Delhi District Court
Cbi vs . Vinay Kumar Pandey & Anr. Page No.1 Of ... on 18 January, 2023
IN THE COURT OF MS. GEETANJLI GOEL,
ADDITIONAL SESSIONS JUDGE / SPECIAL JUDGE
(PC ACT OF 2008) CBI-24, ROUSE AVENUE
DISTRICT COURT, NEW DELHI.
IN THE MATTER OF:
C.C. No. 03/2020
CIS No. 222/2019
CNR No. DLCT11-001254-2019
RC No. 2(A)/2016/CBI/AC-111/ND
Police Station CBI/ AC-III
Under Sections 120B, 420 of IPC & Section 13(2) r/w 13(1)
(d) of the Prevention of Corruption Act, 1988
Central Bureau of Investigation
Versus
1. Vinay Kumar Pandey
@Vinay Kumar @ Vinnu
S/o Late Shri Vidya Sagar Pandey
R/o : Village & Post Ghughulpur
Distt. Balrampur, U.P.
2. Arvind Kumar @ Arvind Tiwari
S/o Shri Gyanendra Tiwari
R/o : Village Purenia, Bangai Gonda
U.P. .....Accused Persons
Date of Institution 24.12.2016
Received by Transfer on 02.11.2020
Judgment reserved on 21.12.2022
Judgment Pronounced on 18.01.2023
CBI Vs. Vinay Kumar Pandey & Anr. Page No.1 of 361
JUDGMENT
CASE OF THE PROSECUTION
1. The factual matrix of the case is that a source information was received that during the year 2012 Shri Vinay Kumar Pandey (hereinafter referred to as A1) the then Member of Parliament 15th Lok Sabha entered into a criminal conspiracy with his the then PA Shri Arvind Tiwari (hereinafter referred to as A2), other unknown public servants and unknown private persons with the object to cheat Government of India by claiming reimbursement of TA (Travelling Allowance) for the journey from 01.11.2012 to 03.11.2012 along with other companions on the basis of fake and forged e-tickets and boarding passes without performing actual journey and thereby causing wrongful loss to the exchequer of Government of India to the tune of Rs.9,71,384/- by misusing his official position. It was disclosed that A1 got generated fake e-tickets bearing No.0982066418881 to 0982066418887 fraudulently and dishonestly in connivance with A2. He also got forged boarding passes of Air India flights for the purported journey for the sector Delhi-Chennai-Port Blair- Chennai-Delhi on 01.11.2012, 02.11.2012 and 03.11.2012. A1 submitted fake and forged e-tickets and boarding passes in support of his said purported journey along with six companions to Lok Sabha Secretariat for reimbursement of Rs.9,71,384/- as TA claim. The office of Lok Sabha Secretariat processed and finalized the TA claim submitted by A1 on the basis of fake and forged e-tickets and boarding passes enclosed with the TA claim and prepared the TA bill No.2012-2013/11/5470 dated 05.11.2012 for reimbursement of TA claim to A1. After processing of the TA bill of A1, an amount of Rs.9,71,384/- as TA CBI Vs. Vinay Kumar Pandey & Anr. Page No.2 of 361 claim was reimbursed to A1 by the Lok Sabha Secretariat. It was disclosed that the e-tickets bearing numbers from 0982066418881 to 0982066418887 used by A1 for the purpose of reimbursement of his purported air journey were fake and forged. It was alleged that thereby, he committed offences under Section 120B read with Sections 420, 467, 468, 471 IPC and Section 13(1)(d) read with Section 13(2) of PC Act, 1988.
2. On the basis of the said information, case RC 02(A)/2016/AC-III was registered under Section 120 B read with Sections 420, 467, 468, 471 IPC and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as the PC Act) against A1 Shri Vinay Kumar Pandey, A2 Shri Arvind Tiwari and other unknown public servants and private persons on 21.03.2016 and investigation was taken up. It was stated that the term of A1 as Member of Parliament, Lok Sabha was from 2009 to 2014. A2 was working as Personal Secretary to A1 during the year 2012 and he was well versed with the work of preparation of TA claim etc. at Lok Sabha Secretariat and he had also worked for Air Lines booking agents in the past. It was revealed during investigation that A2 was looking after the work of submission of TA bills of A1 at the Parliament Secretariat and tracking of payments of TA claim while working as personal secretary to A1. Further, A1 had written a letter dated 26.09.2012 on his letter head to the Secretary General, Parliament requesting for issuance of a PA/PS pass in favour of A2 as A1 had appointed A2 his Personal Secretary from 26.09.2012 onwards. The details of A2 were also provided in a form for issuance of General Pass for PS/PA of an MP to the Centralized Pass Issue Cell, Lok Sabha Secretariat in CBI Vs. Vinay Kumar Pandey & Anr. Page No.3 of 361 which the details were given and it was stated that the pass was required for a period upto six months and A2 had given his specimen signature on the said form and a certificate was also given by A1. The form bore the signatures of A1 along with details of identity card No.461 of A1. Thereafter, identity card No.461 was issued to A2 for various periods as detailed in para 6 of the charge sheet including for the period in question.
3. It was stated in the charge sheet that a Member of Parliament was given TA/DA allowance during the session of Parliament and for travelling for an MP who was member of any Parliamentary Committee. The spouse of the MP was also given ticket for performing 8 journeys during the session of the Parliament to accompany the MP from the constituency to the capital. Further, an MP was entitled to get 34 single air journeys per year to be availed alone or with companion and the said facility could be availed by the Member of Parliament from any airline on cash payment. TA/DA allowance was reimbursed to the MP as per procedures prevalent in the office of Lok Sabha Secretariat. The Member was required to submit details of journey for which TA was being claimed in the prescribed "Arrival/Departure Report and Intermediate Journey Form"
along with used air tickets and boarding passes in original. The tickets submitted along with the claim form were required to be countersigned by the MP. The TA/DA claims were processed in the Member's Salary and Allowances (MS&A) branch by the dealing clerk and it was prepared in the TA/DA software called E-wisdom. After approval by the Drawing and Disbursing Officer, MS&A, it was sent to P&AO Audit Branch for payment. After checking by the dealing hand/ Executive Assistant, CBI Vs. Vinay Kumar Pandey & Anr. Page No.4 of 361 Executive Officer, the bill was approved by the Pay and Accounts Officer for payment. Thereafter, payment was credited in the bank account of the MP.
4. It was revealed that A1 submitted the "Arrival/ Departure Report and Intermediate Journey Form" dated 05.11.2012 along with Air tickets and boarding passes and also mentioned the details of the purported journey along with his six companions from 01.11.2012 to 03.11.2012. As per the same, he had performed the personal journey from Delhi to Chennai on 01.11.2012, from Chennai to Port Blair on 02.11.2012 and he returned from Port Blair to Delhi on 03.11.2012. The journey was purportedly performed by him along with his six companions through Air India and the said form was signed by A1. A1 had also submitted to the MSA branch of Lok Sabha the e-tickets and boarding passes for the journey from Delhi to Port Blair to Delhi and the form also contained a declaration certifying the information which was required to be signed by the MP claiming TA/DA bill and it contained a "contents received" slip on which a revenue stamp had to be fixed and signatures were to be made by the MP. The said receipt was also known as receipt acknowledgment. As per the investigation, the e-tickets submitted by A1 were countersigned by him. However, the Lok Sabha Secretariat informed that the tickets and boarding passes submitted by A1 had been weeded out in the year 2014. But all the details relating to TA/DA of A1 were available in the TA/DA register maintained at the MSA branch of Lok Sabha Secretariat. A cheque dated 09.11.2012 of Rs.2,50,000/- of A1 was also seized and all the documents were sent to CFSL. Specimen handwriting given voluntarily by A2 was also sent to CFSL. The CBI Vs. Vinay Kumar Pandey & Anr. Page No.5 of 361 CFSL report dated 09.12.2016 confirmed the signatures of A1 and handwriting of A2 on the "Arrival/ Departure Report and Intermediate Journey Form" used for fraudulent withdrawal in the form of TA claim from the office of Lok Sabha Secretariat.
5. Further the TA claim submitted by A1 was received by Shri Belamu Ram, the then Executive Assistant, MS&A Branch of Lok Sabha Secretariat. After scrutinizing the TA claim and seeing that the tickets and boarding passes used for performing the journey claimed by A1 were attached with the TA claim and the same were signed by A1, he entered the details of the TA claim in the computer programme at the MS&A Branch of Lok Sabha Secretariat called E-wisdom. He took a printout of the information fed in the said software and pasted in the TA/DA register of A1 maintained at the Lok Sabha Secretariat. Total TA amount was calculated to the tune of Rs.9,71,384/-. The details of the journey claimed were also detailed in the charge sheet. Shri Belamu Ram, Executive Assistant took another printout and stapled the original declaration and receipt acknowledgement regarding the TA claim on the copy which was forwarded to Pay and Account office of Lok Sabha Secretariat for audit and release of payments to A1. Shri Belamu Ram, thereafter, forwarded the TA bill register along with the copy of TA bill and tickets and boarding passes submitted by A1 to Shri Karan Chand, Executive Officer, MS&A Branch of Lok Sabha Secretariat who after scrutinizing the same forwarded the same to Smt. Gursharan Kaur Mohi, the then Drawing and Disbursing Officer, MS&A Branch of Lok Sabha Secretariat who further scrutinized the same and forwarded the copy of TA bill to Pay and Account Office, Lok Sabha for audit and release of payments to A1. The CBI Vs. Vinay Kumar Pandey & Anr. Page No.6 of 361 officers who processed the TA bill put their signatures on the TA bill as a token of their approval.
6. It was alleged in the charge sheet that it had been revealed during investigation that A1 had submitted E-tickets bearing No.0982066418881 to 0982066418887 and boarding passes in support of the journey and the air tickets were also countersigned by him. After processing the TA claim of A1 by Pay and Account Office of Lok Sabha Secretariat, an amount of Rs.9,71,384/- was reimbursed to A1 in his account and the payment was made to him vide cheque No.343384 dated 06.11.2012. It was stated that in 2012, electronic reservation system was introduced by Air India. However, the reservation system was still in transition from manual to electronic ticketing. A passenger could make a block booking for Air India flight by generating a PNR online or from any Air India office or could get it generated through Air India authorized agent. Once the PNR was generated, the Air India reservation system reserved a seat in the particular flight on time limit basis for the said booking. The passenger had to purchase the ticket within that stipulated time given in the PNR so generated and on expiry of that stipulated time, the system automatically deleted the booking if the ticket was not purchased. Once the check-in facility was opened for a particular flight in the Air India check-in system, check-in for the passenger could be done in the check-in system on the basis of PNR generated by such block booking as well as on the basis of ticket purchased by the passenger. Once the check-in for a passenger was done in the check-in system of Air India Ltd., the boarding passes were ready to be printed. The check-in for the passenger and printing of boarding passes was done by the staff CBI Vs. Vinay Kumar Pandey & Anr. Page No.7 of 361 at Air India check-in counter at the airport. The check-in and printing of boarding passes could be done even when a ticket was not attached to the PNR. Thereafter, the boarding could also be deleted from the system. As per the investigation, once the passenger collected the boarding card, he proceeded to the boarding gate where he presented his boarding card to board the Aircraft. As soon as the passenger boarded the flight, his flight coupon started showing him boarded in the check-in system of Air India. The information of every passenger who travelled in a flight of Air India was available in the check-in system of Air India Ltd. which was also called SITA system. After closer of the flight, a document known as flight manifest was prepared from the SITA system at the airport which contained the ticket number and name of all the passengers flown in an Air India flight. It was generated by the Airports after departure of the flights to ensure the number and identity of passengers flown on a particular flight and was also used for reconciliation of revenue generated by Air India from that particular flight.
7. It was stated that Air India flight number AI 540 dated 01.11.2012 was operated between Delhi to Chennai and Air India flight number 0549 dated 02.11.2012 from Chennai to Port Blair. The check-in history of the said flight was seized during the investigation and on perusal of check-in history of the said flights, it was observed that a passenger by name of PANDEY VKMR had travelled from Delhi to Chennai to Delhi with six other companions. The passengers were booked under one PNR as "YKX5C". No ticket number was attached to the said booking. The check-in for the said passenger was made in the check-in system of Air India and thereafter the same was deleted. CBI Vs. Vinay Kumar Pandey & Anr. Page No.8 of 361 Investigation revealed that no passenger with the ticket numbers 0982066418881 to 0982066418887 travelled in the flights operated by Air India from Delhi to Chennai on 1.11.2012 and Chennai to Port Blair on 2.11.2012 and from Port Blair to Chennai on 3.11.2012 and from Chennai to Delhi on 03.11.2012. On perusal of the flight manifests of the flights, it was revealed that no passenger with name Vinay Kumar Pandey travelled in the said flights. Neither A1 nor his six companions, as claimed by A1 in the TA claim performed the journey. Investigation revealed that said ticket numbers were not used for travelling by Air India flights from Delhi to Port Blair and for return journey from Port Blair to Delhi and had not been accounted in the Air India Revenue Accounting system, therefore, as per the record of Air India Ltd., no revenue was generated by Air India Ltd. from the said ticket numbers. It was alleged that A1 utilized the amount of Rs.9,71,384/- credited in his account and used cheque No.975871 dated 09.11.2012 to withdraw an amount of Rs.2,50,000/- from his account and thus he utilized the money which was given by Lok Sabha Secretariat as reimbursement claim for the said journey in his favour. The CFSL, Delhi vide report No.CFSL-2016/D-1085/4446 dated 09.12.2016 confirmed the signature of A1 on the cheque No.975871 dated 09.11.2012 of Rs.2,50,000/-. The said amount was withdrawn after the TA amount of Rs.9,71,384/- was reimbursed by the Lok Sabha Secretariat to A1. Thus, A1, the then MP, Lok Sabha in criminal conspiracy with A2 submitted a TA claim for purported personal journey along with six companions from Delhi to Port Blair and return from 01.11.2012 to 03.11.2012. However, his claim was fake as he along with six companions had not performed the said CBI Vs. Vinay Kumar Pandey & Anr. Page No.9 of 361 journey and he had submitted a fake TA claim with object to cheat the office of Lok Sabha Secretariat by misusing his official position as public servant, and thereby, he caused wrongful loss to the Government exchequer and corresponding gain for himself to the tune of Rs.9,71,384/-.
8. Based on the above allegations and on conclusion of investigation, after recording of statements of witnesses under Section 161 of the Code of Criminal Procedure (Cr.P.C.) and seizure of incriminating documents etc., the present chargesheet had been filed by the CBI on 24.12.2016 and supplementary final report was filed on 14.03.2018 wherein it was stated that it was revealed during investigation that check-in against PNR No.YKX5C for travelling from Delhi to Chennai to Port Blair was made in Air India Reservation System SITA at T-3 Airport, New Delhi and boarding cards were printed. Thereafter, the boarding history was deleted after few minutes. The passengers were checked in on the basis of PNR only and no tickets were attached with the said PNR and the check-in was made without paying any cost of tickets to Air India Ltd. Investigation revealed that boarding passes were generated by Ms. Sonali Pandey, the Customer Service Agent, on the instructions of Shri N.S. Nair, the then Sr. Superintendent of Air India Ltd. and Ms. Sonali Pandey had put a note in the check-in history of one of the passengers that it was done on the instructions of the Counter Manager. This act provided the hard copy of boarding pass to the passengers to proceed further for boarding the plane but at the same time the boarding passes did not have the ticket numbers. The boarding history was later deleted from the Air India reservation system at T-3 Terminal, New Delhi by Ms. Nidha CBI Vs. Vinay Kumar Pandey & Anr. Page No.10 of 361 Khanam, Sr. Customer Service Agent on the instructions of the then Counter Manager of Air India. The unique ID sign-in code AGT10322, which was used for check-in of the passengers and printing of boarding passes was allotted to Ms. Sonali Pandey, the Customer Service Agent and the boarding history was deleted by Ms. Nidha Khanam, Sr. Customer Service Agent on the same date on the instructions of Shri N.S. Nair, the then Sr. Superintendent, Air India Ltd.
9. It was stated that in the check-in history the surname of children of A1 was mentioned as Pandey instead of Vatsa. The Lok Sabha Secretariat vide letter dated 05.07.2016 revealed that the children of A1 used surname Vatsa. It was stated that sufficient evidence was not available to corroborate that the said act of Air India Ltd. officials was done under conspiracy with the accused persons and there was no evidence to prove that the same boarding passes were used in the fake TA/DA claim dated 05.11.2012 of A1. However, there were systematic lapses in issue of boarding passes against the said PNR by the Air India Staff for which SCN was being issued to Air India to take suitable action against the officials concerned. Further investigation on the role of officials of Lok Sabha Secretariat also revealed that as per the letter dated 05.07.2016 the original tickets and boarding passes submitted by A1 along with the TA claim were weeded out by the Lok Sabha Secretariat in the month of April, 2014 before registration of the present case. It was revealed that there was a practice in the MSA Branch of Lok Sabha Secretariat to weed out the ticket and boarding passes submitted by the Members of Parliament along with their TA/DA claims annually. It was stated that there was no evidence to establish the connivance of the CBI Vs. Vinay Kumar Pandey & Anr. Page No.11 of 361 officials of Lok Sabha Secretariat with the accused persons. However, such weeding out was contrary to the rules of Lok Sabha Secretariat and thereafter, a Self-Contained Note (SCN) was being sent to take suitable action against the erring officials of Parliament Secretariat as well as to follow the rules and manual of Air India Ltd. for future correction. It was stated that the allegations against other accused persons could not be substantiated till then and there was no sufficient oral and documentary evidence to prove the criminal conspiracy against the Air India officials as well as officials of Lok Sabha Secretariat with the accused persons.
10. Cognizance was taken on 18.05.2018 and it was observed by my Ld. Predecessor that since A1 is an Ex. Parliamentarian and was not in office when the charge-sheet was filed, sanction order under Section 19 PC Act for his prosecution was not required. The accused persons were directed to be summoned for facing trial. Copies of chargesheet as well as documents filed along with the same were supplied to the accused persons on their appearance before the Court, in compliance of provisions contained under Section 207 Cr.P.C. An application was filed on behalf of A1 for discharge under Section 227 Cr.P.C. After hearing extensive arguments from both the sides, vide detailed order dated 18.12.2020, the application of A1 for discharge under Section 227 Cr.P.C. was dismissed and charge was directed to be framed against A1 for the offences under Section 120B read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the PC Act and against A2 for the offences under Section 120B read with Section 420 IPC. Charge was framed against the accused persons vide order dated CBI Vs. Vinay Kumar Pandey & Anr. Page No.12 of 361 09.02.2021 to which the accused persons pleaded not guilty and claimed trial.
11. An application was filed on behalf of A1 seeking supply of the list comprising of the documents seized/ collected and correspondences made during the course of investigation but not forwarded to the Court and seeking permission to inspect the documents lying in the records of the prosecution/ CBI and vide order dated 01.12.2021, CBI was directed to file a list of documents, which were not relied upon and not forwarded with the charge sheet to the Court. The said list was filed on 22.12.2021. Thereafter an application seeking complete and proper compliance of the order dated 01.12.2021 was filed on behalf of A1. Vide order dated 28.01.2022 inspection of the documents mentioned in the list submitted by CBI and the documents mentioned in the application filed by A1 as may be available with CBI was permitted. An application under Section 311 Cr.P.C. was filed on behalf of CBI for summoning certain additional witnesses which was allowed vide order dated 08.03.2022. Another supplementary charge sheet was filed on 14.03.2022. An application was filed on behalf of A1 for examination and photography of the questioned and specimen/ admitted signatures of A1 from the necessary documents through the handwriting expert which was allowed vide order dated 21.07.2022. Another application was filed on behalf of A1 under Section 91 Cr.P.C. for direction to the IO to produce certain letters and correspondences which was disposed of vide order dated 21.07.2022.
12. The prosecution in support of its case has examined CBI Vs. Vinay Kumar Pandey & Anr. Page No.13 of 361 57 witnesses. The witnesses who have been examined can be divided into several categories based on their deposition about different aspects of the case and their testimony would be dealt with at the relevant time and some are general witnesses. PW1, PW2 and PW3 were bank witnesses. PW4, PW5, PW6, PW7, PW8, PW9, PW10, PW11, PW12, PW13, PW14, PW15, PW16, PW22, PW25, PW26, PW49 and PW51 had deposed about the procedure for claiming reimbursement of TA/DA, preparation of the bill, processing of the same, preparation of the cheque and the deposit of the same in the account of the Member and regarding the taking of specimen signatures and writing of A1. PW22, PW38, PW39, PW42, PW45 had deposed regarding the weeding out of the records. PW27, PW28, PW29, PW30, PW31, PW32, PW33, PW34, PW35, PW40, PW43, PW44, PW48 and PW57 had deposed about the tickets, boarding passes, procedure for check-in at the airport and flight manifests. PW46 was the expert from FSL. PW17, PW21, PW23, PW52, PW53 and PW54 pertained to the role of A2.
