shri Hukumvir Atri in this case…”
“… I had not checked the date and time of creation and the date and
time of modification of various files in articles Q-1, Q-3 and S-1 or the
copies thereof. I had not taken or investigate the hash value in respect of
articles Q-1, Q-3 and S-1. It is wrong to suggest that Q-1, Q-3 and S-1
were manipulated to suit the case of CBI.”
“… I have seen document Mark-PW19/A in the court file.
Question : I put it to you that no details of the seal impressions are given
in the document Mark-PW19/A. What do you have to say?
Answer : The exhibits were sealed with the seal of CBI and the same is
mentioned in document Mark-PW19/A.
It is wrong to suggest that I am intentionally giving a wrong and
evasive reply in this regard.
It is correct that document Mark-PW19/A does not mention
about any Road Certificate. I had taken the documents myself to CFSL.
There is no endorsement or any document on record with document
Mark-PW19/A to show that I had taken the articles to CFSL.”
91. Sh. A.D. Tiwari, SSO (PW-21) has also been examined to prove his
report dated 19.12.2017 (Ex. PW21/A) (D-14). During his cross-
examination he has clarified that he had not personally received the request
letter from CBI and he was also not provided with Road Certificate. He has
also clarified that the time of making copies of the exhibits, he had not
examined the exhibits.
64 Pages no. 2, 4 and 8 of deposition sheets dated 03.10.2024 of Inspector Sudeep Punia (PW-19)
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 85 of 102
92. Thus, the defence has been able to raise reasonable doubts on the
chain of custody of the material audio exhibits and it is for the Investigating
Officers to explain as to why the guidelines were overlooked. Therefore,
another condition necessary for admissibility of the recorded conversation
has been breached by the investigating agency.
93. Finally, the question arises is qua the probative value of the voice
analysis report Ex. PW9/A1 (D-24) which states that the questioned voices
in Ex. PW9/A (Q-1) and Ex. PW9/F (Q-3) are the probable voices of the
accused. It is here relevant to refer to the findings of the Apex Court in
Nilesh Dinkar Paradkar Vs. State of Maharashtra (supra) wherein it has
been held as under :
“30. In our opinion, the evidence of voice identification is at best suspect,
if not, wholly unreliable. Accurate voice identification is much more
difficult than visual identification. It is prone to such extensive and
sophisticated tampering, doctoring and editing that the reality can be
completely replaced by fiction. Therefore, the Courts have to be
extremely cautious in basing a conviction purely on the evidence of voice
identification. This Court, in a number of judgments emphasised the
importance of the precautions, which are necessary to be taken in placing
any reliance on the evidence of voice identification. In the case of
Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors.
(1976) 2 SCC 17, this Court made following observations:-
“We think that the High Court was quite right in holding that the tape-
records of speeches were “documents”, as defined by Section 3 of the
Evidence Act, which stood on no different footing than photographs, and
that they were admissible in evidence on satisfying the following
conditions:
“(a) The voice of the person alleged to be speaking must be duly
identified by the maker of the record or by others who know it.
(b) Accuracy of what was actually recorded had to be proved by the
maker of the record and satisfactory evidence, direct or circumstantial,
had to be there so as to rule out possibilities of tampering with the record.
(c) The subject-matter recorded had to be shown to be relevant according
to rules of relevancy found in the Evidence Act.” (emphasis supplied)
In the case of Ram Singh & Ors. Vs. Col. Ram Singh 1985 (Supp) SCC
611, again this Court stated some of the conditions necessary forCBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 86 of 102
admissibility of tape recorded statements, as follows:-
“(1) The voice of the speaker must be duly identified by the maker of the
record or by others who recognise his voice. In other words, it manifestly
follows as a logical corollary that the first condition for the admissibility
of such a statement is to identify the voice of the 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 safe or
official custody.
(6) The voice of the speaker should be clearly audible and not lost or
distorted by other sounds or disturbances.”
In Ram Singh‘s case (supra), this Court also notices with approval the
observations made by the Court of Appeal in England in the case of R.
