Delhi District Court
Cbi Vs. Bibianus Toppo & Ors vs . on 17 November, 2014
IN THE COURT OF SH. R.P.PANDEY: SPL. JUDGE 01
(PC ACT) CBI (N/W): ROHINI COURTS: DELHI
CBI Case No. : 74/08
CENTRAL BUREAU OF INVESTIGATION
Vs.
1. Bibianus Toppo (A.1)
Supdt. Regional Passport Office,
Bhikaji Cama Place, New Delhi
s/o late Joseph Toppo (A1)
r/o 14G, Sector4, DIZ Area, Rasa Bazaar,
Gole Market , New Delhi.
2. Harbhajan Yadav s/o late Sultan Singh Yadav (A2)
UDC, Regional Passport Office,
Bhikaji Cama Place, New Delhi
H.No.949/1, Gali No.4, Ashok Vihar,
Gurgaon, Haryana.
3. Ram Chander s/o Sh.Maman Ram (A.3)
LDC, Regional Passport Office,
Bhikaji Cama Place, New Delhi
R/oJ624, Sardar Colony, Sector16
Rohini, Delhi85
CBI Case No.74/08
Page No.1 of 302
CBI Vs. Bibianus Toppo & Ors
4. Sh.Hemant Gandhi (A.4)
son of Sh.Moolshanker Gandhi
r/o A708, Kedar Apartments,
Sector9, Rohini, Delhi85
5. Amit Kumar Khatri (A5)
s/o Sh.Lekh Raj Khatri
r/o C2/151, Sector 16, Rohini,
New Delhi.
6. Amanjit Singh @ Lovely (A.6)
son of Sardar Gyan Singh
r/o X975, Rajgarh Colony,
Satsang Marg, Street No.12
Delhi31
7. Anil Dhawan s/o Sh.Madan Lal Dhawan (A7)
R/oH.No.254, DDA Flats, Ist Floor
New Ranjit Nagar, New Delhi8
8. Jatinder Singh (A.8)
son of Sardar Satnam Singh
r/o Village Rampur,
PO Qadyan, Tehsil Batala,
Distt.Gurdanpur, Punjab
CBI Case No.74/08
Page No.2 of 302
CBI Vs. Bibianus Toppo & Ors
9. G.D.Joshi s/o Late Sh.K.D.Joshi (A9)
UDC Regional Passport Office,
Bhikaji Cama Place, New Delhi
R/o676, Sector8, R.K.Puram,
New Delhi
10.R.S.Rawat son of Late Bachan Singh Rawat (A10)
Asstt. ,Regional Passport Office,
Bhikaji Cama Place, New Delhi
r/o X258, Srojini Nagar,
New Delhi23
(Expired and proceedings against him abated)
11.Parminder Singh, (A.11)
s/o Sh.Ajit Singh
r/o Pind Khatti, Post Office Phagwara,
District Kapurthala, Punjab
Date of Registration of FIR : 27.08.2004
FIR No. : RC.6(A)/2004/SCUV/CBI/SCRII/CBI/New Delhi
Under Section : 120 B r/w Sec.419/420/467/468/471/474 IPC
Section 13 (2) r/w 13 (1) (d) of P.C. Act 1988 and Section 12 of
Passport Act, 1967
CBI Case No.74/08
Page No.3 of 302
CBI Vs. Bibianus Toppo & Ors
Date of Filing Charge : 28.03.06
Sheet
Arguments Concluded on : 27.10.14
Date of Judgment : 31.10.14
CASE ID No. : 02404R0436952006
Appearances: Ms.Shashi Vishwakarma, Public Prosecutor
for CBI.
Mr. R.Ramachandran, Advocate for A1.
Dr.Anil Gupta, Advocate for A2.
Mr.Jagjit Singh and Mr.Kunal Sharma,
Advocates for A4 & 5.
Mr.Ashwani Verma and Mr.Lalit Yadav,
Advocates for A 7.
Mr.Sukhwinder Singh, Advocate for
accused Nos.3, 6, 8 &11.
Mr.Mrityunjay Singh, Advocate for A9 & 10.
J U D G M E N T
1.0 This common Judgment shall dispose of CC No.74/08 and CC No.04/12 both arising out of FIR No.RC. CBI Case No.74/08 Page No.4 of 302
CBI Vs. Bibianus Toppo & Ors 6(A)/2004/SCUV/CBI/SCRII/CBI/New Delhi and CC No.17/12 arising out of FIR No.352/04 PS IGI Airport, New Delhi. 1.1 The case against accused persons as per the charge sheet filed by CBI, is that in pursuance of a criminal conspiracy amongst Bibianus Toppo (A.1), Harbhajan Yadav (A.
2), Ram Chander (A.3), G.D.Joshi (A.9), R.S.Rawat (A.10) all officials of Regional Passport Office (RPO), New Delhi and accused Hemant Gandhi (A.4), Amit Kumar Khatri (A.5), Amanjeet Singh @ Lovely (A.6), Anil Dhawan (A.7), Jatinder Singh (A.8) and Parminder Singh (A.11) all private persons, one original passport and two passports, in the form of additional passport booklets, have been issued with different photographs and signatures but with similar personal particulars CBI Case No.74/08 Page No.5 of 302 CBI Vs. Bibianus Toppo & Ors in the name of a nonexisting person Rohit Kumar son of Sh.Govind Ram, r/o M112, Jagat Ram Park, Laxmi Nagar, Delhi.
1.2 The investigation disclosed that an application for issue of passport for Parminder Singh (A.11) in the name of Rohit Kumar son of Govind Ram was submitted by some unknown persons in RPO, New Delhi on 07.02.03 showing the names of his parents as Govind Ram and Smt.Kanta respectively holding passport Nos.A3896198 and A3896128 both dated 29.10.97 to enable RPO, New Delhi to issue passport No.E4716910 dated 06.03.03. Alongwith the application, a birth certificate purported to has been issued by MCD (East Zone), Delhi, was annexed which has been found to CBI Case No.74/08 Page No.6 of 302 CBI Vs. Bibianus Toppo & Ors be false and fabricated. The present and permanent address of Rohit kumar was mentioned as M112, Jagat Ram Park, Laxmi Nagar, Delhi92 which was received in RPO, New Delhi, processed in various sections and passport was issued in the name of minor applicant whose parents were holding a valid passport in their names. The passport office did not ensure to send the personal particulars form of said Rohit Kumar for police verification after issue of passport to him. 1.3 Investigation disclosed that passport No.B3579297 dated 04.06.01 in the name of Parminder Singh was already issued by passport office, Jalandhar (Punjab) which passport was seized at the instance of accused Hemant Gandhi (A.4) amongst 277 passports and 3000 passport size CBI Case No.74/08 Page No.7 of 302 CBI Vs. Bibianus Toppo & Ors photographs on 06.02.05. It was found that accused Hemant Gandhi (A.4) had arranged air tickets through M/s Mag Travels for visit of Parminder Singh (A.11) on passport No.E4716910 in the name of Rohit Kumar alongwith accused Amit Kumar Khatri (A.5) who is an employee and relative of accused Hemant Gandhi (A.4) to Zurich on 20.07.03. The passenger manifest of Aeroflot on 20.07.03 shows that Rohit Kumar and Amit Kumar Khatri had travelled by flight No.SU 536.
1.4 Thereafter another passport bearing No.E7314713 dated 19.12.03 in the name of Rohit Kumar was got issued fraudulently from RPO, New Delhi with a different photograph and similar personal particulars of Rohit Kumar. CBI Case No.74/08 Page No.8 of 302
CBI Vs. Bibianus Toppo & Ors 1.5 Investigation further disclosed that accused Anil Dhawan (A.7) had submitted an application to RPO, New Delhi in the name of Rohit Kumar for issue of a passport in the form of additional passport booklet on the ground that the pages of the passport No.E4716910 were full. He had also submitted prescribed application form for misc services which were filled in and signed by him as Rohit Kumar. Alongwith this application he had also submitted self attested copies of the passport No.E4716910 which were signed by him as Rohit Kumar. The photographs for using as those of Rohit Kumar were given by Kuldip Singh r/o Jalandhar to Amanjit Singh @ Lovely (A.6) who handed over the same to accused Anil Dhawan (A.7). The request letter was also written and signed by accused Anil Dhawan (A.7) in the name of Rohit Kumar. The application was CBI Case No.74/08 Page No.9 of 302 CBI Vs. Bibianus Toppo & Ors processed in RPO office at various stages and accused Bibianus Toppo (A.1), Suptd., RPO, Delhi with intention to issue the passport did not scrutinize the application properly with the old passport which apparently had different photographs with that of photograph purported to be of Rohit Kumar affixed on duly filled in passport application form for miscellaneous services. Accused Bibianus Toppo (A.1) had given the dated as 19.12.03 as the delivery date of passport on the request letter of the applicant. He had also obtained the signatures of the applicant as Rohit Kumar on the request letter which have been proved by the Handwriting Expert having been made by accused Anil Dhawan (A.7). Accused Bibianus Toppo (A.1) connived with accused Anil Dhawan (A.7) and allowed him to sign as Rohit Kumar in his presence on the request letter. The CBI Case No.74/08 Page No.10 of 302 CBI Vs. Bibianus Toppo & Ors facial features in the photographs of applicant Rohit Kumar and accused Anil Dhawan are entirely different. 1.6 Investigation further disclosed that the application for issue of passport in the form of first additional passport booklet was processed by accused Ram Chander (A.
3) LDC in Hit Section of RPO, New Delhi but he deliberately did not mention the details of issue of earlier passport No.E4716910 which was clearly visible on the computer system and he could have pointed out in the passport file about the details of such old passport and could have prevented the issue of passport in the form of additional passport booklet by mentioning about the issue of earlier passport and therefore, passport No.E7314713 dated 19.12.03 in the form of Ist CBI Case No.74/08 Page No.11 of 302 CBI Vs. Bibianus Toppo & Ors additional passport booklet was issued to a different person other than Rohit Kumar. Accused Harbhajan Yadav (A.2), UDC in RPO, New Delhi had processed the passport application form and recommended for issuance of passport in the form of additional passport booklet. He marked the file to PRO and accordingly accused Bibianus Toppo (A.1) permitted for issuance of passport with ECR. After the passport was issued under the signature of accused Bibianus Toppo, it was sent to Pasting & Lamination Section and on 19.12.03 accused G.D.Joshi (A.9) received the passports and their respective passport files for obtaining signatures of Passport Issuing Authority and after obtaining his signatures, he delivered the passport No.E7314713 dated 19.12.03 issued in the name of Rohit Kumar to accused Anil Dhawan (A.7) whose facial CBI Case No.74/08 Page No.12 of 302 CBI Vs. Bibianus Toppo & Ors features as seen in the photographs are entirely different. Accused G.D.Joshi (A.9) in connivance with accused Anil Dhawan (A.7) had delivered the passport of Rohit Kumar to him and also allowed him to write passport number, name of applicant and signature as Rohit Kumar in passport delivery register and also on the passport application form for misc. services in token of having acknowledged the receipt of passport.
1.7 Thereafter air ticket in the name of Rohit Kumar was arranged by Sh.Amit Kumar Malik s/o Late Sh.Stapal Singh r/o A4/76, Johripur Extension, Delhi through M/s JVCL, New Delhi at the instance of Kuldip Singh r/o Jalandhar for travel date 06.06.04. The air ticket was collected CBI Case No.74/08 Page No.13 of 302 CBI Vs. Bibianus Toppo & Ors by Amit Kumar Malik after making the payment and handed over the same to Kuldip Singh. The passenger manifest of Aeroflot for the dated 06.06.04 show that said Rohit Kumar, whose true identity could not be established, had travelled abroad by flight No.SU536 from IGI Airport, New Delhi. 1.8 Investigation further disclosed that passport No.E8586189 in the form of second additional passport booklet in the name of Rohit Kumar was obtained from RPO, New Delhi on 29.04.04 after the issuance of first additional passport booklet No.E7314713. Accused Anil Dhawan (A.7) had submitted an application to RPO, New Delhi in the name of Rohit Kumar for issue of a passport on the ground that the pages of the passport No.E4716910 were full. Alongwith this CBI Case No.74/08 Page No.14 of 302 CBI Vs. Bibianus Toppo & Ors application he had also enclosed self attested copies of the original passport. The photographs of Jatinder Singh (A.8), for using as those of Rohit Kumar were given by Amanjit Singh @ Lovely (A.6) to accused Anil Dhawan (A.7). The request letter was written by Smt.Shweta Dhawan, wife of accused Anil Dhawan (A.7) and signed by accused Anil Dhawan (A.7) in the name of Rohit Kumar. The application was processed in RPO office at various stages and accused Bibianus Toppo (A.1), Suptd., RPO, Delhi allegedly with intention to issue the passport, did not scrutinize the application properly with the old passport, which apparently had different photographs with that of photograph purported to be of Rohit Kumar affixed on duly filled in passport application form for misc. services. Accused Bibianus Toppo (A.1) had given the date as 29.04.04 as the CBI Case No.74/08 Page No.15 of 302 CBI Vs. Bibianus Toppo & Ors delivery date of passport on the request letter of the applicant. He had also obtained the signatures of the applicant as Rohit Kumar on the request letter which as per the handwriting expert's opinion, have been made by accused Anil Dhawan (A.
7). Accused Bibianus Toppo (A.1) connived with accused Anil Dhawan (A.7) and allowed him to sign as Rohit Kumar in his presence on the request letter whereas the facial features in the photographs of applicant Rohit Kumar and accused Anil Dhawan are entirely different.
1.9 Investigation further disclosed that the application for issue of passport in the form of second additional passport booklet was processed by accused Ram Chander (A.
3) LDC in Hit Section of RPO, New Delhi but he deliberately did CBI Case No.74/08 Page No.16 of 302 CBI Vs. Bibianus Toppo & Ors not mention the details of issue of earlier passport No.E4716910 and first additional passport booklet No.E7314713 which were clearly visible on the computer system and he could have pointed out in the passport file about the details of such old passport and could have prevented the issue of passport in the form of additional passport booklet by mentioning about the issue of earlier passports and therefore, passport No.E8586189 dated 29.04.04 in the form of second additional passport booklet was issued to a different person other than Rohit Kumar. Accused Harbhajan Yadav (A.2), UDC in RPO, New Delhi had processed the passport application form and recommended for issuance of passport in the form of additional passport booklet. He marked the file to PRO and accordingly accused Bibianus Toppo (A.1) permitted for CBI Case No.74/08 Page No.17 of 302 CBI Vs. Bibianus Toppo & Ors issuance of passport with ECR. After the passport was issued under the signature of accused Bibianus Toppo, it was sent to Pasting & Lamination Section and on 29.04.04 accused R.S.Rawat (A.10) received the passports and their respective passport files for obtaining signatures of Passport Issuing Authority and after obtaining his signatures, he delivered the passport No.E8586189 dated 29.04.04 issued in the name of Rohit Kumar to accused Anil Dhawan (A.7) whose facial features as seen in the photographs are entirely different. Accused R.S.Rawat (A.10) in connivance with accused Anil Dhawan (A.7) had delivered the passport of Rohit Kumar to him and also allowed him to write passport number, name of applicant and signature as Rohit Kumar in passport delivery register and also on the passport application form for misc. CBI Case No.74/08 Page No.18 of 302
CBI Vs. Bibianus Toppo & Ors services in token of having acknowledged the passport.
1.10 Investigation further disclosed that the identity of the person who attempted to travel on passport No.E8586189 dated 29.04.04 issued in the name of Rohit Kumar has been established. Accused Jatinder Singh (A.8) had attempted to travel in the name of Rohit Kumar on the said passport and he was caught at the IGI Airport, New Delhi on 05.08.04. He knew it very well that the said passport was obtained fraudulently and also that it was not issued in his name although it carried his own photograph. Accused Jatinder Singh (A.8) had already been issued a passport No.B5302975 dated 08.05.01 by the Passport Office, Jalandhar in his name. The photographs used in the name of Rohit Kumar on passport CBI Case No.74/08 Page No.19 of 302 CBI Vs. Bibianus Toppo & Ors No.E8586189 dated 29.04.04 issued in the form of second additional passport booklet and in passport application file No.G001490 dated 16.02.01 of Passport Office, Jalandhar of accused Jatinder Singh, are of one and the same person. 1.11 Thereafter air ticket in the name of Rohit Kumar was arranged by accused Amanjit Singh for travel date 05.08.04. The air ticket was collected by Amanjit Singh from M/s JVCL Travels, New Delhi after making the payment. The passenger manifest of Aeroflot for the date 05.08.04 shows that name of Rohit Kumar figures in the list of passengers by flight No.SU536.
1.12 On the basis of these facts and circumstances CBI Case No.74/08 Page No.20 of 302 CBI Vs. Bibianus Toppo & Ors it is alleged that accused persons have entered into criminal conspiracy, the object of which was to get issued passport and additional passport booklets fraudulently from RPO, New Delhi and accused officials of RPO New Delhi had abused their official position as public servant and conspired with other accused persons whereby they did not ask to the applicant to produce the previous passport booklets for observation and cancellation 1.13 Charge sheet was filed by CBI u/s 120B r/w Section 419/420/468/471/474 IPC and Section 13(2) r/w Section 13 (1) (d) of PC Act, 1988 and Section 12 (1)(b) of Passport Act, 1967, besides for substantive offences thereunder. CBI Case No.74/08 Page No.21 of 302
CBI Vs. Bibianus Toppo & Ors 1.14 Sanction u/s 19 of P.C. Act, 1988 in respect of all public servants named above and sanction u/s 15 of Passport Act, 1967 for prosecution of all accused persons were obtained and filed alongwith the charge sheet. The court took cognizance, accused were summoned and compliance of provisions of Section 207 Cr.PC was made. As accused/Parminder Singh (A11) was absconding, he was declared Proclaimed Offender by the court after completing process u/s 82 & 83 Cr.PC, vide order dated 26.09.06. 1.15 After hearing the accused persons/their ld. counsels, the court framed charge against A1 to A10 u/s 120B, besides separate charge against accused Amit Khatri u/s 420 IPC and 12 (1)(b) of Passport Act; Anil Dhawan u/s 420,468 & CBI Case No.74/08 Page No.22 of 302 CBI Vs. Bibianus Toppo & Ors 471 IPC and 12(1)(b) of Passport Act; Jatinder Singh u/s 419 IPC and 12 (1)(b) of Passport Act, Bibianus Toppo, Harbhajan Yadav, Ram Chander, G.D.Joshi and R.S.Rawat u/s 13(2) r/w Section 13 (1)(d) PC Act, 1988; Hemant Gandhi u/s 420 IPC & 12(1)(b) of Passport Act.
1.16 Subsequently accused Parminder Singh (A.11) was arrested by CBI on his return to India and produced before the court on 30.01.12. Trial of accused Parminder Singh (A.11) was separated and registered as separate CC No.04/12 vide order dated 30.01.12 as 32 witnesses of the case were already examined by the time when he was arrested and produced before the court. Charge against him was framed u/s 120B r/w Section 13 (1)(d) of P.C.Act 1988, Section 12 (1)(b) of Passport CBI Case No.74/08 Page No.23 of 302 CBI Vs. Bibianus Toppo & Ors Act & sections 419/420/468/471 IPC besides separate charge u/s 419, 471 r/w 468 IPC and 12 (1)(b) of Passport Act, 1967. 1.17 To prove the case, the prosecution has examined 33 witnesses. As the evidence recorded in this case is extensive hence I first proceed to summarize the relevant evidence.
2.1.1 PW1/S P Kothari was working as Superintendent in Regional Passport Office (RPO), New Delhi and has deposed about the procedure/process for issuance of passport. He has deposed that to apply for a passport, the applicant reaches on the counter of passport office along with application form and supporting documents; the application is CBI Case No.74/08 Page No.24 of 302 CBI Vs. Bibianus Toppo & Ors taken up by counter clerk who scrutinizes it; in case of discrepancy in the application it would not be accepted; after accepting the application the counter clerk would issue a receipt to the applicant and one file of it would be kept along with the application.
2.1.2 He has deposed that ration card, copy of date of birth certificate of applicant is needed along with the application and when applicant is a minor, the copy of passport of parents is required along with their declaration in prescribed format; two forms containing personal particulars are to be attached along with the application form which are sent to police for verification; one passport size photograph is affixed at the top of the application form and two photographs are affixed on CBI Case No.74/08 Page No.25 of 302 CBI Vs. Bibianus Toppo & Ors the personal particular form.
2.1.3 He also deposed that after issuance of the receipt of an application, file is sent to tagging clerk; after tagging the file, the file is again sent to the counter clerk who writes file number on top of it; thereafter file is sent to detail entry section from where it is sent to scanning section where signature of applicant and his photographs are scanned; file is also sent to HIT Section to see as to whether at earlier point of time an application for issuance of passport was moved or not. In case of earlier application of applicant, number of that application is quoted on the application and thereafter it is sent to section which processes the application and when police report is received it is attached with the application form. He CBI Case No.74/08 Page No.26 of 302 CBI Vs. Bibianus Toppo & Ors deposed that file is sent to concerned Superintendent to pass an order and a passport is normally granted. In case of adverse report submitted by police, an objection is made in the application and a letter is sent to the applicant in that regard. 2.1.4 He then deposed that in case order is passed for issuance of passport, file goes to allotment section where passport number is allotted to the applicant and the same is noted on the top of the application and thereafter the file is sent to the printing section; after printing, the file is sent to lamination and pasting section. The file is again sent to concerned Superintendent for his signature. After signature on the passport, the file is sent to dispatch section from where passport is sent to the applicant through speed post but in case CBI Case No.74/08 Page No.27 of 302 CBI Vs. Bibianus Toppo & Ors the officer has marked for issuance of passport by hand, the matter is dealt accordingly.
2.1.5 He has deposed that in case all the pages of passport booklet are used, the applicant may ask for issuance of additional booklet. He also deposed that additional booklet can also be sought in case of change of name or removal of thread of passport and for that purpose an application form having photograph of applicant on top and a copy of existing passport along with original passport is submitted which would reach to additional booklet counter. After scrutiny if the counter clerk finds the application in order, he would sent it to the concerned officer. He deposed that an application for additional booklet is rooted through HIT Section for the purpose of CBI Case No.74/08 Page No.28 of 302 CBI Vs. Bibianus Toppo & Ors checking whether any previous passport was issued or applied and rejected with similar particulars of the applicant; if there was any passport of applicant either earlier issued or applied and rejected, the noting/objections in this regard used to be put on the application received in HIT Section and the said application then returned to the concerned clerk who in turn would refer the same to Passport Issuing Authority (PIA) for the purpose of further action on his part.
2.1.6 He deposed that he was called by by IO of the case to join the recovery proceedings in the year 2005; he attended CBI office where accused/Hemant Gandhi was present there, in his presence accused/Hemant Gandhi had written before IO of CBI that he could get recovered certain CBI Case No.74/08 Page No.29 of 302 CBI Vs. Bibianus Toppo & Ors items in two bags which are kept in a flat in Rohini and that the bags are kept in the kitchen of the said flat of Rohini which was situated on the first floor; that IO of the case/Mr.Aggarwal and Mr.Wahi along with other members of team in three vehicles had departed along with him and accused/Hemant Gandhi and had proceeded for Rohini flat for the purpose of recovery. 2.1.7 He further deposed that when he along with accused/Hemant Gandhi and CBI Team reached at the gate of the flat in Rohini at about 5.00 p.m. one person whose name he did not recollect had met at the gate of the said flat at Rohini when they reached there; accused/Hemant Gandhi had told that the said person was his associate; the gate of the flat was already unlocked; the person who was present at the gate of the CBI Case No.74/08 Page No.30 of 302 CBI Vs. Bibianus Toppo & Ors flat and accused/Hemant Gandhi led the CBI Team inside the flat; accused/Hemant Gandhi and the other person were ahead of the CBI Team and they reached in the kitchen of the said flat situated on first floor; on reaching in the kitchen of the flat, accused/Hemant Gandhi and the other person had taken out two bags from the kitchen in his presence and in presence of other team members of CBI officers; the bag was opened by CBI officers in his presence and in presence of accused/Hemant Gandhi and his other associate who was present there and from the said bags, some passports, rubber stamps, letter heads, some photographs were taken out and CBI team had prepared recovery memo thereof and the signatures were taken on the documents recovered from the bags and he had also signed the recovery memo. He was CBI Case No.74/08 Page No.31 of 302 CBI Vs. Bibianus Toppo & Ors shown recovery memo dated 06.02.05 comprising of 12 pages, on which he identified his signatures at points A on each page; signatures of Sh.Rajiv Wahi at points B, signatures of Sh.R K Aggarwal at points C and signatures of Sh.Mahesh Chand at points D on all pages and the same has been marked as Ex.PW1/B (Colly).
2.1.8 He deposed that disclosure statement of accused/Hemant Gandhi was recorded by CBI in his presence on 06.02.05, on which he identified his signatures at point A. Disclosure statement has been marked as Ex.PW.1/A. He also identified the signatures of accused/Hemant Gandhi at point B and signatures of Sh.R.K.Aggarwal at point C, who both had signed on the said statement in his presence. CBI Case No.74/08 Page No.32 of 302
CBI Vs. Bibianus Toppo & Ors 2.1.9 During his crossexamination by accused/Bibianus Toppo (A1), he deposed that HIT Section did not used to affix its stamp on application form. He admitted that in case of clearance of HIT Section, application is sent for issuance of passport and not otherwise. He also admitted that the officer concerned who used to sign the passport, did not have computer at his table to verify the facts personally. He said that counter clerk used to affix "cancelled and returned"
stamp on the application form for misc. services. The purpose of which was to ensure that old passport has been returned to the applicant so that he or she will not dispute later that his or her cancelled passport was not returned to him or her. He also admitted that filling the number of cancelled passport and CBI Case No.74/08 Page No.33 of 302 CBI Vs. Bibianus Toppo & Ors putting the initial by the counter clerk in the space provided in the stamp was not in practice in the relevant period and that the details of the existing passport which is enclosed with the application was already mentioned by the applicant in column 4 of the application for misc. services. He stated in that in the present case also the additional passport files already Ex.PW2/A and Ex.PW2/B respectively, the counter clerk had put the "cancelled and returned" stamp at point DX and taken the signature of the applicant at point Q23 and Q37 respectively to indicate that he had performed his respective duty at the counter.
2.1.10 He deposed that as per the procedure while putting the cancellation stamp on old passport, it was not CBI Case No.74/08 Page No.34 of 302 CBI Vs. Bibianus Toppo & Ors necessary for the counter clerk to write the date of cancellation on the old cancelled passport.
2.1.11 He admitted that counter clerk used to put the undertaking stamp on the request letter submitted with the application for additional passport booklet and he also used to take the signatures of the applicant in the space provided in stamp. After seeing Ex.PW2/A and Ex.PW2/B, he deposed that in both these files the undertaking stamp and the signatures of the applicant are available. He admitted that both these files are complete in all respects and required enclosures are enclosed with them.
2.1.12 He admitted that as per the instructions of CBI Case No.74/08 Page No.35 of 302 CBI Vs. Bibianus Toppo & Ors Ministry of External Affairs, the PIA was required to provide the additional passport services to the applicant on the same day or maximum 3 to 5 days. He admitted that in the present case, the promise date is given correctly within the time period specified by MEA. He deposed that if the applicant is not having the required registration fees or he has got some urgent work or the computer system of RPO is down on that day, then the applicant can come on the next day and can directly go to the registration counter to submit the application with required fees. He admitted that as per procedure the previous passport file of the applicant was not sent for the perusal of PIA who is dealing with additional passport booklet; PIA did not have the facility in his computer to see the photographs, signatures and old reference of the applicant; no instrument or machine was CBI Case No.74/08 Page No.36 of 302 CBI Vs. Bibianus Toppo & Ors provided to PIA to detect the genuineness of passport; no instrument or machine was provided to the PIA to detect the correctness of the enclosed copy of previous passport. 2.1.13 He deposed that if HIT Section finds any discrepancy or irregularity in application for issuance of additional passport booklet sent to HIT for checking, they were required to mention the same in the space provided for official use in the file. He admitted that in files Ex.PW2/A and Ex.PW2/B, there are no adverse remarks/report by HIT section; without clearance of HIT section, passport cannot be made and if the HIT is not clear then the computer will not generate the passport number in the passport allotment section. He admitted that clearance of HIT is not indicated in the file and there is only CBI Case No.74/08 Page No.37 of 302 CBI Vs. Bibianus Toppo & Ors an entry in the computer regarding clearance of HIT. He said that on daily basis there used to be 100 to 150 applications each for miscellaneous services and for additional passport booklets which were dealt by accused/Bibianus Toppo as PIA during those days and as per the circulars of MEA and practice adopted in RPO, Delhi, the miscellaneous services were required to render within same day. He admitted that there used to be a heavy work load on PIA.