13. Apart from the above witnesses, PW18 Shri Joginder Singh, Additional Director, Lok Sabha Secretariat deposed that in 2012, he was posted as Dy. Secretary, Lok Sabha Secretariat. Insp. Mohan Kumar, CBI, AC-III, had spoken to him regarding investigation in the present case and recording of statements of employees of Lok Sabha Secretariat and there was also exchange of some correspondence. Whatever documents were asked for, he facilitated handing over of the same to the IO after taking permission from the Hon'ble Speaker, Lok Sabha.
14. PW19 Shri R.C. Tiwari, Joint Secretary, Lok Sabha CBI Vs. Vinay Kumar Pandey & Anr. Page No.14 of 361 Secretariat deposed that he in July 2014, he got the charge of MSA branch. In 2015-16, they received request from CBI that they were investigating the present matter and required some information and assistance and documents also. Insp. Mohan perhaps met him from CBI regarding investigation of the present case. He told him about the rules and procedures and whatever documents and statements were to be taken would be given with the approval of the Hon'ble Speaker. He communicated the approval of the Hon'ble Speaker to the CBI, AC-III and thereafter the documents and statements were taken by the IO during investigation.
15. PW20 Shri T.S. Rangarajan had remained posted as Dy. Secretary in Table Office. He was shown D-107 which is Ex.PW5/D and he identified his signatures on the same and he stated that he had put his signatures on the said document to verify the specimen signatures of Dr. Vinay Kumar Pandey (A1) when he became the MP. He identified the signatures of A1.
16. PW24 Shri Pramod Kumar Sharma deposed that no enquiry was made in the case from him and to his memory, he had not handed over any document to the IO in the present case. PW36 Ms. Roopam Sharma had stated that CBI had not inquired from her in the present matter ever, no document was seized from her nor was handed over by her to the IO of the case.
17. PW37 Shri R.K. Trivedi deposed that in 2017, March he was posted in MSA branch Lok Sabha. He stated that D-109 which is letter dated 07.03.2017 to Shri Mohan Kumar Insp. CBI AC-III bore his signatures and the same is Ex.PW37/A. Vide the said letter he had provided the information as mentioned therein. CBI Vs. Vinay Kumar Pandey & Anr. Page No.15 of 361 He stated that D-115 which is letter dated 27.12.2017 addressed to SP CBI AC-III, New Delhi bore his signatures and is Ex.PW37/B. Vide the said letter he had provided original nomination form (E-form) submitted by Dr. Vinay Kumar Pandey (Ex. MP) containing names of family members. He stated that D-116 which is original nomination form (E-form) submitted by Dr. Vinay Kumar Pandey (Ex. MP) containing names of family members had been handed over by him to CBI and the same is Ex.PW37/C. He stated that D-63 which is letter dated 28.11.2016 addressed to Mohan Kumar, Insp. CBI, AC-III bore his signatures and is Ex.PW37/D. He was not cross-examined on behalf of the accused persons.
18. PW41 Shri Rakesh Tiwari deposed that he was Assistant District Election Officer, Balrampur from 2014 to November 2018 and prior to that he was on the same post in District Azamgarh. He stated that D-117 which is letter No.131/Election/2018 dated 16.02.2018 addressed to SP CBI AC-III was written by him and it bore his signatures and is Ex.PW41/A. Vide the said letter he had handed over the documents mentioned therein to the IO. He stated that D-119 which is certified copy of Electoral Roll of Ward No.1, Ghugalpur Balrampur, UP was handed by him after certifying the same and it bore his signatures and is Ex.PW41/B. The entry regarding the accused Dr. Vinay Kumar Pandey was at point X. He had also issued a certificate under Section 65 B of the Indian Evidence Act in support of the said documents which is Ex.PW41/C (D-118). He stated that he had taken a photocopy from the master copy of Ex.PW41/B and certified the same and given to the IO. He was not cross-examined on behalf of the CBI Vs. Vinay Kumar Pandey & Anr. Page No.16 of 361 accused persons.
19. PW47 Shri Girraj Sharma, Inspector CBI, ACB deposed that in December 2016, he was posted as Inspector CBI, AC-III, New Delhi. Part investigation in the present case was carried out by him and he had seized certain documents. He stated that Ex.PW8/A (D-105) bore his signatures at point B. Vide Ex.PW8/A, the letter Ex.PW8/B (D-106) was seized. He stated that Ex.PW5/B (D-107) was seized vide Ex.PW8/A and Ex.PW5/C (D-108) was also seized vide Ex.PW8/A. He was shown D-7 which is Ex.PW4/H (colly) and he stated that he had seized the Salary, Allowances and Pension of Members of Parliament Act, 1954 but D-7 was not the copy seized by him. He was not cross-examined on behalf of A2. During cross- examination by Ld. Counsel for A1 PW47 stated that he was not the IO of the present case but he was entrusted part investigation of the present case for one day. He did not remember the said date. The case diary was written by the main IO. He had informed Insp. Mohan Kumar who was the IO of the case and done the work as per his instructions. He did not remember if Insp. Mohan Kumar had given him oral or written instructions but a letter was issued by SP. Thus, PW47 had stated that he was not the IO of the case though he was entrusted part investigation of the case for one day.
20. PW50 Shri Ashok Singh Sajwan deposed that he joined Lok Sabha Secretariat on 09.02.1986 as Assistant and in 2016, he was posted as Director in Lok Sabha Secretariat and was Incharge of the Table Office. The MPs who were elected used to take oath in the Parliament House and he was Incharge of CBI Vs. Vinay Kumar Pandey & Anr. Page No.17 of 361 the same. He proved D-67 which is letter dated 05.12.2016 addressed to DIG Asif Jalal, AC-III, New Delhi and is Ex.PW50/A and stated that vide the said letter he had handed over copy of gazette notification of election of Shri Vinay Kumar Pandey as Member of 15th Lok Sabha issued by Election Commission of India which is Ex.PW50/B (D-68). He was not cross-examined on behalf of the accused persons despite opportunity being given.
21. PW55 Shri Attar Pal, Inspector, CBI AC-III deposed that the charge of the case was entrusted to him on 29.01.2021. He had written letters to SBI seeking original account opening form in the name of Arvind Tiwari @ Arvind Kumar. The original account opening form could not be traced. He stated that D-148 which is E-mail dated 02.02.2021 was written by him to SBI Pratapgarh and the same is Mark PW54/8. D-149 which is letter dated 08.02.2021 was written by SP CBI AC-III and was received by SBI Pratapgarh vide receiving of accountant Nisha and the same is Ex.PW54/E. D-150 is letter dated 15.02.2021 written by SBI Pratapgarh to Superintendent Police CBI AC-VIII and is Ex.PW54/C. Vide said letter, account statement was received as also information regarding the Account Opening Form. Certified copy of the Account Statement for the period 23.10.2009 to 01.11.2019 is Ex.PW54/D (colly). D-151 is letter dated 18.03.2021 addressed to SP CBI AC-III by Himanshu Roy, Dy. Director which was marked to him by SP CBI AC-III and is Ex.PW55/A. D-152 is letter dated 12.04.2021 written to SBI Pratapgarh by SP CBI AC-III which is Mark PW54/1. D-153 which is E-mail dated 25.06.2021 written by him to SBI Pratapgarh is Mark PW54/2. D-154 which is letter dated CBI Vs. Vinay Kumar Pandey & Anr. Page No.18 of 361 30.07.2021 written by SP CBI AC-III to SBI Pratapgarh is Mark PW54/3. D-155 is E-mail dated 30.07.2021 written by SBI Pratapgarh to him and is Mark PW54/4. D-156 which is E-mail dated 01.12.2021 written by him to CIBIL is Mark PW55/1. D- 157 which is E-mail dated 04.02.2022 written by SBI, Sansadiya Branch to SP CBI AC-III is Mark PW55/2. D-158 which is certified copy of specimen signatures of Shri Arvind Kumar given at the time of opening the account bearing No.30933155826 was collected by him along with certificate under Section 65B of the Evidence Act and the same are Ex.PW54/A and Ex.PW54/B. He stated that he had sent letters to SBI seeking original admitted signature specimen of accused Arvind Tiwari but the same could not be obtained. Certified copy of photocopy of the specimen signatures of the accused Arvind Tiwari was obtained from SBI, Pratapgarh which is Ex.PW54/A. He had filed the report dated 29.06.2018 enclosed with the letter dated 10.07.2018 which are Ex.PW46/G and Ex.PW46/H. He filed the further investigation report before the Court on 14.03.2022 along with documents and statement of witnesses.
22. PW56 Inspector Mohan Kumar deposed that on 21.03.2016 he was posted in CBI, AC-III, New Delhi as Inspector and remained on the said post from October 2015 to 31.12.2021. He stated that D-1 which is the original of FIR No.RC-02 (A)/2016/AC-III/New Delhi, under Section 120B read with Sections 420, 467, 468 and 471 of IPC and Section 13 (1)
(d) read with Section 13 (2) of PC Act 1988 on 21.03.2016 was entrusted to him for investigation. The FIR is Ex.PW56/A which bore the signatures of Shri Asif Jalal, the then SP, AC-III. He stated that during investigation, he seized the documents as well CBI Vs. Vinay Kumar Pandey & Anr. Page No.19 of 361 as collected documents, recorded statements of witnesses and obtained CFSL report on the questioned documents. He stated that vide Ex.PW3/A (D-10) he had seized the documents mentioned therein. He stated that Ex.PW2/A (D-11) was addressed to him regarding investigation and he had received statement of account No.30780472914 in the name of Shri Vinay Kumar Pandey vide the said letter. He stated that vide seizure memos Ex.PW32/A (D-16), Ex.PW32/C (D-22), Ex.PW3/B (D-
30), Ex.PW12/A (D-36), Ex.PW9/B (D-45), Ex.PW31/A (D-52), Ex.PW31/B (D-55), Ex.PW33/A (D-72), Ex.PW9/D (D-75), Ex.PW34/A (D-82), Ex.PW34/G (D-88), Ex.PW34/M (D-96), Ex.PW8/A (D-105), Ex.PW17/B (D-123), Ex.PW21/D (D-133) he had seized the documents mentioned therein. He stated that vide D-25 which is seizure memo dated 09.08.2016 and is Ex.PW56/B he had seized the documents mentioned therein from Satyapal, Dy. Manager, Vigilance, Air India Ltd. He stated that Ex.PW2/F (D-31) was a letter dated 20.08.2016 addressed to him vide which cheque bearing No.975871 of an amount of Rs.2,50,000/- dated 09.11.2012 in the name of Shri Vinay Kumar Pandey was handed over to him.
23. PW56 stated that vide D-33 which is seizure memo dated 19.09.2016 and is Ex.PW56/C he had seized the documents mentioned therein from Shri Jitender Relan, Sr. Assistant, SBI Ltd. Ex.PW1/B (D-34) was a letter dated 16.09.2016 addressed to him vide which certified copy of cheque bearing No.343384 dated 06.11.2012 of an amount of Rs.10,33,836/- in the name of Shri Vinay Kumar Pandey was handed over to him and the cheque is Ex.PW1/A. He stated that D-40 was notice sent to Shri Vinay Kumar Pandey under Section CBI Vs. Vinay Kumar Pandey & Anr. Page No.20 of 361 91 Cr.P.C. dated 17.10.2016 for providing documents/ information regarding his journey from 01.11.2012 to 03.11.2012 and is Ex.PW56/D. He identified the signatures of Vinay Kumar Pandey on page-1 at point B as he had put the same signatures during investigation and vide the said signatures, he had received the copy of the notice. D-41 is the reply of Shri Vinay Kumar Pandey to the notice under Section 91 Cr.P.C. dated 27.10.2016 and the same is Ex.PW56/E and he identified his signatures (of A1) at point A on the same. He stated that A1 had not provided any documents with the said reply.
24. PW56 stated that Ex.PW9/A (D-44) was marked to him vide initials of Shri Asif Jalal. He stated that Ex.PW9/C (D-
46) was handed over to him during investigation and Ex.PW31/B (D-53) was addressed to him. He stated that Ex.PW46/C (D-57) and Ex.PW46/D (D-58) were written by Shri Asif Jalal to Director G.E.Q.D, CFSL, Lodhi Road, New Delhi and vide the said letter, documents were sent to Director CFSL for examination and report. He stated that Ex.PW17/G (D-59) was addressed to him and also marked to him by Shri Asif Jalal and vide the said letter, documents were received by him from Shri Avinash Chaturvedi, Joint Director, Security, Parliament House. Ex.PW37/B (D-63) and Ex.PW49/A (D-65) were addressed to him and also marked to him by Shri Asif Jalal. Ex.PW32/H (D-
66), Ex.PW50/A (D-67), Ex.PW32/K (D-69), Ex.PW12/E (D-
71), Ex.PW9/E (D-76), Ex.PW8/B (D-106), Ex.PW43/A (D-112), Ex.PW37/B (D-115), Ex.PW41/A (D-117) were addressed to Shri Asif Jalal and were marked to him during investigation and vide the said letters, he had received the documents mentioned therein or the information sought during investigation. D-70 which is CBI Vs. Vinay Kumar Pandey & Anr. Page No.21 of 361 letter dated 09.09.2016 and is Mark PW56/1 was addressed to Shri Asif Jalal and was marked to him during investigation and vide the said letter, he had received the information as mentioned therein. He stated that Ex.PW31/F (D-73), Ex.PW34/C (D-84), Ex.PW34/I (D-90), Ex.PW34/N (D-97), Ex.PW37/A (D-109), Ex.PW17/A (D-124) were addressed to him and vide the said letters the documents mentioned therein were received by him/ information was provided. He was shown D-94 which is Ex.PW46/E and he stated that the said specimen signatures of Shri Vinay Kumar Pandey were obtained by him in the presence of independent witnesses. He was shown D-95 which is Ex.PW46/F (colly) and he stated that the said specimen handwriting of Shri Arvind Tiwari @ Arvind Kumar was obtained by him and volunteered the said specimen handwriting was obtained in the presence of independent witnesses. He stated that D-100 which is letter dated 19.12.2016 of Smt. Veena Sukumaran, Manager, Finance, Air India Ltd. was addressed to him and vide the said letter the documents mentioned therein were received by him. The said letter along with the documents is Ex.PW56/F (colly) (D-100 to 104). He stated that Ex.PW21/E (D-111) was collected by him during investigation.
25. PW56 proved D-113 which is seizure memo dated 17.11.2017 for seizing documents from Shri Prithvi Singh Manager Commercial, Air India Ltd. and the same is Ex.PW56/G. Vide the said memo, the documents mentioned therein were seized. He stated that vide D-120 which is letter dated 10.11.2017 of Shri Prithvi Singh addressed to him and which is Ex.PW56/H, the documents and information mentioned therein were received by him. He stated that Ex.PW21/A (D-128) CBI Vs. Vinay Kumar Pandey & Anr. Page No.22 of 361 was addressed to Superintendent of Police CBI, AC-III and the same was received by him and vide the said letter, the documents mentioned therein were received by him. He proved D-131 which is letter dated 21.11.2017 to Director CFSL, New Delhi, by Shri R. Gopalakrishna Rao, SP as Ex.PW56/I. Vide the said letter, the documents were sent to CFSL for examination. He stated that vide D-136 which is letter dated 12.03.2020 addressed to Branch Manager SBI, Parliament House, New Delhi and is Mark-PW56/2 he had sought the information mentioned therein regarding Arvind Tiwari @ Arvind Kumar S/o Gyanendra Tiwari. He stated that vide D-157 which is letter dated 12.03.2020 addressed to Branch Manager SBI, Sansadiya Soudha Branch, Parliament House, New Delhi and is Mark-PW56/3 he had sought the information mentioned therein regarding Arvind Tiwari @ Arvind Kumar S/o Gyanendra Tiwari. He proved D- 138 which is letter dated 13.03.2020 addressed to HOB, CBI by Chief Manager, SBI, Sansadiya Soudha Branch, Parliament House, New Delhi which he stated was marked to him and is Ex.PW56/J. Vide the said letter, the bank had sought information regarding PAN and account number of Shri Arvind Kumar. He also identified the initials of the then SP Gopal Rao on the same. He stated that vide letter No.169 dated 24.08.2020 Ex.PW55/B (D-139) he had sought information as mentioned therein. D-140 is E-mail dated 10.09.2020 received from Transunion CIBIL Ltd. Mumbai by him on his official E-mail ID and is Mark-PW56/4 (colly). Vide the said letter, some information had been sought by CIBIL from him and the same was accompanied by covering letter dated 31.08.2020. D-141 is E-mail dated 26.10.2020 sent to Transunion CIBIL Ltd. Mumbai from his official E-mail ID CBI Vs. Vinay Kumar Pandey & Anr. Page No.23 of 361 along with other E-mails and is Mark-PW56/5 (colly). Vide the said E-mail, some information had been sought from CIBIL by him. D-142 is E-mail dated 17.09.2020 sent to AGM Vigilance, SBI from his official E-mail ID and is Mark-PW56/6. Vide the said E-mail, some information had been sought by him. D-143 is E-mail dated 21.09.2020 sent by AGM Vigilance, SBI to him on his official E-mail ID and is Mark-PW56/7. D-145 is letter dated 27.10.2020 addressed to Financial Intelligence Unit bearing the signatures of the then Superintendent of Police Shri Santosh Hadimani and is Mark-PW56/8. D-146 is E-mail dated 28.10.2020 Mark-PW54/6 which was sent from his official E- mail ID.
26. PW56 further deposed that D-147 is E-mail dated 17.11.2020 Mark-PW54/7 which was sent from his official E- mail ID. He stated that vide Ex.PW46/I (colly) (D-132) specimen signatures of Shri Arvind Kumar @ Arvind Tiwari, S/o Shri Gyanendra Tiwari were taken in the presence of Shri Jitender Kumar, Supervisor, Air India Ltd. IGI Airport who was an independent witness. He also identified the signatures of accused Arvind Kumar @ Arvind Tiwari at point C on every page who had signed voluntarily in his presence. He stated that after collecting the specimen signatures of accused persons namely V. K. Pandey and Arvind Tiwari, the same were forwarded to CFSL New Delhi for examination. Reports were received and filed in the court. He identified the accused Arvind Kumar @ Arvind Tiwari present in the court. He stated that after completion of investigation, he had filed the charge sheet against A1 and A2 in the Court. After filing the charge sheet, further investigation report was also filed by him on 13.03.2018.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.24 of 361
27. Prosecution evidence was closed vide order dated 13.06.2022. After prosecution evidence was closed, the statement of the accused persons was recorded under Section 313 Cr.P.C. wherein all the incriminating material existing on record including the exhibited documents were put to the accused persons which they denied and stated that they were innocent and had been falsely implicated in the present case. A1 stated that the present case had been registered malafidely due to political rivalry and there was no source of information with CBI. He did not receive any cheque nor deposited any cheque in his account nor he submitted any form for the reimbursement of TA claim. He had not cheated the Government of India and he was ready to pay back the amount of Rs.9,71,384/-. He stated that he had made a similar request to the office of the Hon'ble Speaker of the Lok Sabha when the investigation in the present case started and he came to know of the alleged transfer. However, he was informed that since the CBI had initiated the investigation, no return was permissible. He admitted that he wrote a letter dated 26.09.2012 on his letter head to Secretary General, Parliament, requesting for issuance of a PA/PS pass in favour of A2 who was his personal secretary from 26.09.2012 onwards on the basis of details given by him in the form for the issuance of General Pass for PS/PA of an MP to the Centralised Pass Issue Cell, Lok Sabha Secretariat with his signatures, however, it was not a general pass but a pass for PA/PS. He stated that Ex.PW56/A (FIR) was legally not admissible. He stated that in respect of other TA/DA bills, it was mentioned in the statement of account that the payment was against TA/DA bills whereas it was not so reflected by the entry in respect of the alleged transaction. He stated that CBI Vs. Vinay Kumar Pandey & Anr. Page No.25 of 361 being PS, the amount of Rs.2,50,000/- was withdrawn by A2 and the same was done in routine for miscellaneous expenses. He stated that the PS was authorized to withdraw cash against cheques.