Vs. Maqsud Ali (1965) 2 AER 464. In the aforesaid case, Marshall, J.
observed thus:-
“We can see no difference in principle between a tape-recording and a
photograph. In saying this we must not be taken as saying that such
recordings are admissible whatever the circumstances, but it does appear
to this Court wrong to deny to the law of evidence advantages to be
gained by new techniques and new devices, provided the accuracy of the
recording can be proved and the voices recorded properly identified;
provided also that the evidence is relevant and otherwise admissible, we
are satisfied that a tape- recording is admissible in evidence. Such
evidence should always be regarded with some caution and assessed in
the light of all the circumstances of each case. There can be no question
of laying down any exhaustive set of rules by which the admissibility of
such evidence should be judged.”
To the same effect is the judgment in the case of R. Vs. Robson (1972) 2
AER 699, which has also been approved by this Court in Ram Singh’s
case (supra). In this judgment, Shaw, J. delivering the judgment of the
Central Criminal Court observed as follows:-
“The determination of the question is rendered more difficult because
tape-recordings may be altered by the transposition, excision and
insertion of words or phrases and such alterations may escape detection
and even elude it on examination by technical experts.
31. Chapter 14 of Archbold Criminal Pleading, Evidence and Practice
2010 edition at pg: 1590-91 discuss the law in England with regard to
Evidence of Identification. Section 1 of this Chapter deals with Visual
Identification and Section II relates to Voice Identification. Here again, itCBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 87 of 102
is emphasised that voice identification is more difficult than visual
identification. Therefore, the precautions to be observed should be even
more stringent than the precautions which ought to be taken in relation to
visual identification. Speaking of lay listeners (including police officers),
it enumerates the factors which would be relevant to judge the ability of
such lay listener to correctly identify the voices. These factors include:-
“(a) the quality of the recording of the disputed voice,
(b) the gap in time between the listener hearing the known voice and his
attempt to recognize the disputed voice,
(c) the ability of the individual to identify voices in general (research
showing that this varies from person to person), 8 2010 edition at pg:
1590-91
(d) the nature and duration of the speech which is sought to be identified
and
(e) the familiarity of the listener with the known voice; and even a
confident recognition of a familiar voice by a way listener may
nevertheless be wrong.”
The Court of Appeal in England in R Vs. Chenia [2003] 2 Cr. App. R. 6
CA and R. Vs. Flynn and St. John [2008] 2 Cr.APP.R.20, CA has
reiterated the minimum safeguards which are required to be observed
before a Court can place any reliance on the voice identification
evidence, as follows:-
“(a) the voice recognition exercise should be carried out by someone
other than the officer investigating the offence;
(b) proper records should be kept of the amount of time spent in contact
with the suspect by any officer giving voice recognition evidence, of the
date and time spent by any such officer in compiling any transcript of a
covert recording, and of any annotations on a transcript made by a
listening officer as to his views as to the identify of a speaker; and (c) any
officer attempting a voice recognition exercise should not be provided
with a transcript bearing the annotations of any other officer.”
In America, similar safeguards have been evolved through a series of
judgments of different Courts. The principles evolved have been summed
up in American Jurisprudence 2d (Vol. 29) in regard to the admissibility
of tape recorded statements, which are stated as under:-
“The cases are in general agreement as to what constitutes a proper
foundation for the admission of a sound recording, and indicate a
reasonably strict adherence to the rules prescribed for testing the
admissibility of recordings, which have been outlined as follows:
(1) a showing that the recording device was capable of taking testimony;
(2) a showing that the operator of the device was competent;
(3) establishment of the authenticity and correctness of the recording;
(4) a showing that changes, additions, or deletions have not been made;
(5) a showing of the manner of the preservation of the recording;
(6) identification of the speakers; and
(7) a showing that the testimony elicited was voluntarily made withoutCBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 88 of 102
any kind of inducement.