2.1.14 During crossexamination, the counsel for accused/Bibianus Toppo (A1) also confronted the witness with certified copies of other additional passport files exhibited as Ex.PW1/DA, Ex.PW1/DC, Ex.PW1/DD Ex.PW1/DE and Ex.PW1/DF to show that for somewhat similar role of Sh.U S CBI Case No.74/08 Page No.38 of 302 CBI Vs. Bibianus Toppo & Ors Lingwal and Sh.Y K Kaushal as PIAs, they were not prosecuted or proceeded against in departmental enquiries for their conduct.
2.1.15 During crossexamination by ld.counsel for accused/Harbhajan Yadav (A2), the witness admitted that after getting the file processed by the counter clerk, the applicant who had applied for the additional passport booklet takes back the file from him as per the rules and once the applicant had collected back the file from the counter clerk, counter clerk had no control over the applicant and his file. He admitted that photograph affixed on the application form for additional passport booklet is not covered with any plastic tape and it is pasted with glue. He admitted that counter clerk has no CBI Case No.74/08 Page No.39 of 302 CBI Vs. Bibianus Toppo & Ors instrument to verify whether the copy of the passport which was enclosed at the time of filing application for issue of additional passport booklet was the genuine or forged one. He volunteered that the particulars of the previous passport were available on the computer system which could be seen by the counter clerk. He admitted that the computer system which was available to the counter clerk did not contain the photograph and signature of the applicant but only contained the name of the applicant and his personal particulars.
2.1.16 He admitted that counter clerk was not required to minutely examine the copy of the application form and the documents annexed with it. He was shown note written on Ex.PW8/A3 and Ex.PW8/A11 respectively at point DX1 CBI Case No.74/08 Page No.40 of 302 CBI Vs. Bibianus Toppo & Ors where it is written "may issue additional passport booklet valid upto 05.03.08 ECR/OBS Old PPT C&R" which is written by dealing assistant/counter clerkHarbhajan Yadav (A2). He said that those remarks could be put by him either at the counter when he was performing duty as counter clerk or at the stage when he was doing duty of dealing assistant in the post lunch session. He also deposed that it was not mandatory that the applicant always deposits the application form for additional passport booklet in person and that he could authorize any person to deposit his application form on his behalf. 2.1.17 During his crossexamination on behalf of Amanjeet Singh (A6), Jatinder Singh (A8) and Parminder Singh (A11), he said that on 06.02.05 no other document was CBI Case No.74/08 Page No.41 of 302 CBI Vs. Bibianus Toppo & Ors prepared except disclosure statement and recovery already Ex.PW1/A and Ex.PW1/B of this case which was prepared in RC No.4A/04. He was confronted with photocopy of a certified copy of his statement made in the court in CC No.26/10 on 04.06.10 which is Ex.PW1/DA and he confirmed that Sh.Tara Chand had instructed him to attend CBI on 06.02.05. He volunteered that it was 8 years back when he had joined investigation of this case and, therefore, he was not able to fully recollect all these facts.
2.1.18 He deposed that disclosure statement of accused was already written when he had reached CBI office, which was read over to him. He denied a suggestion that Insp.Rajiv Wahi had told him before proceeding from CBI office CBI Case No.74/08 Page No.42 of 302 CBI Vs. Bibianus Toppo & Ors that recovery of some passports had to be effected at Rohini. He clarified that he was told by him that proceedings pursuant to disclosure statement has to take place at Rohini. 2.1.19 Counsel for accused/Hemant Gandhi and Amit Khatri had adopted crossexamination of this witness as done by ld.counsel for A6, A8 and A11.
2.2.1 PW2/Puran Chand, LDC in RPO office has deposed that after application was received at the counter, it was put up in a file cover and then it used to come to him for scanning. There used to be a file number generated in the receipt copy which was used to be in the file. He used to enter the number in the computer on which the details of the case CBI Case No.74/08 Page No.43 of 302 CBI Vs. Bibianus Toppo & Ors used to come up on the screen and thereafter he used to scan the photograph and signatures of the applicant from the file which used to be stored in the computer. He deposed that his log in ID number was P514 and only computer expert can tell as to which particular file has been scanned vide log in ID no.P514.
2.2.2 After seeing the passport files Ex.PW2/A and Ex.PW2/B, he identified the signatures of accused/Bibianus Toppo (A1) the then superintendent, who had signed on these files as granting officer. He also proved the specimen writings of Ms.Shweta Dhawan wife of accused/Anil Dhawan as Ex.PW2/C, Ex.PW2/D and Ex.PW2/E which were obtained in his presence and in presence of IO of the case. During cross CBI Case No.74/08 Page No.44 of 302 CBI Vs. Bibianus Toppo & Ors examination by counsel for accused/Bibianus Toppo (A1), he stated that original file was not sent to him with Ex.PW2/A and Ex.PW2/B. He said that file once scanned can be reopened in the computer only by feeding receipt number and not by the name. He denied suggestion that when file comes for scanning, the main file of the original passport also comes along with the application. He said that files Ex.PW2/A and Ex.PW2/B were dealt by him. He admitted that granting of the passport was done after scanning.
2.2.3 During crossexamination by counsel for accused/Ram Chander, he denied suggestion that he had replaced the photograph in these two files at the time of scanning.
CBI Case No.74/08 Page No.45 of 302
CBI Vs. Bibianus Toppo & Ors 2.3.1 PW3/Ajay Gautam was the Sr.System Manager in RPO, Delhi. He deposed that by the year 2003 all the work and process relating to receipt of application and issue of passport had been computerized; at that time there were about 100 dumb terminals, four servers and around 2025 personal computers; software was based on roles which means that somebody who had been assigned registration role, he could do only registration part; every official of passport office was assigned a unique log in ID through which they used to work on the computer system. He deposed that first of all on receipt of application it was registered in the computer and then the file goes for detail entry, scanning HIT checking, granting, passport number allotment, passport printing and then dispatch. CBI Case No.74/08 Page No.46 of 302
CBI Vs. Bibianus Toppo & Ors He proved the computer print outs (D5) as Ex.PW3/A1, A2 and A3 and his certificate u/s 65B of Evidence Act as Ex.PW3/B (D6).
2.3.2 He also deposed regarding movement of record of these files to various officials involved in process and grant of passport in all these three files.
2.3.3 He deposed that after closing of the submission time of passport applications at the counter in RPO, Delhi, computer system automatically runs a programme, namely, 'SOUNDEX'; on the basis of applicant's name, father's name, date of birth as mentioned in the application received on the day, the computer programme automatically checks and CBI Case No.74/08 Page No.47 of 302 CBI Vs. Bibianus Toppo & Ors verifies all the submitted applications by comparing the same with the data available in the computer regarding old passports whether issued or not issued; if matching is found with respect to a particular application the computer will mark the entry as 'suspect with host' and if no matching entry is found in the computer with respect to an application then the same is marked as 'cleared with host'; if an application is moved for additional passport and the particulars of the same are entered in the computer, the soundex programme will show on the monitor in HIT section terminal, the corresponding details regarding name, father's name, date of birth, photograph and signatures as they appeared on all the earlier applications on which passports additional passports were either issued or not issued in respect of that particular person. CBI Case No.74/08 Page No.48 of 302
CBI Vs. Bibianus Toppo & Ors 2.3.4 He proved the Log register of computer section as Ex.PW3/C (D7) and particular entries on page no.60 of the said register as Ex.PW3/D which show that PIRS (Passport Index Retrieval System) was implemented w.e.f. 12.08.02 and it shows that one PC was provided in HIT Section with facility of PIRS in software which shows in addition to text data regarding name, father's name, date of birth, also the scanned signatures and scanned photographs of the applicants. He proved that the entry is in his handwriting on page, Ex.PW3/D. He specifically deposed that in HIT Section one computer was provided in August, 2002 from which the officials working in HIT Section were regularly having the said facility on which photograph and signatures of applicant could be seen as and when required. CBI Case No.74/08 Page No.49 of 302
CBI Vs. Bibianus Toppo & Ors 2.3.5 When he was shown the computer processing report, Ex.PW3/A2 in which the details of names of officials were given, who had dealt with file T016064/03, he deposed that as per the entries available therein Ram Chander with log in ID P495 had done HIT checking on 19.12.03, on which date HIT Section was having a computer in which photograph and signatures of earlier passport holder could be seen. He also deposed that registration was done by G D Joshi and passport was granted by Bibianus Toppo on 18.12.03 by using their respective log in IDs.
2.3.6 In respect of his processing report, Ex.PW3/A3 in which details of names of official were given CBI Case No.74/08 Page No.50 of 302 CBI Vs. Bibianus Toppo & Ors who had dealt with file no.T007437/04, he deposed that as per the entry available therein "HOST" has checked the HIT on 29.04.04. He clarified that Host Soundex Programme marked a suspected/cleared but the name of the official who had done HIT checking can not be found out on seeing Ex.PW3/A3 but the passport was granted by Bibianus Toppo on 29.04.04, registration of which was done by R S Rawat on 28.04.04 and detail entry was done by Harbhajan Yadav on 28.04.04 with their respective log in IDs.
2.3.7 He further deposed that from perusal of these computer processing reports, Ex.PW3/A1, A2 and Ex.PW3/A3, he found that there was no entry regarding the name of the official who had delivered the passport at the CBI Case No.74/08 Page No.51 of 302 CBI Vs. Bibianus Toppo & Ors counter by hand to the applicant or his authorized representative on the particular day which was because of the fact that the delivery of the passport by hand was not computerized. When a leading question was put to him by ld.Public Prosecutor that whether an official who has done registration work in the morning in respect of a particular passport application, delivers passport in the afternoon in RPO office, he replied that sometimes it so happens but it is not regular feature.
2.3.8 During his crossexamination by counsel for accused/Bibianus Toppo (A1), he deposed that HIT suspected list generated by the server was never sent to PIA; in the relevant year there was no facility with the PIA to verify the CBI Case No.74/08 Page No.52 of 302 CBI Vs. Bibianus Toppo & Ors photograph, signature and old reference of an applicant which facility was provided to PIAs from October, 2006; in the present case two additional passports were issued as HIT was cleared. He volunteered that initial it was suspected and cleared by the HIT officials but PIA will not be having the knowledge of this fact because suspected list was forwarded to HIT Section only. He admitted that passport number can not be allotted unless and until HIT check was done and same shows cleared. 2.3.9 During crossexamination by counsel for accused/Ram Chander, he denied the suggestion that no computer system was available with HIT Section to check the photograph and signature of the original passport holder in respect of application for additional passport booklet. He stated CBI Case No.74/08 Page No.53 of 302 CBI Vs. Bibianus Toppo & Ors that log in ID and password is known to only the official to whom it was given.
2.3.10 When he was crossexamined by ld.counsel for accused/Parminder Singh (A11), he deposed that he knows the requirement of Section 65 of Indian Evidence Act and as per Section 65B of Evidence Act, the information may be provided in the form of scanned copy and electronic media and nothing is tampered with data so preserved. He deposed that no tampering of the data had occurred in this case and he had certified this fact; data of RPO, Delhi is preserved in the server and NIC is the custodian of the data so preserved and data can be modified by concerned PIA, if so required but once the file is granted, the data can not be modified by anyone. CBI Case No.74/08 Page No.54 of 302
CBI Vs. Bibianus Toppo & Ors 2.4 PW4/Jagat Taran Berri is Notary Public, who has proved the document, Ex.PW4/A1 to A5 (D8) which are the copies of birth certificates of a child of Govind Ram/Kanta and copies of passports of Kanta and Govind Ram. 2.5.1 PW5/Jaya Shankar is Assistant to the Manager of Aeroflot Russian Airlines, Tolstoy Marg, Delhi, who has proved a letter written by Manager to CBI on 19.10.04 (D23) along with annexures which are the copies of passenger list of flight nos.SU563 dated 20.07.03 and SU536 dated 06.06.04 in which passenger/Rohit Kumar has been shown as having travelled and also informing that booking of Rohit Kumar for 20.07.03 was made through IATA approved agent M/s Uplift CBI Case No.74/08 Page No.55 of 302 CBI Vs. Bibianus Toppo & Ors Tourism Pvt. Ltd. and booking for 06.06.04 was made by IATA approved agent M/s JVCL Pvt. Ltd.
2.5.2 Similarly, he has also proved another letter written by Manager, Aeroflot, Russian Airlines as Ex.PW5/B (D24) which is written on 11.07.05 along with copy of official manifest at the airport.
2.5.3 During his crossexamination on behalf of accused persons, he deposed that he had no personal knowledge of this case and letters Ex.PW5/A and Ex.PW5/B were not typed in his presence.
2.5.4 During his crossexamination by ld.counsel for CBI Case No.74/08 Page No.56 of 302 CBI Vs. Bibianus Toppo & Ors accused/Parminder Singh (A11), he stated that he had seen Mr.Novokshomov, A.B. (Manager) signing letter, Ex.PW5/A. He also denied suggestion that letter Ex.PW5/B was not signed in his presence.
2.6.1 PW6/Sh.Naresh Gupta resident of M112, Jagat Ram Park, Laxmi Nagar, Delhi has deposed that he is residing in the said house since 1995; H.No.112B is situated opposite to his house which belongs to one Afgani old lady living in the said house for last about 10 years. He deposed that Kanta is daughter of said Afgani lady.
2.6.2 In the passport file no.2487/03 (D8) (marked as Ex.PW17/A) he was shown photographs of the passport CBI Case No.74/08 Page No.57 of 302 CBI Vs. Bibianus Toppo & Ors applicant in the name of Rohit Kumar and after seeing the same he said that he does not know this person whose photograph are affixed on the application form and that no person in the name of Rohit Kumar ever resided at M112, Jagat Ram Park, Laxmi Nagar, Delhi.
2.6.3 He was shown attested photo copies of passport of Smt.Kanta and Mr.Govind Ram, Ex.PW4/A2 and Ex.PW4/A3 and on seeing the same he identified the impression of photograph of Smt.Kanta on these attested photocopies of passports along with her address as M112B, Jagat Ram Park, Laxmi Nagar, Delhi. On being shown that on the application form of Rohit Kumar, name of his mother has been written as Smt.Kanta, he said that he does not know the CBI Case No.74/08 Page No.58 of 302 CBI Vs. Bibianus Toppo & Ors name of husband of Smt.Kanta. He was also shown page no.6 of the passport file in which certified copy of birth certificate, Ex.PW4/A1 in which address of Smt.Kanta and Govind Ram has been shown as M112, Jagat Ram Park, Laxmi Nagar, Delhi on seeing the same he said it is incorrect and the correct address should have been M112B, Jagat Ram Park, Laxmi Nagar, Delhi.
2.6.4 Similarly, he was shown other two passport files of RPO, Delhi, Ex.PW2/A and Ex.PW2/B and said that he does not know the person named as Rohit Kumar with photographs affixed on the application form and he said that such person never resided at M112, Jagat Ram Park, Laxmi Nagar, Delhi. He also observed that photographs of the CBI Case No.74/08 Page No.59 of 302 CBI Vs. Bibianus Toppo & Ors applicant in the name of Rohit Kumar in all three files are of different persons. He also identified photograph (D16) as that of Kanta resident of M112B opposite his house who is daughter of old Afgani lady living there at present. The photograph has been marked as Ex.PW6/B. 2.6.5 During crossexamination by ld.counsel for accused/Ram Chander (A3), he admitted that M112, M112A, and M112B, are part of one plot but denied suggestion that Rohit Kumar resided in M112, Jagat Ram Park, Laxmi Nagar, Delhi.
2.7.1 PW7/Neeraj Shankar is ticketing counter staff working with M/s Mag Travels (P) Ltd., New Delhi who deposed CBI Case No.74/08 Page No.60 of 302 CBI Vs. Bibianus Toppo & Ors that Sh.Rakesh Kumar is the MD of the company and Sh.Sanjay Suri is Accountant of the company.
2.7.2 On production memo of certain documents dated 20.07.05, he identified signatures of Sh.Sanjay Suri which is Ex.PW7/A. He proved exchange order and bill book of his company as Ex.PW7/B & Ex.PW7/C and computer generated statement of account of Hemant under signature of Sh.Sanjay Suri as Ex.PW7/D1 to D4. He deposed that his nature of duties was to book tickets at the counter of the company and he used to go to airlines office for getting the dates etc. changed on the tickets.
2.7.3 On seeing the receipt book of M/s MAG CBI Case No.74/08 Page No.61 of 302 CBI Vs. Bibianus Toppo & Ors Travels for the period 28.07.03 to 03.09.03, he stated that he dealt with this bill book by way of issuing receipts which is Ex.PW7/E. Carbon copy of the receipt no.5704 dated 31.07.03 in the name of Rohit Kumar was issued by him bearing his signature at point A which has been marked as Ex.PW7/E1 but he specifically deposed that on this receipt writing from portion X to X is not in his handwriting. He also deposed that Sh.Vijay was trainee accountant of M/s MAG Travels P Ltd. After seeing the carbon copy of receipt no.5715 dated 04.08.03 for Rs.30,000/ in the name of Rohit Kumar, C/o Hemant, he proved it as Ex.PW7/E.2 which was issued against issuance of ticket. He specifically deposed that he does not who is Hemant Gandhi whose name was written on one corner of receipt, Ex.PW7/E.1 and whose name is also mentioned on receipt, CBI Case No.74/08 Page No.62 of 302 CBI Vs. Bibianus Toppo & Ors Ex.PW7/E.2. After seeing receipt no.5726 dated 18.08.03 for Rs.20,000/ in the name of Amit Kumar, he said that the receipt is in his handwriting with his signature at point A and marked it as Ex.PW7/E.3. Receipt also bears endorsement "C/o Hemant" in original ink but he could not say as to who had written "C/o Hemant" on Ex.PW7/E.3.
2.8.1 PW8/Gurinder Singh Walia has deposed that he is running a travel agency in the name and style of M/s Jas Air at 7/60, South Patel Nagar, First Floor, New Delhi which is a partnership firm running since 2002; prior to this, he was running a company under the name and style of M/s Kanu Travel Care Pvt. Ltd since 1991 in which he was one of the directors; accused/Anil Dhawan was his employee when he was CBI Case No.74/08 Page No.63 of 302 CBI Vs. Bibianus Toppo & Ors running M/s Kanu Travels and after closure of that company when he opened new firm in the name & style of M/s Jas Air and he took him (Anil Dhawan) in employment of his firm/Jas Air which is into the business of issuing domestic as well as International Air Tickets and provide assistance in getting visa and issuance of passports; that Anil Dhawan used to deliver the tickets to the clients, collect the payments and used to go to the embassies and passport office for getting visa and passports for the clients which was part of his employment and that Anil Dhawan used to make entries in the day book with regard to the payments received and then deposited in the bank and he also used to fill up the passport and visa forms.
2.8.2 He deposed that he could identify the CBI Case No.74/08 Page No.64 of 302 CBI Vs. Bibianus Toppo & Ors handwriting of Anil Dhawan as he had worked very long with him till year 2004 when raid was conducted by CBI. After seeing the passport file in the name of Rohit Kumar son of Govind Ram with mother's name as Kanta, M112, Jagat Ram Park, Laxmi Nagar, Delhi already Ex.PW2/A (D9), he testified that the writing and signature as Rohit Kumar at page nos.2 to 4 of the file at points Q20 to 28 and Q28/1, signature as Rohit Kumar at points Q28/2, Q29 to 31 on page nos.5 to 8 and handwriting at point Q32 and signature as Rohit Kumar at point Q32/1 and Q33 at page no.9 of the application are in the handwriting of accused/Anil Dhawan. He marked the different pages of the file as Ex.PW8/A1 to Ex.PW8/A8. 2.8.3 After being shown another passport file in the CBI Case No.74/08 Page No.65 of 302 CBI Vs. Bibianus Toppo & Ors name of Rohit Kumar son of Govind Ram with mother's name as Kanta, M112, Jagat Ram Park, Laxmi Nagar, Delhi running into 11 pages already Ex.PW2/B (D10), he deposed that signature at points Q34 to 43 on page nos.2 to 4 of the file and signature as Rohit Kumar at points Q43/1, Q45 to 49 at page nos.5, 6, 8, 9 and 10 of the file are in the handwriting of accused/Anil Dhawan. The different pages of the file are marked as Ex.PW8/A9 to Ex.PW8/A16. He was not able to identify the handwriting at point Q44 on Ex.PW8/A13. 2.8.4 Passport delivery register which was available as D47 in another CC No.25/09 pending in the court was also shown to him and after seeing the page no.124 of the passport delivery register for the period 15.09.03 to 31.03.04, he identified CBI Case No.74/08 Page No.66 of 302 CBI Vs. Bibianus Toppo & Ors that the handwriting and signature as Rohit Kumar in the portion encircled Q50 and Q51 to be of accused/Anil Dhawan. The relevant entries are marked as Ex.PW8/B (D13). 2.8.5 He was also shown specimen signature of accused/Anil Dhawan from S1 to S17 (D48) which he identified as having been taken in his presence and marked as Ex.PW8/C1 to C17. He was recalled for his further examination in chief on an application u/s 311 Cr.PC and was shown the day book of M/s Jas Air seized by CBI in one of the passport cases, originally available in CC No.08/12 as D14 and he marked the photocopy of the said day book (as available in this case) as Ex.PW8/D1 to D9 (D45) which are also marked as Ex.PW16/D1 to D9. He testified that all the pages in day CBI Case No.74/08 Page No.67 of 302 CBI Vs. Bibianus Toppo & Ors book Ex.PW8/D1 to D9 are written in the handwriting of accused/Anil Dhawan. He was also shown passport application of Kanu Priya Gombar (originally available in CC No.08/12), the copy which has been marked as Ex.PW8/E1 to E3 (D46) (also marked as Ex.PW16/D10 to D12) and after seeing the same he identified that the portion encircled as A18 to A21 on Ex.PW8/E to E3 are in the handwriting of accused/Anil Dhawan. He was also shown immigration application of Ms.Padmini Malpani which is available in CC No.08/12, the copy of the which is marked as Ex.PW8/F to F3 (D47) (also Ex.PW16/D13 and D14) and after seeing the same he testified that writing encircled as A20 to A23 on PW8/F.1 & F.2 are in the handwriting of accused/Anil Dhawan. CBI Case No.74/08 Page No.68 of 302
CBI Vs. Bibianus Toppo & Ors 2.8.6 It is worthwhile to note that this witness was crossexamined by ld.counsel for accused/Anil Dhawan on two occasions. In his earlier crossexamination, PWG S Walia was suggested that all the passport application forms pertaining to this case were filled by accused/Anil Dhawan at his (Mr.Walia) instance or that he was actively involved/indulged in these activities with accused Anil Dhawan in order to cover up his losses suffered by him in his previous business. In the subsequent crossexamination, after examination by CBI u/s 311 Cr.PC, he was suggested by accused that he had falsely identified the handwriting of accused/Anil Dhawan on exhibits before the court in order to save himself from legal consequences. When he was asked by ld.defence counsel that how could he say that the day book already Ex.PW8/D1 to CBI Case No.74/08 Page No.69 of 302 CBI Vs. Bibianus Toppo & Ors D9 is his day book, he said that he could say so as it was also written in his own handwriting.
2.9.1 PW9/Smt.Swaran Kaur is the mother of accused/Parminder Singh, who was earlier examined when accused/Parminder Singh was already proclaimed offender (PO) in this case. She deposed that his son Parminder Singh had gone to Germany 56 years ago and she has no contact with him and not heard anything about him. She deposed that his trip for Germany was arranged by an agent.
2.9.2 She was shown the passport application of Parminder Singh brought from Jalandhar Passport Office and she identified photograph of Parminder Singh as Ex.PW9/A1 CBI Case No.74/08 Page No.70 of 302 CBI Vs. Bibianus Toppo & Ors to A5. She was also shown the passport of Parminder Singh issued from Jalandhar Office and after seeing the said passport bearing no.B3579297, she identified the same as passport issued in the name of her son and marked it as Ex.PW9/D. As regards photograph, D15, she failed to identify the same. After seeing the photographs affixed in passport file no.2487/03 (D8), she stated that photographs look little bit that of her son Parminder Singh.
2.9.3 She deposed that her brother Pala lives in Germany and as she was hand to mouth, therefore, she had apprised him about her condition, who had asked her to get a passport prepared in the name of Parminder and send him to Germany. She also deposed that her brother Pala had sent her CBI Case No.74/08 Page No.71 of 302 CBI Vs. Bibianus Toppo & Ors Rs.1 lac and told her that one Sharma would come to her house to whom she should give passport of her son/Parminder which was issued from RPO office, Jalandhar and also Rs.1 lac. She said that when Sharma came to Phagwara and called her at Gurudwara, she went there and handed over the passport of his son Parminder and Rs.1 lac. She said that Sh.Sharma kept on dilly dallying the matter for about 6 months and after 6 months, he telephoned her and asked her to bring her son to Railway Station, Delhi. She then came to Railway Station with her son Parminder and one Bittoo from where she called Sharma over phone who came with his man and took her son and thereafter she went back to Phagwara along with Bittoo. 2.9.4 Ld.Public Prosecutor has also crossexamined CBI Case No.74/08 Page No.72 of 302 CBI Vs. Bibianus Toppo & Ors this witness with permission of the court wherein she was suggested that she had handed over photograph of her son Ex.PW9/X along with passport to one person who had visited her place at Phagwara whose name she does not know. She was confronted with her statement u/s 161 Cr.PC, Ex.PW9/Y. 2.10.1 PW10/Sangeeta Kapoor working with M/s Kairs Tour and Travels, Chirag Delhi has deposed that she was working as counter Executive with M/s Mag Travels P. Ltd., New Delhi from 2002 to 2003 and Sh.Sanjay Suri was working as Accountant on part time basis and Mr.Vijay was trainee accountant. She deposed that she used to issue ticket to the customers as per their requirement for domestic as well as international routes. She specifically deposed that in case of CBI Case No.74/08 Page No.73 of 302 CBI Vs. Bibianus Toppo & Ors non availability of tickets in stock of M/s Mag Travels P. Ltd. or in case of getting more commission tickets were being arranged from other IATA approved agencies for which she used to prepare exchange orders. She explained that exchange order is a sort of proof with regard to the purchase of tickets by M/s Mag Travels P. Ltd. from any other IATA approved agency. 2.10.2 She deposed that before issuing the tickets she used to see the original passport and then take the photocopy of the same from the customer and in case the client was known, instead of bringing original passport, he used to come with the photocopy of the passport then she used to retain one photocopy of the passport in the office, in exchange order she used to mention the passport details and also the details CBI Case No.74/08 Page No.74 of 302 CBI Vs. Bibianus Toppo & Ors regarding the date of journey route and destination; that there was provision of preparation of 1+3 copies of exchange orders as per the exchange order booklet.
2.10.3 After seeing the exchange order book, Ex.PW7/B (D28), she deposed that it is pertaining to M/s Mag th Travels P. Ltd. and she dealt with the exchange order book. 4 copy of exchange order no.3072 was shown to her which was of July, 2003. She was also shown order no.70, 71, 73, 74 & 75 all bearing date as 19.07.03. She said that exchange order no. 3072 was issued on 19.07.03. She also deposed that order no. 70, 71, 73, 74 & 75 were not prepared by her but exchange order no.3072 had been prepared by her and it bears her signature at point A. Exchange order was marked as CBI Case No.74/08 Page No.75 of 302 CBI Vs. Bibianus Toppo & Ors rd Ex.PW10/A. On being shown 3 copy of exchange order no. 3072 (D30), she proved the same as Ex.PW10/B. 2.10.4 She deposed that she had prepared this exchange order in the name of passenger Rohit Kumar for issuance of ticket from Delhi to Zurich and the date of journey was 20.07.03 and for return from Paris to Delhi vis Moscow for 31.07.03; that exchange order was sent to 'Uplift', an IATA approved agency for issuance of ticket; that she had not dealt with the payment aspect of this ticket and this was dealt with by the accounts department and that she used to retain photocopy of the ticket which was got issued from any other agency in her records along with exchange order.