28. A1 further stated that the alleged TA/DA bill had overwriting at two places and it did not contain the names of the passengers so the TA/DA form was not properly filled. He stated that in the present case there was a clear discrepancy in relation to the ticket numbers which allegedly was different from the alleged ticket number of the present case and that despite there being discrepancy especially in the ticket number Ex.PW5/A, no verification was got done. He stated that the name of the companions had to be mentioned in the TA/ DA form. He stated that the alleged weeding out of records was illegal and it caused great prejudice to him in defending his case before the Court. He stated that he had not signed the alleged form Ex.PW4/E. He had neither given Ex.PW4/E to be processed for reimbursement nor did he give any ticket and boarding passes. He stated that in the present case no proper verification of the signatures on the TA form was done from the specimen signatures. He stated that PW5 was not an expert to identify correct signatures and Ex.PW5/A was a manipulated document and was not admissible in the eyes of law. He stated that Ex.PW5/B did not bear his signatures and was manipulated and not admissible in the eyes of law in the absence of valid certificate under Section 65 B of the Indian Evidence Act, 1872. He stated that the entries regarding the bills in Ex.PW10/A had been manipulated. He stated that the cheque bearing No.343384 dated 06.11.2012 for Rs.10,33,836/- for a consolidated amount towards two different trips was not to his CBI Vs. Vinay Kumar Pandey & Anr. Page No.26 of 361 knowledge. No policy or guidelines existed for issuing a consolidated cheque for more than Rs.10 Lakhs nor had been shown by the prosecution therefore, it was clear that there was a manipulation and he had been falsely implicated.
29. A1 further stated that none of the alleged documents attributed to him by the prosecution produced before the Court bore any particular account number allegedly provided by him because of which the alleged consolidated cheque could be prepared. He stated that the certificate under Section 65 B of the Indian Evidence Act Ex.PW21/B was defective in the eyes of law. He stated that the duty register Ex.PW27/A was a manipulated document. He stated that as per PW27, it was only a computer generated list of passengers and not the check in history. PW27 did not say that D-21 was a flight manifest. He stated that D-54 was not admissible in the eyes of law. He stated that all the exhibits Ex.PW29/A to Ex.PW29G (colly) were computer generated electronic documents and were not admissible in the eyes of law without they being accompanied by a valid certificate under Section 65B of Indian Evidence Act, 1872. He stated that as per PW30, he was an employee of a company working for revenue accounting of Air India. However, no account statement or any document in relation to the revenue accounting was ever produced by him with regard to the revenue generation from the alleged flight. PW30 had stated in cross examination that the alleged flight manifests were received by his office in manual form and then digitized by his office. The alleged flight manifests were received in In and Out department of his company and the said department scanned the same with which he had no concern. Thus, the certificate issued under CBI Vs. Vinay Kumar Pandey & Anr. Page No.27 of 361 Section 65B of Indian Evidence Act, 1872 was defective in the eyes of law. He stated that the documents Ex.PW30/B and Ex.PW30/C (colly) and Ex.PW30/D were not admissible in the eyes of law. He stated that Ex.PW31/A was a manipulated document and Ex.PW31/B and Ex.PW31/C and Ex.PW31/E (colly) were not admissible in the eyes of law and Ex.PW31/D and Ex.PW31/F were manipulated documents. He stated that Ex.PW31/G (colly) were manipulated and were not admissible in the eyes of law. He stated that Ex.PW32/A, Ex.PW32/B, Ex.PW32/C, Ex.PW32/D and Ex.PW32/E were manipulated documents. He stated that the alleged flight manifests were inadmissible in the eyes of law. Vide the letter Ex.PW32/G, it was stated that Mr. Pirakalathan Sr. Manager (Commercial Admn.), Air India Ltd., Chennai had informed that the documents i.e. flight manifest requested were not available as the same were retained for two years only as per official procedure. In this regard, Mr. Pirakalathan had enclosed a copy (manual for passenger services at Airport). Vide the said letter, it was further stated that pertaining to PNR No.YKX5C, the Reservation Manager Air India Ltd, New Delhi had informed that the details could not be traced from the historical record for the flight/ sector mentioned in the letter as mentioned. He stated that the documents Ex.PW32/H and Ex.PW32/I (colly), Ex.PW32/K and Ex.PW32/L were manipulated and were not admissible in the eyes of law. He stated that Ex.PW33/A was a manipulated document.
30. A1 stated that in his cross examination PW34 had admitted giving statement to the IO vide Ex.PW34/P1 wherein he had stated that "in case of VIP/CIP, if the protocol is doing the CBI Vs. Vinay Kumar Pandey & Anr. Page No.28 of 361 check-in then the same would be in the knowledge of PRO and the person who collect the boarding card give his contact number and the same is filled in the check in system as remark. Such person from protocol has to present all valid documents e.g. ticket, passport etc". He stated that Ex.PW34/A was a manipulated document and the certificate Ex.PW34/B did not show that PW34 had himself taken the printout, apart from satisfying the other conditions as stipulated under Section 65 B of the Indian Evidence Act, 1872. He stated that Ex.PW34/C, Ex.PW34/D, Ex.PW34/E, Ex.PW34/F Ex.PW34/G, Ex.PW34/I, Ex.PW34/J (colly), Ex.PW34/K (colly), Ex.PW34/L (colly), Ex.PW34/M and Ex.PW34/N were manipulated and they were not admissible in the eyes of law. He stated that the certificates Ex.PW34/H and Ex.PW34/O did not show that PW34 had himself taken the printouts, apart from satisfying the other conditions as stipulated under Section 65B of Indian Evidence Act, 1872. He stated that no material or guideline had been placed on record that the check in history could be deleted from the system. He stated that the statement of PW48 was contrary to the statements of the other prosecution witnesses and PW44 and PW48 had deposed falsely in the present case. He stated that even as per the record of the Lok Sabha Secretariat i.e. Ex.PW37/C, his children did not use the surname Pandey rather used the surname 'Vatsa' which facts were also mentioned in the supplementary charge sheet. In fact the alleged TA/DA claim should have been returned by the MSA branch of the Lok Sabha Secretariat on the said ground alone.
31. A1 further stated that the documents Ex.PW34/R (colly) to R20 (colly) were manipulated and they were not CBI Vs. Vinay Kumar Pandey & Anr. Page No.29 of 361 admissible in the eyes of law. He denied that in the actual record of the Airport the hard copy was maintained for two years for their reference purpose and in the data base system it was maintained for 10 years as per the Air India Manual. He stated that the certificate filed under Section 65B of the Indian Evidence Act (Ex.PW41/C) was a defective certificate apart from not satisfying the other conditions as stipulated under Section 65B of the Indian Evidence Act, 1872. He stated that the report Ex.PW46/B was incorrect and inconclusive and was given under the influence of CBI against him. PW46 could not be said to be an expert as no material/documents were placed by her on record to show her expertise in the field. He stated that no fair investigation was conducted by PW56. During the investigation, documents were manipulated, statements of witnesses were influenced and no effort was made to prosecute the real culprits by the CBI. He stated that Ex.PW56/B, Ex.PW56/C, Ex.PW56/F (colly), Ex.PW56/G, Ex.PW56/H were manipulated documents and were not admissible in the eyes of law.
32. A1 stated that as per law, no notice under Section 91 Cr.P.C. could have been issued to him seeking information from him in relation to which he was already facing criminal investigation. He admitted that his reply is Ex.PW56/E. He had categorically mentioned in the said reply that he had visited Port Blair once during his tenure as a Member of Parliament in the capacity of the Member of the Estimates Committee of the Parliament in the year 2012-13. He had further stated that he did not remember the exact dates of his visit to Port Blair and the same could be obtained from the Parliament along with other details. However, the IO did not investigate the said aspect CBI Vs. Vinay Kumar Pandey & Anr. Page No.30 of 361 deliberately. It was then to his information that the said dates and duration of visit were from 09.01.2013 to 16.01.2013 which was mentioned at page No.51 of Ex.PW5/C (D-108). The tour was from Lucknow to Delhi to Goa, Mangalore, Chennai, Port Blair, Chennai, Tirupati, Delhi, Lucknow. An amount of Rs.402005/- was reimbursed to him on account of the said travel as TA/DA. He stated that the investigation was conducted by PW56 in a malafide manner and with a view to falsely implicate him under the influence of higher officials/ political masters. He stated that the statements were proved only to the extent of the said part of the statement which had been confronted to the witnesses. He stated that the witnesses had deposed against him under the influence of CBI.
33. A1 stated that he was highly qualified, Science graduate from Lucknow University, Post Graduate in Botany, PHD from RML University in Paleobotany. He had been an MLA twice. He was also a Minister in UP Government. His political career had started from the lowest level of Gram Panchayat and he rose to be MP spanning 30-32 years. He had no blot during his entire political career or as a student. He had a very good family background, educational as well as wealth. His grandfather was MLA and graduate in 1930 from Banaras Hindu University. His father was also Professor and HOD of Physics Department in BRD PG college, Deoria, UP. His children had a good educational background and his family held about more than 50 acres of agricultural land from which they had sufficient income which was sufficient for his expenses and of his family. As MP, he had a lot of responsibilities and he was a Member of several committees. He was the convener of UP Legislature Party in Lok CBI Vs. Vinay Kumar Pandey & Anr. Page No.31 of 361 Sabha, Member Standing Committee of HRD, Standing Committee of Agriculture, Member of Lok Sabha Committee Paper Laid on the Table, Consultant Committee of Information Technology and Telecommunication, Executive Committee of VV Giri National Institute, Noida, Member Executive Committee of JNU, Member Hindi Salahkar Samiti, Revenue and Finance, State Convener of MSDP of Ministry of Minorities, Private Member Writ Committee of Lok Sabha. He was a Member of more than one dozen Committees at State and District Level and even Chairperson and Co-Chairperson of several committees.
34. A1 stated that there was so much of volume of work that he did not have time to scrutinize everything and was dependent on the staff for submitting the file, getting tickets done, for the programmes which were organized, tours, meetings. Even for several personal works, they were dependent on the staff and the staff used to look after bank work and manage the other staff. He did not receive any bank statement and for expenses, they used to give the money to the staff and even for depositing in the account the money was given to the staff. He stated that it was possible that the staff or someone misused his account or as part of conspiracy to tarnish his image. He did not even have the time to take an account from the staff of the expenses incurred. The relevant documents and witnesses had not been produced by CBI in the present case and the most important evidence that was the alleged air travel records had been illegally weeded out by the Lok Sabha Secretariat causing serious prejudice in defending his case. He stated that he used to give cash to Arvind Tiwari to deposit in the bank during the said period for which he never took any account from him whether he CBI Vs. Vinay Kumar Pandey & Anr. Page No.32 of 361 had deposited the same or not. He used to give cash salary to Arvind Tiwari and not just to him but he was also paying his driver, cook etc. in cash and Arvind Tiwari being the PS used to manage everything.
35. A2 in his examination under Section 313 Cr.P.C. also stated that he had been falsely implicated in the present case. He stated that he had never received any salary or allowance from A1 as PA of A1 but he had for him on specific occasions. He stated that the allegations were incorrect and there was no specific evidence or witness produced by CBI to prove the information received from any informant. He admitted that he had received a sum of Rs.2,50,000/- through cheque of A1 and the same was for day to day expenses as the people from constituency of A1 used to frequently visit the residence of A1 and he had taken some of the responsibilities of A1 and in discharge of the same, a sum of Rs.2,50,000/- was given to him through cheque of A1. He stated that what PW4, PW5 and PW7 had deposed regarding the procedure to get TA/DA claim reimbursed was a part of the procedure that was to be followed for TA/DA claim. He knew about the same because he had worked for some MPs as PA. He stated that in the present case, in his knowledge no verification had been done by the Lok Sabha Secretariat from the Airlines. He stated that the weeding out of the original documents had caused prejudice to him for defending his present case.
36. A2 stated that in his knowledge, he was not knowing about the alleged TA/DA form. He stated that he had never received any salary and allowance from A1. He had association CBI Vs. Vinay Kumar Pandey & Anr. Page No.33 of 361 with him to take care of the people who used to come at the residence of A1 from his constituency especially regarding their medication in AIIMS, Safdarjung, their arrangements for railway tickets etc. He stated that in the present case he had not received any cheque on behalf of A1. He admitted that on various occasions he had visited Lok Sabha Secretariat and even Parliament House but for that the CISF followed all the protocols of security and photographs were taken. In the present case, CBI had not filed any evidence of his photographs being taken by CISF. He admitted that A1 had issued letter for issuance of pass to him as PS but his role was specified only to the extent of taking care of the affairs of A1 at his residence especially regarding the management of staff and taking care of the people who used to come at the residence of A1 from his constituency. He stated that the certified copy issued by PW17 that is D-60 and Ex.PW17/H was not a valid document and it was defective in the eyes of law. He admitted that request of renewal of his appointment as a PS of A1 was made by A1 but nowhere in the records his signature was taken and in the records especially in the document Ex.PW17/H, his signatures were not available. He stated that in the present case, the alleged form for issuance of pass for PA/PS had not been filled up by him and further his photographs were not taken by the CCS technical wing of the Parliament. He stated that the document Ex.PW21/B was not a valid document as per Section 65B of Indian Evidence Act. He stated that he had gone to the Parliament premises for some work but it was not related with filing any TA/DA form. He admitted that his pass for PA/PS was extended time to time but he had never filled up the form for issuance of pass and never ever his CBI Vs. Vinay Kumar Pandey & Anr. Page No.34 of 361 photographs and signatures were taken by security personnel or concerned officials engaged in the security of the Parliament. He was not aware whether pass bearing No.0701/1546 was issued to him or not as he had never applied for issuance of pass to him as PA/PS of accused No.1.
37. A2 stated that he had never gone to the Parliament premises to collect the pass as PA/PS of A1. He stated that 143, South Avenue was allotted to A1 and he was not residing at the said address. His address at that point of time in Delhi was at Masjid Mod, South Ex. Part-II. He stated that the documents mentioned in the testimony of PW29 were not admissible in the eyes of law. He stated that as per his knowledge, the kids/children of A1 did not use the surname Pandey but used the surname Vatsa. He stated that the alleged specimen signatures were never taken from him in the presence of Ajay Kumar Meena and Satyajeet Kumar. He stated that PW54 Manoj Kumar Ojha deposed before the Court in the pressure of CBI. He did not have any bank account in Pratapgarh UP and he had never visited Pratapgarh UP till date. The documents brought and produced by PW54 were not related with him. He stated that the document Ex.PW54/B was not valid in the eyes of law as per Section 65B of the Indian Evidence Act. He stated that the bank statement attached along with Ex.PW54/C as Ex.PW54/D did not belong to him. The said document did not provide the father's name. He stated that his father's name is Shri Gyanendra Tiwari. The said document further did not give the permanent address. His permanent address is/was Village Purenia, Bangai Gonda, UP. The bank account opening form did not contain his photograph. Further, it did not have his specimen signature. He stated that the CBI Vs. Vinay Kumar Pandey & Anr. Page No.35 of 361 certificate issued by PW54 was false and fabricated.
38. A2 further stated that PW55 without doing any homework had written letter and mails to various branches of SBI to collect his admitted signatures. By the time investigation was entrusted to him, he had his admitted signatures in the bail bond filed before the Court. His admitted signatures were in the various applications especially for regular bail and cancellation of non-bailable warrant. He stated that inspite of having various admitted signatures filed before the Court, the IO was writing letters and mails to various branches just to get signatures of someone having his name just to mislead the Court. He stated that PW55 did not file any document or witness who was really connected with him. In fact he filed the documents and witnesses pertaining to some other Arvind. He stated that PW56 manipulated various documents especially he did not take his specimen signature in the course of investigation. Further, he had never taken his signatures in the course of investigation before the alleged two independent witnesses.
39. A2 stated that in his knowledge, all the information and later on the FIR lodged against A1 and him were just part of a political conspiracy. His name had been given in the present FIR merely because he was taking care of the affairs of A1 at his residence and it was an attempt to tarnish the political image of A1. He stated that in his knowledge, PW56 had not filed any bank account details related to him; PW56 had not filed any incriminating evidence against him. Further investigation was done by him and even then he had not filed any document related to him. He stated that the witnesses had deposed falsely under the CBI Vs. Vinay Kumar Pandey & Anr. Page No.36 of 361 influence of CBI. He stated that CBI had implicated him in the present case along with A1 as part of a political conspiracy just to malign the reputation of A1 and he had been made accused in the present case merely because he was associated with A1 and taking care of affairs related to the residence of A1 especially persons coming from his constituency and taking care of other staff.
40. The accused persons stated that they wanted to lead evidence in defence and A1 produced Shri Deepak Jain as DW1 who deposed that he was working as a private handwriting and fingerprint expert since 1990. During the said period, he had examined thousands of documents of disputed nature and already given his report/ opinion in more than four thousand cases. He had done his B.Sc., afterwards he obtained one year certificate in forensic science from Delhi University in the year 1987-88, he had also obtained practical training in all aspects of handwriting and fingerprint examination for about two years and also made special studies in the said fields. He stated that in the present case, he had examined the disputed signatures Q-1 from the document bearing No.D-3, marked Q-9 and Q-10 from document bearing No.D-7 and compared the same with the comparative signatures marked as A-1 to A-4 from document bearing No.D- 15, marked A-5 from document bearing No.D-9 and marked S-1 to S-8 from document bearing No.D-94.
41. DW1 stated that he had examined and compared the said documents from the court record with due permission from the Court on 23.07.2022 with the aid of necessary scientific instruments and also taking their exposures with the digital CBI Vs. Vinay Kumar Pandey & Anr. Page No.37 of 361 camera from which their enlarged photographs had been got prepared by him under his instruction. After examination and comparison from the documents as well as from the enlarged photographs, he came to the conclusion that the disputed signatures marked Q-1, Q-9, Q-10 were not written by one and the same person Shri Vinay Kumar Pandey whose comparative signatures are marked A-1 to A-5 and S-1 to S-8. The details of reasons and observations on the basis of which he had formed the said opinion are mentioned in his report dated 01.08.2022 which is Ex.DW1/A. The photographs which are 32 in number are pasted on six juxtaposed chart papers and are collectively Ex.DW1/B (colly). The certificate under Section 65 B of Indian Evidence Act is Ex.DW1/C. He had also enclosed his profile with his report Ex.DW1/D. He stated that the photographs Ex.DW1/B (colly) are the true photographs of the signatures under comparison.
42. A2 produced 3 witnesses in his defence and DW2 Shri Rajeev Ranjan Roy, Senior Manager cum Branch Head, Indian Bank, Arya Nagar Branch, District Gonda, UP produced the certified copy of the account opening form of account bearing No.7008610871 in the name of Arvind Kumar, S/o Shri Gyanendra, R/o Purainia Bangai, Gonda, U.P. which is Ex.DW2/A. He stated that there was no transaction in the said account. The said account was opened on 06.04.2021.
43. DW3 Shri Nikhil Chauhan, Dy. Manager, SBI, Parliament House Annexe proved the certified copy of the account opening form of account bearing No. 32207674446 in the name of Arvind Kumar, S/o Shri Gyanendra, R/o H.No.63, CBI Vs. Vinay Kumar Pandey & Anr. Page No.38 of 361 Purainia Bangai, Gonda, U.P. as Ex.DW3/A. He stated that the said account was opened on 25.02.2012. DW4 Shri Sohan Beer Singh, Manager, SBI, Green Park Branch deposed that the account did not pertain to his branch but to branch bearing code No.1065 which was near Uphaar Cinema. Defence Evidence was closed vide order dated 01.09.2022.
ARGUMENTS
44. I have heard Shri Pankaj Gupta, Ld. Sr. PP for CBI and Shri Vikram Singh Panwar and Shri Manoj Pant, Ld. Counsels for A1 and Shri Abhay Pandey, Ld. Counsel for A2 and perused the record. The Ld. Sr. PP for CBI had argued that the case was registered on 21.03.2016 on source information under Sections 120-B, 467, 471 and 420 IPC and Section 13 (2) read with Section 13 (1) (d) of PC Act against A1, A2 and unknown public servants. The case of the CBI was that A1 without availing journey, from the entitlement of 34 journeys to an MP, along with 6 companions had taken reimbursement of more than Rs.9,71,000/- towards Travelling Allowance and thereby cheated the ex-chequer. It was submitted that there was no need of sanction in the present case. Thereafter charge was framed against A2 for the offence under Section 420 read with Section 120B IPC and against A1 for Sections 120 B, 420, 32 IPC and Section 13 PC Act and no charge was framed for Sections 467 and 471 IPC as there was no charge sheet in respect of the said offences. The prosecution in support of its case had examined 57 witnesses who had fully supported the case of the prosecution. The defence had also examined 4 defence witnesses but no doubt was created in the case of the prosecution.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.39 of 361
45. It was contended that the alleged journey was performed by A1 and his companions from 01.11.2012 to 03.11.2012 from Delhi to Chennai to Port Blair to Chennai to Delhi; on 05.11.2012 the TA/ DA bill was submitted and the same was reimbursed on 06.11.2012 for which a consolidated cheque in respect of two bills was given. The CBI had proved the check-in history and all evidence though they had not been able to work out the role of Air India officials and on whose instructions the check-in history was deleted. It was submitted that on the basis of the boarding passes which had been generated and were presented, A1 had got the reimbursement. Reference was made to the testimony of the witnesses and it was submitted that PW1 had proved D-35 which was the cheque dated 06.11.2012. A1 had taken the defence that he did not know about reimbursement of the said amount but it was submitted that in 2012, an amount of Rs.9 lakhs or so was a huge amount and it could not be that A1 was not aware of the said amount coming to his bank account. PW2 had proved the statement of account and the same showed that the amount had been credited into the account of A1 and thereafter on 09.11.2012 an amount of Rs.2,50,000/- was debited. Again the date was relevant as A1 had taken the defence that he was not aware as to who had taken out the money and what amount but the signatures of A2 were there on the back of the cheque and the name was also written which showed the role of A2 as well. The account opening form was proved and the cheque which was used to withdraw the amount was also proved. A2 had tried to create confusion between Arvind Kumar and Arvind Tiwari but he used both the names interchangeably and nothing much had come out in the cross-
CBI Vs. Vinay Kumar Pandey & Anr. Page No.40 of 361 examination of PW2 to doubt the case of the prosecution.