… However, the recording may be rejected if it is so inaudible and
indistinct that the jury must speculate as to what was said. (emphasis
supplied)”
32. This apart, in the case of Mahabir Prasad Verma Vs. Dr. Surinder
Kaur (1982) 2 SCC 258, this Court has laid down that tape recorded
evidence can only be used as corroboration evidence in paragraph 22, it
is observed as follows:-
“Tape-recorded conversation can only be relied upon as corroborative
evidence of conversation deposed by any of the parties to the
conversation and in the absence of evidence of any such conversation,
the tape-recorded conversation is indeed no proper evidence and cannot
be relied upon. In the instant case, there was no evidence of any such
conversation between the tenant and the husband of the landlady; and in
the absence of any such conversation, the tape-recorded conversation
could be no proper evidence.”
94. Hence, the CFSL Report Ex. PW9/A1 (D-24), is merely
corroborative in nature and cannot become the sole premise for identifying
the voice of the accused in exhibit Q-1 and exhibit Q-2 especially when the
material witnesses acquainted with voice of the accused did not identify it
and the defence successfully elicited responses from Inspector Sudeep
Punia (PW19) that the guidelines of chain of custody of exhibit Q-1 and
exhibit Q-2 (containing the audio files) were not adhered to rendering Ex.
PW9/A(Q-1) and Ex. PW9/F (Q-2) have become inadmissible in evidence.
95. Lastly, it has also been canvassed by the prosecution that the CDR of
mobile phone no. xxxxxx8947 from 01.11.2017 to 17.11.2017 (Ex.
PW3/A) (D-22) and copy of call details of mobile phone no. xxxxxx7032
from 01.11.2017 to 17.11.2017 (Ex. PW1/A)(D-20A) and the mobile set’s
subsequent recovery from the possession of the accused during his personal
search as entered in his Arrest cum Personal Search Memo (Ex PW13/J)
(D-8) is a material circumstance against the accused as the onus would shift
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 89 of 102
on him to prove, if not him, then who was in communication with the
complainant?
96. At the outset, the mobile handset is not a case property and has not
been tendered in evidence. The CDRs could only be a ground to raise grave
suspicion against the accused, but still, the contents of the conversation
could only be proved through the oral and documentary evidence already
discussed above. It is a settled position of law that mere suspicion, however,
strong it may be cannot be a substitute for acceptable evidence. Reliance is
placed upon Chandrakant Ganpat Sovitkar Vs. State of Maharashtra65.
97. Further, in the reasoned view of this Court, application of Section
106 of IEA has to be with care and caution. The primary burden of proof
would be upon the prosecution and Section 106 IEA cannot be resorted to
make up the inability of the prosecution to produce evidence of
circumstances unerringly pointing towards the guilt of the accused. The
Court seeks to draw strength from State of Madhya Pradesh Vs. Balveer
Singh66 wherein it is held as under :
“75. Thus, from the aforesaid decisions of this Court, it is evident that the
court should apply Section 106 of the Evidence Act in criminal cases
with care and caution. It cannot be said that it has no application to
criminal cases. The ordinary rule which applies to criminal trials in this
country that the onus lies on the prosecution to prove the guilt of the
accused is not in any way modified by the provisions contained in
Section 106 of the Evidence Act.
76. Section 106 cannot be invoked to make up the inability of the
prosecution to produce evidence of circumstances pointing to the guilt of
the accused. This section cannot be used to support a conviction unless
the prosecution has discharged the onus by proving all the elements
necessary to establish the offence. It does not absolve the prosecution
from the duty of proving that a crime was committed even though it is a
65 (1975) 3 SCC 16
66 2025 INSC 261CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 90 of 102
matter specifically within the knowledge of the accused and it does not
throw the burden on the accused to show that no crime was committed.
To infer the guilt of the accused from absence of reasonable explanation
in a case where the other circumstances are not by themselves enough to
call for his explanation is to relieve the prosecution of its legitimate
burden. So, until a prima facie case is established by such evidence, the
onus does not shift to the accused.