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CBI Vs. Bibianus Toppo & Ors 2.10.5 After seeing the photocopy of the ticket annexed with the exchange order, Ex.PW10/A, she identified that the same is the copy of ticket which was issued in the name of Rohit Kumar by 'Uplift' as per the requisition sent by her office which she marked as Ex.PW10/C and Ex.PW10/D. 2.10.6 After seeing the agent's coupon of tickets annexed with exchange order no.3072, Ex.PW10/B issued in the name of Rohit Kumar, she stated that these were the same tickets which were issued by 'Uplift Tourism Pvt. Ltd.' which are Ex.PW10/E and Ex.PW10/F. She used to send photocopy of passport of the passenger along with the exchange order for issuance of ticket to M/s Uplift Tourism Pvt. Ltd. and the photocopy of the passport no.E7314713 in the name of Rohit CBI Case No.74/08 Page No.77 of 302 CBI Vs. Bibianus Toppo & Ors Kumar is not the same passport for which exchange order, Ex.PW10/A & Ex.PW10B were prepared.
2.11.1 PW11/Sanjay Suri was working as part time accountant with M/s Mag Travels P. Ltd., has deposed that he used to tally the accounts and feed them in the system of the company. He identified that through seizure memo dated 20.07.05, Ex.PW7/A, he had handed over documents to CBI which are bill book Ex.PW7/C, exchange order book Ex.PW7/D, statement of account of Hemant for the period 01.04.03 to 31.03.04 Ex.PW7/D1 to D4; he obtained Ex.PW7/B and Ex.PW7/C from office of M/s Mag Travels P. Ltd. and Ex.PW7/D1 to D4 were retrieved from the computers of M/s Mag Travels P. Ltd. which pertain to Hemant. He CBI Case No.74/08 Page No.78 of 302 CBI Vs. Bibianus Toppo & Ors deposed that Hemant must be a client of the company whose account was maintained by the company and he had feeded the details regarding Hemant as per directions given by the company.
2.11.2 After seeing carbon copies of bill no.10369 dated 19.07.03 in bill book Ex.PW7/C, he marked the same as Ex.PW7/C1 and C2 and stated that the same have been issued against exchange order bearing no.3071 and 3072 which was prepared by Sh.Vijay working as trainee accountant. He also deposed that entry pertaining to this bill no.10369 is reflected in the statement of Hemant, Ex.PW7/D2 dated 19.07.02 at point X. CBI Case No.74/08 Page No.79 of 302 CBI Vs. Bibianus Toppo & Ors 2.11.3 After seeing the office copy of receipt book of M/s Mag Travels P. Ltd., Ex.PW7/E, he deposed that entries pertaining to receipt no.5704, 5715 and 5726, Ex.PW7/E.1 to Ex.PW7/E.3 are reflected in the statement of account, Ex.PW7/D.2 dated 31.07.03 at point Y dated 04.08.03 at point Z and dated 18.08.03 at point Z.1.
2.11.4 After seeing two carbon copies of exchange order no.3071 dated 19.07.03 in the exchange order book, (Ex.PW7/B) for issuance of ticket in the name of Amit Kumar Khatri through Uplift Tourism Pvt. Ltd. marked as Ex.PW7/D.1 and D.2, he deposed that bill pertaining to this exchange order in bill book (Ex.PW7/C) are Ex.PW7/C.1 and C.2 and two bill nos.6176 and 6175 dated 19.07.03 annexed with Ex.PW7/C.1 CBI Case No.74/08 Page No.80 of 302 CBI Vs. Bibianus Toppo & Ors and C.2 in bill book (Ex.PW7/C) are the receipts issued from M/s Uplift Tourism Pvt. Ltd. for issuing tickets in the name of Rohit Kumar and Amit Kumar Khatri, Ex.PW7/C.3 and C.4. 2.12.1 PW12/Partho Banerjee, who was earlier working as Manager Reservations with M/s Mag Travels P. Ltd. has deposed that his duty was to book and issue tickets; for booking of an international ticket, after seeing the original passport he used to retain the photocopy of the passport in the office then the date of journey, destination and route were asked from the customers and thereafter the tickets were issued to the customer from his office; in case stock was not there then the ticket was arranged from IATA agent against an exchange order issued from his office. He also deposed on the same lines as CBI Case No.74/08 Page No.81 of 302 CBI Vs. Bibianus Toppo & Ors deposed by other officials of M/s Mag Travels P. Ltd. 2.12.2 Since he stated that he does not know as to who are Hemant and Amit Kumar Khatri and thus failed to identify any of the accused, therefore, he was crossexamined by ld.Public Prosecutor after seeking permission from the court. During his crossexamination he denied suggestion that he has deliberately not identified accused persons. 2.13 PW.13 Sh.Tara Dutt deposed that he used to do data entry work and scanning work and by checking the computer login ID it can be found out whether he had scanned/entered the data of a particular file with his computer login ID No. is P.755.
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CBI Vs. Bibianus Toppo & Ors 2.14.1 PW.14 Sh.Dharmender Sethi is Managing Director in M/s Uplift Tourism Pvt. Ltd. which deals in domestic and international ticketing and is member of IATA and stockist of tickets. He deposed that his company used to sell domestic and international air tickets directly to the customers as well as to the subagents who may or may not be a member of IATA; in case any subagent requires international ticket his company issued the ticket to them against exchange order if sub agent is IATA member and in case subagent is not member of IATA tickets were issued against cheque or cash. 2.14.2 He deposed that in this case company had issued international tickets to M/s Mag Travels against exchange CBI Case No.74/08 Page No.83 of 302 CBI Vs. Bibianus Toppo & Ors order. He proved seizure memo for handing over documents to CBI as Ex.PW.14/A & Ex.PW.14/B; the exchange order No.3072 has been proved as Ex.PW.10/B. He deposed that exchange order No.3072 Ex.PW.10/B, ledger account in the name of Mag Travels Pvt. Ltd. for the period 01.04.03 to 31.03.04 Ex.PW.14/A. 1, two agent coupons of ticket Nos. 5559142352871 Ex.PW.10/E and 5559142352872 Ex.PW.10/F were handed over to CBI vide seizure memo Ex.PW.14/A and bill book containing bill Nos. 6151 to 6200 of his company Ex.PW.14/A.2 (D.34) with relevant invoices Nos. 6175 and 6176 dated 19.07.03 in the name of M/s Mag Travels Pvt. Ltd. are Ex.PW.14/A.2 a and Ex.PW.14/A.2 b. He also handed over documents which are Air ticket coupons Nos. 5553684634193 Ex.PW.11/A and 5553684634194 Ex.PW. 11/B through memo Ex.P.14/B. CBI Case No.74/08 Page No.84 of 302 CBI Vs. Bibianus Toppo & Ors 2.14.3 He testified that tickets are in the name of Rohit Kumar and Amit Kumar Khatri and their destination and routes are already mentioned in the production memo Ex.PW. 14/A and 14/B as well as on Air coupon tickets; the tickets were booked by M/s Mag Travels on line and was either delivered by his staff or collected by staff of M/s Mag Travels. He identified that on Ex.PW.14/A.2a and 14/A.2b there is receiving of Mr.Nagender Kumaremployee of M/s Mag Travels and they bear signature of his Manager Dinesh Kumar. 2.14.4 He deposed that his company was issuing ticket against exchange order of any sub agent of IATA, ticket and bill issued by the company were given to them and in this CBI Case No.74/08 Page No.85 of 302 CBI Vs. Bibianus Toppo & Ors case the original bill invoice Nos. 6175 and 6176 were sent to M/s Mag Travels Pvt. Ltd. alongwith tickets booked by them on the basis of exchange order. He identified signature of his Manager Dinesh Sachdeva on Ex.PW.7/C3 & C4 and proved that the same are original of Ex.PW.14/A 2 a and 14/A 2 b. 2.15.1 PW15 Sh.Vishaki Sachdeva has deposed that the name of his wife is Durga, who had two sisters, namely, Memo @ Kanta and Radhika and their mother's name was Smt.Leela Wanti, who lives in M Block, Laxmi Nagar. He deposed that Kanta is married to Govind and she also used to live in M Block along with her mother/Leela Wanti but presently she is living in Germany. He said that he could identify Kanta and her husband.
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CBI Vs. Bibianus Toppo & Ors 2.15.2 On being shown passport size photograph of Kanta, Ex.PW6/B and passport size photograph of Govind Ram, Ex.PW15/A, he identified both of them as Kanta and her husband Govind Ram. He deposed that as far as he remembered Kanta had left for Germany about 1015 years back.
2.15.3 He was shown passport file in the name of Rohit Kuma son of Kanta and Govind Ram, Ex.PW2/A and therein he identified photographs at page nos.2 and 3 of the file at points X as not of son of Kanta and Govind Ram. 2.15.4 Similarly, he was also shown another file, CBI Case No.74/08 Page No.87 of 302 CBI Vs. Bibianus Toppo & Ors Ex.PW2/B in which also he said that the photographs affixed on page nos.2 and 3 of the file at points X are not of son of Kanta and Govind Ram.
2.15.5 He was also shown passport size photograph, Mark PW9/X (D15) and he said that the same is not of the son of Kanta and Govind Ram. Photograph was marked as Ex.PW15/B. 2.15.6 He also identified photo impression of Kanta and Govind Ram at point X on the attested copies of their passports, Ex.PW4/A2 and Ex.PW4/A3 (in file Ex.PW17/A). 2.15.7 During his crossexamination by counsel for CBI Case No.74/08 Page No.88 of 302 CBI Vs. Bibianus Toppo & Ors accused/Ram Chander (A3), he denied suggestion that it is the photograph of son of Kanta and Govind Ram.
2.16.1 PW.16 Dr.B.A.Vaid, Government Examiner of Questioned Documents (GEQD), Shimla, has proved the handwriting opinion No.CX/28/2005 dated 30.03.05 & supplementary opinion No.CX/28/2005 dated 30.09.05 as Ex.PW.16/E.1 & E.2 (D.50 & D.51). The reasons for opinion have been proved as Ex.PW.16/F.1 & F.2 respectively in support of the opinion. He proved the specimen writings of accused Anil Dhawan as S.1 to S.17, as Ex.PW.8/C.1 to Ex.PW.8/C.17 and writings from S.74 to S.107 as Ex.PW.16/C.1 to C.34. He marked the admitted genuine handwritings of accused Anil Dhawan from A.1 to A.23 (D.45 to D.47) as Ex.PW.16/D.1 to D.14, the CBI Case No.74/08 Page No.89 of 302 CBI Vs. Bibianus Toppo & Ors originals of which were seen by him in CC No.23/09 pending in the court in which the documents are originally available as D.14 to D.16.
2.16.2 He deposed that as per his opinion Q.21, Q.22, Q.24, Q.25, Q.27, Q.28/2, Q.29 to Q.32, Q.34, Q.35, Q.37 to Q. 43, Q.47 to Q.51 and S.1 to 17 and A.1 to A.23 have been written by one and the same person and Q.20, Q.23, Q.26, Q. 28, Q.28/1, Q.32/1, Q.33, Q.36, Q.45, Q.46, Q.52, Q.53 & S.1 to S.17, S.74 to S.107 and A.1 to A.23 have also been written by one and the same person.
2.16.3 During his cross examination by ld.counsel for accused Anil Dhawan he denied the suggestion that handwriting CBI Case No.74/08 Page No.90 of 302 CBI Vs. Bibianus Toppo & Ors expert science is not a perfect science.
2.16.4 During his cross examination by ld.counsel for accused No.2/Harbhajan Yadav he has admitted that handwriting and signatures of Rohit Kumar, Puran Chand & Jatinder were not received by him for the purpose of opinion. 2.17.1 PW.17 Sh.M.S.Thapar who retired from RPO, Delhi as LDC has deposed that as LDC his duty was to allot passport number on the granted files on which PIA grants ECR or ECNR; that after receiving the file he used to feed the file number in the computer and details of the applicant used to appear on the computer screen; thereafter he used to tally the applicant's name, father's name, date of birth between the data CBI Case No.74/08 Page No.91 of 302 CBI Vs. Bibianus Toppo & Ors displayed on the computer and the details mentioned in the application form; if the same was found in order, he used to enter "Yes" button on the key board whereupon the computer used to allot the passport number and then he used to write the number displayed on the computer screen in the file. He testified that thereafter the file used to be collected by printing section.
2.17.2 On being shown file Ex.PW.2/A he testified that at page no.9 which is Ex.PW.8/A.8 Promise date 19.12.03 has been given by Bibianus Toppo under his signature at point X, grant order has been passed and signed by Bibianus Toppo at point A on page no.4 of the file who has also signed at point B on 19.12.03 at the time of signing of the passport. CBI Case No.74/08 Page No.92 of 302
CBI Vs. Bibianus Toppo & Ors 2.17.3 On being shown file Ex.PW.2/B he testified that on the application Ex.PW.8/A.13 in the said file, which is placed on page no.6, promise date 29.04.04 has been given by Bibianus Toppo under his signature and that the grant order has also been passed by him at page no.4 of the file and signed in the file by him. He also identified signatures of accused Bibianus Toppo at point B on page no.4 which he had made at the time of signing of the passport.
2.17.4 During his cross examination by ld.counsel for accused Bibianus Toppo he deposed that he had worked with Bibianus Toppo in year 200405 and used to issue passport number only after seeing the grant order. During his cross CBI Case No.74/08 Page No.93 of 302 CBI Vs. Bibianus Toppo & Ors examination by accused Ram Chander he deposed that he had not allotted passport number in files Ex.PW.2/A & PW.2/B. 2.18.1 PW.18 Ms.Sangeeta Verma was working as UDC in RPO, New Delhi and looking after the index/HIT checking. She deposed that she was allotted computer Login No.P456 for doing her work. She explained that HIT means searching on the computer data base of passport office to find out the similar name, father's name, date of birth of the applicant, if it already existed in the data base. 2.18.2 She deposed that on receipt of the passport applications she used to work on computer for search on HIT and if any similarity was found in respect of particulars of CBI Case No.74/08 Page No.94 of 302 CBI Vs. Bibianus Toppo & Ors applicant on the data base of passport office, it was reported by her. On receipt of file she used to enter the file number into the computer; in a fresh case the computer will not show any matching particulars if there is no similar entry existing in the data base; that she used to put the stamp of Hit Index cleared on the file cover as shown at point A on Ex.PW.17/A; that the computer did not show the photograph of applicant for HIT. After seeing the photographs on Ex.PW.8/A9, PW.8/A.10 (D.10) she said that they do not tally with photograph of Rohit Kumar on Ex.PW.8/A.1 & PW.8/A.2 (D.9).
2.18.3 During her cross examination by ld. counsel for accused Ram Chander she said that generally the login code is shared by officials with other colleagues in good faith, who CBI Case No.74/08 Page No.95 of 302 CBI Vs. Bibianus Toppo & Ors could use the same in their absence.
2.18.4 During her cross examination by Ld. counsel for Harbhajan Yadav she admitted that HIT check is mentioned on Ex.PW.3/A.1, A.2 & A.3 which show that HIT was checked in these cases and admitted that it is not always necessary to put stamp of HIT/Index cleared on every file after checking the HIT. 2.19 PW.19 Sh.Rohtash, who was UDC in Passport Office, New Delhi has deposed on seeing Ex.PW.16/A.1 that he had dispatched the passport and had written dispatch number on the same.
2.20.1 PW20/Leela Wanti has deposed that she CBI Case No.74/08 Page No.96 of 302 CBI Vs. Bibianus Toppo & Ors came to India as refugee about 25 years ago; she has four sons and three daughters and all her sons are residing in Germany; daughter's name are Durga, Mem and Radhika; Govind Ram is her soninlaw wedded to her daughter/Mem, who lived with her at 112B, Laxmi Nagar, New Delhi and now shifted to Germany. 2.20.2 After seeing file in the name of Rohit Kumar, in passport registration application form (D10) already Ex.PW8/A9, she said that photograph affixed in on the form is not of son of Govind Ram. Similarly, she said that the photographs affixed on Ex.PW9/E.1 and Ex.PW8/A1 are not of Sh.Govind Ram.
2.21 PW.21 Sh.Rakesh Kumar is Managing Director CBI Case No.74/08 Page No.97 of 302 CBI Vs. Bibianus Toppo & Ors of M/s Mag Travels Pvt. Ltd. who also proved the documents which are already proved by PW.10 & PW.14 as Ex.PW.10/B, E & F, Ex.PW.14/A.1 (D.33), documents proved by PW.7 as Ex.PW.7/D.1, D.2, D.3 & D.4 (D.29) & Ex.PW.7/E & 7/E.1 (D.26). He was not put any question in his cross examination. 2.22 PW.22 Arun Kumar Singh has deposed that he used to scan photograph and signature of applicant from the application and then scanned photograph and signature were put on the data base and thereafter file used to be sent to group for further action, that on receipt of the file for scanning he used to enter his computer login No.P730 and also entered the file number on which the name of the applicant and his father's name, date of birth etc. were reflected on the computer and CBI Case No.74/08 Page No.98 of 302 CBI Vs. Bibianus Toppo & Ors after tallying the same he used to do scanning work of the file. After seeing the files Ex.PW.17/A (D.8), Ex.PW.2/B (D.10) and Ex.PW.2/A (D.9) he said that he could not say if these files were scanned by him but if it is reflected by the computer system in the passport office that the scanning of the aforesaid files were done through his login No.P730 then he had handled these files.
2.23 PW.23 Sh.Ram Kishore also used to do scanning work of the applications. He deposed that his computer login No. is P780 and if it is reflected by the computer system in the passport office that the scanning of the files were done through his login then he had handled these files Ex.PW. 17/A (D.8), Ex.PW.2/B (D.10) and PW.2/A (D.9). During his CBI Case No.74/08 Page No.99 of 302 CBI Vs. Bibianus Toppo & Ors cross examination by Ld. Counsel for accused Parminder Singh he said that it as not possible for him to replace the photograph or any other material on the file sent for scanning. He denied the suggestion that during relevant time the file remained within his domain and that he was able to even replace the photograph available on the file.
2.24 PW.24 Sh.Amit Kumar Malik had worked with M/s Prince Travels and Traders, Old Rajender Nagar, Delhi as field boy and said that he used to do ticketing work for other travel agents of Punjab; he met Kuldeep Singh, a Jalandhar based travel agent outside Russian Embassy in the year 2004 and obtained his mobile number; after some time he received a call from Kuldeep Singh for getting a ticket in the name of Rohit CBI Case No.74/08 Page No.100 of 302 CBI Vs. Bibianus Toppo & Ors Kumar for route DelhiMoscowParisMoscowDelhi; he met him in Connaught Place near Nirula's and gave him Rs.35,000/ in cash and passport of Rohit Kumar mark PW.12/X (D.25) (running in four pages) and he handed over the original passport of Rohit kumar which was returned back to him after getting the photo copy of the same and then he went to M/s JVCL and obtained the ticket after making payment of Rs. 35,000/ alongwith photo copy of passport of Rohit Kumar bearing No.E4716910 and on next date he handed over the ticket to Kuldeep Singh after obtaining the same from M/s JVCL. 2.25.1 PW.25 Sh.I.M.Sabharwal had worked as Superintendent in RPO, New Delhi since 03.02.03 to 07.07.07. On being shown Ex.PW.16/A.1 & A.2 he deposed that applicant CBI Case No.74/08 Page No.101 of 302 CBI Vs. Bibianus Toppo & Ors Rohit Kumar was a minor on the date of application i.e. 07.02.03 as his date of birth was 15.06.86 and therefore, police verification in this case was necessary but no police verification was obtained which he was able to say on the basis of personal particulars form Ex.PW.16/A.1 available in the file but was not sent for police verification.
2.25.2 On being shown the application Ex.PW.16/A.2 he deposed that applicant had enclosed photocopy of his parents passport in which their address was shown as H.No.M112 B, Jagat Ram Park, Laxmi Nagar, Delhi92 whereas in the application form for passport Ex.PW.16/A.1 & A.2 house number has been wrongly mentioned as M112, instead of House No.M112B. He said that in this case police verification CBI Case No.74/08 Page No.102 of 302 CBI Vs. Bibianus Toppo & Ors was required for issuance of passport as applicant was minor and above the age of 15 years on the date of submission of application.
2.26 PW.26 Sh.Amanpreet Singh Gandhi who is doing cable TV business and hotel business in the name of Hotel Gem International in Paharganj, New Delhi. He deposed that he knows many travel agents including one Lovely and said that he did not know any person by name of Jatinder Singh or Rohit kumar but knows Mr.Jain of M/s JVCL Tour and Travels, Delhi; that he had not asked him to issue air tickets in the name of Jatinder Singh or Lovely or Rohit Kumar on his guarantee on credit during August, 2004. He was declared hostile and cross examined by ld. Public Prosecutor during which he denied that CBI Case No.74/08 Page No.103 of 302 CBI Vs. Bibianus Toppo & Ors he had told to IO of the case that on being asked by Lovely he had given guarantee to Sh.Jain of M/s JVCL, New Delhi to issue air ticket to him on credit in August, 2004.
2.27.1 PW.27 Sh.Raj Kumar Saini was summoned from Passport office Jalander who has deposed regarding the passport file of accused Parminder Singh Ex.PW.27/A (D.21). He proved that passport application of Parminder Singh son of Sh.Ajit Singh r/o Village Khatti, PO Phagwara, District Kapurthala, Punjab dated 07.03.01 Ex.PW.27/A bears photograph of Parminder Singh at points Ex.PW.9/A.1, A.2, A.3, A.4 & A.5. He proved his endorsement at point X on page 7 of the application bearing photograph of Parminder Singh Ex.PW. 9/A.1; police verification report of Parminder Singh as Ex.PW. CBI Case No.74/08 Page No.104 of 302
CBI Vs. Bibianus Toppo & Ors 27/C; on being shown the passport file of RPO, New Delhi Ex.PW.17/A (D.8) he said that photograph of Rohit Kumar in file Ex.PW.17/A seems to be same as the photograph of Parminder Singh available in application form in file Ex.PW.27/A pertaining to passport office Jalandhar.
2.27.2 During cross examination by ld.counsel for accused Parminder Singh, he denied the suggestion that he could not identify the photograph or that he had wrongly deposed in this respect at the instance of CBI. 2.28 PW.28 Sh.Purshottam Lal who is another official of Passport Office, Jalandhar has deposed that passport file of Jatinder Singh in respect of passport issued in his name CBI Case No.74/08 Page No.105 of 302 CBI Vs. Bibianus Toppo & Ors from Jalander is Ex.PW.28/A (D.22). He proved the photograph of Jatinder Singh pasted on the passport application alongwith other documents in the passport file; after comparison from passport file in the name of Rohit Kumar Ex.PW.2/B (D.10) he said that photograph of Rohit Kumar pasted on the passport application registration form of RPO, New Delhi in file Ex.PW. 2/B and the photograph of Jatinder Singh pasted on the passport application registration form in the passport file Ex.PW. 28/A pertaining to passport office Jalandhar, they appear to be the same. He was not cross examined by any accused persons despite opportunity given.
2.29.1 PW.29 Sh.Gyanender Kumar Jain is director of M/s JVCL Travels Pvt. Ltd., who proved agent's copy of Air CBI Case No.74/08 Page No.106 of 302 CBI Vs. Bibianus Toppo & Ors Ticket No.5553229496176 booked through his travel agency and marked as Mark PW.29/A (D.36). He deposed that the ticket was booked in the name of Rohit Kumar for Delhi MoscowParisMoscowDelhi for journey dated 06.06.14 in flight No.SU536 and return journey was to commence on 09.06.04 on flight no.SU535; that the ticket was booked by him on the request of one Amit who had given him original passport of Rohit Kumar and paid to him Rs.10,000/; he obtained photo copy of passport of Rohit Kumar bearing No.E7314713 which are Ex.PW.29/B & C (address page, passport and valid Visa) (D.35); and that after receipt of balance payment on next day, he had handed over the booked ticket Ex.PW.29/A to Amit at whose instance he had booked the ticket.
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CBI Vs. Bibianus Toppo & Ors 2.29.2 He also proved computerized cash receipt of Rs.10,000/ (D.38) and Rs.24,742/ (D.39) as Ex.PW.29/D & E; agent's copy of air ticket No.5553230795277 booked through his travel agency as Ex.PW.29/F (D.41) and said that ticket was booked in the name of Rohit for DelhiMoscow sector. He proved agent's copy of ticket No. 5553230795278 as Ex.PW. 29/G (D.41) for sector MoscowMadridparisMoscowDelhi in the name of Rohit Kumar with date of journey as 05.08.04 in flight No.SU536 and the return journey to commence on 11.08.04 on flight No.SU535.
2.29.3 He deposed that ticket was booked by him on the request of proprietor of Hotel VIP, Paharganj, Delhi who had informed him that he was sending one Lovely for booking the CBI Case No.74/08 Page No.108 of 302 CBI Vs. Bibianus Toppo & Ors ticket in the name of Rohit Kumar but Lovely had sent some other person with copy of passport No.E8586189 Ex.PW.29/H and copy of Visa Ex.PW.29/J. He proved computerized invoice for Rs.26,312/ as Ex.PW.26/K and computerized cash receipt for the same amount as Ex.PW.29/L as issued by his company. He said that money was received in cash and neither Amit nor Lovely had booked any ticket from his travel agency thereafter. 2.29.4 During cross examination by accused/ Amanjeet Singh @ Lovely, he deposed that Amit & Lovely who had booked the ticket, were not present in the court on that day. He said so, after looking around all the accused persons amongst which accused Amit Khatri and Amanjeet Singh @ Lovely were present.
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CBI Vs. Bibianus Toppo & Ors 2.30 PW.30 Sh.Jagat Singh Bhati, Additional SHO PS IGI Airport has deposed that he was investigating officer of FIR No.352/04 which was registered u/s 419/420/468/471 IPC and section 12 of Passport Act which was entrusted to him for investigation; that he handed over the certified copy of seizure memo dated 05.08.04 to Inspector Rajiv Wahi of CBI which was attested by Sh.Dharam Vir Joshi, SHO, IGI Airport and the same is Ex.PW.30/A (case bearing FIR No.352/04 is tagged with this case for disposal which bearing CC No.17/12). He had handed over the photo copy of passport No.E8586189 in the name of Rohit Kumar attested by Sh.Dharam Vir Johsi on all the four pages to CBI as Ex.PW.30/B, copy of embarkation card duly attested as Ex.PW.30/C and attested copies of two air CBI Case No.74/08 Page No.110 of 302 CBI Vs. Bibianus Toppo & Ors tickets of Rohit Kumar as Ex.PW.30/D & 30/E, photocopy of boarding pass of Aeroflot Air Lines as Ex.PW.30/F. He deposed that as per Ex.PW.30/A Jatinder Singh son of Sh.Satnam Singh r/o Village Ram Pur, PO Quadian, District Gurdas Pur, Punjab was found travelling on the passport and other documents of Rohit Kumar. He was not cross examined by any of the accused persons despite opportunity given. 2.31 PW.31 Sh.Daya Krishan posted as Passport Granting Officer in CVP division, Ministry of External Affairs, New Delhi has proved the sanction order granting sanction u/s15 of Passport Act, 1967 in respect of accused persons as Ex.PW.31/A and sanction order u/s 19 (1) (c) of PC Act, 1988 for prosecution of accused public servants Harbhajan Yadav, Ram CBI Case No.74/08 Page No.111 of 302 CBI Vs. Bibianus Toppo & Ors Chander, G.D.Joshi, R.S.Rawat as Ex.PW.31/B and sanction order u/s 19 (1) (c) of PC Act for prosecution of accused Bibianus Toppo as Ex.PW.31/C. He deposed that Sh.Sharat Sabharwal, the then Additional Secretary (AD), Ministry of External Affairs, New Delhi who had granted sanction order and signed on these sanction orders is presently posted as High Commissioner of India at Islamabad, Pakistan. He proved the sanction order Ex.PW.31/A & 31/C. He also deposed that Sh.R.R.Dash, the then Joint Secretary, who had sanctioned and signed the sanction order Ex.PW.31/D is presently posted as Ambassador of India at Amman, Jordan. He said that both these officials were unable to attend the court due to their diplomatic engagements in respective countries. CBI Case No.74/08 Page No.112 of 302
CBI Vs. Bibianus Toppo & Ors 2.32 The IO of the case Sh.Rajiv Wahi, Inspector of CBI and Sh.R.K.Aggarwal, Additional SP, CBI have been respectively examined as PW.32 & PW.33.