46. It was submitted that PW3 had proved the seizure memo and PW4 had stated about the weeding out of documents. A defence taken by the accused persons was that the tickets etcetera had not been verified from Airlines and PW4 had stated that in normal course, the said documents were not verified and in the present case as the boarding passes etcetera were available so the documents were not verified from the Airlines. PW4 had also proved the procedure for weeding out of documents and though PW4 had not identified the signatures of A1 but the same had been identified by another witness and nothing much had come out in the cross-examination of the said witness. PW5 had stated about the procedure and identified the signatures of A1 and stated that MPs were allotted to the officials. PW6 was a formal witness who told about the process of reimbursement. PW7 was also a procedural witness and PW8 was a witness to the seizure. PW9 had proved certain documents. PW10 had stated about the procedure and some documents and all witnesses had stated about the procedure. It was argued that there was no dispute that the bill was submitted though A1 had produced an handwriting expert who was a paid and interested witness. It was the case of CBI that A1 had not availed the journey but had taken reimbursement for the purported journey. It was argued that A1 was not an ordinary public servant but an MP.
47. The Ld. Sr. PP for CBI had submitted that PW11 had stated about the reimbursement of the amount and PW12 was a witness to the seizure of documents. PW13 was the cheque issuing authority and PW14 was signatory to the cheque. PW15 CBI Vs. Vinay Kumar Pandey & Anr. Page No.41 of 361 had stated about preparation of the cheque. PW17 had stated about the pass and whether A2 was the PA or not and about the letter of A1 for issuance of pass. PW19 had deposed about the permission for investigation and had proved the letter to CBI. PW20 had verified the signatures and PW21 had stated about the pass issued to A2 and had also stated about the earlier passes. PW22 had deposed about the weeding out process. PW23 was relevant as A2 had tried to dispute his address. PW24 was a formal witness and PW25 had stated about the general procedure and PW26 had also stated about the procedure. PW28 had stated about the SITA system and that if a ticket had been generated, then it had to be reflected and on the basis of PNR, boarding passes were generated and then deleted. PW29 had also stated to the same effect and had stated about the flight manifests. PW30 had stated about ticket sales and had proved the relevant certificates under Section 65B of the Indian Evidence Act. PW31 had stated about generation of tickets. PW32 had proved the flight manifests and the seizure memo and documents. PW33 had stated about the flight manifests and the cross examination of the said witness was important. PW34 had stated about booking of tickets and that if the journey had been performed, then the entire record was maintained. PW35 and PW36 were formal witnesses. PW37 had proved D-109 and D-115. PW38 was a formal witness. PW39 was the Joint Secretary and he had stated about weeding out of documents and that after his permission, the file was sent for weeding out of documents.
48. It was submitted that PW40 had stated about the PNR being reflected. PW41 was the Election Officer and PW42 had stated about weeding out as also PW45. PW46 was GEQD and CBI Vs. Vinay Kumar Pandey & Anr. Page No.42 of 361 gave the report on the documents and handwriting. PW47 was a witness to the seizure. PW48 was the Customer Service Agent who had stated about deletion of entries by Nida Khanam. PW49 had proved D-65 and PW50 was a witness to the seizure. PW51 had stated about the specimen handwriting, signatures of A1 being taken in his presence and PW52 had also deposed to the same effect. PW53 had stated about specimen writing of A2 being taken in his presence. PW54 was a bank official and proved the signatures in the account of A2 and the report on handwriting of A2 was there. PW55 was the IO to the supplementary charge sheet regarding Airport officials. PW56 was the original IO and he proved the FIR and identified the signatures of the then SP. He also stated about recording statements of witnesses and filed the charge sheet. PW57 proved D-104. DW1 Deepak Jain had stated that the signatures were not of A1 but suggestions were put to him and he was an interested witness. It was submitted that the prosecution had proved its case beyond reasonable doubt and A1 had not availed the journey but took reimbursement so the case of the prosecution was proved.
49. The Ld. Counsel for A1 had argued that the case was instituted before the Court on the basis of FIR dated 21.03.2016 which is Ex.PW56/A. The same was registered after nearly 3½ years of the date of the alleged incident. It was the admitted case of the prosecution that prior to registration of FIR, no show cause notice was issued to A1 by Lok Sabha Secretariat or any other department to ask his version about the case. It was not the case that the version of the accused could not have been sought but straightway the FIR was registered. As per the information in the FIR, prima facie, forged documents were used by A1 to claim CBI Vs. Vinay Kumar Pandey & Anr. Page No.43 of 361 reimbursement. It was submitted that the case of CBI at the initial stage was on the basis of forged documents but the charge did not talk about forgery specifically though it related to forged documents. FIR was registered on the basis of source information that the accused had taken fake and forged e-tickets and boarding passes and he had got generated fake e-tickets and forged boarding passes. Investigation was thereafter conducted. It was submitted that the FIR was not proved in accordance with the procedure established by law as the author of the information was Asif Jalal but he was neither a cited witness nor examined before the Court. PW56 had proved the FIR who had stated in his examination in chief merely about identifying the signatures and as such only the signatures were proved but not the contents of the FIR. In the said circumstances, the information was not proved as the relevant witness was not examined. It was contended that if the FIR could not be read in evidence, then only the statements of the witnesses remained. Some witnesses were examined to state that there were fake e-tickets and forged boarding passes but none of the witnesses had appeared before the Court to say that the boarding passes were forged so the said submission could not be considered.
50. It was submitted that the first charge sheet was filed by CBI on 24.12.2016 in which 34 witnesses were cited as well as 108 documents were referred to. The allegations in the FIR were reproduced. Only witnesses to a certain extent were examined and the statements and material were placed before the Court and important aspects were left open to investigation i.e. the generation of PNR number and of boarding passes and deletion of check-in-history and the same were not placed before CBI Vs. Vinay Kumar Pandey & Anr. Page No.44 of 361 the Court in the first charge sheet. The second aspect related to weeding out of the records and not a single witness to weeding out was examined and made part of the first charge sheet. It was submitted that the first charge sheet was half baked and limited to application for reimbursement, form for reimbursement, issuance of cheque and deposit of the same and it was not a case of direct evidence. There was no witness as per the first charge sheet who said that he had seen A1 getting PNR generated or who stated that A1 was associated with generation of PNR or connected with issuance of boarding passes or had presented himself or someone else to receive the boarding passes. There was nothing that A1 or A2 was instrumental in getting the check-in-history deleted. There was no one who had witnessed the signing of the TA form or as regards the deposit of cheque. It was clear that A1 had not deposited the cheque in his account and the same was directly deposited in the account so there was no direct evidence of A1 taking part in the crime and there was only circumstantial evidence.
51. The Ld. Counsel had further submitted that 57 witnesses were relied on and examined by the prosecution and their testimonies were taken as incriminating and put to A1 under Section 313 Cr.P.C. Reference was made to the law on circumstantial evidence and the test laid down by the Hon'ble Supreme Court in Ramesh Bhai & Ors. v. State of Rajasthan (2009) 12 SCC 603. It was submitted that tests were laid down, that is, the chain must be complete, circumstances should be proved and innocence has to be disproved. In the present case, the CBI had sought to prove the opinion of the expert on TA form against A1 and the circumstance was that the money had come to CBI Vs. Vinay Kumar Pandey & Anr. Page No.45 of 361 the account of A1 but the same could not be an offence and could be only a circumstance to link the chain. As per the case of the prosecution, to process the form, forged documents were annexed such as tickets and the claim was obtained by A1 but the same was not proved and that the documents were forged was also not proved. The tickets and the boarding passes were not seized. The data may get destroyed but there would be data prior to generation of the record but the same was not produced or investigated into. It was submitted that the investigation was completely silent as to who got the e-tickets generated and from whom so the chain was broken and if some part of the circumstantial evidence was not proved, then the chain stood broken and the same was also contrary to the stand of CBI.
52. It was pointed out that the second charge sheet was filed under supervision of the Court. CBI knew the procedure and had access to the records. Deepak Mathur who was part of the first charge sheet was examined and he had proved the check-in- history and deletion so it meant that A1 knew someone in the Airlines who made the entry and deleted it but the most relevant witnesses were not examined when the first charge sheet was filed and the same was only done to sustain the allegation of e- tickets and boarding passes being forged. On 14.03.2018 the supplementary charge sheet was filed and that was the completion of the charge sheet but what the CBI could not trace was not there and what was not investigated in the first place was done by way of the second charge sheet and deliberately materials and witnesses had been withheld while filing the first charge sheet. The Ld. Counsel referred to the witnesses i.e. N.S. Nair, Sonali Pandey and Nida Khanam who were joined as CBI Vs. Vinay Kumar Pandey & Anr. Page No.46 of 361 witnesses in the second charge sheet. It was submitted that in all 15 witnesses from Airlines, 3 from Bank, 6 in respect of weeding out, 6 from MSA Branch who processed the bill, 10 from Pay and Accounts Office and 3 who deposed about issuance of security pass were examined. Some witnesses deposed about the specimen signatures and election record, 4 related to A2, 2 witnesses from Lok Sabha were general in nature, 3 were from CBI and 1 handwriting expert was examined. One defence witness was examined by A1. As per the material in the second charge sheet, the Airlines had the check-in-history which contained the names of passengers and reflected the boarding passes which showed that the boarding passes were generated and then the check-in-history was deleted. However, there was no answer by the prosecution as to what happened to the boarding passes.
53. The Ld. Counsel for A1 had argued that the charge referred to claiming of reimbursement by submitting of TA form with fake and forged documents without performing the journey and the amount being received in the account of A1 and misuse of official position. A1 was charged with conspiracy and the substantive offences under Section 420 IPC and PC Act and the basis of all the charges was fake e-tickets and boarding passes. A2 was charged only in relation to Section 120B read with the offence of cheating and not under PC Act. It was submitted that it was incumbent upon the prosecution to show that A1 claimed reimbursement but only the report of the expert was there which was not conclusive and even the submission of the TA form was not attributed to A1. Fake tickets and boarding passes were not proved. Generation of the same and forgery were not proved and CBI Vs. Vinay Kumar Pandey & Anr. Page No.47 of 361 they were stated to have been weeded out. As regards the question of loss to the ex-chequer, the same should have come from someone who was not from CBI. Even for inducement, someone should have come forward and said that he was induced. Rather the witnesses had stated that they had checked and found everything in order and what they did was to the best of their intention and there was nothing wrong in clearing the bills. No witness had alleged inducement so Section 420 IPC was not made out. It was argued that CBI had the prerogative to investigate but the allegation of cheating must come from another agency. As regards Section 120B IPC, the evidence led was of issuance of pass to A2 and the evidence was nowhere near the actual evidence led. It was contended that there has to be proximity to the circumstances and the offence alleged but request for issuance of pass was not a circumstance proximate to the offence and in the absence of any positive evidence of conspiracy it could not be assumed and presumed that the pass was issued in furtherance of conspiracy on the asking of A1 to A2. There was a general statement by the witnesses from MSA branch that PA/PS of the MP used to visit but in the present case there was nothing to show conspiracy to commit the offence. The allegations were not near to the offence but were far-fetched. It was argued that the circumstances had to be first proved by the prosecution beyond reasonable doubt as per the settled law.
54. The Ld. Counsel had referred to the testimony of PW48 Sonali Pandey and that she had spoken of a PNR number so PNR number was existing but there was no evidence as to from where it was generated, who generated the same and when it was generated. Moreover, the witness was first shown the CBI Vs. Vinay Kumar Pandey & Anr. Page No.48 of 361 document instead of first speaking about it. The witness had stated about the boarding passes being generated so it could not be said that they were forged and the witness had stated that the boarding passes were genuinely issued. There was no ticket number and the same was not a part of the investigation and the statement of PW48 and there was no corroboration of her testimony meaning that no money was paid against the generation of boarding passes and there was also no answer to the question that after generation of boarding passes where did they go. PW48 had stated about the generation of boarding passes but did not speak about handing them over to A1 or anyone else or even to the Counter Manager or keeping them with herself and the same had to be explained by CBI. The IO was cross-examined in this respect and he stated that he did not know about the same. The witness had developed a new theory that if there was no ticket, then there could be no flight coupon and there was nothing in the present case to show that the debit was on which employee. During cross-examination PW48 had stated that when boarding pass was issued, flight coupon or ticket number had to be reflected and that was an improvement but it was not even corroborated so it was at best a hypothesis. There was no evidence produced by the prosecution to prove that A1 or A2 were present in the airport that day or then they made the exit entry. If the boarding passes were generated, how did they come out was not shown. PW48 had forgotten who was the Duty Manager or the Counter Manager.
55. It was contended that CBI had produced N.S. Nair as PW27 but he created another hole in the story of the prosecution as he stated that there could not be check-in-history without CBI Vs. Vinay Kumar Pandey & Anr. Page No.49 of 361 ticket number and even PW48 had stated that. CBI had produced the deleted check-in-history without the ticket number whereas their own witness had stated that check-in-history could not be without the ticket number. Nair had stated that he did not give instructions so on whose instructions PW48 generated boarding passes was not clear and who handed over the boarding passes to whom was not clear. Even the ID number of PW48 was not established and merely because she had come before the Court, the ID number could not be believed and she could be a propped up witness and she had no clue who gave her instructions or where the boarding passes went. It was contended that PW48 was an introduced witness to complete the chain. PW44 Nida Khanam who deleted the check-in-history reiterated that the ticket number was there. This also showed that the system was open for making alteration and modification in the system either completely or to some extent. No one had stated if the ticket numbers could be removed. PW44 also did not remember at whose instance the check-in-history was deleted. CBI was required to fill in the gaps but it did not do so and it was silent on as to where the boarding passes went. There was also a hole in the prosecution story as the reason for deletion was not mentioned. PW44 was not a witness of fact but was deposing as per the documents as she had stated that she was deposing on the basis of documents and could not say if the documents were correct or not. Some other authority would have the number but was not produced and there was a possibility that her number was misused and the investigation was silent as to who had got the check-in-history deleted and why it was done which showed that in fact the boarding passes were generated by the Airlines and the CBI Vs. Vinay Kumar Pandey & Anr. Page No.50 of 361 ticket numbers had to be along with the boarding passes. This demolished the charge and the basis of the charge that cheating had been done on the basis of fake and forged tickets and boarding passes.
56. It was submitted that there were certain other witnesses from the Airlines who had deposed about the procedure such as PW40 Dharampal but he was not declared hostile or re- examined and he had also stated that the ticket numbers had to be there if the boarding passes were there and on the basis of PNR number, one could not enter the airport. He had also spoken about revenue and payment which also meant that the check-in could not be done unless payment was made. He was corroborated by another witness PW34 Deepak Mathur whose cross-examination showed that tickets had been purchased, otherwise the PNR would have got deleted and that deletion was not automatic and the case put up by him was contrary to the case set up by CBI.
57. The Ld. Counsel for A1 had further argued that PW28 was a witness of procedure and spoke about generation of flight manifests and its communication. He had spoken about ticket numbers and if the same were preserved at Air India office. As per him, the ticket numbers for manual tickets were not shown on boarding passes but the ticket numbers would be shown on the boarding passes if there were e-tickets and the present was the case of e-tickets and it was the case of the accused also that the tickets were e-tickets. Dharampal and other witnesses had also stated that ticket numbers would be there on the boarding passes and that the ticket numbers were not there in the flight manifests.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.51 of 361 The numbers also showed that it was e-tickets as number 9 was there and as such the case was consistent that the tickets were e- tickets.PW28 had spoken of generation of flight manifests and his testimony was important as it was the allegation of the prosecution that A1 had not travelled and it was the principal document which the prosecution had relied on to show that A1 had not travelled. The same was generated at the time when the passenger was at the boarding gate. It was argued that the person who had generated the flight manifests relied upon by the prosecution had not been identified by the prosecution to say that this was the person who had generated the flight manifests at the boarding gate on the said date. To check any variance in flight manifests, the Screening Cell verified the same and it was the job of the Screening Cell to verify if all the passengers had boarded. However, no witness had been examined to say about the same or that verification had been done in the instant case. The Flight Handling Unit was also there to check and followed the same procedure but no one from that unit was even examined. The flight manifests were sent to the Bombay Revenue Office. The said witness was not a witness to fact but the procedure and the procedure he had stated was not shown to have been complied in the present case. Reference was made to the statement recorded on 12.08.2016 wherein he had stated the entire procedure and that what was sent to the Controller of Revenue was the report along with the flight manifests. In the present case no report was produced at all and the flight manifests had no meaning without the report as it was checked at two places. There was also a register but the same was not produced to show that the flight manifests were sent to the Bombay Revenue Office. Reference CBI Vs. Vinay Kumar Pandey & Anr. Page No.52 of 361 was then made to the statement dated 04.11.2016 wherein he had identified the numbers and digits in the tickets.
58. It was submitted that PW29 Rajender Kumar had certified the flight manifests. However, the certification was without any consequence and had no value to CBI as PW29 had not seen the originals and had certified the documents only on the asking of another witness. He was also shown the other flight manifests and he had stated the same about them. During cross- examination he had stated that he had not handed over the sale report and the alleged sale report of the alleged dates was not given to CBI. If the sale in the present case was not reflected, it could be understood but the same was not even produced so it showed that there was something fishy and his testimony did not help the case of CBI. PW30 was one of the most important witnesses for CBI and according to him there were two kinds of data - one for the purpose of revenue received from the respective sales branches and the other with respect to the flight manifests. It was submitted that no data generated from the Air India system was produced and the data from where it was generated was not produced but only from the agency. The service contract between Accelya and Air India was not placed on record. He had stated that the flight manifests were received by them in manual form and then digitized by them. He had also stated that In and Out record existed but the same was not seized. There were connecting records which showed the genuineness of the transactions but the same were not seized. No individual witness was examined from the In and Out department to say that the flight manifests were received by them correctly, scanned and then entered into the system so the link was missing. No record CBI Vs. Vinay Kumar Pandey & Anr. Page No.53 of 361 was handed over regarding revenue generation. It was pointed out that the main job of Accelya was to accumulate data for reconciliation of revenue but PW30 did not give revenue report to show if there was any missing link. Reference was made to his statement under Section 161 Cr.P.C. wherein he did not say and it was confirmed by the IO that the original flight manifests were sent back. Cross-examination of the IO of 23.05.2022 was also referred to.
59. It was submitted that PW30 was the most important witness who had the original documents in his custody but he did not state that the documents were sent back and there were a lot of contradictions in the statements as to who took the printouts from Accelya as the originals were not available. It was submitted that even the Section 65B certificate was not proper as the printout was taken of the scanned documents and the original had been printed by someone else and there was no Section 65B certificate of that person. As such it was not primary evidence and not even secondary evidence as the document had been scanned and printout was taken and it did not meet the requirements of Section 65B of the Indian Evidence Act. It was argued that D-27 did not specify the conditions which were satisfied as per law and as such the law had not been followed in letter and spirit. Reference was made to the judgment of the Hon'ble Supreme Court in Anvar P.V. v. P.K. Basheer MANU/SC/0834/2014 and it was submitted that though it had been overruled on some aspects, but it laid down the essential ingredients of Section 65B Indian Evidence Act and in the present case the certificate was silent on most parts and only stated that it was produced by the witness from the computer CBI Vs. Vinay Kumar Pandey & Anr. Page No.54 of 361 using the printer and was a true reproduction to the best of his knowledge.