77. Section 106 obviously refers to cases where the guilt of the accused is
established on the evidence produced by the prosecution unless the
accused is able to prove some other facts especially within his knowledge
which would render the evidence of the prosecution nugatory. If in such a
situation, the accused offers an explanation which may be reasonably true
in the proved circumstances, the accused gets the benefit of reasonable
doubt though he may not be able to prove beyond reasonable doubt the
truth of the explanation. But if the accused in such a case does not give
any explanation at all or gives a false or unacceptable explanation, this by
itself is a circumstance which may well turn the scale against him. In the
language of Prof. Glanville Williams:
“All that the shifting of the evidential burden does at the final stage of the
case is to allow the jury (Court) to take into account the silence of the
accused or the absence of satisfactory explanation appearing from his
evidence.” (Emphasis supplied)
78. To recapitulate the foregoing : What lies at the bottom of the various
rules shifting the evidential burden or burden of introducing evidence in
proof of one’s case as opposed to the persuasive burden or burden of
proof, i.e., of proving all the issues remaining with the prosecution and
which never shift is the idea that it is impossible for the prosecution to
give wholly convincing evidence on certain issues from its own hand
and it is therefore for the accused to give evidence on them if he wishes
to escape. Positive facts must always be proved by the prosecution. But
the same rule cannot always apply to negative facts. It is not for the
prosecution to anticipate and eliminate all possible defences or
circumstances which may exonerate an accused. Again, when a person
does not act with some intention other than that which the character and
circumstances of the act suggest, it is not for the prosecution to eliminate
all the other possible intentions. If the accused had a different intention
that is a fact especially within his knowledge and which he must prove
(see Professor Glanville Williams–Proof of Guilt, Ch. 7, page 127 and
following) and the interesting discussion–para 527 negative averments
and para 528 — “require affirmative counter-evidence” at page 438 and
foil, of Kenny’s outlines of Criminal Law, 17th Edn. 1958.
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 91 of 102
79. But Section 106 has no application to cases where the fact in
question, having regard to its nature, is such as to be capable of being
known not only to the accused but also to others, if they happened to be
present when it took place. The intention underlying the act or conduct of
any individual is seldom a matter which can be conclusively established;
it is indeed only known to the person in whose mind the intention is
conceived. Therefore, if the prosecution has established that the character
and circumstance of an act suggest that it was done with a particular
intention, then under illustration (a) to this section, it may be assumed
that he had that intention, unless he proves the contrary.
80. A manifest distinction exists between the burden of proof and the
burden of going forward with the evidence. Generally, the burden of
proof upon any affirmative proposition necessary to be established as the
foundation of an issue does not shift, but the burden of evidence or the
burden of explanation may shift from one side to the other according to
the testimony. Thus, if the prosecution has offered evidence, which if
believed by the court, would convince them of the accused’s guilt beyond
a reasonable doubt, the accused, if in a position, should go forward with
countervailing evidence, if he has such evidence. When facts are
peculiarly within the knowledge of the accused, the burden is on him to
present evidence of such facts, whether the proposition is an affirmative
or negative one. He is not required to do so even though a prima facie
case has been established, for the court must still find that he is guilty
beyond a reasonable doubt before it can convict. However, the accused’s
failure to present evidence on his behalf may be regarded by the court as
confirming the conclusion indicated by the evidence presented by the
prosecution or as confirming presumptions which might arise therefrom.
Although not legally required to produce evidence on his own behalf, the
accused may therefore as a practical matter find it essential to go forward
with proof. This does not alter the burden of proof resting upon the
prosecution
[See: Balvir Singh v. State of Uttarakhand reported in 2023 SCC OnLine
SC 1261 and Anees v. State Govt. of NCT reported in 2024 INSC 368]
iv. What is “prima facie case” (foundational facts) in the context of
Section 106 of the Evidence Act?”
98. Also, it is for the same reason that the rebuttal argument that the
accused has not led any defence evidence to establish that there was any
other employee in MCD by the name of Sh. Kulbhushan Jindal, J.E. cannot
be read against the accused as the primary burden of proof of the identity of
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 92 of 102
the accused was upon the prosecution which it has not been able to
discharge.
99. Further, as per the complaint purportedly, a representative on behalf
of the accused had for the first time visited the factory of the complainant
and asked the complainant to meet Mr. Kulbhushan, J.E. of the area.