3.0 SANCTION FOR PROSECUTION OF ACCUSED 3.1 The sanction for prosecution of all accused persons for offence punishable u/s 12(1)(b) of Passport Act, 1967 accorded u/s 15 of the said Act has been proved as Ex.PW31/A. The sanction for prosecution of accused/Harbhajan Yadav (A2), Ram Chander (A3), G D Joshi (A9) and R S Rawat (A10) (since expired) all officials of Regional Passport Office, Delhi u/s 19(1)(c) PC Act, 1988 has been proved as Ex.PW31/B. The sanction for prosecution of accused/Bibianus Toppo (A1) working as Superintendent in CBI Case No.74/08 Page No.113 of 302 CBI Vs. Bibianus Toppo & Ors RPO, Delhi, u/s 19(1)(c) PC Act has been proved as Ex.PW31/C. 3.2 These sanction orders have been proved by CBI by examining PW31/Sh.Daya Kishan, an officer in the Ministry of External Affairs, who identified the signatures of sanctioning authority Sh.R R Dash, the then Jt.Secretary in Ministry of External Affairs on Ex.PW31/A and Ex.PW31/B and stated that he is presently posted as Ambassador of India at Amman (Jordan). He also identified signatures of sanctioning authority Sh.Sharat Sabharwal, the then Addl.Secretary in Ministry of External Affairs on Ex.PW31/C and stated that he is presently posted as High Commissioner of India at Islamabad (Pakistan). He specifically deposed that both of them are CBI Case No.74/08 Page No.114 of 302 CBI Vs. Bibianus Toppo & Ors unable to attend the court due to their diplomatic engagements in the respective countries.
3.3 It has been urged by ld.counsel for accused/Bibianus Toppo (A1) that the officers/authorities who passed sanction orders for prosecution of accused, have not been examined by prosecution, which deprived accused of the opportunity to exhibit before the court that there was non application of mind by these authorities while passing sanction orders. It would be pertinent to briefly mention the law relating to grant of sanction for prosecution of public servants as explained by superior courts to appreciate as to whether the sanction for prosecution of accused public servants have been duly proved.
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CBI Vs. Bibianus Toppo & Ors 3.4 In a judgment cited as State of Maharashtra Vs. Mahesh G Jain, 2013 VI AD (SC) 458, the Apex Court has summed up the legal principles enunciated in various judgments which govern the question of validity of a sanction order u/s 19 of PC Act. The Apex Court has relied upon various authorities such as C S Krishnamurthy Vs. State of Karnataka, (2005) 4 SCC 81, wherein it was held that "sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order." In R Sundararajan Vs. State, (2006) 12 SCC 649, the Supreme CBI Case No.74/08 Page No.116 of 302 CBI Vs. Bibianus Toppo & Ors Court observed, "we can not look into the adequacy or inadequacy of the material before the sanctioning authority and can not sit as a court of appeal over the sanction order." In Kootha Perumal Vs. State, (2011) I SCC 491, it has been opined that the sanctioning authority when grants sanction on an examination of statements of the witnesses as also the material on record, it can safely be concluded that the sanctioning authority has duly recorded its satisfaction, and therefore, the sanction order is valid.
3.5 Apex Court in Mahesh G Jain (supra) has laid down that the grant of sanction is only an administrative function wherein the sanctioning authority is required to prima facie reach the satisfaction that the relevant facts would constitute the CBI Case No.74/08 Page No.117 of 302 CBI Vs. Bibianus Toppo & Ors offence. It has been categorically laid down by their Lordships that "the adequacy of material placed before the sanctioning authority can not be gone into by the court as it does not sit in appeal over the sanction order."
3.6 In yet another recent judgment of Hon'ble Supreme Court in State of Bihar Vs. Rajmangal Ram, 2014 SCC ONLINE SC 277, the observation made in State Vs. S T Venketesh Murthy, (2004) 7 SCC 763 has been quoted with approval that "merely because there is any omission, error or irregularity in the matter of according sanction, that does not affect the validity of the proceedings unless the court records the satisfaction that such error, omission or irregularity has resulted in failure of justice." The same position was also CBI Case No.74/08 Page No.118 of 302 CBI Vs. Bibianus Toppo & Ors reiterated by Apex Court in Prakash Singh Badal Vs. State of Punjab (2007) 1 SCC 1.
3.7 It is clear from both the sanction orders u/s 19(1)(c) of PC Act, 1988, Ex.PW31/B and Ex.PW31/C that the sanction for prosecution in this case was accorded by sanctioning authorities 'after carefully examining the material including the statements of the witnesses recorded by the IO under section 161 Cr.PC and documents collected during investigation' placed before the authorities which were considered in view of allegation and circumstances of the case as described in the sanction orders. Moreover, the ld.counsel for accused has failed to mention any failure of justice as a result of non examination of the sanctioning authorities, in the CBI Case No.74/08 Page No.119 of 302 CBI Vs. Bibianus Toppo & Ors court, when they were undisputedly posted abroad as (Ambassador/High Commissioner) when they were summoned as witnesses.
3.8 It is worthwhile to note that the issue of sanction for prosecution of accused in this case has been agitated by accused for the first time during the final arguments only. In Dr.R R Kishore Vs. CBI, 142 (2007) DLT 702, the Hon'ble Delhi High Court has laid down, 'if cognizance is taken on the basis of an illegal investigation and no objection is taken at the initial stages and the trial proceeds to its conclusion and results in conviction, then the same can be set aside only if it has resulted in a miscarriage of justice.' The sanction for prosecution of accused had enabled the court to take CBI Case No.74/08 Page No.120 of 302 CBI Vs. Bibianus Toppo & Ors cognizance of offence by this court against accused/Bibianus Toppo and others, which was never agitated or assailed by them earlier. Now, they can assail it only if it has resulted into miscarriage of justice, which is not the case of accused. The sanction orders are speaking orders given in the facts and circumstance of the case in hand and also mentioning what material was placed before sanctioning authorities for granting sanction order. Hence, I hold that the prosecution has established that the sanction for prosecution of accused persons was validly granted by sanctioning authorities. 4.0 Now, I proceed to discuss the respective arguments of the ld.Public Prosecutor and the ld.defence counsels qua each of the accused in the light of relevant facts CBI Case No.74/08 Page No.121 of 302 CBI Vs. Bibianus Toppo & Ors proved through oral and documentary evidence and record the findings accordingly. As it is a case of criminal conspiracy amongst the accused persons, therefore, their respective roles may not be appreciated in isolation but so far as possible, I would be discussing the evidence and arguments of ld.defense counsels accusedwise.
5.0 ROLE OF ACCUSED/BIBIANUS TOPPO (A1) 5.1 Accused/Bibianus Toppo (A1) was working as Superintendent in RPO, Delhi and was a Passport Issuing Authority (PIA) under whose signatures the two additional passport booklets with different photographs and signatures of persons, other than the ones available in the passport file for issuance of original passport in the name of Rohit Kumar, were CBI Case No.74/08 Page No.122 of 302 CBI Vs. Bibianus Toppo & Ors affixed.
5.2 The ld.Public Prosecutor has submitted that accused/Bibianus Toppo was fully involved in the criminal conspiracy with others, otherwise the issuance of two additional booklets was not possible. She has particularly drawn attention of the court to the file Ex.PW2/A (D9) in which the additional passport booklet was issued for the first time. 5.3 She has submitted that the handwritten application (Ex.PW8/A8) in file Ex.PW2/A is dated 17.12.03 on which the promise date of 19.12.03 has been given by Bibianus Toppo (A1) on 18.12.03. On the same date the fee of Rs.500/ was deposited and the application was registered by accused/G CBI Case No.74/08 Page No.123 of 302 CBI Vs. Bibianus Toppo & Ors D Joshi (as is seen from Ex.PW3/A2). On the same day note was put up by Harbhajan Yadav (A2) and passport was granted by Bibianus Toppo (as is seen from Ex.PW8/A3). But the HIT check was cleared by Ram Chander (A3) by using his log in ID on 19.12.04 as is clear from Ex.PW3/A2 (D5). 5.4 It is unfathomable as to how the counter clerk could recommend for issuance of passport without clearance of HIT and how PIA could have passed the grant order without clearance of HIT of the file. This leads to an inference that both Harbhajan Yadav (A2) and Bibianus Toppo (A1) were sure that they would be able to get the HIT cleared from Ram Chander (A3) who was posted in HIT Section and had Ram Chander (A3) been not colluding with accused/Bibianus Toppo (A1) and CBI Case No.74/08 Page No.124 of 302 CBI Vs. Bibianus Toppo & Ors Harbhajan Yadav (A2), he would not have cleared the HIT and grant order would not have been passed by Bibianus Toppo without HIT clearance and PAC check which have been cleared on 19.12.03 i.e. a day after recommendation and passing of grant order on Ex.PW8/A3.
5.5 The ld.Public Prosecutor has also drawn attention of the court to the manner in which additional passport booklet was issued for second time in file Ex.PW2/B (D10) the work done report of which is Ex.PW3/A3, which will be discussed little later.
5.6 On the other hand, it has been contended by ld.defence counsel that accused/Bibianus Toppo (A1) is CBI Case No.74/08 Page No.125 of 302 CBI Vs. Bibianus Toppo & Ors innocent and has been falsely implicated. To substantiate this contention, he has submitted that during the relevant time the PIA was not provided with the facility in his computer to see the photograph, signature and old references of the applicants and that with the additional booklet files, the previous passport file of the applicant did not used to be sent for his perusal and that he was not having any instrument or machine to detect the correctness of the copy of previous passport which was enclosed with the application.
5.7 For this purpose, he has relied upon the testimony of PW1/Sh.S P Kothari, who has, during his cross examination, admitted that as per procedure the previous passport file of the applicant was not sent for perusal of the PIA, CBI Case No.74/08 Page No.126 of 302 CBI Vs. Bibianus Toppo & Ors who is dealing with additional passport booklet; PIA did not have the facility in his computer to see the photographs, signatures and old reference of the applicant; no instrument or machine was provided with PIA to detect the genuineness of passport or the copy of previous passport enclosed with the application. He has also referred to statements of other witnesses examined by prosecution from passport office, namely, S/Sh.Ajay Gautam (PW3), Tara Dutt (PW13) and I M Sabharwal (PW25).
5.8 On the other hand, the ld.Public Prosecutor has submitted that nothing prevented accused/Bibianus Toppo to call for the previous file and see it before giving promise date, passing grant order or signing the passport. CBI Case No.74/08 Page No.127 of 302
CBI Vs. Bibianus Toppo & Ors 5.9 The ld.counsel for accused/Harbhajan Yadav (A2) has also submitted that as per the admitted procedure of RPO, Delhi when the application for issuance of additional passport was submitted at the counter, the counter clerk, before returning the original/previous passport to the applicant after cancelling the same, used to send the applicant to PIA for obtaining the promise date and at that time while giving the promise date on the application, the PIA used to see the original passport booklet being cancelled and returned and used to compare the copy thereof as enclosed by the applicant with his application for issuance of additional passport booklet. 5.10 It is reasonable to believe that PIA, being CBI Case No.74/08 Page No.128 of 302 CBI Vs. Bibianus Toppo & Ors overall supervising authority for dealing with the application for issuance of additional passport booklet, was duty bound to check the form and enclosures even if due to rush of work he was not in a position to call for the previous files, as the office could not solely depend upon the counter clerk that he had actually compared the copy of passport enclosed with application with its original and the original passport was returned after actually cancelling the same. 5.11 It is fathomable that when counter clerk accused/Harbhajan Yadav (A2) had returned back the passport application Ex.PW8/A9 to applicant along with handwritten application Ex.PW8/A13 to appear before PIA for obtaining the promise date so that deposit of TATKAL service fee of Rs.500/ CBI Case No.74/08 Page No.129 of 302 CBI Vs. Bibianus Toppo & Ors is permitted to the applicant, the PIA, while giving promise date on Ex.PW8/A13, ought to have verified the correctness of copy of previous passport booklet of applicant placed as Ex.PW8/A12 with original passport booklet along with ensuring the cancellation remarks thereon. He ought to have seen the applicant/Rohit Kumar in person as it is he who came with the application and acknowledged the receipt of old cancelled passport by signing at point DX (Q.37) on application form, Ex.PW8/A (D10). Then he would have found that it was not Rohit Kumar whose photograph was affixed on original of the copy of passport Ex.PW8/A12 and on the application itself because it was accused/Anil Dhawan (A7) who had actually signed as Rohit Kumar on all the places in the file, Ex.PW2/B (D10) including the signatures as 'Rohit Kumar' made by him in CBI Case No.74/08 Page No.130 of 302 CBI Vs. Bibianus Toppo & Ors the file in RPO Delhi while making the application. Then he would also have detected that the photograph of the person affixed on original passport booklet in the name of Rohit Kumar was not of the same person whose photo was affixed in file Ex.PW2/B because the original passport was having photograph of Parminder Singh (A11) as apparent in file Ex.PW17/A (D8) and photo of applicant in file Ex.PW2/B is of Jatinder Singh (A8). Not only this the signature as Rohit in copy of enclosed passport was quite dissimilar from signature as 'Rohit Kumar' in file Ex.PW2/B. 5.12 Similar is the position in file Ex.PW2/A (D9). 5.13 In both these files neither counter clerk (A2) CBI Case No.74/08 Page No.131 of 302 CBI Vs. Bibianus Toppo & Ors certified cancellation and return of old passport by putting his signatures on the space provided for it on standard stamp affixed at points DX on Ex.PW8/A2 and Ex.PW8/A10 nor PIA (A1) ensured that the counter clerk had certified it. This is a strong incriminating circumstance proved against accused/Bibianus Toppo (A1) of his active connivance with accused/Harbhajan Yadav (A2) and accused/Anil Dhawan (A7), shifting the onus on him to explain and rebut the same, which he has failed to do.
5.14 The ld.Public Prosecutor has submitted that accused/Bibianus Toppo has issued additional passport booklets in files Ex.PW2/A and Ex.PW2/B in a questionable haste as in file Ex.PW2/A (D9) the promise date of 19.12.03 CBI Case No.74/08 Page No.132 of 302 CBI Vs. Bibianus Toppo & Ors was given by him on 18.12.03, the grant order was passed on 18.12.03 itself and the passport was signed and delivered on 19.12.03 and similarly in file Ex.PW2/B (D10) the promise date of 29.04.04 was given by him on the application on 27.04.14, passport granted on 28.04.04 and passport signed and delivered on 29.04.04.
5.15 On the other hand, the ld.counsel for accused has submitted through the internal circulars of MEA, Ex.PW25/DX3, DX4 and DX6, it was directed to all PIAs to provide all miscellaneous services within the same day or maximum within 3 to 5 days.
5.16 The ld.Public Prosecutor has submitted that CBI Case No.74/08 Page No.133 of 302 CBI Vs. Bibianus Toppo & Ors except where the additional passports have been issued fraudulently, in none of the other cases accused were issuing the additional passport booklets with such a promptitude in as much as, otherwise the issuance of additional passports booklets used to take lot of time. In absence of any evidence to substantiate that in other cases accused used to take much more time, it can not be concluded that in these cases of fraudulent issuances of additional passport booklets, accused had done the work with haste. Doing work at a speed and giving service by public servant in minimum possible time frame can not give rise to any inference against him in absence of any data that he was selectively efficient and fast only in these cases and not the others.
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CBI Vs. Bibianus Toppo & Ors 5.17 It has been submitted by ld.defence counsel that the Regional Passport Office (RPO), which is custodian of passports, had not made any complaint regarding the fraud and forgery in issuance of the passports and hence the CBI could not register the FIR in this case suo moto. It is settled position of law that the FIR can be registered by CBI even on source information for which no complaint is required to be made by any agency, hence I do not find any deficiency in the case on this count.
5.18 It has also been contended by him that there is no evidence on record as to where the passport applicants were, when the applications for additional passports were submitted and that the specimen handwritings/signatures of CBI Case No.74/08 Page No.135 of 302 CBI Vs. Bibianus Toppo & Ors actual applicants were neither obtained by CBI nor sent to CFSL for comparison.
5.19 The case of CBI is that there is no person by name of Rohit Kumar and that these two applications for issuance of additional passport booklets were written, signed and submitted to accused public servants by their co accused/Anil Dhawan (A7) pursuant to their criminal conspiracy. It has been proved by testimony of Pws6/Sh.Naresh Gupta, 15/Sh.Vishakhi Sachdeva and 20/Smt.Leela Wanti that no person as Rohit Kumar ever resided at the given address and that Sh.Gobind Ram and Smt.Kanta who are shown as parents of Rohit Kumar (minor) and the copies of whose passports have been used for the purpose of CBI Case No.74/08 Page No.136 of 302 CBI Vs. Bibianus Toppo & Ors issuance of original passport in the name of Rohit Kumar in file Ex.PW17/A (D8) with photograph of accused/Parminder Singh affixed thereon (see discussion infra), had no son by name of Rohit Kumar and had no sons as of the photographs affixed on the passport applications available in files, Ex.PW17/A (D8), Ex.PW2/A (D9) and Ex.PW2/B (D10). Thus, there was no question of obtaining specimen handwriting/signature of fictitious person by name of Rohit Kumar and bringing on record his availability at the time of making the applications for issuance of passports by RPO, Delhi.
5.20 He has also submitted that IO should have examined PIA (Admn.) and PIA incharge of all the relevant sections and other officers of RPO, Delhi who could throw light CBI Case No.74/08 Page No.137 of 302 CBI Vs. Bibianus Toppo & Ors on procedure and practice followed in RPO, Delhi. No one can guide the investigating agency as to whom to make a witness and whom not. If IO was sure that he could prove the case against accused on the basis of evidence collected and witnesses examined by him, it is none of the business of any one else, much less the accused to contend that he ought to have examined this or that witness in addition to others. If accused felt that he could elicit his defence by examining some witness which CBI has deliberately left out, he could seek indulgence of the court in summoning that witness in his defence, but he did not do so, obviously for the reasons best known to him. Now he can not take a plea that some essential witness has been left out by the CBI and the benefit of his non examination should go to him.
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CBI Vs. Bibianus Toppo & Ors 5.21 Sh.Ramachandran, ld.counsel for A1, has then contended that the CBI has failed to establish the existence of mens rea (dishonest intention) on the part of accused in issuance of additional passport booklets. He has submitted that mens rea is necessary for proving an offence under section 13(1)(d) of PC Act against an accused public servant. For this purpose he has relied upon judgment of Apex Court in the case of C K Jaffer Shariff Vs. State, AIR 2012 (SCW) 6166, wherein it has been held that 'the dishonest intention is the gist of the offence u/s 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant.' CBI Case No.74/08 Page No.139 of 302 CBI Vs. Bibianus Toppo & Ors 5.22 On the other hand, the ld.Public Prosecutor has relied upon the judgment of Hon'ble High Court in case of Runu Ghose Vs. CBI, Crl.Appeal No.482/02 decided on 21.12.2011 and has submitted that it is not always essential, for an offence u/s 13(1)(d) of PC Act, that the act of the public servant should be accompanied by dishonest intention. Without going into this controversy my endeavour has been to find out whether the alleged act of issuance of additional passports in this case has been done intentionally or not. The facts and circumstances discussed herein would clearly elicite that the issuance of two additional passport booklets in this case with different photographs and signatures in both the files, Ex.PW2/A (D9) and Ex.PW2/B (D10) than the photographs and signatures available on the file pertaining to issuance of CBI Case No.74/08 Page No.140 of 302 CBI Vs. Bibianus Toppo & Ors original passport in file Ex.PW17/A (D8), had been done with full knowledge and requisite intention on the part of accused Bibianus Toppo (A1), Harbhajan Yadav (A2) and Ram Chander (A3).
5.23 Ld.counel for accused/Bibianus Toppo has relied upon judgment of Hon'ble Supreme Court in Sudhdeo Jha Utpal Vs. State of Bihar, AIR 1957 SC 466 to submit that the mistakes committed by accused should not be attached with criminal liability. The facts proved in the case show that whatever acts and omissions have been done by accused in this case were intentional and not in rush of work, as agitated by ld.defence counsel, hence the authority is of no help to him. CBI Case No.74/08 Page No.141 of 302
CBI Vs. Bibianus Toppo & Ors 5.24 He has also relied upon a judgment of Apex Court in State of M.P. Vs. Sheetla Sahai & Ors., 2009 Cri.LJ 4436 to submit that accused is entitled to parity of treatment with other PIAs of RPO, Delhi who have not been indicted for a similar role in issuing the passport booklets. The full facts of other cases are not before me but involvement of accused/Bibianus Toppo (A1) in this case is fully made out, as discussed herein. Only the equals are to be treated alike and thus even his own role in issuing the additional passport booklets in several cases may not be similar, much less similar to the role of other PIAs in issuance of passports in some other passport files.
5.25 The case of Union of India Vs. Major J. S. CBI Case No.74/08 Page No.142 of 302 CBI Vs. Bibianus Toppo & Ors Khanna, 1972 Cri.LJ 849 (SC) has also been cited by ld.defence counsel in which case the Apex Court has observed, "what appears to have been lost sight of by the Special Judge was the fact that the period during which the orders in question were placed, was an emergency period, when procedure laid down for such orders could not perhaps be strictly adhered to." The situation in this case is not of emergency as it was in the case of Major J. S. Khanna (supra). In this case the lapses committed by accused public servants can not be termed as procedural lapses committed in rush of work, hence accused is not entitled to the shelter of the judgment relied upon by him. 5.26 Ld.Public Prosecutor has pointed out that the indulgence of accused/Bibianus Toppo (A1) with CBI Case No.74/08 Page No.143 of 302 CBI Vs. Bibianus Toppo & Ors accused/Harbhajan Yadav (A2), Ram Chander (A3) and Anil Dhawan (A7) is quite clear from their manner of dealing of the passport file, Ex.PW2/B (D10) vide which passport booklet no.E8586189 dated 29.04.04 was issued in the name of Rohit Kumar on which photograph of accused/Jatinder Singh (A8) was affixed.
5.27 She has drawn attention of the court to internal page 6 of the file, Ex.PW2/B which is a handwritten application without any date of application, separately marked Ex.PW8/A13 requesting that since pages in passport no.E4716910 are full, therefore, applicant (Rohit Kumar) required another booklet. The application has been signed by accused/Anil Dhawan (A7) as Rohit Kumar at point Q.45. CBI Case No.74/08 Page No.144 of 302
CBI Vs. Bibianus Toppo & Ors Accused/Anil Dhawan has also signed at Q.46 which is below an stamp put by RPO, Delhi reading "I undertake to complete all formalities/documentation before issue of passport." 5.28 As per testimony of PW8/G S Walia, GEQD opinion Ex.PW16/E2 (D51) the signature at points Q.45 and Q.46 in the name of Rohit Kumar have been made by accused/Anil Dhawan. The GEQD has also opined that the body of the application is in the handwriting Smt.Shweta Dhawan wife of accused/Anil Dhawan. Signature within the stamp put by RPO, Delhi at point Q.46 reveals that Anil Dhawan had signed the same after accused/Harbhajan Yadav (A2) had put stamp on the application, thereby, proving that Harbhajan Yadav (A2) had obtained signature of Anil Dhawan as Rohit CBI Case No.74/08 Page No.145 of 302 CBI Vs. Bibianus Toppo & Ors Kumar whereas the photographs of Jatinder Singh were affixed on the application, Ex.PW8/A9 and PW8/A10 with which the handwritten application, Ex.PW8/A13 was placed before him. On this application, Ex.PW8/A13, accused/Bibianus Toppo (A1) has promised the passport for 29.04.04 and signed at point A with date below his signature as 27.04.04. 5.29 The fee receipt available at page no.1 of the file Ex.PW2/B shows deposit of Rs.500/ by Rohit Kumar on 28.04.04 and so is the work done report Ex.PW3/A3 showing the registration of the application by R S Rawat on 28.04.04. 5.30 On internal page no.4 of the file which is separately marked Ex.PW8/A11, it being space for office use, CBI Case No.74/08 Page No.146 of 302 CBI Vs. Bibianus Toppo & Ors he has granted passport on 28.04.09 by putting his signature at point A with remarks "granted ECR." In token of signing passport he had put his signature at point B on Ex.PW8/A11. At point DX1 on the same page accused/Harbhajan Yadav (A2) has put up 'may issue additional booklet valid upto 05.03.08 ECR observed old passport' with his signature and date as 29.04.04 below it.
5.31 Accused/Harbhajan Yadav (A2) is clerk/Assistant and accused/Bibianus Toppo (A1) is passport granting officer and, therefore, the grant order at point A should have come after the recommendation of accused/Harbhajan Yadav, who had recommended for issuance of additional booklet ECR. In no case the granting officer's order could have CBI Case No.74/08 Page No.147 of 302 CBI Vs. Bibianus Toppo & Ors preceded the recommendation by dealing assistant/counter clerkHarbhajan Yadav (A2). This could only be possible when there is a conspiracy between accused/Harbhajan Yadav, Bibianus Toppo and Anil Dhawan and the notings on the file are only for the sake of formality.
5.32 It is also worthwhile to note that in Ex.PW3/A3 (D5) which is computer record for work done in this file, it is shown that registration of this application in file Ex.PW2/B (D10) was done by R S Rawat (A9) and detail entry done by Harbhajan Yadav (A2) both on 28.04.04 and grant order was passed and passport signed by Bibianus Toppo (A1) on 29.04.04. Thus, the submission of the ld.counsel for accused/Bibianus Toppo that the grant order could precede the CBI Case No.74/08 Page No.148 of 302 CBI Vs. Bibianus Toppo & Ors recommendation by dealing clerk/counter clerkHarbhajan Yadav is belied because in the computer system of the passport office, it has been mentioned that the grant order and signature on the passport by Bibianus Toppo were made on 29.04.04, whereas in the file he had passed the grant order on 28.04.04 itself which is possible only when the file was not actually being processed in due course of business.
5.33 Another submission of the ld.Public Prosecutor is that the HIT in this file has been shown as cleared by HOST on 29.04.04 as per Ex.PW3/A.3 and hence the grant order could not have preceded the date of clearance of HIT. In this respect, ld.defence counsel submits that the PIA could pass the order granting passport even when HIT is not cleared as the CBI Case No.74/08 Page No.149 of 302 CBI Vs. Bibianus Toppo & Ors passport number could be generated only on clearance of HIT. If these arguments of ld.defence counsel are accepted, one would fail to fathom as to what is utility of PIA who is the only officer controlling the process of issuance of passports because as per his ld.counsel, he could pass the order granting passport to the applicant even without clearance of HIT and without any recommendation of dealing assistant who was to ensure all the compliances of formalities undertaken by applicant, vide Ex.PW8/A13.
5.34 PW.25 Sh.I.M.Sabharwal who also worked as Suptd. in RPO, Delhi has deposed that when passport was granted and issued to Rohit Kumar on the basis of application Ex.PW.16/A.2 (in file Ex.PW.17/A), he was minor as on the date CBI Case No.74/08 Page No.150 of 302 CBI Vs. Bibianus Toppo & Ors of application and hence police verification was required in this case. On the basis of personal particular (PP) form Ex.PW.16/A (in file Ex.PW.17/A) he said that no police verification was obtained in this case because the said PP form was not sent for police verification. Had accused Bibianus Toppo called this file when he was passing grant order or signing the passports in file Ex.PW.2/A and Ex.PW.2/B, he would have come to know of this glaring deficiency.
5.35 The ld.counsel for accused has submitted that previous file in which original passport was issued (Ex.PW17/A) did not used to come attached with the file for issuance of additional passport booklet. It may be true but nothing would have prevented him from calling the previous file to satisfy CBI Case No.74/08 Page No.151 of 302 CBI Vs. Bibianus Toppo & Ors himself that the identity of an applicant for additional passport booklet, who was a minor at the time of issuance of original passport, has been duly verified. This has not been done by him obviously for the oblique motives.