60. The Ld. Counsel for A1 further contended that PW31 had given the original flight manifests to CBI and he contradicted PW28 as PW28 had stated that the originals were sent in all cases while PW31 stated that the originals were sent only in some cases. It was pointed out that the check-in-history was the second circumstance to show that A1 had not travelled. PW31 had produced the original flight manifests and they were objected to as being electronic record and they could not have been exhibited without a certificate under Section 65B of the Indian Evidence Act. Admittedly, they were not generated at the Airport and the person who generated the flight manifests was not identified and only the documents handed over by the witness to CBI were proved. During cross examination PW31 had stated that he himself had not taken steps to see if the tickets had been accounted for and his statement was based on the information provided by Accelya and his letter to IO was Ex.PW31/B and there was no inquiry by the witness at his own level but he was relying on the information provided by Accelya. The person from Finance could have spoken about the revenue but the material was not before the CBI and Air India itself was suspected so their witnesses could not be believed. Ex.PW32/F was the letter by PW32 to the IO and it showed that by 22.08.2016 they had no documents but later the same were produced in court and as such it should have been shown from where and how they were produced and there should have been connecting links but that was not done. The original flight manifests could not be proved in absence of Section 65B Indian Evidence Act certificate. In and CBI Vs. Vinay Kumar Pandey & Anr. Page No.55 of 361 Out records were there but were not produced. PW32 was important for the accused as he belied the version of PW Deepak Mathur. He stated that the record by Accelya was kept for three years and as per him the record was available and he had stated about the procedure by which the record was available. During cross-examination it came out how the vigilance department came into the picture in investigation and their purpose was to obtain things suitable to CBI. Deepak Mathur was his junior and had no information on his own but had only coordinated to produce the records. Reference was made to Ex.PW32/G as per which as on 07.01.2016 no historical record was available in relation to PNR number. Deepak Mathur furnished it on 31.10.2016 which was the contradiction to be explained by CBI.
61. It was further submitted that PW33 gave no clarification on accounts. Reference was made to cross- examination of PW34 and the statement dated 26.10.2016 and he stated that in case of VIPs, if the protocol informed, then check in was done without the presence of the passenger. There were three statements of the said witness under Section 161 Cr.P.C. dated 26.10.2016, 31.10.2016 and 14.12.2016 and he had told his Senior everything and he stated about getting information from other departments and handing over to CBI. In Ex.PW34/D the date on the top was important and it was there in every document but in D-92 there was no date on the top. The witness had stated that on 26.10.2016 the documents were not available so he had only given the statement. He had stated that he had taken the printout himself so he should have given the documents whereas his senior stated that till 07.11.2016 they did not have the records. So it was not possible to reconcile the documents. CBI Vs. Vinay Kumar Pandey & Anr. Page No.56 of 361 Moreover, if he had taken the printout, he should have stated so in the certificate under Section 65B Indian Evidence Act but the certificate did not say that he had taken out the printouts and the origin of the document itself was doubtful and the certificate was also doubtful. The IO had not stated that the printouts were taken out in his presence. There was no letter head in the documents which were seized and he could not say if the system had malfunctioned which was an important aspect of Section 65B Evidence Act. It was not explained why a person from Vigilance was examined and not a person from the concerned department. It was argued that the prosecution had wanted to establish the generation of boarding passes and deletion but had not brought on record any evidence to show who had gathered and collected the boarding passes from Air India and the same was not proved by the prosecution agency.
62. The Ld. Counsel for A1 had submitted that as regards the claim for reimbursement by A1, Ex.PW4/E was the most important document which was attributed to A1. It was contended that as per the case of prosecution, nobody had seen A1 signing the said document and there was no witness to that effect or to the effect that A1 had confided in anyone that he had signed the said document. PW5 Belamu Ram had also not stated that he had received the document from A1. There was no person to connect A1 to the document so the prosecution had examined PW46 who is a handwriting expert to connect the signatures. Ex.PW4/E was the only document signed by A1 and there was no direct evidence connecting A1 to the document and only the opinion of the handwriting expert was there. Regarding the value that should be attached to the opinion of the handwriting expert, CBI Vs. Vinay Kumar Pandey & Anr. Page No.57 of 361 the Ld. Counsel for A1 had relied upon the judgment of the Hon'ble Supreme Court of India in Magan Bihari Lal v. The State of Punjab (1977) 2 SCC 210; on the judgment of the Hon'ble High Court of Delhi in Sandeep Dixit v. State Crl. Rev. 260/2011 decided on 27.04.2012 MANU/DE/2351/2012 and on the judgment of the Hon'ble Supreme Court of India in State of Himachal Pradesh v. Jai Lal and Ors. (1999) 7 SCC 280. It was submitted that there has to be corroboration of the opinion of handwriting expert either direct or circumstantial whereas in the present case there was no direct evidence and the circumstantial evidence was also not such as to lead to the conclusion that the document was signed by A1. The only evidence against A1 in the present case was the document itself and testimony of PW46 and nothing else. Reference was made to the report of the FSL expert and it was submitted that the expert had first gone into the nature of the questioned document and given opinion on it and every letter had been compared and the finding was given in the first part of the report and detailed reasons were given for basing the report. However, as far as Part 2 of the report which pertained to A1 was concerned, there was no finding that A1 was the author and it was only stated that the signatures matched those of A1 though in Part I it was stated that A1 was the author. The reasons were also not clear or sufficient for the Court to compare and give a finding and the witness had also not stated that she had compared the questioned document to such an extent as to draw a conclusion and had stated that the questioned signatures may have been written by one and the same person so she herself was not sure. During cross-examination PW46 had stood by the report and reference was made to the same. It was also contended CBI Vs. Vinay Kumar Pandey & Anr. Page No.58 of 361 that there was nothing in the examination in chief of the said witness to show how the comparison had been done or why it was opined that the signatures belonged to A1. No printout was taken and in fact initially PW46 had stated that printout could not be taken but thereafter had stated that no printout was taken as the printer was not available. If the printout was there and no photographs had been taken, it became important for the Court to see how the comparison was done and in the present case there was a contradiction in the stand of PW46. The report was based on observation sheets which were based on photocopies and PW46 had not taken photographs and not even the printout and the pathetic excuse had been taken that printer was not available and it could not be believed that the printer was not available in a lab where such apparatus had been setup and as the printout had not been taken out so the said excuse was given. She had stuck to the conclusion that the signatures 'may have been'.
63. It was submitted that the form was processed in the MSA branch and the first person who received it was PW5 and he had thereafter prepared the bill. Reference was made to his cross-examination and it was submitted that there was no entry regarding the receipt of form in any register. It was contended that the only way to show that the form had been submitted was by way of register through which the document was received but PW5 had stated that there was no such register which was either stated deliberately or to prevent any defence being built up and as such there was no record to corroborate the case of the prosecution that the bill was received. PW5 had stated about taking printouts of the bill but there was no certificate under Section 65B of the Evidence Act in support of the bill and as CBI Vs. Vinay Kumar Pandey & Anr. Page No.59 of 361 such it was not admissible in the eyes of law. He had stated about 14 boarding passes but thereafter he had stated that the number of journeys was 14 and not of the boarding passes and in fact there was falsity as the number of boarding passes would have been more and it showed his complicity in the crime and the errors were not innocent errors but deliberate errors. It was not stated how he had come to know about 14 boarding passes when the number of boarding passes was not mentioned which showed that he had counted and what he had stated was missing in the documents. There was also no specific averment by PW5 that he had compared the signatures of A1 on the form with the specimen signatures available with him and he had also not met A1 nor seen him writing and he was only acting in the nature of a person who had compared the documents but was not acquainted with the writing of A1 and as such the writing of A1 was not corroborated by PW5. It was argued that his statement was contrary to what was there in the documents and he was clearly an accomplice in crime but he had been left out deliberately and he was in conspiracy with someone.
64. The Ld. Counsel for A1 had pointed out that the form had then gone to PW6 Karamchand. It was evident that the bill had discrepancies as the ticket numbers had been wrongly mentioned. There were seven tickets but eight had been mentioned and the same had been admitted by the IO during cross-examination but deliberately the discrepancy was ignored. In his examination in chief PW6 had stated that he had checked the form whereas in the cross he had stated that the form was not put up before him. He had stated that he used to match the details but if the form was never put up before him he could not have CBI Vs. Vinay Kumar Pandey & Anr. Page No.60 of 361 matched the details. He was also reexamined by the Ld. Sr. PP for CBI but he had stated that he did not remember if the form was put up before him or not and as such he did not agree with the case of the prosecution. Further, he had stated about checking the documents but the details were not there in Ex.PW5/B and in case there was any corrected bill, the same would have gone forward but PW6 was trying to shirk away from asking the questions. The next witness was PW26 who was the DDO and in her cross-examination she had stated that the boarding passes had stamp of the Airline which was contrary to the stand of the prosecution that A1 had not boarded the flight.
65. The Ld. Counsel for A1 had then referred to the evidence of the officials of Pay and Account Office who had verified the bills and issued the cheque and had stated about the cheque being deposited in the bank of the Member and about the weeding out of the files. Reference was made to the testimony of PW9 who had stated the procedure mainly and about the auditing of the bill and that the cheque was put in the Member's account by the office itself; PW10 had also stated about the same procedure and that it was checked that the bill had the signatures of the DDO and that the cheque was put in the Member's account. It was argued that there was no allegation that A1 had collected the cheque and thereafter put the same in his account. PW10 had also stated that the PAMG Branch got no document for verification and only three papers were received so there was no question of any verification being done by them. No annexures or details were received by them. Kamla had not been examined in the present case and as such it was not shown that they had verified the documents or seen the documents for CBI Vs. Vinay Kumar Pandey & Anr. Page No.61 of 361 verification. It was contended that no rule had been proved to establish that such a procedure existed and in fact the persons who had been examined as witnesses were suspects themselves and obviously they would try to shield themselves but their version was believed and no witness had been produced who could have said that in the past also such a procedure was followed. It was contended that if PW10 had checked the bill properly, it would have been found that there were shortcomings and the Branch would have questioned the Member which did not happen in the present case. PW11 also could not give any logic as to why the details were not there and there was nothing to show any such procedure or logic why the documents were not sent. If the documents were not to be processed along with the bill, there was no reason to ask the Member for the details and only a bare statement of the witnesses was there and they did not have any annexures or details with them but as per them, they verified the bill and processed the same. This showed that either the documents were manipulated or were not prepared properly or they were prepared later and there was negligence on the part of the officials and they did not process the bill properly. The role of A1 was not there directly and the persons whose role was there had only been made witnesses.
66. It was argued that from the testimony of PW13 it was clear that there was no way that the Member could know that the bill had been cleared and cheque was sent as no intimation was sent to the MP regarding the clearance of the bill. PW14 had stated about processing the bill but she did not know if the cheque was made against one bill or more than one bill and she had stated that she had no duty to check the documents. Even no CBI Vs. Vinay Kumar Pandey & Anr. Page No.62 of 361 signatures of the DDO or the Pay and Account Officer were there on the bill and the cheque was sent directly to the Bank account of the MP. PW25 had stated about verifying the bill from the computer which was not stated in her statement under Section 161 Cr.P.C. and as such was an improvement. It was argued that there were deficiencies and mistakes during the processing of the bill and the witnesses were not able to justify the same and they were all making the same sort of mistake which made it clear that there was a purpose and deliberate act which should have been investigated by the CBI but it was not done and it was a case where only the suspects were before the Court who had been made the witnesses. It was further submitted that the three bank witnesses had also stated that the cheque was directly deposited in the Member's account and no one had stated that A1 himself had deposited the cheque in his account or that they had informed A1 about the deposit of the cheque. There was no message to him and it was not even the case that the copy of the statement of account was dispatched to A1 every month which could have shown that he had knowledge of the fact of deposit of cheque.
67. As regards weeding out, PW4 had stated in the statement under Section 161 Cr.P.C. that the documents were retained for five years. It was nowhere mentioned when the documents were in fact weeded out. Even the case of CBI was that the weeding out was contrary to the rules but what kind of defect was there and the extent of defect and whether it was culpable or not was not stated by CBI and how the weeding out was wrong was not stated. The file was destroyed before time and all of a sudden a noting was made and there was no date when the weeding out was actually done and even there was no CBI Vs. Vinay Kumar Pandey & Anr. Page No.63 of 361 instruction specifically but that was not stated so by the witnesses. Even if A1 had filed the TA/DA form, A1 had no role as it was not the case that he had put pressure on anyone to weed out the documents or to destroy the documents. It could be a case that he was implicated and the record was destroyed and then the inquiry was made and CBI registered the case. As per the case of CBI, the source had given the details of everything meaning someone in the Secretariat had access to everything as the amount was stated as also the date and even the names of the passengers were stated and it was after the destruction of the record that the complaint was made. It was also pertinent that all the witnesses to the weeding out were not part of the first charge sheet but were part of the second charge sheet pursuant to the orders of the Court and no attempt was made by CBI to find out the objective behind the destruction of the documents. The relevant witnesses were PW22, PW38, PW39, PW42 and PW43 and it had come on record that contrary to the rules, the documents had been destroyed.
68. The Ld. Counsel for A1 had referred to the testimony of the IO PW56 and that he had not stated categorically that information was received by him or by Asif Jalal. The documents were to the contrary which showed that it was Asif Jalal who had received the information and thereafter the FIR was registered and investigation was marked to PW56 but PW56 had twisted the story and stated that he had received the information though he had also stated that he had not received information that the boarding passes were forged which showed that he actually did not receive the information but someone else received the information. Asif Jalal was not examined as a witness in the CBI Vs. Vinay Kumar Pandey & Anr. Page No.64 of 361 present case so there was no one to prove the FIR. If PW56 had received the information, then he became the complainant and he could not have investigated as that would prejudice the investigation and there was no reason why he was denying that Asif Jalal had also carried out investigation. In fact not even as SP but even as DIG, Asif Jalal had investigated the matter and sent letters. There was no reason why efforts were made to protect someone. Asif Jalal had asked for information specifically and whether the tickets were genuine or not so it was part of investigation and it could not be called mere supervision.
69. It was argued that no rules were shown regarding chain of custody of documents being followed so the presumption was to be drawn against the prosecution. Witness Rajender had stated that the originals were not with them and Tarun Prabha Shankar who should have received the documents had not stated that the documents were received by them. The witness had stated in his statement under Section 161 Cr.P.C. that the statement was recorded in Mumbai whereas the IO had stated that he had come to the office of CBI. It was argued that CBI was trying to reconcile irreconcilable things. If the original flight manifests were with Accelya, then they should have been taken from there, but no one had stated so and if the originals had been taken, then the report would also have been obtained with them. There was no certificate under Section 65B Indian Evidence Act in that respect and no one had stated that they had taken the printout of the flight manifests later and the witnesses were trying to say that the flight manifests were taken out at the relevant time. Things had been produced but not with truth and deliberately an effort had been made to conceal the truth. It was CBI Vs. Vinay Kumar Pandey & Anr. Page No.65 of 361 not even known who had taken the print-out of the flight manifests and the Section 65B Evidence Act certificate should have been taken from the said person. There was nothing in the statement of Jitender Kumar about the travel history and how the data was stored or where it was maintained and no register was seized so the flight manifests could not be proved. Moreover, the flight manifests could have been retained only till 2014 as it was stated that they were retained for two years. The Air India Manual was not filed. The IO should have raised the question how they were produced after two years but it was not mentioned in the statement of AU Karmakar from where the flight manifests were obtained. Even no passenger was examined who could have stated that he had travelled by the said flight and his name found mention in the flight manifest but only the Air India officials were examined on the basis of documents and the flight manifests were not proved by any passenger.
70. It was submitted that there was no historical record of PNR and the person who had said so was not made a witness and was kept away from the Court. The dates on the printout were also material. Deepak Mathur did not say that he was authorized to take the print out of the check-in-history nor did he say that he had taken the printout himself and it was not sufficient if he stated about the handing over of the document and it was not stated how the IO had reached Nida Khanam or Sonali Pandey and there was no connectivity between the witnesses and the witnesses had been produced to depose on specific lines. Ex.PW27/A was the duty register but Neena Saini was not investigated so it could not be said that she had written the document. The relevant witnesses who could have connected the CBI Vs. Vinay Kumar Pandey & Anr. Page No.66 of 361 chain were not examined. Sonali Pandey had not taken the name of N.S. Nair in the Court but in her statement under Section 161 Cr.P.C. she had named him and as such, he should have been an accused but now his statement was being read as a witness that he had not done anything. No authority had been produced who could say about the procedure followed at the Airport and only suspects as witnesses were examined who had stated to the contrary. Infact the witnesses had stated to the contrary that for check-in tickets were necessary. No written rule was shown for deletion of check-in history and it could not be at the choice of anyone. It was not stated in the charge-sheet what was wrong, but it was only stated that CBI had written a letter to Air India and Parliament to take action against the officials. If the ticket number was wrong, it was the duty of Belamuram to point out the mistake in ticket numbers but that was not done which showed that it was a deliberate act and it was deliberately not checked. There was no certificate under Section 65B of the Evidence Act in respect of the TA Bill.
71. The Ld. Counsel for A1 had submitted that a notice under Section 91 Cr.P.C. was sent to A1 and it was the settled law that a notice could not be issued to the accused asking for incriminating material and the accused had the constitutional right not to reply to the same and the same was violative of his rights, yet A1 had replied to the same. In his statement under Section 313 Cr.P.C. A1 had pointed out the dates on which he had travelled to Port Blair but CBI had not mentioned what was done to the reply to the notice. In his statement under Section 313 Cr.P.C. A1 had stated that he had not travelled on the dates mentioned but the prosecution could not take benefit of the same CBI Vs. Vinay Kumar Pandey & Anr. Page No.67 of 361 and it had to prove its case from the record which it had not been able to prove that A1 had not travelled as the flight manifests were not proved nor were the boarding passes. The statement of accused under Section 313 Cr.P.C. could not be relied upon to convict him. A1 had pointed out entries in the register showing when he had gone but the same was not brought on record and he even stated in what capacity he had gone to Port Blair. It was also argued that the TA form in respect of the other bill dated 02.12.2012 was not seized which could have been used for comparison and would have shown how the bill was filled up. This was an important document as the dealing hand had stated that one cheque was made in respect of two bills but the same was deliberately withheld. The signatures of A1 were also there on that bill and the same could have been used for the purpose of comparison. As such the investigation was defective and an important step in investigation that could have helped the prosecution, accused, forensics and the IO in furthering the case was ignored. Moreover, as per the case of prosecution and the charge, the TA form was filled by A2 but CBI had presented a witness who stated that it was filled by A1.
72. The Ld. Counsel had submitted that the circumstance used for conspiracy was that cheque for Rs.2,50,000/- bearing the name of A2 at the back which was a self cheque was withdrawn by A2 but CBI was legally estopped from taking into consideration the said circumstance as the conspiracy as per the case of CBI was to submit a TA form and take money. The money was deposited in the account and once the money was deposited in the account, the purpose of the conspiracy was achieved and it was for CBI to show any act prior to that or any CBI Vs. Vinay Kumar Pandey & Anr. Page No.68 of 361 circumstance or act during the period of conspiracy which showed that there was conspiracy. Withdrawing of money was not an illegal act and reliance was placed on the judgment in State through Superintendent of Police, CBI/SIT v. Nalini and Ors. MANU/SC/0945/1999 in which it was held that any act after conspiracy was over could not be considered. As such, CBI had to show circumstances before the money reached the account of A1. Reference was made to the testimony of the handwriting expert who was examined as DW1 who had proved his report and the difference between the report produced by him and by the FSL expert was in regard to the reasonings given and in the report of DW1 specific reasons were provided which was an exhaustive report and showed why the signatures and the writing were not of A1 as there was difference in pen and hand and even in alignment. It was also submitted that no one from the Airlines had stated who had generated the PNR and there was nothing to connect what had happened at the Airport to A1. It was not proved that A1 did not travel and the evidence on record did not qualify the test of evidence. The check-in-history was shrouded in mystery. Section 65B Evidence Act certificates were not proper and deletion of check-in history was not proved. There was no Section 65B certificate in respect of the TA bill and if the bill was not proved then nothing remained. Documents had been weeded out so the air tickets and boarding passes were not available and it was not proved that the air tickets and boarding passes were forged.
73. The Ld. Counsel for A1 had argued that A1 had shown from the documents when he had gone to Port Blair and also the list of who had gone with him and it was in a different CBI Vs. Vinay Kumar Pandey & Anr. Page No.69 of 361 year. As regards his signatures, there was no definite opinion in the CFSL report and the word 'may be' was used. PW5 and other witnesses had identified the signatures of A1 but during cross examination, they had stated that they had not seen A1 signing and as such it was not proved that the signatures on the TA form were of A1. As regards the certificate under Section 65B Evidence Act it had been admitted by the prosecution that the same had not been brought for some documents and in respect of the other documents, the same was not in specific language and as such the documents were not admissible in evidence. The FIR was not proved and though it was not a substantial piece of evidence, no witness had been brought who could prove the same and therefore, the right of the accused to cross examine the witnesses had been lost and adverse inference was liable to be drawn. There was even no investigation from where the tickets were generated. It was submitted that there was no evidence what-so-ever to prove any of the charges which had been framed against A1.