However, during cross-examination of Inspector Sudeep Punia (PW-19)67,
the defence has been able to elicit responses as under :
“Question : Did you investigate about the person, who as per complaint Ex.
PW14/A introduced himself from MCD, Narela and visited factory of the
complainant?
Answer : I did not investigate it.
…
I had not collected the CCTV footage of factory of the complainant for
16.11.2017 and 17.11.2017 during investigation. No videography of the
proceedings in this case was carried out at any stage.”
100. From the investigating officer the identity of the person acting on
behalf of the accused has also not been established for reasons best known
to the investigating agency. Even the tenant of the complainant has not been
examined even though, it was on his mobile phone that the said person had
spoken to the complainant (PW-14) requiring the complainant (PW-14) to
meet the J.E.
101. Therefore, neither through direct or circumstantial evidence, the
prosecution has been able to establish beyond reasonable doubt that the
demand of bribe was from the accused, himself.
67 Pages no. 11 of deposition sheet of Inspector Sudeep Punia (PW-19) dated 03.10.2024
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 93 of 102
b.) Whether, thereafter, the prosecution has also conclusively proved
through direct or circumstantial evidence that in pursuance of the demand
raised, the accused had also accepted the illegal gratification?
102. Next material ingredient to establish the offence under Section 7 and
Section 13(1)(d) of The P.C. Act is acceptance of the bribe money by the
accused. To prove the same, the prosecution had cited the complainant
(PW-14), independent witnesses Sh. Pankaj Gupta (PW-13 ) and Sh. Nitesh
Singhal (PW-15) and the official witnesses.
103. So far as the complainant (PW-14) is concerned during his
examination in chief68 has stated as under :
“…Thereafter, I went outside my factory and enquired from them what the
matter was. After confirming that they were from MCD and as instructed by
CBI official I offered the tainted money to one of the MCD official and put
the money in his pocket. I had put the money in the pocket of accused
Kulbhushan Jindal who was one of the two MCD official. He searched his
pocket and got panicked. Thereafter, accused Kulbhushan Jindal tried to run
away from the spot and I gave pre decided signal to CBI officer….”
104. Sh. Pankaj Gupta (PW-13) during examination in chief 69 stated as
under :
“…The complainant Vaibhav and Kulbhushan Jindal were visible from
the location from where I was standing (Vol. It was just visible like the
figures of two persons were visible because of darkness). There was
conversation going between the said two Vaibhav and Kulbhushan Jindal.
Then Kulbhushan Jindal tried to go towards his Santro car, then
immediately Vaibhav stated shouting ‘pakro pakro…”
68 Pages no.3 of deposition sheet 26.03.2022 of the complainant (PW-14)
69 Page no.4 of deposition dated 30.08.2019 of Sh. Panjkaj Gupta (PW-13)
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 94 of 102
104.1 Again Sh. Pankaj Gupta (PW-13)70 stated as under :
“….The currency notes P-1 (39 notes colly) were recovered from
accused Kulbhushan Jindal and this amount came to him, as disclosed
by complainant, when I was standing behind the gate and there was
some conversation took place between the complainant and the accused
Kulbhushan and during that conversation, the accused had demanded the
amount from complainant and the complainant had given this amount
which was already smeared with the said power, consequently it was
recovered from him…”
105. Sh. Nitesh Singh (PW-15) during his examination in chief has not
deposed about the factum of bribe money being handed over by the
complainant to the accused71 as he stated as under :
“I alongwith 2-3 CBI officials were waiting in a park which was at a
distance of 60-70 meters approximately near the factory. We waited for
1.30/2 hours. At about 6.15 PM one vehicle came and stopped outside the
factory. I could not see the person in the vehicle as it was dark and
headlights of the vehicle were on. As soon as the vehicle stopped we got
alerted and came out of the park. After 5-10 minutes the CBI official who
were with me started running towards the factory. Perhaps they might
have received the signal. I was following them and found that they had
apprehended one person.”