5.36 It has been got clarified by accused Harbhajan Yadav (A2) by cross examining PW.S.P.Kothari that remarks "may issue additional passport booklet valid upto 05.03.08 ECROBS old PPC C& R" which were written by him (A2) as dealing assistant at points DX.1 on Ex.PW.2/A and PW.2/B could be put up by him either at the counter when he was performing duty as counter clerk or at the stage when he was doing duty as dealing assistant in the post lunch session. He also clarified that if there was no adverse remark from HIT CBI Case No.74/08 Page No.152 of 302 CBI Vs. Bibianus Toppo & Ors Section on files Ex.PW.2/A and PW.2/B, the dealing assistant, in routine process, would put up the file for grant of additional passport booklet with the concerned PIA. Thus, it is clear that the grant order was passed by PIA only when the file was put up by him to PIA as has been done in Ex.PW.2/A and 2/B and not that PIA (A1) passed grant order prior to the file having been put up to him by the dealing assistant (A2). 5.37 It has been submitted by Ld. counsel for accused Bibianus Toppo that the requisite evidence was not put to him u/s 313 Cr.PC to enable accused clarify the reasons for passing grant order on 28.04.04 in file Ex.PW.2/B whereas the note was put up to him by Dealing Assistant Harbhajan Yadav on next day i.e. 29.04.04. It is pertinent to mention that it CBI Case No.74/08 Page No.153 of 302 CBI Vs. Bibianus Toppo & Ors is the incriminating material which is required to be put to an accused u/s 313 Cr.PC and not the inference which the court may draw from that material. The incriminating evidence was put to accused vide question Nos. 84 & 85 to which he replied that the same is matter of record and then added that "in the space for official use there is no adverse remark of HIT or any other section of passport office and there is noting/report of counter clerk/dealing assistant to issue the passport to the applicant." Here he could have explained that the grant order could precede the noting/report of counter clerk/Dealing Assistant Harbhajan Singh but he did not do so rather he tried to shirk the burden of dealing Assistant alone with plea that since his noting/report was there on the file for issuing passport booklet so he had passed the grant order, which belies his CBI Case No.74/08 Page No.154 of 302 CBI Vs. Bibianus Toppo & Ors defence.
5.38 I am of the firm opinion that the issuance of the passport in files Ex.PW2/A and Ex.PW2/B, as discussed above, could have been possible only because of a criminal conspiracy between Bibianus Toppo (A1), Harbhajan Yadav (A2), Ram Chander (A3) and Anil Dhawan (A7). 5.39 Besides, the criminal conspiracy, it is also clearly proved that accused/Bibianus Toppo (A1) abused his official position to obtain valuable thing i.e. passports in the fictitious name of Rohit Kumar an unknown person and for accused/Jatinder Singh (A8), which was without any public interest, rather it was against public interest. CBI Case No.74/08 Page No.155 of 302
CBI Vs. Bibianus Toppo & Ors 6.0 ROLE OF ACCUSED No.2 - HARBHAJAN YADAV 6.1 Accused/Harbhajan Yadav (A2) working as LDC in RPO, New Delhi had firstly performed the duty as counter clerk in scrutinizing the passport applications for additional passport booklets and at a later stage as dealing assistant in putting up those two files for issuance of additional passport booklets in this case which are Ex.PW2/A and Ex.PW2/B. He was working as counter clerk and dealing assistant and as such had dealt with both these files in the RPO, Delhi and had recommended for issuance of additional passport booklets.
6.2 As emerged from evidence on record, the CBI Case No.74/08 Page No.156 of 302 CBI Vs. Bibianus Toppo & Ors process followed by Passport office for applying additional passport booklet was that while applying for first additional passport booklet, the applicant was required to submit the original passport earlier issued to him/her at the counter which was required to be cancelled and returned to him/her by retaining an attested photocopy thereof with the application. When he/she applied for second additional passport booklet, he/she was required to annex attested photocopy of the first additional passport booklet with his/her application and the original thereof was required to be cancelled and returned to him/her by the counter clerk at the counter after verifying the photocopy thereof as enclosed with the application. 6.3 In this case the copy of passport booklet which CBI Case No.74/08 Page No.157 of 302 CBI Vs. Bibianus Toppo & Ors has been retained with the applications for issuance of first and second additional passport booklets in files Ex.PW2/A (D9) and Ex.PW2/B (D10) are those of the original passport in the name of applicant/Rohit Kumar (by changing the photograph every time as of the impostor) which was issued to him in the file, Ex.PW17/A (D8). In fact the original passport in file Ex.PW17/A was also got issued in a fictitious name Rohit Kumar with photograph of accused/Parminder Singh (A11) who was already a passport holder from Regional Passport Office, Jalandhar (Punjab) bearing passport no.B3579297 which is Ex.PW9/D (D18) (see discussion on role of accused/Parminder Singh infra). It has been proved and even otherwise not disputed by accused/Harbhajan Yadav that he had dealt with and put up the files Ex.PW2/A and Ex.PW2/B CBI Case No.74/08 Page No.158 of 302 CBI Vs. Bibianus Toppo & Ors as counter clerk and dealing assistant. In file Ex.PW2/B, he had also performed the duty of doing detailed entry as is clear from Ex.PW3/A3.
6.4 Ld.Public Prosecutor for CBI has submitted that accused/Harbhajan Yadav (A2) is one of the main accused in this case who had initiated the process for issuance of two additional passport booklets to fake persons with different photographs in the name of Rohit Kumar as he had scrutinized and accepted the applications at the counter as presented by accused/Anil Dhawan (A7) who had signed in the name of Rohit Kumar and in doing so he deliberately did not ensure that the original passport was actually cancelled and returned at the counter when additional passport booklet was applied for first CBI Case No.74/08 Page No.159 of 302 CBI Vs. Bibianus Toppo & Ors time so as to ensure that the same passport is not used for getting issued additional booklets again and again and that he fraudulently put up notes to this effect and had recommended for issuance of additional passport booklets twice in the name of Rohit Kumar with photographs of two different persons. Even the presentation of original passport for "seen & return" was not possible as it was issued with photograph of accused/Parminder Singh (A11) who travelled abroad on that passport on 20.07.03 but did not return back till 20/2 when he was arrested at the airport on his landing in India (see discussion of role of accused/Parminder Singh infra).
6.5 While the identity of the person with whose photograph the passport booklet was issued in file Ex.PW2/A CBI Case No.74/08 Page No.160 of 302 CBI Vs. Bibianus Toppo & Ors (D9) is not known, the identity of the person whose photograph has been used for issuance of additional passport booklet for second time in file Ex.PW2/B (D10) has been established as Jatinder Singh (A8) (see discussion under the heading of role of accused/Jatinder Singh).
6.6 On the other hand, ld.counsel for accused/Harbhajan Yadav (A2) has submitted that CBI has falsely implicated accused/Harbhajan Yadav (A2) and has in fact made every official of RPO, New Delhi as accused in this case, who had even dealt with any of these files. He has submitted that no discrepancy in the processing of the files has been pointed out by the witnesses examined by CBI in this case and so it was possible that accused/Harbhajan Yadav (A2) CBI Case No.74/08 Page No.161 of 302 CBI Vs. Bibianus Toppo & Ors would have, both the times, innocently cancelled and returned the forged passports produced before him at the counter, being unaware of the forgery, in accepting the applications for additional passport booklets and recommending the same for issuance, in due course.
6.7 He has submitted that anybody could file an application for additional passport booklet and it was not necessary that the applicant himself appears for making an application for issuance of additional passport booklet. He has also submitted that authorization letter was not required for making an application for additional passport booklet by a representative of the applicant.
CBI Case No.74/08 Page No.162 of 302
CBI Vs. Bibianus Toppo & Ors 6.8 Let us see as to what evidence is available on record and whether the CBI has been able to substantiate the charge against accused/Harbhajan Yadav (A2). 6.9 It is admitted case of accused/Harbhajan Yadav (A2) that he worked as counter clerk/dealing assistant in respect of issuance of both the additional passport booklets in files Ex.PW2/A and Ex.PW2/B (D9 and D10). This fact is also clear from crossexamination of PW1/S P Kothari, who has responded on asking by ld.defence counsel for accused no.2, "I have seen written note Ex.PW8/A.3 and PW8/A.11 respectively in files Ex.PW2/A and Ex.PW2/B at point DX1 encircled in blue ink which is written as 'may issue additional passport booklet valid upto 05.03.08 ECROBS old PPT C&R' which is CBI Case No.74/08 Page No.163 of 302 CBI Vs. Bibianus Toppo & Ors written by the dealing assistant/counter clerkHarbhajan Yadav (A2). It is correct that the said remarks could be put by him either at the counter when he was performing duty as counter clerk or at the stage when he was doing duty of dealing assistant in the post lunch session." He further clarified that most of the times the counter clerk in the afternoon session works as the dealing assistant to the concerned PIA; the duty of the dealing assistant was to put up the file to the concerned PIA for grant of passport; there is no adverse remark from the HIT Section on the passport files Ex.PW2/A and Ex.PW2/B; and that if the dealing assistant finds any adverse report or note from the HIT Section then accordingly with his adverse note he puts up the file before concerned PIA otherwise in routine process he puts up the file for grant of additional passport CBI Case No.74/08 Page No.164 of 302 CBI Vs. Bibianus Toppo & Ors booklet before the concerned PIA.
6.10 Thus, it is clear from statement of PW1/S P Kothari that after ensuring that there is no adverse HIT report in respect of particular application for issuance of additional passport booklet, the dealing assistant would put up the file to PIA in routine process for grant of additional passport booklet. In case of the additional passport booklet issued in file Ex.PW2/B (D10), the application at page no.4 of the file (which page is separately Ex.PW8/A11) shows that he had put up the note as aforesaid at point DX1 on 29.04.04 whereas the grant order below the same at point A has been passed by accused no.1 on 28.04.09. This was not possible unless there was a criminal conspiracy between accused/Bibianus Toppo (A1) and CBI Case No.74/08 Page No.165 of 302 CBI Vs. Bibianus Toppo & Ors accused/Harbhajan Yadav (A2) to issue an additional passport booklet with the photograph of accused/Jatinder Singh but in the name of one Rohit Kumar whose identity is found fictitious and his parentage & address are not of accused/Jatinder Singh. 6.11 Further, in both the files for issuance of additional passport booklets, Ex.PW2/A and Ex.PW2/B at points DX on their internal page no.3 (separately marked as Ex.PW8/A2 and Ex.PW8/A10 respectively), the signature at points Q23 and Q37 have been made by accused/Anil Dhawan and not by any Rohit Kumar or by the person whose photographs are affixed on both these files (see infra in role of accused/Anil Dhawan).
CBI Case No.74/08 Page No.166 of 302
CBI Vs. Bibianus Toppo & Ors 6.12 If the passport of Rohit Kumar was cancelled and returned by him in the file Ex.PW2/A while issuing the additional passport booklet in the name of Rohit Kumar dated 19.12.03, it was not possible to cancel and return the same while entertaining the application and issuing additional passport booklet in the passport file, Ex.PW2/B (D10). 6.13 Admittedly, the same passport number in the name of Rohit Kumar has been shown as cancelled and returned in both these files which is bearing no.E4716910 issued on 06.03.03 because during crossexamination of PW1/S P Kothari, ld.counsel for accused/Harbhajan Yadav (A2) has got clarified "it is also correct that since old passport number is mentioned at point Q.25 on the back side of CBI Case No.74/08 Page No.167 of 302 CBI Vs. Bibianus Toppo & Ors Ex.PW8/A.2 (page no.3) of the file Ex.PW2/A (D9) and the copy of the old passport is also annexed with the application form, therefore, there was no need of repeating the old passport number at point DX (on page no.3 of the application separately Ex.PW8/A2)." The same was his reply with respect to the file Ex.PW2/B (D10) also in which the additional passport booklet in the name of Rohit Kumar was issued for the second time. 6.14 Both these files were dealt by accused/Harbhajan Yadav (A2) and accused/Bibianus Toppo (A1) within a short span of four months wherein the entire work as 'Rohit Kumar' was done by accused/Anil Dhawan including the filling of the application, signing on all places as 'Rohit Kumar' and acknowledging the receipt of the passport booklets. CBI Case No.74/08 Page No.168 of 302
CBI Vs. Bibianus Toppo & Ors 6.15 In both files, Ex.PW2/A and Ex.PW2/B, the purported copy of passport no.E4716910 in the name of Rohit Kumar issued on 06.03.03 has been enclosed as Ex.PW8/A4 and Ex.PW8/A12 respectively.
6.16 It is worthwhile to mention that while the copy of passport Ex.PW8/A4 enclosed with the application for additional passport booklet in the file Ex.PW2/A (D9) has been self attested by Anil Dhawan (A7) in the name of 'Rohit Kumar', copy of the same passport enclosed as Ex.PW8/A12 in the passport file Ex.PW2/B (with change of photograph) is not even self attested.
CBI Case No.74/08 Page No.169 of 302
CBI Vs. Bibianus Toppo & Ors 6.17 As per testimony of Sh.G S Walia (PW8) and GEQD opinion, the attestation at point Q28/2 on Ex.PW8/A4 (D9) has been done by accused/Anil Dhawan. It is significant to note that signature as 'Rohit' at points Q.28/3 on Ex.PW8/A4 and Q43/1 on Ex.PW8/A12 (enclosed photocopies of the previous passport booklets) are similar which are available in the file in which the original passport was issued which is Ex.PW17/A (D8), whereas the signature on the attested copy thereof Ex.PW8/A4 and on all places in both the applications for issuance of additional passport booklets in files Ex.PW2/A and Ex.PW2/B as 'Rohit Kumar' are quite dis similar which is glaring and clear to the naked eyes as the signature as 'Rohit' in passport file Ex.PW17/A at points Q1, Q3, Q6, Q10, Q11, Q13, Q16 and Q19 have been CBI Case No.74/08 Page No.170 of 302 CBI Vs. Bibianus Toppo & Ors apparently made by a person who appears to be just literate but the flow of signature as 'Rohit Kumar' on various places in the files Ex.PW2/A and Ex.PW2/B has been done by an educated person with clear flow of writing. While the signatures as "Rohit" in file Ex.PW17/A are appearing, the signature as "Rohit Kumar" has been made on the applications in the files Ex.PW2/A and Ex.PW2/B in a clear flow of handwriting and this could be easily noticed by anyone who is dealing with these files.
6.18 Further, the impression of the photograph on the photocopy of the passport no.E4716910 available as Ex.PW8/A4 in the file Ex.PW2/A and the impression of photograph on the photocopy of the same passport CBI Case No.74/08 Page No.171 of 302 CBI Vs. Bibianus Toppo & Ors no.E4716910 available as Ex.PW8/A12 in the file Ex.PW2/B (D10) are entirely different as the same is the impression of the photograph of accused/Jatinder Singh used by him for issuance of additional passport booklet which was issued to him on 29.04.04.
6.19 From testimony of PW1/S P Kothari, it transpired that an unwritten practice was started in RPO, New Delhi whereby the counter clerk did not used to sign on the space provided in the stamp at point 'DX' (on both the applications in files Ex.PW2/A and Ex.PW2/B) where he was to ensure that the old passport, on the basis of which the issuance of additional passport booklet has been requested by the applicant, was returned back to him. So also the CBI Case No.74/08 Page No.172 of 302 CBI Vs. Bibianus Toppo & Ors requirement of writing the passport number of the old passport cancelled and returned to the applicant into the space (which is at point DX on Ex.PW8/A2 and PW8/A10 in both the files Ex.PW2/A and Ex.PW2/B) was also given up for the reason that the number of the old passport was been written on the back side of these application forms.
6.20 May be that these lapses on the part of accused/Harbhajan (A2) as also Bibianus Toppo (A1) have occurred due to the reason that they had adopted this practice for speedy disposal of work, but the admitted position is that accused/Harbhajan Yadav/counter clerk, was required to verify the attested photocopy of old passport which had been enclosed with the application for additional passport booklet CBI Case No.74/08 Page No.173 of 302 CBI Vs. Bibianus Toppo & Ors from the original thereof, then cancel the old passport by writing/putting across the stamp of "cancellation and return" on the previous passport booklet before returning the same to the applicant. Obviously, he had not done so otherwise it was not possible that the old passport booklet (which was issued in the file Ex.PW17/A) would have been cancelled and returned at the counter at the time of accepting and processing the application form for the first additional booklet (in the file Ex.PW2/A) could have been used again for getting issued a subsequent passport booklet in the file Ex.PW2/B. 6.21 It has been submitted by ld.counsel for accused/Harbhajan Yadav (A2) that from testimony of PW1/S P Kothari, it is clear that it was not mandatory that the applicant CBI Case No.74/08 Page No.174 of 302 CBI Vs. Bibianus Toppo & Ors always deposits the application form for additional passport booklet in person and any person could be authorized by the applicant on his or her behalf to deposit the application with passport office. Although, this may be the correct position but the files Ex.PW2/A and Ex.PW2/B do not contain any authorization letter by the applicant. Moreover while acknowledging the cancellation and return of the original passport in the file Ex.PW2/A (on internal page separately Ex.PW8/A2) and the file Ex.PW2/B (on internal page Ex.PW8/A10) at points DX, the signature of any authorized representative has not been obtained, rather the signature have been made in the name of 'Rohit Kumar' which are made by accused/Anil Dhawan (see discussion of role of Anil Dhawan infra).
CBI Case No.74/08 Page No.175 of 302
CBI Vs. Bibianus Toppo & Ors 6.22 Thus, there is no point in now agitating that 'Rohit Kumar' would have authorized someone, may be accused/Anil Dhawan, to present his applications for issuance additional passport booklets in RPO, Delhi instead of personally attending the said office for getting issued additional passport booklets. Not only this, the acknowledgment of receipt of the prepared additional passport booklets in both the files at points Q22 and Q36 are in the handwriting of accused/Anil Dhawan (A7) who is a different person than the persons whose photographs are affixed in files Ex.PW2/A and Ex.PW2/B. 6.23 On both the occasions when the additional passport booklets have been issued in this case in files CBI Case No.74/08 Page No.176 of 302 CBI Vs. Bibianus Toppo & Ors Ex.PW2/A and Ex.PW2/B, the counter clerk/dealing assistant had been accused/Harbhajan Yadav (A2) and granting and signing authority has been accused/Bibianus Toppo (A1). In both these cases all the writings and signatures on the applications have been done by accused/Anil Dhawan in the name of Rohit Kumar and that becomes relevant u/s 15 of Evidence Act, which provides that when there is a question whether an act was accidental or intentional or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant. Thus, I find that accused/Harbhajan Yadav (A2) was a common and most crucial link in both the files in issuance of additional passport booklets.
CBI Case No.74/08 Page No.177 of 302
CBI Vs. Bibianus Toppo & Ors 6.24 It has been argued by ld.counsel for accused/Harbhajan Yadav (A2) that although the application forms for issuance of passports were received by accused/Harbhajan Yadav but it is not the case that those application forms were not genuine or the requisite enclosures with application forms in files Ex.PW2/A and Ex.PW2/B were not ensured. He has submitted that there was no instrument provided to accused/Harbhajan Yadav to check the correctness of those enclosures. From above discussion of facts, it is clear that although there may not be any instrument to check the correctness of enclosures but the things which are clear to the naked eye have been deliberately ignored by him. CBI Case No.74/08 Page No.178 of 302
CBI Vs. Bibianus Toppo & Ors 6.25 He has also submitted that for an offence u/s 120B IPC meeting of mind between accused persons should be established by the prosecution. I have already discussed that under the facts & circumstances deliberated above issuance of additional passport booklets in files Ex.PW2/A and Ex.PW2/B was not possible without criminal conspiracy between accused/Harbhajan Yadav (A2) Bibianus Toppo (A1) and Anil Dhawan (A7) and Ram Chander (A3). In this way the charge of 'criminal misconduct' u/s 13(1)(d) of PC Act is also established against him besides for a criminal conspiracy u/s 120B IPC.
7.0 ROLE OF ACCUSED RAM CHANDER (A.3) 7.1 It is alleged against accused Ram Chander CBI Case No.74/08 Page No.179 of 302 CBI Vs. Bibianus Toppo & Ors that while working as LDC in HIT Section of RPO, New Delhi during the relevant period, he had cleared passport file Nos.T16064/03 (Ex.PW.2/A) (D9) of Rohit Kumar in HIT Section without pointing out about the issue of earlier passport booklet in the same name.
7.2 In the HIT Section there is facility in the computer system that the signatures and photographs of the earlier passport holder could be seen clearly and in case of any dissimilarity it was required to be pointed out by the official working in HIT Section, instead of clearing the HIT. Accused Ram Chander (A3) who was working in HIT Section during the relevant period had not carried out this exercise which was intentional and thereby additional passport booklet was issued CBI Case No.74/08 Page No.180 of 302 CBI Vs. Bibianus Toppo & Ors in favour of fictitious person named as 'Rohit Kumar', with different photograph and signature than of the original allottee of the passport, who himself was a fictitious person with photograph of accused/Parminder Singh (A11) having been used for issuance of passport.
7.3 Relying upon judgments of Apex Court in Subhash Parbat Sonvane Vs. State of Gujarat, 2002 Cri LJ 2787, the ld.defence counsel for accused/Ram Chander (A3) has submitted that for proving an offence u/s 13(1) of PC Act, some pecuniary advantage to accused, due to his misconduct, must be shown. In fact the issuance of fraudulent passport in the name of a fictitious person causes loss of reputation to the Government and wrongful gain to the person who obtains such CBI Case No.74/08 Page No.181 of 302 CBI Vs. Bibianus Toppo & Ors passport on which he is capable to travel abroad. Therefore, such a criminal conduct of accused public servant, due to which a passport has been issued to person, who is otherwise not entitled to it, falls within the definition of criminal misconduct u/s 13(1)(d) of PC Act, 1988.
7.4 He has also relied upon judgment of Hon'ble Delhi High Court in S.Ram Yadav Vs. CBI, 2014(1) JCC 343, wherein it was held that negligence can not amount to criminal misconduct. I find that the clearance of HIT by accused/Ram Chander is not mere negligence but a deliberate act and hence ratio of S.Ram Yadav's case (supra) do not protect his action. 7.5 It has then been submitted by ld.counsel for CBI Case No.74/08 Page No.182 of 302 CBI Vs. Bibianus Toppo & Ors accused/Ram Chander (A3) that as per the case of the prosecution, Ram Chander has cleared HIT only in one file which is Ex.PW2/A (D9) but the HIT was also cleared in file Ex.PW2/B (D10). As per the computer print out of work done report Ex.PW3/A3 (D5) HIT has been cleared by 'HOST.' He has submitted that as per testimony of PW3/Sh.Ajay Gautam, Sr.System Analyst of NIC, posted in RPO, Delhi, the soundex programme running in the computer system of RPO, Delhi would clear the HIT in a particular file according to previous data as available on server of RPO, Delhi and hence if HIT is cleared in a particular file it is not the act of official posted in HIT Section but it is the job of NIC official who maintains the server. 7.6 From careful perusal of testimony of Sh.Ajay CBI Case No.74/08 Page No.183 of 302 CBI Vs. Bibianus Toppo & Ors Gautam (A3), I find that he has not deposed anything which can be read to mean as contended by ld.defence counsel. In fact he has deposed that 'in report Ex.PW3/A3, the column against HIT check reflects "HOST" but the corresponding column does not show if it was cleared or suspected.' Thereafter he explained that if any matching record is found with respect to a particular application, the computer will mark it as "suspect with host" and if no matching entry is found in the computer with respect to an application, the same is marked as "cleared with host." Moreover, no such clarification was sought by any of the accused persons from Sh.Ajay Gautam from which it can be inferred that accused/Ram Chander had any confusion about the role of NIC or soundex programme. Nothing was suggested to the witness to the effect that HIT CBI Case No.74/08 Page No.184 of 302 CBI Vs. Bibianus Toppo & Ors could be cleared in any of the files without intervention by HIT Section of RPO, Delhi. Hence, the contention of ld.counsel for accused/Ram Chander is misplaced that the HIT might have been cleared by NIC official or the soundex programme automatically.
7.7 Ld. Counsel for accused Ram Chander has then submitted that there is no circular of the Ministry of External Affairs/Passport department to the effect as to which work was to be done first while issuing additional passport booklet and therefore, it cannot be said that issuance of additional passport booklet was based on a prerequisite of clearance of passport file by the HIT Section. He has also submitted that it is possible that some other official of RPO, CBI Case No.74/08 Page No.185 of 302 CBI Vs. Bibianus Toppo & Ors New Delhi could have cleared HIT in file Ex.PW2/A instead of accused Ram Chander. We will see these arguments in the light of evidence available on record.
7.8 It has been proved by PW1/S P Kothari that the clearance of HIT in an application for additional passport booklet is must. During his crossexamination he clarified that HIT Section does not affix any stamp on the file for clearing the HIT. He also clarified that the application is sent onward for issuance of passport in case the HIT is clear and not otherwise. He admitted that there is no adverse remark from the HIT section on Ex.PW.2/A and Ex.PW.2/B; that if dealing assistant finds anything adverse, he would put up the file before the concerned PIA with his note, otherwise he will, in routine CBI Case No.74/08 Page No.186 of 302 CBI Vs. Bibianus Toppo & Ors process and send the file for onward processing and grant of additional passport booklet by the concerned PIA. 7.9 PW.3 Sh.Ajay Gautam has proved the computer printouts of work done report in respect of files Ex.PW.17/A (D.8), Ex.PW.2/A (D.9) and Ex.PW.2/B (D.10) as Ex.PW.3/A.1, Ex.PW.3/A.2 and Ex.PW.3/A.3 (D.5) respectively alongwith a certificate u/s 65 B of Evidence Act as Ex.PW.3/B (D.6). Ex.PW.3/A.2 shows that HIT checking of passport file No.16064/03 (Ex.PW.2/A) was done by Ram Chander by using his ID No.P495 on 19.12.03. The passport was granted by B.Toppo (A.1) on 18.12.03.
7.10 Now when we see the space for official use at CBI Case No.74/08 Page No.187 of 302 CBI Vs. Bibianus Toppo & Ors page no.4 of the passport file Ex.PW.2/A separately Ex.PW.8/A. 3, we find that the note was put up by dealing assistant Harbhajan Yadav (A.2) at point 'X' on 18.12.03 and grant order was passed by accused Bibianus Toppo (A.1) vide his note "granted" alongwith signature at point 'A' on 18.12.03. It is clear from deposition of PW. S.P.Kothari, as seen above that the file is sent for processing onward only when HIT was clear and not otherwise. Here HIT was cleared by accused Ram Chander on 19.12.03 as seen from Ex.PW.3/A.2 but the note recommending grant of additional passport booklet was put up and grant order was passed a day before clearance of HIT in this case, which clearly proves that accused Ram Chander was hand in gloves with accused Harbhajan Yadav and Bibianus Toppo. Even PAC check was cleared by Bibianus Toppo (A1) on 19.12.03 as is CBI Case No.74/08 Page No.188 of 302 CBI Vs. Bibianus Toppo & Ors clear from stamp at point X1 on Ex.PW8/A3. 7.11 The register of computer section of RPO, New Delhi has been proved by Sh.Ajay Gautam (PW3) as Ex.PW. 3/C. He deposed that as per Ex.PW.3/C the PIRS (Passport Index Retrieval System) was implemented from 12.08.02 and it shows that one PC was provided to HIT Section with facility of PIRS, which is a software which shows in addition to text data regarding name, father's name, date of birth, also the scanned signatures and photographs of the applicant. The relevant entry at page 60 of the register has been proved as Ex.PW.3/D. 7.12 Thus, it is clear that on 19.12.03 when HIT was cleared by accused Ram Chander, he must have seen the CBI Case No.74/08 Page No.189 of 302 CBI Vs. Bibianus Toppo & Ors photograph and signature of Rohit Kumar on previous passport application i.e. original passport issued in file Ex.PW.17/A (D.8) in which passport was issued in the name of Rohit Kumar with photograph of accused Parminder Singh (A.11) and would have come to know that the person whose photograph is affixed on passport application in file Ex.PW.2/A (D.9) with his signatures thereunder, are absolutely different. Despite noticing these material deviations, he cleared the HIT which gives rise to only conclusion that he did so for oblique motive and due to the criminal conspiracy which was hatched between him, accused/Bibianus Toppo, Harbhajan Yadav and Anil Dhawan for getting issued passport with photograph of accused Parminder Singh (A11) in order to enable him to travel abroad with fake identity of Rohit Kumar.
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CBI Vs. Bibianus Toppo & Ors 7.13 It is clear from the testimony of PW.1 and PW.3 that clearance of HIT on file was a prerequisite for grant of additional passport booklet and thus the agitation of Ld. Counsel for accused on this issue is misconceived. Once it has been proved by prosecution that the HIT was cleared by using login ID and password of accused Ram Chander, the burden to rebut the same had shifted on him to prove his defence that some other employee of RPO, New Delhi would have misused his login ID and password to clear HIT in the file Ex.PW.2/A, which he has failed to discharge. Hence any submission in this respect by his ld. Counsel is without any basis and liable to be discarded.
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CBI Vs. Bibianus Toppo & Ors 7.14 His ld.counsel has also agitated that the certificate u/s 65 B of Evidence Act was without any authority with Sh.Ajay Gautam. From certificate itself, it is clear that Sh.Ajay Gautam was Scientist Grade 'B' of NIC posted in RPO Delhi and thus his competence to issue certificate u/s 65B of Evidence Act cannot be challenged. I do not find any provision in Evidence Act which prescribes the rank of the official who is authorized to issue certificate u/s 65 B of Evidence Act. In this way the role of accused/Ram Chander (A3), in fraudulent issuance of additional passport booklet in a criminal conspiracy with accused/Bibianus Toppo (A1) and Harbhajan Yadav (A2) also stands proved.