74. The Ld. Counsel for A1 had relied upon several judgments in support of the contentions that were raised:
A. Judgments on the point that 'in a case of circumstantial evidence, the entire chain of evidence must be complete and the conclusion which is arrived after examining the chain of evidence must point towards the culpability of the accused and to no other conclusion':
1. Munikrishna and Ors. v. State by Ulsoor PS MANU/SC/1289/2022.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.70 of 361
2. Raj Kumar Singh v. State of Rajasthan MANU/SC/0468/2013
3. Ramesh Bhai and Another v. State of Rajasthan (2009) 12 SCC 603
4. Oliver Kujur and Ors. v. State of Delhi MANU/DE/1320/2014 B. Judgments on the requirement of a certificate under Section 65B of the Indian Evidence Act:
1. Anvar P.V. v. P.K. Basheer MANU/SC/0834/2014
2. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Ors. MANU/SC/0521/2020 C. Judgments on the point that 'mere marking of exhibit on a document does not dispense with its proof'.
1. L.I.C. of India and Ors. v. Ram Pal Singh Bisen MANU/SC/0170/2010
2. Ramnish Geer and Ors. v. CBI and Ors.
MANU/DE/4433/2022 D. Judgments on the point that 'science of handwriting comparison is a weak piece of evidence and accused ought not to be convicted on the uncorroborated opinion of a handwriting expert':
1. S.P.S. Rathore v. CBI and Ors. MANU/SC/1096/2016
2. Ramesh Chandra Agrawal v. Regency Hospital Ltd. and CBI Vs. Vinay Kumar Pandey & Anr. Page No.71 of 361 Ors. MANU/SC/1641/2009
3. State of Himachal Pradesh v. Jai Lal and Ors.
MANU/SC/0557/1999
4. S. Gopal Reddy v. State of Andhra Pradesh MANU/SC/0550/1996
5. State (Delhi Administration) v. Dilbagh Rai and others 1984 SCC OnLine Del 277
6. Ramakant Dubey v. State of U.P. MANU/UP/2374/2013
7. Siba Prasad Satpathy v. Republic of India 2011 SCC OnLine Ori 262 E. Judgments on the point that 'the statement under Section 313 Code of Criminal Procedure cannot be the sole basis for conviction of accused':
1. Raj Kumar Singh v. State of Rajasthan MANU/SC/0468/2013
2. Mohan Singh v. Prem Singh and Ors. MANU/SC/0849/2022
3. Ashok Singh and Ors. v. State of U.P. and Ors.
MANU/UP/0951/2016 F. Judgment on the point that 'defence witnesses are entitled to equal treatment with those of the prosecution':
1. Sonu v. The State (Govt. of NCT), Delhi MANU/DE/1894/2021 CBI Vs. Vinay Kumar Pandey & Anr. Page No.72 of 361 G. Judgments on the point that 'prosecution case has to stand on its own legs and however great the suspicion against the accused and however strong the moral belief and conviction of the court, prosecution has to establish its case beyond reasonable doubt on the basis of legal evidence and material on the record':
1. Narender Kumar v. State (NCT of Delhi) MANU/SC/0481/2012
2. Sangram Yadav v. State of U.P. and Ors.
MANU/UP/0766/2022 H. Judgments on the point that 'once the object of conspiracy has been achieved any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy':
1. Indra Dalal v. State of Haryana MANU/SC/0661/2015
2. Santoshanand Avdoot v. State MANU/DE/1873/2014
3. State through Superintendent of Police, CBI/SIT v. Nalini and Ors. MANU/SC/0945/1999
75. The Ld. Counsel for A2 had referred to the order on charge and that it was alleged against A2 that he had filled the TA form. However, the CFSL report in that respect was not conclusive. As regards the cheque of Rs.2,50,000/-, A1 had stated that he used to give the cheque to A2 for withdrawing money and being the PA A2 used to withdraw the money. No witness had corroborated that Rs.9 Lakhs or so had come to the account of A1 and in lieu of the same, the cheque for Rs.2,50,000/- was issued.
Moreover, the charge was framed in respect of forged and fake CBI Vs. Vinay Kumar Pandey & Anr. Page No.73 of 361 tickets and boarding passes but there was no investigation as to where the e-tickets were generated, who had generated them and who had forwarded the same to whom. The same was true with regard to the boarding passes and the witnesses had stated that the same were generated but there was no evidence as to whom they were given so the important link in the chain was missing. 6 witnesses were examined from the MSA branch. Reference was made to the testimony of PW4 Poonam Sharma and it was submitted that as A2 was the PA, he used to go to the MSA branch but whether he had filled up the form and submitted it was not shown by the prosecution. All the witnesses from MSA branch had stated that if there was any discrepancy found in the form then the same was returned to the Member meaning that there was no discrepancy in the form. Moreover, two TA forms had been consolidated and one cheque was made but none of the witnesses had stated the reason for clubbing the two bills. PW14 was not aware if the cheque was against two consolidated bills or not and during cross-examination PW14 had stated that there was no rule that the bill would not be put up so the bill should have been put up before PW14 but deliberately it was not done.
76. It was also argued that the tenure of A1 was upto 2014 and the alleged incident was of 05.12.2012 but from 2012 to 2014 there would have been other TA/DA forms which were filled and which were not weeded out which should have been sent for comparison but they were not sent and the same was done only in order to give a clean chit to the officials of MSA. In the first charge sheet there was nothing against A2 and in the second charge sheet it came on record that there were many lacunae such as there were no signatures of the DDO on the bill. CBI Vs. Vinay Kumar Pandey & Anr. Page No.74 of 361 The TA bills were consolidated but no investigation was done by CBI of the Lok Sabha officials but only against A2 as he was the PA and the alleged beneficiary. The witnesses had stated that they did not inform the Member when the cheque was deposited so there was no way in which A1 or A2 could know when the cheque had been deposited. It was not denied that A2 was the PA of A1 and the entry was there regarding him but there was no document to show that he had filled up the form. At the time of bail, A2 had given his Aadhar Card and all details were available with CBI but still they had not investigated the matter properly. A2 had an account in the Sansadiya branch but still the IO had gone to look for a bank account of A2 in Pratapgarh. The third charge sheet had been filed after the bail bond had been submitted but the signatures of A2 were not taken from there. It was submitted that A2 was not a beneficiary and there was no investigation to show that the documents were false and fabricated.
77. The Ld. Counsel for A2 had referred to the cross- examination of PW55 who had filed the third charge sheet and he admitted that the record was with him. Even without doing any investigation he had stated that the address in D-150 was not of Arvind Tiwari. D-127, D-139 and D-132 contained the name of father and permanent address of A2 so the details were already there with the IO. D-158 was a document produced by the bank employee purportedly containing the specimen signatures but the same were not of A2. It was argued that if the IO had not done any investigation, he could not have been in a position to say that the specimen signatures and the signatures of A2 were same or different. The bank document from Pratapgarh stated Arvind CBI Vs. Vinay Kumar Pandey & Anr. Page No.75 of 361 Tiwari @ Arvind Kumar Tiwari but no verification was done of the address of A2. The address of A2 was different in the Lok Sabha record and in the record of the bank. Even the PAN number was not verified. IO had sent a trail of emails to authorities but had not verified if the PAN number was of A2 or of some other Arvind Tiwari. The PAN number in the documents obtained from bank account at Pratapgarh was not verified and A2 was not the Arvind Tiwari whose bank statement had been filed. PW46 had stated that the FSL report was not conclusive and more documents were required. It was submitted that A2 used to withdraw money from bank on behalf of A1 in routine and he was not a beneficiary and fair investigation had not been carried out in the present case. The Ld. Counsel for A2 had also argued that the report of CFSL was inconclusive and it was not proved that Arvind Kumar and Arvind Tiwari were one and the same person. The IO could have verified the Aadhar card of A2 but it was not done and even the PAN number of A2 was not obtained. The Arvind shown in documents from Pratapgarh was different from A2 and it was also not proved that A2 had gone to submit the TA form.
78. The Ld. Sr. PP for CBI in rebuttal had submitted that A1 had admitted that he had gone to Port Blair only once. The only question that arose was whether the TA Form was submitted by A1 in conspiracy with A2 and the GEQD had been examined and not only the GEQD but many witnesses had identified the signatures of A1. A1 had stated that he used to be busy and many documents were got signed from him but if someone signed a document, the person would be answerable for the same and if the TA Form was signed by him, it could not be without his CBI Vs. Vinay Kumar Pandey & Anr. Page No.76 of 361 knowledge or intention. The weeding out process was duly proved and every department followed its procedure and the documents in the instant case had been weeded out after approval. The purpose of certificate under Section 65B Evidence Act was only to show that the documents had not been tampered with and for some documents they may not be there but the certificates which were taken had been taken properly though they may not have been as per the proforma. The IO had proved the FIR and in cases such as the present, it was the IO who proved the FIR and he was holding a subordinate office to the person to whom the information was given. It was submitted that DW1 was an interested witness. Reference was made to the statement under Section 313 Cr.P.C. of A1 and A2 wherein A1 had stated that A2 was his PA while A2 had stated that he was never the PA of A1 and as such they had given contradictory answers. It was submitted that the handwriting report was conclusive and corroborated the record and judicial notice could be taken of the signatures of A1. The defence witness had stated that Arvind Kumar and Arvind Tiwari were one and the same person.
DISCUSSION
79. At the outset, it may be pointed out that the Ld. Counsel for A1 had relied on several judgments on the point that 'prosecution case has to stand on its own legs and however great the suspicion against the accused and however strong the moral belief and conviction of the court, prosecution has to establish its case beyond reasonable doubt on the basis of legal evidence and material on the record'. The Ld. Counsel had relied on the CBI Vs. Vinay Kumar Pandey & Anr. Page No.77 of 361 judgments in Narender Kumar v. State (NCT of Delhi) (supra) and on Sangram Yadav v. State of U.P. and Ors. (supra) in this regard. In Narender Kumar v. State (NCT of Delhi) (supra), it was observed as under:
"23. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt."
The law in this regard is well settled that the prosecution case has to stand on its own legs and the prosecution has to establish its case beyond reasonable doubt on the basis of legal evidence and material on the record.
80. The Ld. Counsel for A1 had argued that the case was instituted before the Court on the basis of FIR dated 21.03.2016 which is Ex.PW56/A. The same was registered after nearly 3½ years of the date of the alleged incident. It is true that the case was registered after nearly 3 ½ years of the date of the alleged incident but it is seen that the same was registered on the basis of source information and the evidence is mostly documentary in nature. In cases such as the present, there may not be a complainant who is readily forthcoming, hence the case would be registered only when the information is obtained and as such the case of the prosecution cannot be thrown out on the ground of delay in registration of the FIR. It was then the contention of the CBI Vs. Vinay Kumar Pandey & Anr. Page No.78 of 361 Ld. Counsel for A1 that it was the admitted case of the prosecution that prior to registration of FIR, no show cause notice was issued to A1 by Lok Sabha Secretariat or any other department to ask his version about the case and it was not the case that the version of the accused could not have been sought but straightway the FIR was registered. However, it is pertinent that the case was registered on the basis of source information and not got registered by Lok Sabha Secretariat or any other department so there would have been no occasion for any show cause notice being issued by them to A1 to know his version. Moreover, the record was there which showed that the amount in respect of TA claim had been reimbursed in the account of A1 and it cannot be contended that the FIR could not have been registered till a show cause notice had been issued to A1 by the Lok Sabha Secretariat or by any other department.
81. The Ld. Counsel for A1 had further raised the contention that as per the information in the FIR, prima facie, forged documents were used by A1 to claim reimbursement. It was submitted that the case of CBI at the initial stage was on the basis of forged documents but the charge did not talk about forgery specifically though it related to forged documents. FIR was registered on the basis of source information that the accused had taken fake and forged e-tickets and boarding passes and he had got generated fake e-tickets and forged boarding passes. However, it is the settled law that FIR is not the encyclopaedia of the case of the prosecution and it is the information which sets in motion the investigation and how the case would proceed thereafter and charge for what offence would be framed against the accused depends on the material that is collected and what is CBI Vs. Vinay Kumar Pandey & Anr. Page No.79 of 361 revealed during investigation.
82. The Ld. Counsel for A1 had vehemently contended that the FIR was not proved in accordance with the procedure established by law as the author of the information was Asif Jalal but he was neither as a cited witness nor examined before the Court. PW56 had proved the FIR who had stated in his examination in chief merely about identifying the signatures and as such only the signatures were proved but not the contents of the FIR. In the said circumstances, the information was not proved as the relevant witness was not examined. It was contended that if the FIR could not be read in evidence, then only the statements of the witnesses remained. It was submitted that though the FIR was not a substantial piece of evidence, no witness had been brought who could prove the same and therefore, the right of the accused to cross examine the witnesses had been lost and adverse inference was liable to be drawn. A perusal of the record shows that the FIR was proved by PW56 as Ex.PW56/A and he stated that D-1 which is the original FIR No.RC-02 (A)/2016/AC-III/New Delhi, under Section 120B read with Sections 420, 467, 468 and 471 of IPC and 13 (1) (d) read with 13 (2) of PC Act 1988 registered on 21.03.2016 was entrusted to him for investigation and the FIR bore the signatures of Shri Asif Jalal, the then SP, AC-III. Thus, even as per PW56, the FIR bore the signatures of Shri Asif Jalal, the then SP, AC-III who was senior to him.
83. During cross-examination by the Ld. Counsel for A1 PW56 stated that as per his knowledge, the present case was registered on the basis of source information and no preliminary CBI Vs. Vinay Kumar Pandey & Anr. Page No.80 of 361 inquiry was conducted. He did not remember if any complaint was received by CBI from Air India or from Lok Sabha Secretariat prior to the registration of FIR. Thus, according to PW56 no complaint was received by CBI from Air India or from Lok Sabha Secretariat and the FIR was registered on the basis of source information. PW56 admitted that the investigation is carried out by CBI by following the CBI Manual. He was not able to recall the contents of 10.8 of the CBI manual where it was mentioned that in case the FIR was registered on the basis of source information, source should be written against the relevant column of the FIR. He denied the suggestion that he was deliberately deposing falsely in the said regard and avoiding to give the correct answer and volunteered it was clearly mentioned in the FIR whether it was registered on the basis of complaint or source information. He was shown D-1 i.e. the FIR Ex.PW56/A and he stated that in column 4 of the first page, the source was written. As such, it was mentioned in the FIR that the FIR was registered on the basis of source information. PW56 further stated that the information from the source was received by him on the basis of which the FIR was registered. He did not remember if it was mentioned in any document that the information from the source was received by him. On receiving the information, he informed in the office and the FIR was got registered. He was not able to recall whether he had given the said information in the office in written. He denied the suggestion that neither he received the said information nor he had informed the office about the said information. He stated that Shri Asif Jalal was his senior and volunteered he was the SP of AC-III, CBI. He denied the suggestion that it was not recorded CBI Vs. Vinay Kumar Pandey & Anr. Page No.81 of 361 anywhere in the FIR that the information was received by him or that he had informed his office about the same so he had deposed falsely that the information was received by him. He denied the suggestion that he had received information about the present case only after the FIR was registered and the case was marked to him. He could not admit or deny the suggestion that the information was received by Shri Asif Jalal. He denied the suggestion that the information was not received by him through any source.
84. It is seen that PW56 had stated at one point that the information from the source was received by him on the basis of which the FIR was registered and at another point he could not admit or deny the suggestion that the information was received by Shri Asif Jalal and a perusal of the FIR also shows that it had not been specifically mentioned therein who had received the source information and it was simply stated that 'a reliable information has been received...' However, it cannot be disputed that the FIR was registered and the same bears the signatures of Shri Asif Jalal at two places including in the space meant for signatures of Officer in Charge Police Station. Shri Asif Jalal has not been cited as a witness in the present case, nor examined as a witness but on that basis, it cannot be said the FIR was not proved as PW56 had identified the signatures of Shri Asif Jalal on the FIR and it was reiterated by PW56 that the FIR was registered on the basis of source information. Further, as fairly agreed to by the Ld. Counsel for A1, FIR is not a substantive piece of evidence and it is to be seen from the material and evidence that comes on record whether the prosecution has been able to prove its case against the accused persons. During further CBI Vs. Vinay Kumar Pandey & Anr. Page No.82 of 361 cross-examination PW56 stated that he could not comment that the information contained in the FIR could have been given only by the person who had access to the record of Lok Sabha Secretariat. He could not comment that it was confidential information and could be accessed by authorized persons only. The Ld. Counsel for A1 had also argued that as per the case of CBI, the source had given the details of everything meaning someone in the Secretariat had access to everything as the amount was stated as also the date and even the names of the passengers were stated and it was after the destruction of the record that the complaint was made. However, even if the information could have been given only by the person who had access to the record of Lok Sabha Secretariat, what is relevant is that on the basis of the said information, the present FIR was registered and was taken up for investigation.
85. It was also contended by the Ld. Counsel for A1 that if PW56 had received the information, he could not have investigated the matter. It was also submitted that an effort was made to shield Shri Asif Jalal who had also carried out investigation in the present case which he could not have done if he had received the information in the present case. PW56 was extensively cross-examined in this respect and he stated that when he received the information in the present case, he did not receive any information that the boarding passes of Air India were forged and used in the present case. He was shown the contents of the FIR wherein it was mentioned that "submitted on the basis of fake and forged e-tickets and boarding passes" and he stated that the word fake had been used for boarding passes and forged had been used for e-tickets. He denied the suggestion CBI Vs. Vinay Kumar Pandey & Anr. Page No.83 of 361 that he was deliberately giving the wrong usage of the word fake and forged to mislead the Court. Thus, PW56 had tried to interpret the words fake and forged in respect of boarding passes and e-tickets but that is to be seen by the Court. PW56 denied the suggestion that the information that the boarding passes were forged was available to the CBI through Shri Asif Jalal and since he had not received any source information, therefore, the said information was not in his knowledge. It was the contention of A1 that the information was not received by PW56 but by Shri Asif Jalal who had not been produced as a witness and that because of the said reason, the information that the boarding passes were forged was not in the knowledge of PW56. However, he denied the suggestion to that effect. It may be mentioned that as observed above, FIR is only the starting point of investigation and the outcome of the case would depend on what evidence is brought before the Court.
86. PW56 denied the suggestion that he could not have investigated the present case if he had been the person to whom the source had divulged the information and the case could not have been marked to him for investigation. While there are judgments to the effect that the complainant cannot be the IO but the present case would stand on a different footing as it is stated to be based on source information on the basis of which the FIR was registered. PW56 had stated that Shri Asif Jalal had not carried out the investigation in the present case. He could not tell for what period Shri Asif Jalal was the SP with AC-III but when the charge sheet was filed, he was the SP. No SP from AC-III had carried out investigation in the present case. He denied the suggestion that the SP from AC-III had also investigated the CBI Vs. Vinay Kumar Pandey & Anr. Page No.84 of 361 present case or that he was deposing falsely in the said regard. Thus, PW56 had denied the suggestion that the SP had also investigated the matter and thereafter he was extensively cross- examined to point out that the SP had also carried out investigation in the present case. PW56 was shown D-17 Ex.PW32/B which was addressed to SP, AC-III, referring to a letter by SP, AC-III dated 06.04.2016 to AIR India and he stated that as SP was the supervising authority he could do the communication as the SP. He was not able to recall whether the letter dated 06.04.2016 was received by him during investigation nor he was able to recall the contents of the said letter. He admitted that the same had not been filed in the Court and volunteered it was not a relied upon document. He admitted that the letter dated 06.04.2016 was not mentioned in the list of un- relied documents which was filed by CBI in the Court on 22.12.2021. Thus, in Ex.PW32/B, a letter dated 06.04.2016 was referred to which was stated to be not a relied upon document but it was also not mentioned in the list of unrelied upon documents filed by CBI in Court and the said letter was written by SP AC- III.