106. Thus, neither the complainant nor the independent witnesses have
supported the case of the prosecution that the accused voluntarily had
accepted the bribe amount. Whereas, the complainant (PW-14) has testified
that he had put the bribe amount in the pocket of the accused on his own as
instructed by the CBI officials, the testimony of Sh.Pankaj Gupta (PW-13)
is reduced to hearsay on the aforesaid aspect and the deposition of Sh.
Nitesh Singhal (PW-15) does not shed any light as to whether the accused
had himself accepted the bribe amount from the complainant.
70 Pages no. 3 of deposition sheet dated 06.11.2019 of Sh. Pankaj Gupta (PW-13)
71 Pages no. 3 and 4 of deposition sheet dated 18.11.2022 of Sh. Nitesh Singhal (PW-15)
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 95 of 102
107. So far as the official witnesses are concerned (Inspector H.P. Attri
(PW-17), Inspector Raman Kumar Shukla (Verification Officer) (PW-18) )
neither of them have specifically deposed that they have witnessed the
exchange of hands of the bribe money. They had reached the spot on alarm
being raised by the complainant (PW-14) who has turned volteface on
voluntary acceptance of the bribe amount by the accused. Thus, there is no
direct evidence of passing of money from the complainant to the accused on
demand.
108. Even as regards recovery of the bribe money from the possession of
the accused, there is contradiction in the testimonies of material prosecution
witnesses. Sh. Nitesh Singhal (PW-15) has categorically denied the
assertions of Sh. Pankaj Gupta (PW-13) and official witnesses that recovery
of the bribe money from the body of the accused was effected by him.
During examination before the Court Sh. Pankaj Gupta (PW-13) deposed
that “cash was recovered from the pocket of Kulbhushan.” The complainant
(PW-14) on being questioned about the recovery of the bribe amount from
the accused, stated “The tainted money of Rs.75,000/- was recovered from
accused Kulbhushan Jindal. However, the independent witness can tell
better about the recovery of the tainted money.” 72 The official witnesses
Inspector H.P. Attri (PW-17)73 and Inspector Raman Kumar Shukla
(PW-18)74 have also maintained that recovery of the bribe amount from the
body of the accused was effected by Sh. Nitesh Singhal (PW-15). However,
when Sh. Nitesh Singhal (PW-15) had been examined on 18.11.2022 has
72 Page no. 4 of deposition sheet of the complainant (PW-14) dated 26.03.2022
73 Page no. 8 of deposition sheet of Inspector H.V. Attri (PW-17) dated 11.08.2023
74 Page no. 3 of deposition sheet of Inspector Raman Kumar Shukla (PW-18) dated 14.03.2024
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 96 of 102
deposed “the CBI team might have recovered the currency notes from the
said person. I and Pankaj Gupta were asked to tally the serial number of the
said currency notes with the list in which the serial number of the said
currency notes were noted down. The CBI official had given the currency
notes for the purpose of tallying.” Hence, material contradictions on the
relevant fact of recovery of bribe amount from the accused has emerged.
109. So far as the finding in Chemical Examination Report (Ex.
PW16/B)(D-11) is concerned, there are contrary views available. Whereas,
as per the prosecution, it is a material circumstance to prove acceptance of
illegal gratification by the accused, the Ld. Counsel for the defence has
relied upon the testimony of the complainant (PW-14) that he had put the
money into the pocket of the accused albeit at the instance of the CBI
officers and the accused had panicked and the explanation given by the
accused when examined under Section 313 Cr.P.C. that :
“It is incorrect. I have not accepted any bribe money. It was forcibly
inserted into my pocket by the complainant without any demand from me
and without my consent. I immediately threw it away. It was not recovered
by Sh. Nitesh Singhal (PW-15) from the pocket of my trouser, least, left side
pocket.”
to argue that the benefit should accrue to the accused in view of the two
contrary views of which one is in favour of the accused.