8.0 ROLE OF ACCUSED/ANIL DHAWAN (A7) 8.1 The role assigned to accused/Anil Dhawan is CBI Case No.74/08 Page No.192 of 302 CBI Vs. Bibianus Toppo & Ors mainly that he applied and got prepared the two additional passport booklets in the names of Rohit Kumar, a fictitious person and both the times photographs used were of two different persons than the photograph affixed on the original passport no.E4716910 issued on 06.03.03 in file Ex.PW17/A (D8) which bears photograph of accused/Parminder Singh (A11) in assumed name and identity of Rohit Kumar. 8.2 The first additional passport booklet no.E7314713 dated 19.12.03 was got issued in file Ex.PW2/A (D9) with the photograph of a person who went abroad on the nd said passport but his identity could not be ascertained. The 2 additional passport booklet in the name of Rohit Kumar with the photograph of accused/Jatinder Singh (A8) was got issued CBI Case No.74/08 Page No.193 of 302 CBI Vs. Bibianus Toppo & Ors bearing booklet no.E8586189 dated 29.04.04 in file Ex.PW2/B (D10) on which the photograph of accused/Jatinder Singh (A8) was affixed. On this passport accused/Jatinder Singh (A8) had tried to travel abroad but was arrested at IGI Airport while so attempting.
8.3 In both the files Ex.PW2/A (D9), Ex.PW2/B (D10) accused/Anil Dhawan (A7) had filled up both the passport applications in the name of Rohit Kumar for issuance of additional passport booklets and had also signed on various places in these applications as 'Rohit Kumar.' Besides, he also received both these additional passport booklets by signing on the passport delivery register as 'Rohit Kumar.' The main witnesses of his role are PW8/Sh.G S Walia, who was his CBI Case No.74/08 Page No.194 of 302 CBI Vs. Bibianus Toppo & Ors employer for a long period and PW16/Sh.B A Vaid, who is Government Examiner of Questioned Documents (GEQD). 8.4 PW8/Sh.G S Walia has identified that the passport application form and enclosed documents in passport file Ex.PW2/A (D9) are in the handwriting of accused/Anil Dhawan, who has also signed as 'Rohit Kumar' at points Q20 to Q28, Q28/1, Q28/2, Q29 to Q32 and marked the different pages of the file containing these handwritings as Ex.PW8/A1 to A8.
8.5 On being shown the file for issuance of additional passport booklet, Ex.PW2/B (D10), he deposed that the handwriting and signatures as 'Rohit Kumar' at Q34 to CBI Case No.74/08 Page No.195 of 302 CBI Vs. Bibianus Toppo & Ors Q43, Q43/1 and Q45 to Q49 available in passport application and enclosed documents are in the handwriting of accused/Anil Dhawan. He marked the different pages containing handwriting of accused/Anil Dhawan in file Ex.PW2/B (D10) as Ex.PW8/A9 to A16. He could not identify the handwriting portion Q44 on Ex.PW8/A13 which, as per GEQD opinion, is in the handwriting of Mrs.Shweta Dhawan wife of accused/Anil Dhawan.
8.6 Sh.G. S. Walia was also shown passport delivery register (D47) which is originally available in CC No. 25/09 pending in this court and on seeing page no.124 of the register, he identified handwriting and signature as 'Rohit Kumar' in the portion encircled Q50 and Q51 and said that the CBI Case No.74/08 Page No.196 of 302 CBI Vs. Bibianus Toppo & Ors same is in the handwriting of accused/Anil Dhawan. The photocopy of the relevant entry has been marked as Ex.PW8/B (D13) which is in respect of receiving passport no.E7314731 by writing name of 'Rohit Kumar' at point Q50 and signing as such at point Q51, which passport booklet was issued in file Ex.PW2/A (D9). The GEQD opinion also confirms the same. Besides the GEQD opinion also confirms that the receiving of passport no.E8586189 too has been made by accused/Anil Dhawan by writing and signing as 'Rohit Kumar' on passport delivery register in Ex.PW33/B (D14), which passport was issued in file Ex.PW2/B (D10).
8.7 The specimen signature of accused/Anil Dhawan from S1 to S17 (D48) have been proved by Sh.G S CBI Case No.74/08 Page No.197 of 302 CBI Vs. Bibianus Toppo & Ors Walia as Ex.PW8/C1 to C17. He was recalled for his further examination in chief on application of CBI u/s 311 Cr.PC and then he proved the day book of M/s Jas Air seized by CBI which is originally available in CC No.08/12. The copy of relevant pages thereof have been proved as Ex.PW8/D1 to D9 (also marked as Ex.PW16/D1 to D9). He deposed that the same was written by his employee accused/Anil Dhawan (A7); he proved that the copy of passport application of Ms.Kanupriya Gombar (originally available in CC No.08/12) are filled in the handwriting of accused/Anil Dhawan which are Ex.PW8/A1 to A3 (also marked as Ex.PW16/D10 to D12); he proved a copy of immigration application of Ms.Padmini Malpani (originally available in CC No.08/12) as Ex.PW8/F.1 to F.3 (also marked as Ex.PW16/D13 and D14). He deposed that the portions CBI Case No.74/08 Page No.198 of 302 CBI Vs. Bibianus Toppo & Ors encircled in these documents are in the handwriting of accused/Anil Dhawan. These documents, which have been used as standard documents for comparison and opinion by the handwriting expert (GEQD), were seized from PW8/G S Walia, who has duly proved the same.
8.8 When PWG S Walia was crossexamined by ld.counsel for accused/Anil Dhawan (A7) for the first time, he denied the suggestion that all the passport application forms pertaining to this case were filled by accused/Anil Dhawan at his instance. He also denied a suggestion that he was involved in these activities with accused/Anil Dhawan in order to cover up his losses as suffered by him in his previous business. CBI Case No.74/08 Page No.199 of 302
CBI Vs. Bibianus Toppo & Ors 8.9 During his crossexamination by counsel for accused/Bibianus Topppo (A1), he stated that the photographs affixed in file Ex.PW2/A and Ex.PW2/B were not of any of his clients and that he had not accompanied accused/Anil Dhawan to RPO, New Delhi and the application forms neither filled nor signed in his presence.
8.10 When he was examined again by CBI on application u/s 311 Cr.PC on 11.07.13, the accused persons were again granted an opportunity to crossexamine him. This time counsel for accused/Anil Dhawan had given a contrary suggestion to PWSh.G S Walia that he had falsely identified handwriting of accused/Anil Dhawan on the exhibits before the court in order to save himself from legal consequences, which CBI Case No.74/08 Page No.200 of 302 CBI Vs. Bibianus Toppo & Ors he denied.
8.11 In this way the falsity of defence of accused/Anil Dhawan is exposed, because earlier it was not suggested to PW8 that the handwritings which were identified by him to be of Anil Dhawan (in files Ex.PW2/A and Ex.PW2/B) were not written by him. Rather the suggestion was given that these passport applications were filled by accused/Anil Dhawan (A7) at instance of PW8. 8.12 PW16/Dr.B A Vaid, Government Examiner of Questioned Documents (GEQD), Shimla by proving his handwriting opinions Ex.PW16/E1 and E2 (D50 and D51) and the reasons for opinion Ex.PW16/F1 and F2 has also CBI Case No.74/08 Page No.201 of 302 CBI Vs. Bibianus Toppo & Ors established that the writings and signatures marked Q20 to Q28, Q28/1, Q28/2, Q29 to Q43 and Q45 to Q53 have been written by accused/Anil Dhawan, whose specimen writings and admitted/standard genuine writings were sent to GEQD for comparison with questioned documents and for opinion. In this way we find that the testimony and opinion of GEQD is fully corroborated by deposition of PW8/G S Walia, who has also identified these writings of Anil Dhawan (A7) in files Ex.PW2/A and Ex.PW2/B and on passport delivery register. 8.13 As per the GEQD opinion, Ex.PW16/E2 (in D51) the writings stamped and marked as Q44 and specimen writings S71 to S73 have been written by one and the same person. Q44 is the content of handwritten undated application CBI Case No.74/08 Page No.202 of 302 CBI Vs. Bibianus Toppo & Ors in file Ex.PW2/B (D10) separately marked as Ex.PW8/A13, on which promise date had been given by accused/Bibianus Toppo (A1) in respect of additional passport booklet in the name of Rohit Kumar issued for the second time. About this writing at Q44, PW8/Sh.G S Walia said that he could not say as to who has written this application although he identified that on the same application at points Q45 and Q46, the signature in the name of 'Rohit Kumar' are in the handwriting of accused/Anil Dhawan which is confirmed by GEQD opinion. The specimen writings of Mrs.Shweta Dhawan, who is wife of accused/Anil Dhawan have been proved by PW2/Puran Chand as Ex.PW2/C, D and E (D49), which has not been disputed by any of the accused persons as none has crossexamined him on this aspect.
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CBI Vs. Bibianus Toppo & Ors 8.14 At point Q44 in Ex.PW8/A & B, it is written to RPO, Delhi "Sir, respectfully, I beg to say that my name is Rohit Kumar. My passport no.E4716910, date of expiry 05.03.08 pages are full. I have some important trip to foreign so I required another booklet. Please issue it to me as soon as possible. Thanking you, yours sincerely (Rohit Kumar)." The same application has been signed at point Q45 and as proved by PW8/G S Walia and PW16/B A Vaid, GEQD the signature in the name of 'Rohit Kumar' has been written by accused/Anil Dhawan.
8.15 Under such facts and circumstances when the prosecution has established that the writing at point Q44 is of CBI Case No.74/08 Page No.204 of 302 CBI Vs. Bibianus Toppo & Ors Smt.Shweta Dhawan wife of accused/Anil Dhawan and the signature as Rohit Kumar below it at point Q45 is of Anil Dhawan, then the burden had shifted on accused/Anil Dhawan to explain those circumstances under which his wife had written the application which was signed by him as 'Rohit Kumar', which he failed to discharge.
8.16 The ld.counsel for accused/Anil Dhawan has very strenuously argued that when opinion, Ex.PW16/E1 (in D50) which is dated 30.03.05, was given by GEQD, he had opined on the basis of specimen writings S1 to S17 and admitted writings A1 to A23 that Q21, 22, 24, 25, 27, 28/2, Q29 to Q32, Q34, Q35, Q37 to 43, Q47 to Q51 have been written by accused/Anil Dhawan but the opinion in respect of CBI Case No.74/08 Page No.205 of 302 CBI Vs. Bibianus Toppo & Ors remaining questioned writings were given by GEQD in supplementary opinion, Ex.PW16/E2 (in D51) dated 30.09.05 which is based on additional specimen writings of accused/Anil Dhawan which are S74 to S107, besides the specimen S1 to S17 and admitted writings A1 to A23.
8.17 Ld.defence counsel wants that the court should draw an inference that the opinion of GEQD on some of the signatures in the name of 'Rohit Kumar' on files Ex.PW2/A and Ex.PW2/B was not possible except by comparison with specimen writings S74 to S107, which is inadmissible in evidence as per the ratio of law laid down by Full Bench judgment of Hon'ble High Court of Delhi in Sapan Haldar Vs. State, 191 (2012) DLT 225 (FB). (infra).
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CBI Vs. Bibianus Toppo & Ors 8.18 But I find that accused had not put any question to the GEQD (PW16) in this respect, who was only competent person to comment on hypothesis of accused which has been developed by him at the stage of final arguments. Besides, it is not correct that the opinion in respect of signatures in the name of 'Rohit Kumar' has been given by GEQD only in subsequent opinion. In fact, in the first opinion itself GEQD has opined that signature in the name of "Rohit Kumar" at points Q22, 28/2, 29, 30, 31, 32 in passport file Ex.PW2/A (D9), signatures at Q34, 37, 40, 42, 43, 47, 48 and 49 in file Ex.PW2/B (D10) and signature as Rohit Kumar in passport delivery register as Q51 in Ex.PW8/B have been made by accused/Anil Dhawan, which fact is corroborated by testimony CBI Case No.74/08 Page No.207 of 302 CBI Vs. Bibianus Toppo & Ors of PW8/G S Walia. Hence the plea of the ld.defence counsel for accused/Anil Dhawan is wholly erroneous and misplaced that the material writings which are signatures in the name of 'Rohit Kumar' have not been proved to have been written by Anil Dhawan (A8) as the specimen writings on which the opinion is based may not be admissible in evidence.
8.19 He has also submitted that CBI could not establish any link of accused Anil Dhawan with other accused persons and none of the witnesses of CBI, who were working in the office of RPO, New Delhi, during the relevant time, could say that they had seen accused Anil Dhawan visiting passport office for meeting accused public servants. As is clear from the evidence discussed herein, accused Anil Dhawan had colluded CBI Case No.74/08 Page No.208 of 302 CBI Vs. Bibianus Toppo & Ors with accused/Bibianus Toppo (A1), Harbhajan Yadav (A2) and Ram Chander (A3) whereby Harbhajan Yadav (A2) had accepted the documents signed by accused/Anil Dhawan (A7) for issuance of additional passport booklets. As accused/Bibianus Toppo (A1), being PIA and Harbhajan Yadav (A2), being counter clerk, who were the only employees of RPO, Delhi, who come in contact of the applicant as per the procedure and they themselves being in league with accused/Anil Dhawan, it was not possible to find any other employee of the passport office to prove that accused/Anil Dhawan used to visit RPO, Delhi. It is well settled position of law that the conspiracy is generally hatched in secrecy for which direct evidence is seldom available. It may not be necessary that accused/Anil Dhawan (A7) used to meet accused public CBI Case No.74/08 Page No.209 of 302 CBI Vs. Bibianus Toppo & Ors servants in their office only. Hence, it may not have been possible for CBI to find an eye witness of the fact whether Anil Dhawan (A7) used to meet accused passport officials. This was otherwise not required when the prosecution case is safely entrenched in documentary evidence discussed herein. 8.20 Sh.Verma has also contended that PW.8 Sh.G.S.Walia cannot be relied upon as he has stated in the court that his statement u/s 161 of Cr.PC was recorded by Mr.R.K.Aggarwal, DSP, CBI and not by Sh.Rajiv WahiIO of this case, whereas there is no statement of Sh.Walia recorded u/s 161 Cr.PC by Sh.Rajiv Wahi.
8.21 During his crossexamination, Sh.G.S.Walia CBI Case No.74/08 Page No.210 of 302 CBI Vs. Bibianus Toppo & Ors did not say that any portion of the statements made by him to IO of the case u/s 161 of Cr.PC, was incorrect or that it was not as per his version. It is well settled position of law that lacunae on the part of IO in conducting investigation can not be said to have prejudiced the fair trial of accused unless otherwise manifest from the record. When the accused has not demonstrated that anything in statement made u/s 161 Cr.PC was falsely recorded by CBI, it does not prejudice fair trial of accused, even if witness says that his statement was recorded by Sh.R K Aggarwal (PW33) and not by Sh.Rajiv Wahi, who is IO of this case. 8.22 Ld. defence counsel has forcefully argued that the specimen handwriting and signatures were obtained from accused without permission of the court, hence the same can CBI Case No.74/08 Page No.211 of 302 CBI Vs. Bibianus Toppo & Ors not be admitted in evidence and accordingly the opinion of GEQD based on the same in respect of questioned documents, can not be relied upon. In this respect, he has relied upon the judgment of the Full Bench of Hon'ble Delhi High Court delivered in Sapan Haldar Vs. State, 191 (2012) DLT 225 (FB), wherein the Hon'ble Delhi High Court had laid down that an investigating officer, can not obtain handwriting sample or signature sample from a person accused of having committed an offence, which power was not available even to the courts prior to insertion of Section 311 A of Cr.PC and thus, in those cases where the IO has obtained such samples without permission from the Magistrate, the same are held to be inadmissible in evidence.
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CBI Vs. Bibianus Toppo & Ors 8.23 On the other hand, ld.Public Prosecutor has relied upon a judgment of Hon'ble Supreme Court in Ravinder Kumar Pal @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436 and a judgment of Hon'ble Supreme Court in Umesh Kumar Vs. State of Andhra Pradesh, 2013 IX AD (SC) 581. Ld.Public Prosecutor has drawn attention of the court towards para no.27 of the judgment of Hon'ble Supreme Court in Umesh Kumar's case (supra), which is as under:
27.It is settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More CBI Case No.74/08 Page No.213 of 302 CBI Vs. Bibianus Toppo & Ors so, the court must conclude that it is genuine and free from tampering or mutilation. This court repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India as acquiring the evidence by such methods was not the procedure established by law (Vide:Yusufalli Esmail Nagree Vs. The State of Maharashtra, AIR 1968 SC 147; Magraj Patodia Vs. R K Birla & Ors., 1970 (2) SCC 888; R M Malkani Vs. State of Maharashtra, AIR 1973 SC 157; Pooran Mal Vs. Director of Inspection, Income Tax, New Delhi & Ors, AIR 1974 SC 348 and State (NCT of Delhi) Vs. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600).
8.24 In this case I find that the opinion of GEQD is not only based on comparison with specimen handwritings of accused Anil Dhawan obtained by CBI during investigation of the case without permission of the court, but the same is also CBI Case No.74/08 Page No.214 of 302 CBI Vs. Bibianus Toppo & Ors based on day book of M/s Jas Air and passport/visa applications, which were written by him during the course of his employment with firm of Sh.G S Walia (PW8). Those documents have been proved by PW.8 Sh.G.S.Walia, as accused Anil Dhawan was his employee who used to write the book and make entries during course of his employment with firm of Sh.G.S.Walia (PW8). Not only this, the writings on the documents relied upon by CBI have also been identified by Sh.G.S.Walia to be in the hand of accused Anil Dhawan which we have already seen and discussed in detail. Thus, the GEQD opinion in this case is not based only on specimen writings of accused/Anil Dhawan obtained by IO from him during investigation of the case, which may be inadmissible in evidence in view of judgment of Hon'ble High Court in Sapan CBI Case No.74/08 Page No.215 of 302 CBI Vs. Bibianus Toppo & Ors Halder's case (supra).
8.25 Ld.counsel, relying upon search list Ex.PW8/DA, has submitted that the testimony of PW.8 Sh.G.S.Walia cannot be relied upon as he is interested witness who has got accused Anil Dhawan falsely implicated in this case in order to save himself as some incriminating documents like blank letter heads and foreign currencies were seized when his premises was raided by CBI during investigation. 8.26 As already discussed, from testimony of PW/Sh.G.S.Walia, we find that wherever he has been able to clearly identify the handwritings of accused Anil Dhawan, he has deposed so, and wherever he has not been able to identify CBI Case No.74/08 Page No.216 of 302 CBI Vs. Bibianus Toppo & Ors writing viz. Q.44, he has so stated before the court. We have already seen that the testimony of Sh.G S Walia is truthful and trustworthy which inspires the confidence of the court. Thus, I do not find any reason for discrediting the testimony of Sh.G.S.Walia in this case.
8.27 The careful examination of the passport application and accompanying documents in the file Ex.PW.2/A (D.9) vide which the additional passport booklet was applied in the name of Rohit Kumar for the first time, it is revealed that on the stamp at point DX on the application Ex.PW.8/A.2 in file Ex.PW2/A, there is signature in the name of 'Rohit Kumar' at point Q.23. About this, it has been proved by PW.8 Sh.G.S.Walia and PW.16 Sh.B.A.Vaid, GEQD that it was Anil CBI Case No.74/08 Page No.217 of 302 CBI Vs. Bibianus Toppo & Ors Dhawan who has signed as 'Rohit Kumar' at point Q.23 within the portion encircled as point DX, which is by way of acknowledgment that he "received the old cancelled passport." Similarly in the file Ex.PW.2/B (D.10) vide which the additional passport booklet was applied for the second time in the name of Rohit Kumar there is signature of receiving old passport at point Q.37 within portion encircled as point DX which signature as 'Rohit Kumar' has also been proved by PW.8 & PW.16 to had been written by accused Anil Dhawan.
8.28 The connivance of accused/Anil Dhawan with the accused Harbhajan Yadav, who was working as counter clerk and Dealing Assistant in this case, is quite clear from the fact that the photographs at points X on the passport application CBI Case No.74/08 Page No.218 of 302 CBI Vs. Bibianus Toppo & Ors registration forms Ex.PW.8/A.1 & A.9 and application forms for misc. services on Indian Passport Ex.PW.8/A.2 & 8/A.10 available in these passport files are of two different persons and not of accused Anil Dhawan whose features are not matching with any of the photographs. In this way without active connivance on the part of the accused Harbhajan Yadav it was not possible that signatures as 'Rohit Kumar' would have been written by Anil Dhawan (A7) on applications in both these files for acknowledging purported receipt of old passports after their cancellation.
8.29 Besides, on the handwritten applications Ex.PW8/A8 in file Ex.PW2/A (D9) and Ex.PW8/A13 in file Ex.PW2/B (D10) there is an stamp affixed which reads, "I CBI Case No.74/08 Page No.219 of 302 CBI Vs. Bibianus Toppo & Ors undertake to complete all formalities/documentation before issue of passport" below which signature in the name of 'Rohit Kumar' has been obtained by counter clerk/Harbhajan Yadav (A2) at points Q32/1 and Q46 respectively. These signatures at points Q23, Q37, Q32/1 and Q46 were to be done by applicant in passport office before counter clerk/dealing assistant/Harbhajan Yadav after he affixed those stamps and, therefore, no plea can be entertained that Harbhajan Yadav (A2) was not aware of the design of Anil Dhawan (A7). 8.30 It has already been discussed that as per the procedure followed in the passport office, after the counter clerk ensures that the old passport has been cancelled and returned to the applicant and all the necessary enclosures brought on CBI Case No.74/08 Page No.220 of 302 CBI Vs. Bibianus Toppo & Ors record are compared by him with the originals thereof, he sends the applicant alongwith application to PIA, who, in both these files was accused Bibianus Toppo (A1) and it is the PIA who gives the promise date on the handwritten application which is Ex.PW.8/A.8 in file Ex.PW.2/A (D.9) and Ex.PW.8/A.13 in the file Ex.PW.2/B (D.10). Obviously, the purpose of this would be that the PIA, who is only officer amongst all the officials involved in the issuance of additional passport booklets, also ensures the genuineness of the applicant, enclosed documents and that the file is complete in all respects and the old passport has been duly cancelled by the counter clerk and returned to the applicant.
8.31 Had he (A1) actually seen the original CBI Case No.74/08 Page No.221 of 302 CBI Vs. Bibianus Toppo & Ors passport booklet and had he asked the applicant to show the original passport booklet which was cancelled and returned to him by the counter clerk, he would have come to know that there is no such passport and if at all there was a passport, the photograph embossed on the same was not that of applicant which is fixed at point X in both these files. Further, if in any case the original passport would have been cancelled and returned to the applicant by counter clerk Harbhajan Yadav in file Ex.PW.2/A (D9), in no case it would have been possible to use the same cancelled and returned passport booklet for getting issued the additional passport booklet for the second time in the file Ex.PW.2/B. 8.32 Had he (A1) seen the photo copy of previous CBI Case No.74/08 Page No.222 of 302 CBI Vs. Bibianus Toppo & Ors passport booklet enclosed in the file Ex.PW.2/A at page no.5 marked Ex.PW.8/A.4 and in the file Ex.PW.2/B at page No.5 marked Ex.PW.8/A.12, he would have noted that impression of the photograph of the previous passport holder on passport bearing No.E4716910 was not the same as affixed at point X in application of both the files and certainly it is not of accused/Anil Dhawan, who was the person coming to him for taking promise date and deposit of the applications again and again. 8.33 It is also worthwhile to note that the impression of signature in the name of 'Rohit' at point Q.28/3 in the copy of previous passport booklet Ex.PW.8/A.4 enclosed with application in file Ex.PW2/A and Q43/1 on Ex.PW.8/A.12 were quite dissimilar with signature as 'Rohit Kumar' at point Q.28/2 CBI Case No.74/08 Page No.223 of 302 CBI Vs. Bibianus Toppo & Ors with which the copy Ex.PW.8/A.4 has been self attested and the other various signatures as 'Rohit Kumar' appended at various places of both the applications in both the files Ex.PW.2/A & 2/B, which have been made by Anil Dhawan (A7) as proved by PW8/G. S. Walia and PW16/B. A. Vaid (GEQD). 8.34 I am of the firm opinion that these lapses have not occurred due to mere oversight or rush of work but these are the deliberate acts of omissions done by accused/Bibianus toppo (A1) and Harbhajan Yadav (A2) as they were in league with accused/Anil Dhawan (A7) on account of a criminal conspiracy. In this way I find that accused Anil Dhawan was thick and thin into the conspiracy with accused Harbhajan Yadav and accused Bibianus Toppo in submission and CBI Case No.74/08 Page No.224 of 302 CBI Vs. Bibianus Toppo & Ors acceptance of passport applications for additional passport booklets in files Ex.PW.2/A & Ex.PW2/B by the name of Rohit Kumar, getting the HIT cleared from accused/Ram Chander (A3) and then granting, signing and delivering both the passport booklets to accused/Anil Dhawan (A7). Thus it is proved that accused/Anil Dhawan (A7) induced RPO, New Delhi to initiate and process two passport files and then issue the passport booklets which are valuable security/documents for enabling imposters to travel abroad for which purpose he also forged the enclosures to passport applications such as copy of previous passport of accused and then furnishing the same to RPO, New Delhi knowing fully well about falsity of informations and documents and thus liable for offences punishable u/s 420, 468, 471 IPC, Section 12(1)(b) of Passport Act, 1967, besides CBI Case No.74/08 Page No.225 of 302 CBI Vs. Bibianus Toppo & Ors for offence of conspiracy u/s 120B IPC as charged against him. 9.0 ROLE OF ACCUSED/JATINDER SINGH (A.8) 9.1 The allegations in brief against accused Jatinder Singh (A.8) are that with his photograph, an additional passport booklet for the second time, bearing passport No.E8586189 dated 29.04.04 was got issued from RPO New Delhi in the passport file Ex.PW.2/B (D.10) in the name of Rohit Kumar. While applying for a new passport booklet, his co accused/Anil Dhawan (A7) had submitted the photocopy of old passport No.4716910, which was got issued in the file Ex.PW. 17/A (D.8) with the photograph of accused Parminder Singh. This time, for applying for additional passport booklet in the name of Rohit Kumar with photographs of accused Jatinder CBI Case No.74/08 Page No.226 of 302 CBI Vs. Bibianus Toppo & Ors Singh (A8), the photo copy of previous passport in the name of Rohit Kumar had xerox impression of the photograph of accused Jatinder Singh on page no.5 of the application which is separately Ex.PW.8/A.12 (in D.10).
9.2 After getting issued the passport and obtaining the VISA to travel abroad, he got issued air tickets in the name of Rohit Kumar by using the passport booklet having his photograph thereon, through coaccused Amanjeet @ Lovely and thereafter attempted to travel abroad when he was arrested at IGI Airport on 05.08.04. Whereas he was already issued a genuine passport bearing No.B5302975 dated 08.05.01 issued by Passport Office Jalandhar in his own name with correct particulars, but that was not used by him. In respect of his role, CBI Case No.74/08 Page No.227 of 302 CBI Vs. Bibianus Toppo & Ors the crucial witnesses are PW.28, PW.29 and & PW.30 examined by the prosecution in this case.
9.3 PW.28 Purshottam Lal, an employee of Jalandhar Passport Office, has proved the file No. G001490 of Passport Office Jalandhar (D.22) as Ex.PW.28/A which relates to issue of a passport in the name of Jatinder Singh (A8) son of Sh.Satnam Singh r/o Village Ram Pur, PS & PO Quadian, District Gurdas Pur, Punjab. The application contains the photograph of accused Jatinder Singh pasted on the application which is supported by required documents which all have been proved by him. He deposed that based on his note passport No.B5302975 was granted to Jatinder Singh in passport file Ex.PW.28/A. CBI Case No.74/08 Page No.228 of 302 CBI Vs. Bibianus Toppo & Ors 9.4 When he (PW28) was shown the passport file No.T007437/04 (D.10) which is Ex.PW.2/G, vide which the passport in the form of additional passport booklet in the name of Rohit Kumar son of Govind Ram was issued by RPO, Delhi, he stated that the photograph in the name of Rohit Kumar as pasted in that file and photo of Jatinder pasted in the passport application registration form in the file Ex.PW.28/A pertaining to passport office Jalandher appear to be the same. He was not cross examined by any of the accused persons despite opportunity given and thus the facts proved by him are not disputed.