87. Similarly PW56 was shown D-23 Ex.PW32/D, D-26 Ex.PW32/E, D-42 Ex.PW32/F, D-43 Ex.PW32/G, D-65 Ex.PW49/A (addressed to Shri Asif Jalal), D-66 Ex.PW32/H, I and J, D-67 Ex.PW50/A (addressed to Shri Asif Jalal), D-69 Ex.PW32/K and L, D-70 Mark PW56/1 (addressed to Shri Asif Jalal), D-71 Ex.PW12/E, D-76 Ex.PW9/E and he stated that the said letters had been addressed to SP or to Shri Asif Jalal and volunteered it was not always necessary that the reply to the letter was sent to the IO directly and it may be addressed to the CBI Vs. Vinay Kumar Pandey & Anr. Page No.85 of 361 SP. He was not able to recall if Shri Asif Jalal was concerned with the investigation in the present case even after his promotion as DIG. He was shown D-106 Ex.PW8/B and he submitted that the same was addressed to Shri Asif Jalal, DIG. He was shown D-42 Ex.PW34/F and he stated that he could not recall whether the letter dated 25.10.2016 mentioned in the said exhibit was issued by him or by the SP. On reading Ex.PW34/F, he could say that the letter dated 25.10.2016 was in respect of seeking genuineness of certain tickets as well as details of all Air India flights operated on 01.11.2012 and 03.11.2012 for the sector Delhi to Port Blair and back. Apart from that, he was not able to recall if anything else was also sought by the letter dated 25.10.2016. He did not recall if the letter dated 25.10.2016 was taken on record in the present case file by him or not. He admitted that the said letter had not been filed with the charge sheet nor was reflected in the list of unrelied upon documents filed by CBI on 22.12.2021. He was shown D-42 Ex.PW34/F and he stated that he could not recall whether the letter dated 22.08.2016 mentioned in the said exhibit was issued by him or by the SP. On reading Ex.PW34/F, he could say that the letter dated 22.08.2016 was in respect of providing original flight manifest, genuineness of the tickets and other details mentioned in the said letter. Apart from that, he was not able to recall if anything else was also sought by the letter dated 22.08.2016. He did not recall if the letter dated 22.08.2016 was taken on record in the present case filed by him or not. He admitted that the said letter had not been filed with the charge sheet nor was reflected in the list of unrelied upon documents filed by CBI on 22.12.2021 and volunteered the said letters were communication made by him or CBI Vs. Vinay Kumar Pandey & Anr. Page No.86 of 361 by the SP.
88. PW56 was further shown D-43 Ex.PW32/G and he stated that he could not recall whether the letters dated 10.10.2016 and 31.10.2016 mentioned in the said exhibit were issued by him or by the SP. On reading Ex.PW32/G, he could say that the letters dated 10.10.2016 and 31.10.2016 were in respect of providing original/ true certified flight manifest of all Air India flights operated on 02.11.2012 and 03.11.2012 from Chennai to Delhi as well as information pertaining to "PNR no. YKX5C"
generated for seven passengers for flight No.AI0540 dated 01.11.2012 and flight No.AI0549 dated 02.11.2012. Apart from this, he was not able to recall if anything else was also sought by the said letters dated 10.10.2016 and 31.10.2016. He did not recall if the letters dated 10.10.2016 and 31.10.2016 were taken on record in the present case filed by him or not. He admitted that the said letters had not been filed with the charge sheet nor were reflected in the list of unrelied upon documents filed by CBI on 22.12.2021 and volunteered the said letters were communication made by him or by the SP. He was shown Ex.PW9/A and he stated that he could not recall whether the letter dated 25.10.2016 mentioned in the said exhibit was issued by him or by the SP. On reading Ex.PW9/A, he could say that the letter dated 25.10.2016 was in respect of seeking permission and certain documents. Apart from that, he was not able to recall if anything else was also sought by the letter dated 25.10.2016. He did not recall if the letter dated 25.10.2016 was taken on record in the present case filed by him or not. He admitted that the said letter had not been filed with the charge sheet nor was reflected in the list of unrelied upon documents filed by CBI on CBI Vs. Vinay Kumar Pandey & Anr. Page No.87 of 361 22.12.2021 and volunteered the said letters were communication made by him or by the SP.
89. PW56 was shown D-69 Ex.PW32/K and he stated that he could not recall whether the letters dated 02.11.2016 and 07.11.2016 mentioned in the said exhibit were issued by him or by the SP. On reading Ex.PW32/K, he could say that the letters dated 02.11.2016 and 07.11.2016 were in respect of certain details. Apart from that, he was not able to recall if anything else was also sought by the letters dated 02.11.2016 and 07.11.2016. He did not recall if the letters dated 02.11.2016 and 07.11.2016 were taken on record in the present case filed by him or not. He admitted that the said letters had not been filed with the charge sheet nor were reflected in the list of unrelied upon documents filed by CBI on 22.12.2021 and volunteered the said letters were communication made by him or by the SP. He was shown D-106 Ex.PW8/B and he stated that he could not recall whether the letter dated 29.11.2016 mentioned in the said exhibit was issued by him or by the SP. On reading Ex.PW8/B, he could say that the letter dated 29.11.2016 was in respect of seeking certain information and documents which were mentioned in para 2 and para 5 of the said exhibit. Apart from that, he was not able to recall if anything else was also sought by the letter dated 29.11.2016. He did not recall if the letter dated 29.11.2016 was taken on record in the present case filed by him or not. He admitted that the said letter had not been filed with the charge sheet nor was reflected in the list of unrelied upon documents filed by CBI on 22.12.2021 and volunteered the said letters were communication made by him or by the SP. Thus, PW56 was shown several exhibited documents which referred to letters and CBI Vs. Vinay Kumar Pandey & Anr. Page No.88 of 361 he stated that he could not recall whether the letters referred to in the said exhibits were issued by him or by the SP. He had also stated what the said letters pertained to and initially he had stated that he did not recall if the said letters were taken on record in the present case filed by him or not but then he admitted that the said letters had not been filed with the charge sheet nor were reflected in the list of unrelied upon documents filed by CBI on 22.12.2021. PW56 had volunteered that the said letters were communications made by him or by SP. It is thus, seen that there are several letters which were written by SP and those which were addressed to SP or to Shri Asif Jalal even in the capacity of DIG and PW56 had volunteered that it was not always necessary that the reply to the letter was sent to the IO directly and it may be addressed to the SP.
90. It is pertinent that PW56 admitted that the communication made with the witnesses or the agencies in the present case was in furtherance of the investigation. He admitted that in response to their correspondence, they had received correspondence from the witnesses or the agencies. He had filed the charge sheet in the present case. He denied the suggestion that Shri Asif Jalal had played an important role in the investigation in the present case and as part of the same he had sent correspondence and received correspondence and volunteered he had only played a supervisory role. He denied the suggestion that deliberately he had not been made a witness in the present case to defeat the right of the accused of fair trial or that Shri Asif Jalal was not made a witness in the present case as he was personally interested in the success of the present case and against the accused. However, there is nothing on record to CBI Vs. Vinay Kumar Pandey & Anr. Page No.89 of 361 show that Shri Asif Jalal was personally interested in the success of the present case against the accused. It is true that there are several communications by or addressed to Shri Asif Jalal and the said communications would be in furtherance of the investigation but admittedly he was the Senior Officer and investigation was entrusted to PW56 who was the IO of the case. Further, apart from the communications sent or received in the name of Shri Asif Jalal, there is nothing to reflect that the investigation was carried out by Shri Asif Jalal. PW56 is the IO of the case and he duly identified the signatures of Shri Asif Jalal on the documents. It was contended on behalf of A1 that right of A1 to cross-examine Shri Asif Jalal had been smashed by not joining him as a witness but there is no specific prejudice which has been shown to be caused to the accused persons by not joining Shri Asif Jalal as a witness and PW56 had been extensively cross-examined on behalf of the accused persons. As such there is no merit in the contention that the investigation could not have been carried out by PW56 or that Shri Asif Jalal had not been joined as a witness deliberately.
91. During further cross-examination PW56 admitted that office copies of the letters which are sent are retained and volunteered at times, by mistake the copies may not be retained. He did not recall if in the instant case, office copies were retained or not. If office copies are not retained during investigation, if there was any valid explanation, then no departmental action was taken but otherwise departmental action can be taken. Thus, PW56 had stated that office copies of the letter which were sent were retained though at times, by mistake they may not be retained. In the present case, several letters referred to in several CBI Vs. Vinay Kumar Pandey & Anr. Page No.90 of 361 exhibits have not been produced on record, nor were part of the list of unrelied upon documents but it is seen that they were mainly in the nature of correspondence and again there is nothing to show that any prejudice was caused to the accused persons by the said letters not being mentioned in the list of unrelied upon documents. It is not the case that the accused persons had at any point sought production of the said documents for the purpose of their defence but they could not be produced by the prosecution and PW56 had stated what they pertained to and as such nothing much turns on the said contention.
92. The Ld. Counsel for A1 had also argued that the custody of the documents in the present case had not been established. During cross-examination PW56 stated that he had maintained the case diary in the present case regularly. He admitted that the CBI has a malkhana. The documents which are original or certified copies and collected/seized during investigation are kept in the malkhana for safe custody. Register is maintained in the Malkhana. The date of depositing the documents and withdrawal of the documents is mentioned in the said register. The original and certified copies of documents for which safe custody was required were deposited in the Malkhana in the present case. He did not record the statement of any person from Malkhana of CBI AC-III to the effect of deposit and withdrawal of the documents in the present case. He had not obtained any copy of the Malkhana register in the present case. He denied the suggestion that he did not record the statement of any person of the Malkhana or that he did not obtain the copy of the Malkhana register since the documents were not deposited in the Malkhana at any point by him. Thus, PW56 stated that he had CBI Vs. Vinay Kumar Pandey & Anr. Page No.91 of 361 maintained the case diary in the present case regularly and nothing was extracted during cross-examination to the contrary. He stated that the documents which are original or certified copies and collected/seized during investigation are kept in the Malkhana for safe custody and register is maintained in the Malkhana but he had not obtained any copy of the Malkhana register in the present case nor recorded the statement of any person of the Malkhana but the same cannot lead to any inference that the same was not done since the documents were not deposited in the Malkhana at any point by him. Even otherwise, there is nothing to point out that the documents had been tampered with or that the same had caused any prejudice to the accused persons, nor even the accused persons at any stage sought production of the register to show to the contrary.
93. The Ld. Counsel for A1 had then submitted that the first charge sheet was filed by CBI on 24.12.2016 in which 34 witnesses were cited as well as 108 documents were referred to in the charge sheet and only witnesses to a certain extent were examined and the statements and material were placed before the Court and important aspects were left open to investigation i.e. the generation of PNR number and of boarding passes and deletion of check-in-history and the same were not placed before the Court in the first charge sheet. The second aspect related to weeding out of the records and not a single witness to weeding out was examined and made part of the first charge sheet. It was submitted that the first charge sheet was half baked and limited to application for reimbursement, form for reimbursement, issuance of cheque and deposit of the same and it was not a case of direct evidence. However, nothing much turns on the same as it is seen CBI Vs. Vinay Kumar Pandey & Anr. Page No.92 of 361 that thereafter supplementary charge sheet was also filed and the Court has to appreciate the entire material that is brought before it to come to a conclusion whether the charges are proved against the accused or not.
94. Several witnesses were cross-examined on the recording of their statements by the IO and during cross- examination by the Ld. Counsel for A1, PW18 stated that he did not remember how many times he had spoken to the IO in respect of the present case. He could not even say if it was 5 times or 10 times or even less. No noting was prepared regarding facilitating the handing over of the documents and volunteered Insp. Mohan Kumar used to take the signatures of the persons handing over the documents. The approval for the replies sent to the IO in respect of queries made by the IO was generally given by the Joint Secretary. In the present case also, the approval was generally given by the Joint Secretary. He stated that at the relevant time, the Joint Secretary was Ms. Rashmi Jain. He could not say about Ex.PW4/A as the same did not pertain to his branch. He stated that he was in the Pay and Accounts Office. Thus, PW18 did not remember how many times he had spoken to the IO in respect of the present case but nothing much turns on the same. He also stated that no noting was prepared regarding facilitating the handing over of the documents but it is pertinent that he also volunteered that Insp. Mohan Kumar used to take the signatures of the persons handing over the documents and also that the approval for the replies sent to the IO in respect of queries made by the IO was generally given by the Joint Secretary.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.93 of 361
95. During cross-examination by the Ld. Counsel for A1, PW19 stated that he did not remember how many times he had spoken to the IO in respect of the present case in 2015-16. The IO had also called him telephonically many times. No noting/record was prepared regarding the calls made by the IO or his meeting him and he volunteered that he did not meet him many times as he had told him the procedure. He had told the procedure to the IO verbally. No record was maintained of the conversation that he had with the IO. He admitted that he had not informed his senior about the said meeting or conversation and volunteered the IO had sent a formal communication after which he told him the procedure and after getting the approval the IO made written communications. He could not tell the dates of the formal communications. He could not tell without seeing the record as to how many times information was given to the IO prior to 21.03.2016. The record regarding the communications made to the IO prior to 21.03.2016 would be with CBI. He stated that there was a file in which the approval of the Hon'ble Speaker was taken and then the communications were sent to CBI. He denied the suggestion that he, without the permission of the Hon'ble Speaker had leaked certain important information and had given many documents to the IO without making any record of the same prior to 21.03.2016 and volunteered whatever was demanded from MSA branch by CBI was given with prior approval of the Hon'ble Speaker.
96. PW19, thus, also did not remember how many times he had spoken to the IO in respect of the present case in 2015-16 and the IO had also called him telephonically many times though no noting/record was prepared regarding the calls made by the IO CBI Vs. Vinay Kumar Pandey & Anr. Page No.94 of 361 or his meeting him but nothing much turns on the same. He stated that no record was maintained of the conversation that he had with the IO and he admitted that he had not informed his senior about the said meeting or conversation but it is also pertinent that he volunteered that the IO had sent a formal communication after which he told him the procedure and after getting the approval the IO made written communications. He had also stated that there was a file in which the approval of the Hon'ble Speaker was taken and then the communications were sent to CBI and as such, the communications were sent to CBI after taking due approval.
97. During cross-examination by the Ld. Counsel for A2, PW19 stated that the file in which approval was taken from the Hon'ble Speaker by the MSA branch was not handed over to the IO. The file would be maintained by the concerned branch and volunteered he was no longer with the said branch. The number of the file would be as per the number contained in the communication and he did not remember the number. He had not himself sent any letter to SP CBI that approval had been given by the Hon'ble Speaker and volunteered the same would be sent by the concerned branch, Dy. Secretary or Under Secretary. Thus, PW19 had stated that the file in which approval was taken from the Hon'ble Speaker by the MSA branch was not handed over to the IO and he had not himself sent any letter to SP CBI that approval had been given by the Hon'ble Speaker but he also volunteered that the same would be sent by the concerned branch, Dy. Secretary or Under Secretary. However, there is nothing to doubt that the communications were made with CBI after taking due approvals. During cross-examination by Ld. CBI Vs. Vinay Kumar Pandey & Anr. Page No.95 of 361 Counsel for A1, PW56 admitted that for obtaining any information from the Lok Sabha Secretariat, first permission had to be taken from there and it is seen that PW19 had also stated about approval being taken from the Hon'ble Speaker in the instant case.
98. PW5 was cross-examined regarding the recording of his statement and during cross-examination by the Ld. Counsel for A1, PW5 stated that the officials of CBI had made enquiries from him regarding the present case in his office. Insp. Mohan Kumar had made enquiries from him twice. He had recorded his statement perhaps twice. He admitted that Insp. Mohan Kumar himself recorded his statement. No other police official recorded his statement ever. He stated that his signatures were obtained on one page but he did not remember exactly. He admitted that his statement was recorded on 22.12.2016 by Insp. Giri Raj Sharma and volunteered he must have been with Insp. Mohan Kumar as he had interacted only with Insp. Mohan Kumar. However, nothing much turns on the same. During cross-examination by the Ld. Counsel for A1, PW6 admitted that CBI officials had interrogated him in the present case and recorded his statement. The IO had recorded what he stated in hand. Again said, he was typing the same on computer. He admitted that the IO was asking him questions and he was replying the same and he was typing the same on computer. No printout was taken in his presence. Though, PW6 had admitted that the IO was asking him questions and he was replying the same, nothing much turns on the same and he had categorically stated that the CBI officials had interrogated him and recorded his statement.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.96 of 361
99. During cross-examination by Ld. Counsel for A1, PW7 admitted that CBI had inquired from her in the present case and also recorded her statement. IO had taken her signatures on each page of her statement. Again said, she did not remember if her signatures were taken. Thus, PW7 had also stated that CBI had inquired from her in the present case and also recorded her statement. During cross-examination by Ld. Counsel for A1, PW11 admitted that the officers of CBI had made enquiries from him and recorded his statement and they recorded what he told them. He stated that his statement was shown to him but the copy of the same was not given to him. He was not sure if after reading the statement and finding it to be correct he signed it on the last page. Thus, PW11 also admitted that the officers of CBI had made enquiries from him and recorded his statement and he stated that they recorded what he told them though he was not sure if after reading the statement and finding it to be correct, he signed it on the last page.
100. It is the case of the prosecution that A1 had entered into a conspiracy with A2 to submit fake TA claim of A1 on the basis of fake and forged e-tickets and boarding passes without performing the actual journey and thereby caused wrongful loss to the exchequer of Government of India and wrongful gain to himself to the tune of Rs.9,71,384/- by misusing his official position as a public servant. As mentioned earlier, a charge of criminal conspiracy had been framed against A1 Vinay Kumar Pandey @ Vinay Kumar @ Vinnu for the offence under Section 120B read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the PC Act, 1988 and against A2 Arvind Kumar @ Arvind Tiwari for the offences under Section 120B CBI Vs. Vinay Kumar Pandey & Anr. Page No.97 of 361 read with Section 420 IPC. Besides the charge of criminal conspiracy coupled with the relevant sections of IPC and the PC Act, charge for commission of substantive offence of cheating under Section 420 IPC and of offence punishable under Section 13(2) read with Section 13(1)(d) of PC Act, 1988 was also framed against A1. Hence, it becomes necessary to discuss and appreciate the evidence led on record in respect of the charge framed against the accused persons.
101. Admittedly, A1 had been a Member of Parliament of Lok Sabha and the record regarding election of A1 as Member of 15th Lok Sabha was proved by PW50 Shri Ashok Singh Sajwan who deposed that he joined Lok Sabha Secretariat on 09.02.1986 as Assistant and in 2016, he was posted as Director in Lok Sabha Secretariat and was Incharge of the Table Office. The MPs who were elected used to take oath in the Parliament House and he was Incharge of the same. He proved D-67 which is letter dated 05.12.2016 addressed to DIG Asif Jalal, AC-III, New Delhi as Ex.PW50/A and stated that vide the said letter he had handed over copy of gazette notification of election of Shri Vinay Kumar Pandey as Member of 15th Lok Sabha issued by Election Commission of India which is Ex.PW50/B (D-68). He was not cross-examined on behalf of the accused persons despite opportunity being given. Thus, PW50 had proved the copy of gazette notification of election of A1 as Member of 15 th Lok Sabha.
102. PW37 Shri R.K. Trivedi had been examined by the prosecution to prove the original nomination form submitted by A1 and he deposed that in 2017, March he was posted in MSA CBI Vs. Vinay Kumar Pandey & Anr. Page No.98 of 361 branch Lok Sabha. He proved D-109 which is letter dated 07.03.2017 to Shri Mohan Kumar Insp. CBI AC-III bearing his signatures as Ex.PW37/A. Vide the said letter he had provided the information as mentioned therein. He identified his signatures on D-115 which is letter dated 27.12.2017 addressed to SP CBI AC-III, New Delhi and proved the same as Ex.PW37/B. Vide the said letter he had provided original nomination form (E-form) submitted by Dr. Vinay Kumar Pandey (Ex. MP) containing names of family members. He stated that D-116 which is original nomination form (E-form) submitted by Dr. Vinay Kumar Pandey (Ex. MP) containing names of family members had been handed over by him to CBI and the same is Ex.PW37/C. He also proved D-63 which is letter dated 28.11.2016 addressed to Mohan Kumar, Insp. CBI, AC-III bearing his signatures as Ex.PW37/D. He was not cross-examined on behalf of the accused persons. Thus, PW37 had proved the original nomination form (E-form) submitted by A1 containing the names of his family members.
103. PW41 Shri Rakesh Tiwari proved D-117 which is letter No.131/Election/2018 dated 16.02.2018 addressed to SP CBI AC-III as Ex.PW41/A. He also proved D-119 which is certified copy of Electoral Roll of Ward No.1, Ghugalpur Balrampur, UP which was handed over by him after certifying the same as Ex.PW41/B. The entry regarding A1 Dr. Vinay Kumar Pandey was at point X. He had also issued a certificate under Section 65 B of the Indian Evidence Act in support of the said documents which is Ex.PW41/C (D-118). He stated that he had taken a photocopy from the master copy of Ex.PW41/B and certified the same and given to the IO. He was not cross- CBI Vs. Vinay Kumar Pandey & Anr. Page No.99 of 361 examined on behalf of the accused persons.