110. In Bhagwan Singh and Ors. Vs. State of M.P.75, also followed in
Ghurey Lal Vs. State of U.P.76, the Apex Court has reiterated “one of the
fundamental principals of criminal jurisprudence that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the view which is favourable to
75 (2002) 4 SCC 85
76 Criminal Appeal no. 155 of 2006 decided by the Supreme Court on 30.07.2008
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 97 of 102
the accused should be adopted.” Thus, even in the present scenario, the
benefit has to accrue to the accused that he could have out of panic, thrown
the bribe money out of his pocket, possibly resulting in positive hand
washes.
111. Hence, the prosecution has also failed to establish through direct or
circumstantial evidence that in pursuance of the demand raised, the accused
had also accepted the illegal gratification.
(c) Whether the Sanction under Section 19 of The P.C. Act is invalid for
lack of application of mind by the sanctioning authority?
112. Yet, another question which has cropped up for the consideration of
this Court is validity of the sanction as it has been argued on behalf of the
accused that the sanctioning authority did not apply his mind before passing
the sanction order Ex. PW5/A.
113. In C.B.I. Vs. Ashok Kumar Aggarwal (supra), in paragraph no. 7, it
has been held as under :
“7. The prosecution has to satisfy the court that at the time of sending
the matter for grant of sanction by the competent authority, adequate
material for such grant was made available to the said authority. This
may also be evident from the sanction order, in case it is extremely
comprehensive, as all the facts and circumstances of the case may be
spelt out in the sanction order. However, in every individual case, the
court has to find out whether there has been an application of mind on
the part of the sanctioning authority concerned on the material placed
before it. It is so necessary for the
reason that there is an obligation on the sanctioning authority to
discharge its duty to give or withhold sanction only after having full
knowledge of the material facts of the case. Grant of sanction is not a
mere formality. Therefore, the provisions in regard to the sanction mustCBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 98 of 102
be observed with complete strictness keeping in mind the public
interest and the protection available to the accused against whom the
sanction is sought.
It is to be kept in mind that sanction lifts the bar for prosecution.
Therefore, it is not an acrimonious exercise but a solemn and
sacrosanct act which affords protection to the government servant
against frivolous prosecution. Further, it is a weapon to discourage
vexatious prosecution and is a safeguard for the innocent, though not a
shield for the guilty.
Consideration of the material implies application of mind. Therefore,
the order of sanction must ex facie disclose that the sanctioning
authority had considered the evidence and other material placed before
it. In every individual case, the prosecution has to establish and satisfy
the court by leading evidence that those facts were placed before the
sanctioning authority and the authority had applied its mind on the
same. If the sanction order on its face indicates that all relevant
material i.e. FIR, disclosure statements, recovery memos, draft charge
sheet and other materials on record were placed before the sanctioning
authority and if it is further discernible from the recital of the sanction
order that the sanctioning authority perused all the material, an
inference may be drawn that the sanction had been granted in
accordance with law. This becomes necessary in case the court is to
examine the validity of the order of sanction inter-alia on the ground
that the order suffers from the vice of total non-application of mind.
(Vide: Gokulchand Dwarkadas Morarka v. King, AlR 1949 PC 82;
Jaswant Singh v. State of Punjab, AIR 1958 SC 124; Mohd. Iqbal
Ahmed v. State of A.P., AIR 1979 SC 677; State through Anti-
Corruption Bureau, Govt. of Maharashtra v. Krishanchand
Khushalchand Jagtiani, AIR 1996 SC 1910; State of Punjab v. Mohd.
Iqbal Bhatti, (2009) 17 SCC 92; Satyavir Singh Rathi, ACP v. State,
AIR 2011 SC 1748; and State of Maharashtra v. Mahesh G. Jain,
(2013) 8 SCC 119).
8. In view of the above, the legal propositions can be summarised as
under:
(a) The prosecution must send the entire relevant record to the
sanctioning authority including the FIR, disclosure statements,
statements of witnesses, recovery memos, draft charge sheet and
all other relevant material. The record so sent should also contain
the material/document, if any, which may tilt the balance in favour
of the accused and on the basis of which, the competent authority
may refuse sanction.
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 99 of 102
(b) The authority itself has to do complete and conscious scrutiny
of the whole record so produced by the prosecution independently
applying its mind and taking into consideration all the relevant
facts before grant of sanction while discharging its duty to give or
withhold the sanction.