9.5 PW.29 Sh.Gyander Kumar Jain is Director of CBI Case No.74/08 Page No.229 of 302 CBI Vs. Bibianus Toppo & Ors M/s JVCL Travel Pvt. Ltd. who, on being shown the agent's copy of the air ticket No.5553230795277 Ex.PW.29/F (D.41), has deposed that the same was booked through his travel agency in the name of Rohit Kumar for DelhiMoscow sector. On being shown his agency's copy of ticket No. 5553230795278 Ex.PW. 29/G (D.41) for sector Delhi MoscowParisMoscowDelhi in the name of Rohit Kumar he said that the same was also booked through his agency.
9.6 He deposed that the date of journey was 05.08.04 in flight No.SU536 and the return journey was to commence on 11.08.04 in flight No.SU 535 and the said ticket was booked by him on the request of proprietor of Hotel VIP, Paharganj who had told him that he was sending one Lovely for CBI Case No.74/08 Page No.230 of 302 CBI Vs. Bibianus Toppo & Ors taking the ticket in the name of Rohit Kumar but Lovely sent some other person with copy of passport bearing No.E8586189 Ex.PW.29/H and the copy of VISA Ex.PW.29/J. He also proved the computerized invoice as Ex.PW.26/K and said that money was received by him in cash.
9.7 However, during cross examination by accused No.6/Amanjeet Singh @ Lovely, he deposed that Lovely who had booked the ticket was not present in the court. In this way he failed to identify accused Amanjeet @ Lovely (A6), through whom the prosecution claimed that the ticket in the name of Rohit Kumar for the purpose of enabling accused Jatinder (A8) to travel abroad on 05.08.14 with passport No.E8586189, was obtained, although it is not disputed by the accused that the air CBI Case No.74/08 Page No.231 of 302 CBI Vs. Bibianus Toppo & Ors ticket No. 5553230795277 & 5553230795278 in the name of Rohit Kumar were obtained on the basis of copy of passport bearing No.E8586189 having his photograph. 9.8 PW.30 Sh.Jagat Singh Bhati, posted as Inspector of Police and Additional SHO PS IGI Airport, deposed that he was investigating officer of FIR No.352/03 which was registered u/s 419/420/468/471 IPC and section 12 of Passport Act which was entrusted to him for investigation on 15.06.08 (which case bearing CC No.17/12 is being disposed of with this case, after it having been assigned to this court by the order of Ld.District and Sessions Judge, the subject matter of investigation being common with CC No.74/08). He deposed that he had handed over the attested certified copies of seizure CBI Case No.74/08 Page No.232 of 302 CBI Vs. Bibianus Toppo & Ors memo dated 05.08.04 Ex.PW.30/A, passport No.E8586189 in the name of Rohit Kumar Ex.PW.30/B, embarkation card Ex.PW.30/C, two air tickets of Rohit Kumar as Ex.PW.30/D & 30/E and boarding pass of Aeroflot Air Lines Ex.PW.30/F. 9.9 He deposed that as per Ex.PW.30/A Jatinder Singh son of Sh.Satnam Singh r/o Village Ram Pur, PO Quadian, District Gurdas Pur, Punjab was found travelling on the passport and other documents of Rohit Kumar. He was not cross examined by any of the accused persons despite opportunity given. The attested copies of the documents which have been proved by PW.30 Inspector Jagat Ram of Delhi Police are originally available in file bearing CC No.17/12 (FIR No.352/04 PS IGI Airport being disposed of vide this common CBI Case No.74/08 Page No.233 of 302 CBI Vs. Bibianus Toppo & Ors Judgment).
9.10 In this way I find that it is not disputed by accused Jatinder Singh that he had tried to travel abroad at the passport in the name of Rohit Kumar with his photograph used thereon bearing passport No.E8586189, which was got issued in passport file of RPO New Delhi Ex.PW.2/B (D.10). He has also not denied that he was holder of a genuine passport which is in his own name bearing passport No.D5302975 issued by Jalandhar Passport office in file Ex.PW.28/A. In this way the case against him has been fully established that he obtained a passport from RPO New Delhi with fictitious particulars and address in the name of Rohit Kumar on which his own photograph was affixed and he used the same for the purpose CBI Case No.74/08 Page No.234 of 302 CBI Vs. Bibianus Toppo & Ors of obtaining VISA and air ticket in order to enable him to travel abroad and then he attempted to travel abroad and was arrested by police at IGI Airport, New Delhi. 9.11 Thus, the prosecution has proved beyond any reasonable doubt that Jatinder Singh (A8) conspired for obtaining additional passport booklet No.E8586189 dated 29.04.04, travel documents which are VISA and air tickets on the basis of said passport in the name of a non existing person in assumed name of Rohit Kumar with his photograph affixed thereon for travelling abroad in pursuance to his agreement with other accused persons to do such an illegal act by illegal means to commit offences under section 12 (1) (b) of Passport Act, 1967 and section 419/420/468/471 IPC which is made CBI Case No.74/08 Page No.235 of 302 CBI Vs. Bibianus Toppo & Ors punishable u/s 120B IPC. Besides, he is also found guilty for offence punishable u/s 419 IPC for cheating the Ministry of External Affairs and IGI authorities by pretending himself to be Rohit Kumar by using passport No.E8586189 dated 29.04.04 in the name of fictitious person Rohit Kumar with his own photograph affixed thereon and thereby attempted to travel abroad in the name of Rohit Kumar and thereby caused harm to the reputation of Ministry of External Affairs and IGI authorities. Additionally, he is also held liable for offence punishable u/s 12 (1)(b) of Passport Act, 1967 as he had knowingly submitted false documents and suppressed material information with a view of obtaining the passport from RPO, New Delhi and other travel documents which included VISA and air tickets without any lawful authority.
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CBI Vs. Bibianus Toppo & Ors 10.0 ROLE OF ACCUSED G.D.JOSHI (A.9) AND R.S.RAWAT (A.10) 10.1 As regards accused G.D.Joshi and R.S.Rawat, the allegations against them are that while working in RPO, New Delhi, they had delivered one additional passport booklet each issued in the name of Rohit Kumar in file Ex.PW.2/A and Ex.PW2/B respectively to accused Anil Dhawan. After arguments were almost complete accused/R S Rawat died and accordingly proceedings qua him abated.
10.2 Ld. Public Prosecutor has submitted that the passports were delivered to accused Anil Dhawan whose writings and signatures are appearing at the passport delivery CBI Case No.74/08 Page No.237 of 302 CBI Vs. Bibianus Toppo & Ors register as well as on respective passport applications whereas the facial features of Anil Dhawan are different who signed as Rohit Kumar, which was made possible only because accused G.D.Joshi and R.S.Rawat had colluded with accused/Anil Dhawan in order to deliver additional passport booklets in the files Ex.PW.2/A and Ex.PW2/B. 10.3 On the other hand ld.counsel for accused persons has submitted that the delivery of the additional passport booklet has not been done by G.D.Joshi and R.S.Rawat and even in work done chart Ex.PW.3/B.2 and Ex.PW3/B.3, it is not mentioned as to who has delivered the passports at the counter and that only the names of accused G D Joshi and R S Rawat have been mentioned as officials who CBI Case No.74/08 Page No.238 of 302 CBI Vs. Bibianus Toppo & Ors had done registration of the applications in files Ex.PW2/A and Ex.PW2/B respectively. He has also drawn attention of the court to the testimony of PW.1 S.P.Kothari and PW.25 I. M. Sabharwal, who are the officials of RPO, New Delhi, to show that none of them have said that any of the additional passport booklets were delivered by accused G.D.Joshi and R.S.Rawat in this case and that there is no document or record to evince that passports have been delivered by them. 10.4 PW.1 S. P. Kothari and PW.25 I. M. Sabharwal have admitted that the delivery of passport means delivery of granted passport or additional passport booklet to the holder of the passport or his authorized representative; that there is no designated post in RPO, New Delhi who has to deliver the CBI Case No.74/08 Page No.239 of 302 CBI Vs. Bibianus Toppo & Ors passport; that any officials of the passport office could deliver the passport; that there is no record of the fact as to which officer has delivered which of the passport to the passport holder or his authorized representative on particular day; that the official deputed by the Suptd. (Administration) used to deliver the passport and at times it was a team work as any of the official upto the rank of Assistant could deliver the passport against proper acknowledgment.
10.5 Thus, from above discussion, it is clear that there is no evidence to show that accused G.D.Joshi and R.S.Rawat were involved in alleged conspiracy or delivery of additional passport booklets in the name of Rohit Kumar to accused Anil Dhawan or to anybody else. Accordingly, CBI Case No.74/08 Page No.240 of 302 CBI Vs. Bibianus Toppo & Ors accused/G D Joshi held entitled to acquittal. The proceedings qua R S Rawat stand abated due to his death.
11.0 ROLE OF ACCUSED/HEMANT GANDHI (A4), AMIT KHATRI (A5) AND PARMINDER SINGH (A11) 11.1 The allegations against accused/Parminder Singh is that he got issued a passport no.E4716910 dated 06.03.03 with his photograph but in assumed name and identity of a fictitious person Rohit Kumar son of Sh.Govind Ram and Smt.Kanta whereas he was already having a passport No.B3579297 dated 04.06.01 issued from passport office Jalandhar (Punjab) which, amongst 277 passports and other documents (said passport is mentioned at serial no.183 of recovery memo, Ex.PW1/B and the passport being Ex.PW9/D) CBI Case No.74/08 Page No.241 of 302 CBI Vs. Bibianus Toppo & Ors was seized at the instance of accused/Hemant Gandhi (A4) who had arranged the air tickets through M/s Mag Travels for travelling of Parminder Singh (A11) on passport no.E4716910 in the name of Rohit Kumar alongwith accused/Amit Kumar Khatri (A5) to Zurich on 20.07.03 by flight no.SU536. After dropping Parminder Singh in Frankfurt, accused/Amit Khatri (A5) returned back with passport no.E4716910 dated 06.03.03 of Parminder Singh and gave it to accused/Hemant Gandhi (A4).
11.2 The prosecution story is also that accused/Hemant Gandhi had earlier sent Sh.Govind Ram and Smt.Kanta along with their kids to abroad and had brought back their passports out of which one passport no.A7620882 dated CBI Case No.74/08 Page No.242 of 302 CBI Vs. Bibianus Toppo & Ors 14.06.99 (Ex.PW32/M) in the name of Sh.Rishi (mentioned at serial no.91 of recovery memo, Ex.PW1/B) who is one of the real sons of Smt.Kanta and Sh.Govind Ram, was recovered from possession of accused/Hemant Gandhi (A4) by CBI in case RC No.4(A)/2004/SCU.V/SCRII. The photocopies of passport of Sh.Govind Ram and Smt.Kanta were attached by accused/Hemant Gandhi with passport application in the name of Rohit Kumar on the basis of which passport no.E4716910 dated 06.03.03 was got issued with photograph of accused/Parminder Singh (A11) showing him minor. 11.3 Let me first sum up the evidence which has come on record in this respect.
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CBI Vs. Bibianus Toppo & Ors 11.4 PW10/Mrs.Sangeeta Kapoor, Sr.Counter Executive of M/s MAG Travels Pvt. Ltd., who used to issue tickets to customers for domestic as well as international routes has deposed that in case of nonavailability of tickets in stock of M/s Mag Travels Pvt. Ltd. or for getting more commission, the tickets were being arranged from other IATA approved agencies for which she used to prepare exchange orders, which is a sort of proof with regard to the purchase of tickets by M/s MAG Travels from other IATA approved agency. Before issuing the tickets she used to see the original passport and then take the photocopy of the same from the customer. In exchange order (EO) she used to mention the passport details and also the details regarding the date of journey, route and destination. CBI Case No.74/08 Page No.244 of 302
CBI Vs. Bibianus Toppo & Ors 11.5 She deposed that there is provision of preparation of 1+3 copies of EO as per EO booklet. In EO booklet of M/s MAG Travels proved as Ex.PW7/B (D28), she proved the fourth (last) copy of exchange order dated 19.07.03 bearing no.3072 as Ex.PW10/A which was prepared by her. It's third copy has been proved as Ex.PW10/B (D30) which she prepared for issuance of ticket from Delhi to Zurich, the date of journey was 20.07.03, return journey from Paris to Delhi via Moscow was 31.07.03 and EO was sent to M/s Uplift, an IATA approved agency, for issuance of ticket.
11.6 She also deposed that she used to retain a photocopy of the ticket which was got issued from any other agency in her records along with the exchange order. The said CBI Case No.74/08 Page No.245 of 302 CBI Vs. Bibianus Toppo & Ors photocopy of the ticket in the name of Rohit Kumar annexed by her with EO. Ex.PW10/A has been proved as Ex.PW10/C and Ex.PW10/D which were issued by M/s Uplift Tourism as per requisition by M/s MAG Travels. The agent's coupon of tickets annexed with EO No.3072, Ex.PW10/B issued in the name of Rohit Kumar by M/s Uplift Tourism Pvt. Ltd. have been proved by her as Ex.PW10/E and Ex.PW10/F (D31). 11.7 It is worthwhile to note that in the exchange order Ex.PW10/A, another copy of which is Ex.PW10/B and agent's coupon of tickets annexed with the same which is Ex.PW10/E and Ex.PW10/F, the passport number of the passenger Rohit Kumar is mentioned as E4716910, which was issued in the file Ex.PW17/A (D8) with photograph of CBI Case No.74/08 Page No.246 of 302 CBI Vs. Bibianus Toppo & Ors accused/Parminder Singh. In this way it has been proved that it was accused/Parminder Singh (A11), who had travelled abroad on these tickets.
11.8 PW7/Neeraj Shankar, who also worked as ticketing counter staff of M/s MAG Travels Pvt. Ltd. has proved production memo, EO Book and Bill Book of his company as Ex.PW7/A, Ex.PW7/B and Ex.PW7/C respectively which he had handed over to CBI. A computer generated statement of ledger account of Hemant has been proved by him as Ex.PW7/D1 to D4 as signed by Sh.Sanjay Suri (D29) which is for the period 01.04.03 to 31.03.04 showing that Hemant's account has been debited on 09.07.03 for issuance of air tickets to Rohit Kumar and thereafter cash amount of Rs.50,000/, Rs. CBI Case No.74/08 Page No.247 of 302
CBI Vs. Bibianus Toppo & Ors 30,000/ and Rs.20,000/ were respectively credited in the account on 31.07.03, 04.08.03 and 18.08.03 (points 'Y', 'Z' and 'Z1') against bill nos.5704, 5715 and 5726. He said that he dealt with bill book and after seeing a carbon copy of receipt no.5704 dated 31.07.03 for Rs.50,000/ in the name of Rohit Kumar in bill book no.Ex.PW7/E, he said that the receipt was issued by him bearing his signature, which is Ex.PW7/E1. After seeing the carbon copy of receipt no.5715 dated 04.08.03 for Rs.30,000/ in the name of Rohit Kumar C/o Hemant he said that he can not say who has issued the same but it was issued against the issuance of a ticket, which receipt is Ex.PW7/E2. He also proved carbon copy of receipt no.5726 dated 18.08.03 for Rs. 20,000/ in the name of Amit Kumar which is in his handwriting bearing his signature, as Ex.PW7/E3.
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CBI Vs. Bibianus Toppo & Ors 11.9 Mr.Sanjay Suri (PW11) who worked with M/s MAG Travel has also proved the same documents which were proved by PW7. He said that Hemant must be a client of his company whose account was maintained by the company. He also proved that Ex.PW7/C1 and Ex.PW7/C2 as prepared by Mr.Vijay working as trainee with the company and said that the same have been issued against exchange orders bearing no. 3071 and 3072. He also deposed that the entry pertaining to this bill no.10369 is reflected in the statement of account of Hemant, Ex.PW7/D2 dated 19.07.03 at point 'X.' 11.10 On being shown the office copy of receipt book (Ex.PW7/E) of M/s MAG Travels, he said that entries pertaining CBI Case No.74/08 Page No.249 of 302 CBI Vs. Bibianus Toppo & Ors to receipt no.5704, 5705 and 5726, Ex.PW7/E1, E2 and Ex.PW7/E3 are reflected in the statement of account, Ex.PW7/D2 dated 31.07.03 at point Y dated 04.08.03 at point Z and dated 18.08.03 at point Z1. He deposed that receipt no. 5726 dated 18.08.03 Ex.PW7/E3 bears endorsement of C/O Hemant at point X and he had tick marked endorsement at point Y as he had made entry in the computer system of the company with regard to this receipt.
11.11 The two carbon copies of the exchange order no.3071 dated 19.07.03 have been proved by him as Ex.PW7/D1 & D2 and bills in this respect have been proved as Ex.PW7/C1 and C2. He deposed that two bill nos.6176 and 6175 dated 19.07.03 annexed with Ex.PW7/C1 and C2 CBI Case No.74/08 Page No.250 of 302 CBI Vs. Bibianus Toppo & Ors are receipts issued by M/s Uplift Tourism P. Ltd for issuing tickets in the name of Rohit Kumar and Amit Kumar Khatri which are Ex.PW7/C3 and C4. The tickets issued against receipt no.6175, Ex.PW7/C4 have been proved by him as Ex.PW10/E and Ex.PW10/F (D31) and the tickets issued against receipt, Ex.PW7/C3 have been proved as Ex.PW11/A and Ex.PW11/B respectively (D32). He also proved that Ex.PW7/D1 to D4 is the statement of account pertaining to Hemant reflects the sale of tickets through M/s Mag Travels P. Ltd which bear his signature on all sheets.
11.12 During crossexamination by ld.counsel for accused/Amit Kumar Khatri and Hemant Gandhi, he stated that he does not know Hemant Gandhi and he has no personal CBI Case No.74/08 Page No.251 of 302 CBI Vs. Bibianus Toppo & Ors knowledge of the transaction. When he was crossexamined on behalf of accused/Parminder Singh, after charge was framed against him on his arrest, earlier being proclaimed offender (PO), he said that Ex.PW7/A which is memo of handing over the documents to CBI dated 20.07.05 was signed by him in CBI office. He stood by his testimony during his crossexamining on behalf of accused.
11.13 PW12/Partho Bannerjee, who was working as Manager (Reservations) with M/s Mag Travels P. Ltd, has proved that two carbon copies of exchange order no.3071 dated 19.07.03, Ex.PW7/B1 and B2 are in his handwriting and bearing his signatures, through which M/s Uplift Tourism Pvt. Ltd. was requested to issue tickets in the name of Amit Kumar CBI Case No.74/08 Page No.252 of 302 CBI Vs. Bibianus Toppo & Ors Khatri whose passport details were mentioned therein for journey from DelhiZurichMoscow for 20.07.03 and for return journey from Frankfurt to Delhi via Moscow dated 25.07.03. 11.14 On being shown bill no.10369 dated 19.07.03, Ex.PW7/C1, he deposed that it has been prepared against exchange order no.3071 and 3072, Ex.PW7/B1 and B2 and Ex.PW10/A and Ex.PW10/B through which M/s Mag Travels Pvt. Ltd. had charged Rs.64,137/. After seeing the copy of passport no.E4716910 in the name of Rohit Kumar with date of birth as 15.06.86, issue date as 06.03.03, he deposed that in exchange order no.3072 dated 19.07.03, Ex.PW10/A and Ex.PW10/B all particulars of Rohit Kumar as mentioned in the passport shown to him are matching except last two digits of the CBI Case No.74/08 Page No.253 of 302 CBI Vs. Bibianus Toppo & Ors passport number and the year of birth. The photocopy of the passport has been marked by him as Ex.PW12/X (D25). 11.15 He said that he does not know Hemant Gandhi and Amit Kumar Khatri and failed to identify them in the court, after which he was crossexamined by ld.Public Prosecutor for CBI with permission of the court wherein he denied the suggestion that tickets on behalf of Hemant Gandhi were booked telephonically as instructed by Sh.Rakesh Kumar, owner of M/s Mag Travels or that sometimes Amit Kumar Khatri also telephonically used to book the tickets on behalf of Hemant Gandhi and most of the times he used to come along with passport of the customers and sometimes with cash payment. He was confronted with the statement u/s 161 Cr.PC, CBI Case No.74/08 Page No.254 of 302 CBI Vs. Bibianus Toppo & Ors Ex.PW12/Y and also denied the suggestion that he was deliberately not identifying the accused persons. He was not crossexamined by any of the accused persons except accused/Hemant Gandhi and Amit Kumar Khatri and during crossexamination on their behalf he deposed that he had not written 'C/O Hemant' on Ex.PW7/E2.
11.16 PW14/Sh.Dharmender Seth is the Managing Director of M/s Uplift Tourism Pvt. Ltd, who deposed that in this case his company had issued international tickets to M/s Mag Travels Pvt. Ltd. against exchange orders. He proved production memos dated 26.10.04 and 27.04.05 for producing documents to CBI as Ex.PW14/A & B respectively. Through Ex.PW14/A, he had handed over exchange order no.3072, CBI Case No.74/08 Page No.255 of 302 CBI Vs. Bibianus Toppo & Ors Ex.PW10/B, ledger account in the name of M/s Mag Travels Pvt. Ltd for the period 01.04.03 to 31.03.04, Ex.PW14/A1, two agent coupons of ticket nos.5559142352871, Ex.PW10/E and 5559142352872, Ex.PW10/F. 11.17 He proved bill book of M/s Uplift Tourism Pvt. Ltd as Ex.PW14/A2 (D34) in which relevant invoices nos.6175 and 6176 both dated 19.07.03 in the name of M/s Mag Travels Pvt. Ltd. marked as Ex.PW14/A2a and Ex.PW14/A2b. He also deposed that through memo, Ex.PW14/B, he had handed over air coupon ticket nos.5553684634193, Ex.PW11/A and 5553684634194, Ex.PW11/B and said that the tickets are in the name of Rohit Kumar and Amit Kumar Khatri and their destination and routes are mentioned in the production memo, CBI Case No.74/08 Page No.256 of 302 CBI Vs. Bibianus Toppo & Ors Ex.PW11/A & B as well as on air coupon tickets. He said that original bill invoices nos.6175 and 6176 were sent to M/s Mag Travels Pvt. Ltd. along with tickets booked by them on the basis of exchange orders.
11.18 He proved that Ex.PW7/C4 and C3 are originals of Ex.PW14/A2a and Ex.PW14/A2b and Ex.PW7/C3 and C4 bear signature of Sh.Dinesh Sachdeva, Manager of his company, which he identified. He was not crossexamined by any of the accused persons but when he was recalled for examination and crossexamination after accused no.11, who was earlier PO, was arrested trial proceeded against him, he was crossexamined on behalf of A11 but nothing contrary came out in his crossexamination.
CBI Case No.74/08 Page No.257 of 302
CBI Vs. Bibianus Toppo & Ors 11.19 PW5/Jai Shankar, Assistant Manager of Aeroflot, Russian Airlines has proved the letter written by Novo Kshonov A.V., the then Commercial Manager of Aeroflot Russian Airlines to CBI as Ex.PW5/A (D23) which is dated 19.10.04 and letter Ex.PW5/B which is dated 11.07.05 (D24). 11.20 As per Ex.PW5/A, Aeroflot Russian Airlines has informed to CBI that he has enclosed the copies of the passenger list of their flight no.SU536 dated 20.07.03 and SU536 dated 06.06.04 wherein it is clear that Mr.Rohit Kumar had travelled on these flights. He also informed that the booking for Mr.Rohit Kumar for SU536 with travel date as 20.07.03 was made by M/s Uplift Tourism Pvt. Ltd. and the ticket CBI Case No.74/08 Page No.258 of 302 CBI Vs. Bibianus Toppo & Ors was issued and sold by them on behalf of Aeroflot and the booking for 06.06.04 was made by M/s JVCL Pvt. Ltd., who had issued and sold the ticket on behalf of Aeroflot. He has also enclosed the copies of the air tickets and other details of the travel agents.
11.21 PW21/Rakesh Kumar, who is director of M/s Mag Travels Pvt. Ltd has also proved the exchange order no. 3072 of his company vide which air ticket of one Rohit Kumar having Indian Passport No.E4716910 was purchased on 06.03.03 which is already Ex.PW10/B (D30), the ticket coupon of ticket no.9142352871 is already Ex.PW10/E (D31) and ticket coupon for return journey is Ex.PW10/F (D31). He deposed that tickets Ex.PW10/E & F were purchased through M/s Uplift CBI Case No.74/08 Page No.259 of 302 CBI Vs. Bibianus Toppo & Ors Tourism Pvt. Ltd by sending exchange order which is Ex.PW10/B. Ledger account of M/s Uplift Tourism Pvt. Ltd has been proved as Ex.PW14/A1 (D33) and he deposed that at the time of booking his agency had also received photocopy of the passport of the ticket holder which in this case is marked as Ex.PW12/X (D25) (wrongly mentioned as Mark Ex.PW21/X in his statement).
11.22 PW1/S P Kothari, who is witness to the disclosure of accused/Hemant Gandhi and recovery pursuant to the disclosure has been examined by CBI. He has proved disclosure statement of accused/Hemant Gandhi as Ex.PW1/A and recovery memo comprising of 16 pages as Ex.PW1/B. He was thoroughly crossexamined by ld.counsel for A6, A8 and CBI Case No.74/08 Page No.260 of 302 CBI Vs. Bibianus Toppo & Ors A11 in respect of disclosure statement and recovery proceeding but no material deviation has been seen in his cross examination.
11.23 He was confronted by ld.counsel for A6, A8 and A11 with his earlier statement made by him in CC No.26/10 titled as CBI Vs. Sharda Kapoor & Others made, in the court of Sh.Amar Nath, the then Spl.Judge, CBI on 04.06.10 which is exhibited as Ex.PW1/DA in which he had stated that he had joined investigation of the case at the instructions of his superiors and he had not received any notice directly from CBI but joined investigation in that case. When he was cross examined by accused no.4/Hemant Gandhi, with whom disclosure and recovery are concerned, no question was put to CBI Case No.74/08 Page No.261 of 302 CBI Vs. Bibianus Toppo & Ors the witness and crossexamination of PW1 done on behalf of A6, A8 and A11 was simply adopted. He did not even suggest to him that he had not made any disclosure or that no recovery was effected at his instance. None of the accused persons had suggested to the witness that no such disclosure was made by accused/Hemant Gandhi to CBI or recovery was effected at his instance as is shown in memo, Ex.PW1/B. It has been submitted by ld.Public Prosecutor that accused/Hemant Gandhi was convicted in case titled as CBI Vs. Sharda Kapoor & Ors, in which PWS P Kothari had made statement Ex.PW1/DA in respect of the same disclosure and recovery.
11.24 Memo Ex.PW1/B shows that 277 Indian and CBI Case No.74/08 Page No.262 of 302 CBI Vs. Bibianus Toppo & Ors Foreign passports were recovered at the instance of accused Hemant Gandhi, besides other documents including ITRs, PAN Numbers, bunch of passport application forms containing partly filled application forms, pass books of banks, photocopies of certain other passports, counter foils of boarding passes, copies of air tickets, groups of rubber stamps as affixed on Ex.PW33/A, 2988 numbers of photographs of various persons, etc. 11.25 Ex.PW9/D (D18) was one of those passport which was recovered at the instance of accused/Hemant Gandhi as is shown in memo, Ex.PW1/B. This passport which is in the name of Parminder Singh (A11) has been issued from RPO, Jalandhar on 04.06.01 with date of expiry as 03.06.11. CBI Case No.74/08 Page No.263 of 302
CBI Vs. Bibianus Toppo & Ors Passport of one Rishi which was also one of those passports recovered from accused/Hemant Gandhi is Ex.PW32/M (D19). 11.26 IO of the case Sh.Rajiv Wahi (PW32) has clarified on a court question that photograph Ex.PW15/B=Mark PW9/X (D15) and photograph affixed on Ex.PW9/D (D18) are of accused/Parminder Singh. The court also made an observation during examination of IO to this effect. He also identified that disclosure memo Ex.PW1/A has been written by him on dictation of Sh.S K Aggarwal, the then DSP, CBI. He also proved recovery memo Ex.PW1/B bearing his signature thereon. Sh.R K Aggarwal (PW33) has also proved Ex.PW1/A and Ex.PW1/B. CBI Case No.74/08 Page No.264 of 302 CBI Vs. Bibianus Toppo & Ors 11.27 On questions put by ld.counsel for accused/Parminder Singh (A11), PW33/Sh.R K Aggarwal, DSP, CBI had clarified that the passport no.B3579297 dated 04.06.01 {in the name of Parminder Singh signed from Jalandhar Passport office marked Ex.PW9/D (D18)} and passport no.A7620882 dated 14.06.99 {in the name of Rishi issued from RPO, Delhi marked Ex.PW32/M (D19) incorrectly typed as Ex.PW32/G} were recovered u/s 27 of Evidence Act on 06.02.05 from kitchen of H.No.46, Pocket D14, Sector3, Rohini, Delhi at the instance of accused/Hemant Gandhi. Same was his answer with regard to recovery of photographs of Parminder Ex.PW9/X (D15), Smt.Kanta Ex.PW6/B (D16) and Govind Ram Ex.PW15/A (D17). He added that these photographs were amongst 2988 photographs which were CBI Case No.74/08 Page No.265 of 302 CBI Vs. Bibianus Toppo & Ors recovered u/s 27.
11.28 As regards photocopy of passport no.E4716910 dated 06.03.03 in the name of Rohit Kumar which was got issued in file Ex.PW17/A (D8) with photograph of Parminder Singh (A11), he clarified that it was recovered from the office of M/s MAG Travels (P) Ltd.
11.29 Ld.counsel for accused/Hemant Gandhi has relied upon judgment cited as Raj Kumar Vs. State, 2011 (4) JCC 2818 (DHC), wherein it was observed by Hon'ble High Court that where the variations of material nature in the statement of witnesses is found, the same is a relevant consideration. From perusal of the statement of PW1/S P CBI Case No.74/08 Page No.266 of 302 CBI Vs. Bibianus Toppo & Ors Kothari and IO of the case, I find that the variations are not of material nature and hence the law laid down by Hon'ble High Court in this case does not apply to the present case. 11.30 From testimony of PW1/S P Kothari, PW32/Rajiv Wahi and PW33/R K Aggarwal, I find that there is coherence in their statements with regard to disclosure and recovery u/s 27 of Evidence Act, except for the minor contradictions which might have occurred due to passage of a long time of about 9 years after disclosure and consequent recovery made on 06.02.05 and then the statement of witnesses made in the court in year 2014. Moreover, the contradictions which have been tried to be made out and agitated by the ld.defence counsel are not material in nature CBI Case No.74/08 Page No.267 of 302 CBI Vs. Bibianus Toppo & Ors and hence have no bearing on the credence of recovery u/s 27 of Evidence Act, pursuant to disclosure made by accused/Hemant Gandhi (A4).
11.31 Passport no.Z1403980 issued on 12.07.04 and passport no.B3778068 dated 23.01.02 of accused/Amit Khatri were also seized by CBI, the photocopies of which are Ex.PW32/L1 and Ex.PW32/L2 respectively (D20) (the original of which were returned to him on 08.03.11 pursuant to court's order). {It is noted that Ex.PW32/L1 and L2 have also been assigned to some specimen writings of accused/Anil Dhawan when PW32/Sh.Rajiv Wahi was examined subsequently on 10.09.13}.
CBI Case No.74/08 Page No.268 of 302
CBI Vs. Bibianus Toppo & Ors 11.32 Ex.PW11/A and Ex.PW11/B (D32) reveals that the air tickets of accused/Amit Kumar Khatri (A5) were booked on passport no.B3778068 (Ex.PW32/L2) along with tickets booked for travel of Parminder Singh (A11) on a passport in the name of Rohit Kumar which is clear from Ex.PW10/E and Ex.PW10/F showing that it was booked on passport no.E4716910 (issued vide file Ex.PW17/A). It is also proved and has not been disputed by Amit Khatri (A5) that he went abroad in same flight in which Parminder Singh travelled as Rohit Kumar on 20.07.03. It is also not disputed by him that his air ticket was got issued along with air ticket for travelling abroad of Rohit Kumar (actually accused/Parminder Singh) through M/s MAG Travels (P) Ltd. who in turn got it issued from M/s Uplift Tourism (P) Ltd on exchange order nos.3071 and CBI Case No.74/08 Page No.269 of 302 CBI Vs. Bibianus Toppo & Ors 3072 on a single bill no.10369 dated 19.07.03 (Ex.PW7/C10) for Rs.64,137/ by debiting the said amount from ledger account of accused/Hemant mentioned at point 'X' of Ex.PW7/D2. 11.33 Although no witness from M/s MAG Travels (P) Ltd. could identify accused/Hemant Gandhi but accused/Hemant Gandhi has also not disputed having his ledger account with M/s MAG Travels which he used to maintain for getting issued air tickets through said agency from time to time for different people.
11.34 I find that besides entry in the name of Rohit Kumar dated 19.07.03 mentioned in his ledger account Ex.PW7/D1 to D4, the names of Bharat, Asha Devi, Anita and CBI Case No.74/08 Page No.270 of 302 CBI Vs. Bibianus Toppo & Ors Nishant Gandhi are also mentioned. The recovery memo, Ex.PW1/B shows that CBI had also recovered passports in the name of these persons u/s 27 of Evidence Act on disclosure of accused/Hemant Gandhi. The recovery of 277 passports at the instance of Hemant Gandhi, besides travel documents of large number of persons, strengthens the story of the prosecution that he was maintaining his account with travel agent M/s MAG Travels (P) Ltd. for issuance of tickets for his clients. These facts emerging from evidence on record leave no scope for any doubt in my mind that the ledger account maintained by M/s MAG Travels in the name of Hemant was in fact of accused/Hemant Gandhi (A4) and none else. In this way, it is established that it was Hemant Gandhi (A4) who had arranged for issuance of air tickets in the name of Rohit Kumar to enable CBI Case No.74/08 Page No.271 of 302 CBI Vs. Bibianus Toppo & Ors Parminder Singh (A11) travel abroad on passport in the name of Rohit Kumar on which his photograph was affixed. 11.35 The recovery of photographs of Mr.Govind Ram and Mrs.Kanta along with passport of their son Rishi and a passport size photograph of accused/Parminder Singh at the instance of accused/Hemant Gandhi proves that he was aware of Govind Ram and Kanta (Afgani nationals) having gone abroad with their son/Rishi and so using their details with photocopies of their passports for obtaining the passport in the name of Rohit Kumar with photograph of Parminder singh (A11) in file Ex.PW17/A, showing him a minor, was safe for him so that the real identity of accused/Parminder could have been concealed.
CBI Case No.74/08 Page No.272 of 302
CBI Vs. Bibianus Toppo & Ors 11.36 The identity of accused/Amit Kumar Khatri (A5) is proved from his passport number used for obtaining air tickets and then travelling abroad on 20.07.03 with accused/Parminder Singh (A11) in the name of Rohit Kumar. 11.37 Thus, I find that the prosecution has proved that accused/Hemant Gandhi (A4), Amit Kumar Khatri (A5) and Parminder Singh (A11) committed an offence of criminal conspiracy punishable u/s 120B which was done in pursuance of their agreement to commit offences u/s 12(1)(b) of Passport Act, 1967 and section 419, 420, 468 and 471 IPC. Besides, the substantive offence punishable u/s 420 IPC and Section 12(1)
(b) of Passport Act have been proved against accused/Hemant CBI Case No.74/08 Page No.273 of 302 CBI Vs. Bibianus Toppo & Ors Gandhi (A4). It could not be established by the prosecution that accused/Amit Khatri (A5) was involved in booking the air tickets in the name of Rohit Kumar and thus charge u/s 420 IPC could not be proved against him. It is also not proved against him that he knowingly furnished any false information or suppressed any information for obtaining any travel documents and thus offence u/s 12(1)(b) could also not be established against him. As against accused/Parminder Singh (A11) it is proved that he also committed offence punishable u/s 419 and 471 r/w 468 IPC and Section 12(1)(b) of Passport Act, 1967. 12.0 ROLE OF ACCUSED/AMANJEET SINGH @ LOVELY (A6) 12.1 The allegation against accused Amanjeet @ CBI Case No.74/08 Page No.274 of 302 CBI Vs. Bibianus Toppo & Ors Lovely is that the photographs of a person (whose identity could not be established) for using as those of Rohit Kumar, for issuance of passport bearing no.E7314713 dated 19.12.03 as additional passport booklet in the name of Rohit Kumar, were given to him by one Kuldeep Singh resident of Jalandhar, who had then handed over the same to accused/Anil Dhawan (A7). Similarly, it is alleged that the photographs of Jatinder Singh (A8) for using the same as those of Rohit Kumar were given by him to accused/Anil Dhawan (A7) for using in the second additional passport booklet no.E8586189 dated 29.04.04 which was also issued in the name of Rohit Kumar.
12.2 In this respect, I find that no evidence has been led by CBI to prove that it was accused/Amanjeet Singh @ CBI Case No.74/08 Page No.275 of 302 CBI Vs. Bibianus Toppo & Ors Lovely who had handed over those photographs to Anil Dhawan (A7) for the purpose of issuance of passport booklets in question.
12.3 Yet another allegation against him is that it was he who had arranged and collected air tickets from M/s JVCL Travels, in the name of Rohit Kumar for travel date 05.08.04 on the basis of passport no.E8586189 dated 29.04.04 with photograph of accused/Jatinder Singh (A8) on which he (A8) attempted to travel abroad and caught at IGI Airport on 05.08.04.
12.4 To prove the allegation CBI examined PW26/Amanpreet Singh Gandhi, who deposed that he knew CBI Case No.74/08 Page No.276 of 302 CBI Vs. Bibianus Toppo & Ors Lovely and Mr.Jain of M/s JVCL Tour & Travels, New Delhi but he did not ask Mr.Jain to issue air tickets in the name of Jatinder, Rohit or Lovely on his guarantee or credit during August, 2004. When he was crossexamined by ld.Public Prosecutor for CBI with permission from the court he denied the suggestion that he had stated to IO of the case that on being asked by Lovely he had given guarantee to Sh.Jain of M/s JVCL to issue ticket to him on credit in August, 2004. 12.5 When PW29/Sh.Gyanender Kumar Jain, Director of M/s JVCL Travel Pvt. Ltd was examined he said that air ticket in the name of Rohit Kumar for DelhiMoscow sector for date of journey as 05.08.04 in flight SU536 was booked by him at the request of proprietor of Hotel VIP, Paharganj, Delhi CBI Case No.74/08 Page No.277 of 302 CBI Vs. Bibianus Toppo & Ors who informed him that he was sending one Lovely for booking the ticket in the name of Rohit Kumar but Lovely had sent some other person with copy of passport no.E8586189 and copy of VISA.
12.6 During his crossexamination he said that Lovely, who booked ticket was not present in the court. In this way CBI failed to link accused/Amanjeet @ Lovely as the person who had booked the tickets for travel of accused/Jatinder Singh (A8) in assumed name of Rohit Kumar. 12.7 Thus, I find that the prosecution has failed to bring home guilt of accused/Amanjit Singh @ Lovely, hence is liable to be acquitted of the offence charged against him. CBI Case No.74/08 Page No.278 of 302
CBI Vs. Bibianus Toppo & Ors 13.0 There is no evidence to prove the fact that accused/Jatinder Singh (A8) and accused/Parminder Singh (A11) even knew that there was any conspiracy between other private accused persons and accused public servants for the purpose of obtaining their passports from RPO, New Delhi in order to enable them to travel abroad.
13.1 Similarly, there is no evidence on record to link accused/Hemant Gandhi (A4) and Amit Khatri (A5) with accused public servants as the accused public servants of this case are not connected with conspiracy of issuance of original passport (in file Ex.PW17/A) with photograph of accused/Parminder Singh).
CBI Case No.74/08 Page No.279 of 302
CBI Vs. Bibianus Toppo & Ors 13.2 Accordingly, I am of the view that offence punishable u/s 13(2) r/w section 13(1)(d) of PC Act can not be read with Section 120B IPC in respect of accused/Hemant Gandhi (A4), Amit Khatri (A5), Jatinder Singh (A8) and Parminder Singh (A11).
13.3 In view of my above findings, I hold as under:
i) Accused/Bibianus Toppo (A1), Harbhajan Yadav (A2), Ram Chander (A3) and Anil Dhawan (A7) guilty of offence punishable u/s 120B r/w 419, 420, 468, 471 IPC, 13(2) r/w 13(1)(d) of PC Act, 1988 and 12(1)(b) of Passport Act, 1967;
ii) Accused/Hemant Gandhi (A4), Amit Khatri (A5), Jatinder Singh (A8) and Prminder Singh (A11) guilty of offence CBI Case No.74/08 Page No.280 of 302 CBI Vs. Bibianus Toppo & Ors punishable u/s 120B r/w 419, 420, 468, 471 IPC and 12(1)
(b) of Passport Act 1967;
iii) Accused/Bibianus Toppo (A1), Harbhajan Yadav (A2) and Ram Chander (A3) guilty of substantive offence punishable u/s 13(2) r/w 13(1)(d) of PC Act, 1988;
iv) Accused/Hemant Gandhi (A4) guilty of substantive offences u/s 420 IPC and 12(1)(b) of Passport Act;
v) Accused/Anil Dhawan (A7) guilty of substantive offence punishable u/s 420, 468, 471 r/w 468 IPC and section 12(1)(b) of Passport Act, 1967;
vi) Accused/Jatinder Singh (A8) and Parminder Singh (A11) guilty of substantive offences punishable u/s 419, 471 r/w 468 IPC and 12(1)(b) of Passport Act, 1967.
14.0 They are convicted accordingly.
15.0 The prosecution has not been successful in bringing home the guilt of accused/Amanjeet Singh @ Lovely CBI Case No.74/08 Page No.281 of 302 CBI Vs. Bibianus Toppo & Ors (A6) and G D Joshi (A9), hence they are afforded benefit of doubt and consequently acquitted of the charge framed against them.
16.0 Accused/R S Rawat (A10) has died during the course of final arguments and hence proceedings qua him stand abated.
Announced in the open (R P PANDEY)
Court on 31.10.2014 SPL.JUDGE (CBI)01
ROHINI COURT:DELHI
CBI Case No.74/08
Page No.282 of 302
CBI Vs. Bibianus Toppo & Ors
IN THE COURT OF SH. R.P.PANDEY: SPL. JUDGE 01 (PC ACT) CBI (N/W): ROHINI COURTS: DELHI CBI Case No. : 74/08 CENTRAL BUREAU OF INVESTIGATION Vs.
1. Bibianus Toppo (A.1) Supdt. Regional Passport Office, Bhikaji Cama Place, New Delhi s/o late Joseph Toppo (A1) r/o 14G, Sector4, DIZ Area, Rasa Bazaar, Gole Market , New Delhi.
2. Harbhajan Yadav s/o late Sultan Singh Yadav (A2) UDC, Regional Passport Office, Bhikaji Cama Place, New Delhi H.No.949/1, Gali No.4, Ashok Vihar, Gurgaon, Haryana.
3. Ram Chander s/o Sh.Maman Ram (A.3) LDC, Regional Passport Office, Bhikaji Cama Place, New Delhi R/oJ624, Sardar Colony, Sector16 Rohini, Delhi85 CBI Case No.74/08 Page No.283 of 302 CBI Vs. Bibianus Toppo & Ors
4. Sh.Hemant Gandhi (A.4) son of Sh.Moolshanker Gandhi r/o A708, Kedar Apartments, Sector9, Rohini, Delhi85
5. Amit Kumar Khatri (A5) s/o Sh.Lekh Raj Khatri r/o C2/151, Sector 16, Rohini, New Delhi.
6. Anil Dhawan s/o Sh.Madan Lal Dhawan (A7) R/oH.No.254, DDA Flats, Ist Floor New Ranjit Nagar, New Delhi8
7. Jatinder Singh (A.8) son of Sardar Satnam Singh r/o Village Rampur, PO Qadyan, Tehsil Batala, Distt.Gurdanpur, Punjab
8. Parminder Singh, (A.11) s/o Sh.Ajit Singh r/o Pind Khatti, Post Office Phagwara, District Kapurthala, Punjab CBI Case No.74/08 Page No.284 of 302 CBI Vs. Bibianus Toppo & Ors Date of Registration of FIR : 27.08.2004 FIR No.: RC.6(A)/2004/SCUV/CBI/SCRII/CBI/New Delhi Under Section : 120 B r/w Sec.419/420/ 467/ 468/ 471/474 IPC Section 13 (2) r/w 13 (1) (d) of P.C. Act 1988 and Section 12 of Passport Act, 1967 Date of Filing Charge : 28.03.06 Sheet Date of Judgment : 31.10.14 Date of hearing on sentence : 11.11.14 Date of Order on Sentence : 17.11.2014 CASE ID No. : 02404R0436952006 Appearances: Sh.N.P.Srivastava and Ms.Shashi Vishwakarma, Public Prosecutors for CBI.
Mr. R.Ramachandran, Advocate for A1.
Dr.Anil Gupta, Advocate for A2.
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CBI Vs. Bibianus Toppo & Ors Mr.Jagjit Singh, Advocate for A4 & 5.
Mr.Ashwani Verma and Mr.Lalit Yadav, Advocates for A 7.
Mr.Sukhwinder Singh, Advocate for accused Nos.3, 8 &11.
ORDER ON SENTENCE: Vide a judgment dated 31.10.14, accused persons have been convicted for offences punishable as under:
i) Accused/Bibianus Toppo (A1), Harbhajan Yadav (A2), Ram Chander (A3) and Anil Dhawan (A7) guilty of offence punishable u/s 120B r/w 419, 420, 468, 471 IPC, 13(2) r/w 13(1)(d) of PC Act, 1988 and 12(1)(b) of Passport Act, 1967;
ii) Accused/Hemant Gandhi (A4), Amit Khatri (A5), Jatinder Singh (A8) and Prminder Singh (A11) guilty of offence punishable u/s 120B r/w 419, 420, 468, 471 IPC and 12(1)
(b) of Passport Act 1967;
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iii) Accused/Bibianus Toppo (A1), Harbhajan Yadav (A2) and Ram Chander (A3) guilty of substantive offence punishable u/s 13(2) r/w 13(1)(d) of PC Act, 1988;
iv) Accused/Hemant Gandhi (A4) guilty of substantive offences u/s 420 IPC and 12(1)(b) of Passport Act;
v) Accused/Anil Dhawan (A7) guilty of substantive offence punishable u/s 420, 468, 471 r/w 468 IPC and section 12(1)(b) of Passport Act, 1967;
vi) Accused/Jatinder Singh (A8) and Parminder Singh (A11) guilty of substantive offences punishable u/s 419, 471 r/w 468 IPC and 12(1)(b) of Passport Act, 1967.
2. The offence of cheating by personation u/s 419 IPC is punishable with an imprisonment extendable upto three years and fine; the offence of cheating u/s 420 IPC is punishable with an imprisonment extendable upto 7 years and fine; the offence of forgery for the purpose of cheating u/s 468 CBI Case No.74/08 Page No.287 of 302 CBI Vs. Bibianus Toppo & Ors IPC is punishable with imprisonment extendable upto 7 years and fine; the offence of using as genuine a forged document u/s 471 IPC r/w 468 IPC is punishable in the same manner as an offence u/s 468 IPC i.e. with an imprisonment extendable upto 7 years and fine; offence u/s 12(1)b) of Passports Act, 1967 is punishable with an imprisonment extendable upto two years and fine up to to Rs.5,000/ and the offence of criminal misconduct by a public servant u/s 13(2) r/w 13(1)(d) of PC Act, 1988 is punishable with a minimum imprisonment of one year extendable upto 7 years and fine. The punishment for offence u/s 120B IPC for commission of offences u/s 420, 468 and 471 r/w 468 IPC and 13(1)(d) r/w 13(2) of PC Act is extendable upto the maximum punishment provided for those individual offences for which conspiracy was hatched like abetment CBI Case No.74/08 Page No.288 of 302 CBI Vs. Bibianus Toppo & Ors thereof.
3. I have heard Ms.Shashi Vishwakarma, Ld.Public Prosecutor for CBI and ld.counsels for convicts.
4. It has been urged by ld.Public Prosecutor that the convicts have cheated the RPO, New Delhi in getting issued additional passport booklets by enclosing forged copies of previous passport issued in the name of fictitious person 'Rohit Kumar' and they deserve maximum punishment prescribed by law keeping in view gravity of the offences committed by them. She has also submitted that convicts Harbhajan Yadav (A.2), Ram Chander (A.3), Anil Dhawan (A.7) were previously CBI Case No.74/08 Page No.289 of 302 CBI Vs. Bibianus Toppo & Ors convicted by this court in CC No.56/08 on 09.07.14 and convict Hemant Gandhi was previously convicted in CC No.26/10 decided by Sh.Amar Nath, the then Ld.Spl.Judge, CBI on 17.08.10 and thus they deserve a higher punishment.
5. It has also been submitted by ld.Public Prosecutor that convict Bibianus Toppo (A.1) was a Passport Issuing Authority, who was in control of the work of issuing additional passport booklets and that he alongwith his subordinates viz. convict/Harbhajan Yadav (A2) and Ram Chander (A3) abused their official position in getting issued the additional passport booklets on the basis of false and forged documents, as furnished by convict/Anil Dhawan (A6) hence they all are required to be punished severely. CBI Case No.74/08 Page No.290 of 302
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6. The Ld. counsel for convict Bibianus Toppo (A.
1) has submitted that convict is aged about 65 years, his wife is suffering with old age related deceases such as hypertension, his only son is unemployed and that he faced trial for about 10 years since registration of case and thus a lenient view may be taken by the court in awarding punishment to him.
7. Ld.counsel for convict/Harbhajan Yadav (A2) has submitted that convict is having college going children and old age mother who depend on him as he is sole bread winner of the family. He has also submitted that no evidence has come on record to show that he took any illegal gratification in this case. He has also submitted that convict has undergone CBI Case No.74/08 Page No.291 of 302 CBI Vs. Bibianus Toppo & Ors rigors of trial for about ten years, after registration of FIR. He has, therefore, prayed that a lenient view may be taken in awarding sentence.
8. Ld.counsel for convict/Ram Chander (A3) has also prayed for leniency on the ground that he is living in hutments and his entire family is dependent on him which include his three children and he is only bread earner of his family. He has also submitted that it is not the situation here that after having been convicted in CC No.56/08, he has committed this offence, hence his previous conviction is not an aggravating factor for awarding more severe punishment in this case.
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9. It has been submitted by Ld. counsel for convict/Hemant Gandhi (A.4) that he is aged about 50 years, has two minor kids, his wife is suffering from problem of slip disc requiring his constant help and support and he is only bread winner of his family. He has also submitted that his involvement in this case is also not much as the case against him is based on the same recovery for which he has already been punished in CC No.26/10. Thus a leniency in sentence has been prayed by him for convict Hemant Gandhi (A.4).
10. As regards convict Amit Khatri (A.5), he has submitted that he is not a previous convict, his parents are old age living in Uttarakhand, he is having two minor school going children to look after and the only bread winner of his family. He CBI Case No.74/08 Page No.293 of 302 CBI Vs. Bibianus Toppo & Ors has also submitted that the only allegation against him is that he being employee of Hemand Gandhi (A.4) he had accompanied convict Parminder Singh (A.11) to abroad and that he remained in custody for about 26 days when he was arrested in this case and the same was a sufficient lesson for him.
11. As regards convicts Jatinder Singh (A.8) and Parminder Singh (A.11) their Ld. counsel has submitted that they both were having their valid passports prepared from Punjab and wanted to go abroad for employment due to the reason that they were not having any gainful employment to earn their livelihood in their native place. He has submitted that they were not aware about any conspiracy and illegality of the matter and became victim of their averse circumstances of CBI Case No.74/08 Page No.294 of 302 CBI Vs. Bibianus Toppo & Ors illiteracy, poverty and unemployment. He has submitted that they both are first offenders and of very young age having already spent some 1012 days in custody when arrested in the matter which was a sufficient lesson for them. He has submitted that whereas the acts constituting the offence were committed by them about 1011 years back when they were very young, but thereafter they have not done any unlawful act, showing that they have no propensity of doing crime and having ample possibility of reformation. He has thus prayed for a leniency in punishing them for the offences committed by them.
12. Ld.counsel for convict/Anil Dhawan (A7) has submitted that he is having wife, two school going children and old parents with father suffering from both kidneys failure, CBI Case No.74/08 Page No.295 of 302 CBI Vs. Bibianus Toppo & Ors undergoing dialysis thrice a week and they all are fully dependent upon him because he is the only bread earner of the family and if he is sent to jail his entire family will be ruined and thus he has also prayed for taking a lenient view while awarding sentence.
13. After considering the rival contentions and keeping in mind the mitigating and aggravating circumstances, as discussed above and more particularly the individual role played by each of them, I sentence the convicts as under: Bibianus Toppo (A1) is sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.5,000/ CBI Case No.74/08 Page No.296 of 302 CBI Vs. Bibianus Toppo & Ors for offence committed by him u/s 13(2) r/w 13(1)(d) of PC Act, 1988 and in case of default in payment of fine to further undergo SI for three months.
Harbhajan Yadav (A2) is sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.5,000/ for offence committed by him u/s 13(2) r/w 13(1)(d) of PC Act, 1988 and in case of default in payment of fine to further undergo SI for three months.
Ram Chander (A3) is sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.5,000/ for offence committed by him u/s 13(2) r/w (13(1)(d) of PC Act, CBI Case No.74/08 Page No.297 of 302 CBI Vs. Bibianus Toppo & Ors 1988 and in case of default in payment of fine to further undergo SI for three months.
Hemant Gandhi (A4) is sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.10,000/ for offence committed by him u/s 420 IPC and in case of default in payment of fine to further undergo SI for three months ; and RI for a period of two months with fine of Rs.2,000/ for offence committed by him u/s 12 (1)(b) of Passport Act, 1967. Anil Dhawan (A7) is sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.2,000/ for offence committed by him u/s 420 IPC and in case of default CBI Case No.74/08 Page No.298 of 302 CBI Vs. Bibianus Toppo & Ors in payment of fine to furthter undergo SI of three months ; RI for a period of two years with fine of Rs.2,000/ for offence committed by him u/s 468 IPC and in case of default in payment of fine to further undergo SI of three months; RI for a period of 2 years with fine of Rs.2,000/ for offence committed by him u/s 471 r/w 468 IPC and in case of default in payment of fine to further undergo SI for three months; RI for a period of two months with fine of Rs.2,000/ for offence committed by him u/s 12(1)(b) of Passports Act, 1967.
14. Convicts Bibianus Toppo (A.1), Harbhajan Yadav (A2), Ram Chander (A3) and Anil Dhawan (A7) are sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.5,000/ each for offence punishable u/s CBI Case No.74/08 Page No.299 of 302 CBI Vs. Bibianus Toppo & Ors 120B r/w 419, 420, 468, 471 IPC, 13(2) r/w 13(1)(d) of PC Act and 12(1)(b) of Passports Act, 1967 and in case of default in payment of fine to further undergo SI for three months.
15. Convict Hemant Gandhi (A.4) is sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.10,000/ for offence punishable u/s 120 B r/w 419/420/468/471 IPC and 12 (1)(b) of Passport Act, 1967 and in case of default in payment of fine to further undergo SI for a period of three months.
16. Convicts Amit Kumar Khatri (A.5), Jatinder Singh (A.8) and Parminder Singh (A.11) are sentenced for CBI Case No.74/08 Page No.300 of 302 CBI Vs. Bibianus Toppo & Ors the period already undergone by them in judicial custody with a fine of Rs.10,000/ each and in case of default in payment of fine to further undergo SI for a period of three months for the offences for which they have been convicted in this case.
17. The convicts shall be entitled to the benefit of provisions of Section 428 Cr.PC. All the sentences to run concurrently.
18. At this stage, convict/Bibianus Toppo (A.1), Harbhajan Yadav (A2), Ram Chander (A3), Hemant Gandhi (A.4) and Anil Dhawan (A7) have moved bail application u/s 389 (3)(1) Cr.PC. Heard.
19. Taking into consideration the facts & CBI Case No.74/08 Page No.301 of 302 CBI Vs. Bibianus Toppo & Ors circumstances of the case the convicts, namely, convict/Bibianus Toppo (A.1), Harbhajan Yadav (A2), Ram Chander (A3), Hemant Gandhi (A.4) and Anil Dhawan (A7) are admitted to bail on their furnishing personal bond in the sum of Rs.20,000/ with one surety in the like amount for a period of two months for enabling them to file appeal against the Judgment and order of this court.
20. A copy of this order be supplied to the convicts free of cost.
21. File be consigned to the record room.
Announced in the open (R.P.PANDEY)
Court on 17.11. 2014 SPECIAL JUDGE (CBI)0I
ROHINI COURTS:DELHI
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