(c) The power to grant sanction is to be exercised strictly keeping
in mind the public interest and the protection available to the
accused against whom the sanction is sought.
(d) The order of sanction should make it evident that the authority
had been aware of all relevant facts/materials and had applied its
mind to all the relevant material.
(e) In every individual case, the prosecution has to establish and
satisfy the court by leading evidence that the entire relevant facts
had been placed before the sanctioning authority and the authority
had applied its mind on the same and that the sanction had been
granted in accordance with law.”
114. The material witnesses on the aspect of grant of sanction under
Section 19 of PC Act are concerned would be Sh. Madhup Vyas (PW-5),
Inspector Sudeep Punia (PW-19) and Sh. Ravinder Kumar (DW-1). Sh.
Madhup Vyas then Commissioner North MCD (PW-5) was examined on
28.07.2018. During his examination in chief he testified that he had granted
sanction for prosecution Ex. PW5/A after perusal of report given by the SP,
CBI accompanied by documents including statement of the witnesses.
During cross-examination, it has been sought to be demonstrated that there
was no opportune moment by the sanctioning authority to apply his mind to
the allegations as the sanction order Ex.PW5/A is dated 27.03.2018, the
very date on which the file admittedly was put up before him. Sh. Madhup
Vyas (PW-5) during his cross-examination affirmed that he had gone
through the transcript prepared by the Investigating Officer about the
conversation between the accused and the complainant. On further probing,
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 100 of 102
he stated that it took about 2-3 hours for him to peruse all the record before
granting sanction and that draft order was prepared by the officials on his
dictation. Fairly, he also admitted that the draft sanction order was received
alongwith the written request from the CBI. However, when the concerned
official who dealt with the file Sh. Ravinder Kumar (DW-1) was examined,
he stated that on oral instructions of Director of Vigilance, the file was
processed on priority basis on the same day. It is evinced from his
examination that he had marked the request letter to JLO(P) directing him
to type the sanction order accompanying the request letter and the file was
put up before him with the note of the JLO(P) and was pushed ahead for
obtaining approval of Director of Vigilance and Chief Vigilance Officer.
Thereafter, the witness personally took the file to Sh. Madhup Vyas (PW-5)
who merely inquired from the former about the sanction order being correct
which on being confirmed was signed by Sh. Madhup Vyas (PW-5). In
contradistinction to the testimony of Sh. Madhup Vyas (PW-5), Sh.
Ravinder Kumar (DW-1) stated that the procedure for obtaining approval of
Sh. Madhup Vyas (PW-5) took only 5 to 7 minutes. He also stated that
while dealing with the request for grant for sanction for prosecution he had
only dealt with pages Hence, the defence has raised reasonable doubts on
the claim of the prosecution that the sanction order was passed with due
application of mind.
115. In view of the above observations the prosecution has failed to
prove its case against the accused beyond reasonable doubts. Therefore, the
accused is acquitted of the offence punishable under Section 7 and 13(2)
r/w 13(1)(d) of the P.C. Act, 1988. His bail bond stands cancelled. Surety
stands discharged.
CBI vs Sh. Kulbhushan Jindal Criminal Case No. 14/19 ID No. 73/19 FIR No. RC DAI-2017-A-0037 pages 101 of 102
116. In compliance of Section 437A Cr.P.C. fresh bail bond in sum of
Rs. 10,000/- alongwith one surety in like amount be filed.
117. File be consigned to records.
Digitally
signed by
VIJETA
VIJETA SINGH
Pronounced in open Court SINGH RAWAT
RAWAT Date:
on 12.08.2025
2025.08.13
15:40:57
+0530
(Vijeta Singh Rawat)
Special Judge (PC Act) (CBI)-17
Rouse Avenue Courts, New Delhi
12.08.2025.
CBI vs Sh. Kulbhushan Jindal
Criminal Case No. 14/19
ID No. 73/19
FIR No. RC DAI-2017-A-0037 pages 102 of 102
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