104. The claim for reimbursement made by A1 in respect of journey between Delhi and Port Blair-via-Chennai and the charge of criminal conspiracy framed against him and A2 pertain to the tenure of A1 as MP in the 15 th Lok Sabha. The incriminating evidence brought on record by the prosecution to prove the charge against A1 and A2 can be broadly considered and appreciated under the following heads:
SUBMISSION OF TA FORM FOR CLAIMING REIMBURSEMENT
105. It is the case of the prosecution that a Member of Parliament was given TA/DA allowance during the session of Parliament and for travelling for an MP who was member of any Parliamentary Committee. The spouse of the MP was also given ticket for performing 8 journeys during the session of the Parliament to accompany the MP from the constituency to the capital. Further, an MP was entitled to get 34 single air journeys per year to be availed alone or with companion and the said facility could be availed by the Member of Parliament from any airline on cash payment. PW4 had deposed that as long as she was posted in Lok Sabha, every Member was entitled to 34 single trips including for the companions/ family members in one year. PW4 had proved D-5 which contains the details regarding Air Tickets entitlement of M.P. of 15th Lok Sabha and prevalent rules and procedures of processing TA Bills in Lok Sabha Secretariat as Ex.PW4/G (colly) and D-7 which is The Salary Allowances and Pension of Members of Parliament, 1954 and rules made thereunder as Ex.PW4/H (colly). PW5 also deposed CBI Vs. Vinay Kumar Pandey & Anr. Page No.100 of 361 that apart from official journeys, a Member was entitled to 34 Air journeys in a year which included journeys by companions, family members as well. The spouse was entitled to 8 Air journeys in addition to the same during the year. The reimbursement for journeys undertaken by the companions was on account of the Member. PW26 had also deposed that at that time an MP was entitled to unlimited official journeys and 34 personal journeys by air. For claiming the reimbursement for companion journeys the Member would mention in the form regarding the persons who had accompanied him. Thus, the witnesses had stated about the entitlement of the Members of Parliament to journeys by air and the said position was not disputed during cross-examination.
106. PW8 Ms. B. Visala was examined to prove that she had handed over certain documents to CBI and she deposed that in December 2016, she was working as Additional Director in MSA Branch, Lok Sabha Secretariat and she was also having charge of another Committee on Rural Development. She proved D-105 which is seizure memo dated 22.12.2016 as Ex.PW8/A. She proved D-106 which is a letter dated 22.12.2016 bearing No. 21/1/LSS/MSA/2016 and she stated that it bore her signatures and the same is Ex.PW8/B and the same was addressed to Asif Jalal, DIG, CBI, New Delhi. She was not cross-examined on behalf of A2 despite opportunity being given. PW8 had thus proved the seizure memo Ex.PW8/A vide which the original specimen signatures of A1; the original TA register of A1 containing TA Bill dated 5.11.2012 (Ex.PW5/C) and the circular regarding entitlement of Air Journey of Member of 15th Lok Sabha (Ex.PW4/G) were forwarded to CBI.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.101 of 361
107. During cross-examination by Ld. Counsel for A1, PW8 stated that Additional Director is an officer above the level of Deputy Secretary. The letter dated 22.12.2016 Ex.PW8/B was written after due approval of the competent authority after following the official procedure. She did not remember who received the letter dated 29.11.2016 of Shri Asif Jalal but the same had come through the branch and was placed before her. She did not remember exactly but after receiving the letter she would have discussed the same with the concerned officials and after approval of the competent authority, the letter Ex.PW8/B was written and volunteered even the approval was taken in respect of the contents of the letter. She had not brought the file on which the noting in the said respect was done and volunteered she was not in possession of the said file and she was in the MSA Branch only for 7-8 months till September 2017. She denied the suggestion that MSA branch was bent upon giving false information and intentionally destroying vital documents which had a very important bearing on the case and thereby resulting in violation of the fundamental rights of the accused to have a fair trial or that wrong information and destruction of documents was resulting in unfair trial to A1. Thus, PW8 had stated about the letter dated 22.12.2016 Ex.PW8/B being written after due approval of the competent authority after following the official procedure and had volunteered that even the approval was taken in respect of the contents of the letter.
108. As per the case of the prosecution TA/DA allowance was reimbursed to the MP as per procedures prevalent in the office of Lok Sabha Secretariat. It was stated that the Member was required to submit details of journey for which TA was being CBI Vs. Vinay Kumar Pandey & Anr. Page No.102 of 361 claimed in the prescribed "Arrival/Departure Report and Intermediate Journey Form" along with used air tickets and boarding passes in original. The tickets submitted along with the claim form were required to be countersigned by the MP. The TA/DA claims were processed in the Member's Salary and Allowances (MS&A) branch by the dealing clerk and it was prepared in the TA/DA software called E-wisdom. After approval by the Drawing and Disbursing Officer, MS&A, it was sent to P&AO Audit Branch for payment. After checking by the dealing hand/ Executive Assistant, Executive Officer, the bill was approved by the Pay and Accounts Officer for payment. Thereafter, payment was credited in the bank account of the MP. It was stated that A1 submitted the "Arrival/ Departure Report and Intermediate Journey Form" dated 05.11.2012 along with Air tickets and boarding passes and also mentioned the details of the purported journey along with his six companions from 01.11.2012 to 03.11.2012. As per the same, he had performed the personal journey from Delhi to Chennai on 01.11.2012, from Chennai to Port Blair on 02.11.2012 and he returned from Port Blair to Delhi on 03.11.2012 along with his six companions through Air India and the said form was signed by A1. A1 had also submitted to the MSA branch of Lok Sabha the e-tickets and boarding passes for the journey from Delhi to Port Blair to Delhi and the form also contained a declaration certifying the information which was required to be signed by the MP claiming TA/DA bill and it contained a "contents received" slip on which a revenue stamp had to be fixed and signatures were to be made by the MP. The said receipt was also known as receipt acknowledgment. As per the investigation, the e-tickets CBI Vs. Vinay Kumar Pandey & Anr. Page No.103 of 361 submitted by A1 were countersigned by him though the tickets and boarding passes submitted by A1 had been weeded out in the year 2014. However, the details relating to TA/DA of A1 were available in the TA/DA register maintained at the MSA branch of Lok Sabha Secretariat. The prosecution had examined several witnesses who deposed about the procedure that was followed and about the submission of the TA form of A1 and it being processed.
109. PW4 Ms. Punam Sharma deposed that on 14.09.2016, she was holding charge of two branches in Lok Sabha Secretariat namely MSA (Members Services and Allowances) and Sales & Records. She had worked as Sr. DDO in MSA, Lok Sabha in 2015 and Mr. Hudda and Gursharan Kaur Mohi were the DDOs when she joined MSA. She stated that for claiming TA/DA, Member had to submit original tickets, boarding passes and a prescribed form duly filled up and containing the details of the journey. The Member could submit the same either personally or through his PA/PS or in the notice office of Lok Sabha. The documents were sent to the concerned Dealing Assistant of MSA for processing the same. The Dealing Assistant examined the documents which were submitted and if the documents were in order as per the prescribed rules and the proforma was filled up properly, he prepared the bill in software E-wisdom. In case the Dealing Assistant found any discrepancies or shortcomings in the documents which were submitted, he returned the documents to the concerned Member. After the Member resubmitted the documents after removing the shortcomings, the Dealing Assistant again processed the document. When the bill was prepared on E-wisdom, two copies of the same were printed. CBI Vs. Vinay Kumar Pandey & Anr. Page No.104 of 361 Both the copies along with the documents and form submitted by the Member were placed before the checking officer, normally the Executive Officer or who so ever was Incharge. The said senior officer also examined the documents and the bill and if the same were found in order, they were sent to the DDO. The DDO also examined all the documents and signed one copy. One copy of the bill was pasted in the register maintained for keeping record. No other document was pasted in the register of the concerned Member. The other copy of the bill along with the documents was then forwarded to the Pay and Account Office.
110. PW4 stated that a separate TA/DA folder was maintained in respect of every Member physically. The Pay and Account Office vetted the documents and the documents were sent for the signatures of the Pay and Account Officer. Then the same was sent to the bank. She could not say whether the amount was directly transferred to the bank account or cheque was issued. She stated that the tickets or boarding passes were not verified in ordinary course from the concerned Airlines but if there was a doubt, then verification might be taken. PW4 deposed that she was not Incharge of MSA in 2012 and she got the charge in 2014. As part of her duties related to TA/DA, she used to check the documents submitted along with the prescribed form and the bill prepared by the Dealing Assistant. At times the same were not examined thoroughly but only they used to glance at them due to huge volume of work. After finding the said documents in order, she would send them to the Pay and Account Office. She proved D-2 which is letter dated 05.07.2016 written by her as Ex.PW4/A. Vide the said letter she had handed over the original TA form for the journey of Shri Vinay Kumar Pandey but CBI Vs. Vinay Kumar Pandey & Anr. Page No.105 of 361 the original tickets and boarding passes had been weeded out as mentioned in the letter.
111. PW4 was shown D-3 which is original TA form for personal journey of Shri Vinay Kumar Pandey from Delhi to Port Blair and return and she stated that she handed over the said document to the IO and the same is Ex.PW4/E. The signatures at point A would be of the M.P. but she could not say the name. The name written was Dr. Vinay Kumar Pandey and volunteered she could not identify his signatures. She identified D-4 which is blank specimen of TA/DA form as the prescribed form for claim of TA/DA and the same is Ex.PW4/F. She proved D-8 which is letter dated 22.08.2016 addressed to Asif Jalal, SP, AC-III, New Delhi CBI as Ex.PW4/I and she identified her signatures on the same. She stated that D-9, which is copy of specimen signatures of Shri Vinay Kumar Pandey was handed over by her to the IO and is Ex.PW4/J. She was not sure but perhaps the signatures were of Ms. Rajni, who had certified the said document at point A. As such PW4 had deposed about the procedure that was followed in respect of claim of TA/DA by a Member. She had handed over the original TA form for personal journey of Shri Vinay Kumar Pandey from Delhi to Port Blair and return which is Ex.PW4/E and she stated that the name written was Dr. Vinay Kumar Pandey and volunteered she could not identify his signatures.
112. PW5 Shri Belamu Ram, Executive Officer, Lok Sabha Secretariat deposed that on 14.09.2016, he was posted as Executive Assistant in MSA branch, Lok Sabha Secretariat. He stated that if a member had to claim TA/DA, there was a CBI Vs. Vinay Kumar Pandey & Anr. Page No.106 of 361 prescribed form in which he had to fill the details of forward and return journey during the period 2012. The Member also filled the column regarding the journey being official or private. The form was signed by the Member concerned at three places. If a Member undertook air journey, he had to submit E-tickets along with boarding passes along with the form. He stated that his duty as an Executive Assistant was to check the details filled in the form-the IC number of the Member, his name and his signatures. The tickets were required to be counter-signed by the Member. If the form and the documents were in order, then a bill was prepared in the software E-wisdom. Two printouts of the bill were taken, out of which one was pasted in the register and the other was sent to the Pay and Account Office. The form was retained in the branch. The verification slip in the form which contained the signatures of the Member was attached to the bill and sent to the Pay and Account Office.
113. PW5 stated that he used to put up the bill to the Executive Officer who would check if the bill was proper and thereafter forward it to the DDO. If there was any discrepancy in the bill, the Executive Officer returned the same to them. At the time when he checked the documents, if he found any discrepancy in the same, he would return the same to the Member concerned. From the DDO, the bill was sent to the Pay and Account Office. He stated that he used to sign the copy of the bill printout which was put up before the Executive Officer. He stated that when the new Lok Sabha is constituted, the details of the Members along with their specimen signatures are sent to the MSA branch. The verification of the name and signatures on the TA/DA form was done from the said specimen signatures. He CBI Vs. Vinay Kumar Pandey & Anr. Page No.107 of 361 had jurisdiction in 2012 regarding 29 MPs of Madhya Pradesh and 26 MPs of UP. He used to handle their TA/DA bills. He stated that he could identify the signatures of Shri Vinay Kumar Pandey as he had seen his specimen signatures during the course of his duty. He stated that he was handling the TA/DA bill of Shri Vinay Kumar Pandey at the time the TA/DA form in question was submitted.
114. PW5 was shown Ex.PW4/E and he identified the form as having been processed by him. He identified the signatures of Shri Vinay Kumar Pandey on the form. He stated that along with the said form, he had received tickets and boarding passes. He was shown D-6 which is certified copy of TA bill register of Shri Vinay Kumar Pandey and he identified the signatures and rubber stamp of Rajni Rawat on Ex.PW5/A, who had certified the said register. He stated that he had taken the printout of the said bill and pasted it in the register. He was shown D-47 which is the original TA bill dated 05.11.2012 and original declaration and acknowledgment stapled on the front page of the TA bill and he identified his signatures on Ex.PW5/B and of Shri Vinay Kumar Pandey on the original declaration and receipt acknowledgment. He stated that A2 used to come to their office at that time for all the works of Shri Vinay Kumar Pandey.
115. PW5 stated that after verifying the TA/DA form Ex.PW4/E, he prepared the bill Ex.PW5/B and thereafter submitted the same to his Executive Officer. The IC number of Shri Vinay Kumar Pandey allotted to him by Table Office of Lok Sabha was 461. As per the TA/DA form, A1 was accompanied by six other persons on the journey from Delhi to Port Blair via CBI Vs. Vinay Kumar Pandey & Anr. Page No.108 of 361 Chennai and return from 01.11.2012 to 03.11.2012. The tickets were E-Tickets and their numbers were mentioned in the register Ex.PW5/A. The bill that was raised was for an amount of Rs.9,71,384/-. This was in respect of a personal journey. An amount of Rs.9,71,384/- was reimbursed to Shri Vinay Kumar Pandey which was shown in Ex.PW5/A. He stated that the original tickets and boarding passes were forwarded with the bill to the DDO and after he checked the same, the same were returned to them and not sent to the Pay and Account Office of Lok Sabha. He was shown D-108 which is the original TA/DA register of Lok Sabha Secretariat of Shri Vinay Kumar Pandey and the same is Ex.PW5/C and he stated that the original TA bill dated 05.11.2012 is at page 46. He was shown D-107 which are the original specimen signatures of Shri Vinay Kumar Pandey and he identified the signatures of Shri Vinay Kumar Pandey on Ex.PW5/D. Thus, PW5 also stated the procedure that had to be followed if a Member had to claim TA/DA, what his duty as an Executive Assistant was and that the verification of the name and signatures on the TA/DA form was done from the specimen signatures, that he was handling the TA/DA bill of Shri Vinay Kumar Pandey at the time the TA/DA form in question was submitted and he identified Ex.PW4/E as the form which was processed by him and he also identified the signatures of Shri Vinay Kumar Pandey on the form. PW5 also stated that along with the said form, he had received tickets and boarding passes. He further identified his signatures on the original TA bill dated 05.11.2012 and original declaration and acknowledgment stapled on the front page of the TA bill Ex.PW5/B and of Shri Vinay Kumar Pandey on the original declaration and receipt CBI Vs. Vinay Kumar Pandey & Anr. Page No.109 of 361 acknowledgment. He also proved the original TA/DA register of Lok Sabha Secretariat of Shri Vinay Kumar Pandey as Ex.PW5/C and he stated that the original TA bill dated 05.11.2012 was at page 46.
116. PW6 Shri Karam Chand deposed that he was posted as Executive Officer at Lok Sabha in 2010 and retired in 2015. He stated that in 2012, if a Member had to claim reimbursement of TA/DA, he had to fill up a form and submit the same along with tickets and boarding passes. The same was processed by Dealing Assistant who checked the name of the MP, signatures and the documents and if the same were found in order, the form was put up before the Executive Officer. The Executive Assistant would also prepare the bill and put it up before the Executive Officer. If the Executive Officer found the bill in order, the same was forwarded to the DDO. The PA of the MP would fill up the form and submit the same in the MSA Branch. If there was any discrepancy in the form, the same was returned to the Member. He could not say what was the entitlement of an MP of Air journey in a year. As an Executive Officer, he used to check the bill put up before him by the Executive Assistant and if it was in order, he would forward it to the DDO for approval. The signature of the MP was verified from the specimen signatures which were available in the branch. He was shown Ex.PW4/E and he stated that he had checked the said form. He was shown Ex.PW5/A and Ex.PW5/B and he identified his signatures on Ex.PW5/A and on Ex.PW5/B. He was shown D-48 which is certified copy of bill dated 02.11.2012 and the same is Ex.PW6/A and he identified his signatures on the first page. He was not cross-examined on behalf of A2 despite opportunity CBI Vs. Vinay Kumar Pandey & Anr. Page No.110 of 361 being given. Thus, PW6 also deposed that if a Member had to claim reimbursement of TA/DA, he had to fill up a form and submit the same along with tickets and boarding passes and he also deposed about the procedure in respect of the same. As an Executive Officer, he used to check the bill put up before him by the Executive Assistant and if it was in order, he would forward it to the DDO for approval and he stated that he had checked the form Ex.PW4/E. He also identified his signatures on the certified copy of bill dated 02.11.2012 Ex.PW6/A.
117. PW7 Ms. Rajni Rawat deposed that in November 2012, she was posted as Sr. Assistant in Administration-II and in June 2016, she was posted in MSA Branch, Lok Sabha as Executive Officer. She stated that in order to claim reimbursement of TA claim, a Member had to submit a TA/DA form along with original tickets to the Dealing Assistant either directly or through PA. The Dealing Assistant checked the documents and thereafter prepared the bill and after signing the bill, he put up the same before the Executive Officer. The Executive Officer forwarded the bill to the DDO and the DDO after checking the bill sent it to the Pay and Account Office. The Dealing Assistant in the Pay and Account Office checked the bill and put it up before its DDO and thereafter payment was made. If there were any discrepancies in the form, then the Dealing Assistant returned the same to the Member to carry out the rectification. She was shown Ex.PW5/A and she identified her signatures and rubber stamp on the same. Thus, PW7 also stated that in order to claim reimbursement of TA claim, a Member had to submit a TA/DA form along with original tickets to the Dealing Assistant either directly or through PA and she also CBI Vs. Vinay Kumar Pandey & Anr. Page No.111 of 361 stated the procedure that was followed. She identified her signatures on Ex.PW5/A which is certified copy of TA bill register of Shri Vinay Kumar Pandey.
118. PW26 Smt. Gursharan Kaur Mohi deposed that she was posted in MSA Branch in Lok Sabha Secretariat as Under Secretary in 2012 and 2013. She stated that the TA/DA Bill of an MP was received by the Dealing Assistant of MSA Branch of Lok Sabha Secretariat. The Dealing Assistant checked the bills, tickets and boarding passes. After thoroughly scrutinizing the bills, he put the same before the Head of the MSA Branch. The Head of the MSA Branch also thoroughly scrutinized the bill and checked the tickets and boarding passes and thereafter put his initials on the same. Thereafter, the bill was sent to the DDO, who checked the bill including the boarding passes and tickets and after putting his initials sent the same to Pay and Account Office for vetting and payment. She stated that if any discrepancies were noted in the bill by the DDO, then the same was sent back to the Head of the MSA Branch and after the defects were cured the same was again put up before the DDO. At that time no verification was carried out regarding the journey from the airlines.
119. PW26 stated that no entry was made in any register by the DDO regarding the TA/DA bill. The specimen signatures of the MP remained with the Dealing Assistant of MSA Branch. She had dealt with the TA/DA Bill of Dr. Vinay Kumar Pandey. She stated that D-6 which is Ex.PW5/A and D-108 which is the original TA register and Ex.PW5/C bore her signatures as DDO after verifying the bill and checking the tickets and boarding CBI Vs. Vinay Kumar Pandey & Anr. Page No.112 of 361 passes and the signatures at point C were of Shri Karam Chand, who was then the Executive Officer. She stated that D-47 which is Ex.PW5/B bore her signatures as DDO as also D-48 which is Ex.PW6/A. She stated that at that time, the tickets and boarding passes were not sent along with the bill to the Pay and Account Office. Thus, PW26 deposed about the procedure that was followed in respect of TA/DA bill of A1 and that she had dealt with the TA/DA Bill of Dr. Vinay Kumar Pandey. Ex.PW5/A and the original TA register Ex.PW5/C bore her signatures as DDO after verifying the bill and checking the tickets and boarding passes as also Ex.PW5/B and Ex.PW6/A.
120. It is thus seen that the witnesses had stated the procedure which was followed for claiming TA/DA i.e. the Member had to submit original tickets, boarding passes and a prescribed form duly filled up and containing the details of the journey either personally or through his PA/PS or in the notice office of Lok Sabha; the documents were sent to the concerned Dealing Assistant of MSA for processing the same who examined the documents which were submitted and if the documents were in order, he prepared the bill in software E-wisdom; in case of any discrepancies or shortcomings, the documents were returned to the concerned Member. When the bill was prepared in E- wisdom, two copies of the same were printed; both the copies along with the documents and form submitted by the Member were placed before the Executive Officer who also examined the documents and the bill and if the same were found in order, they were sent to the DDO; the DDO also examined all the documents and signed one copy; one copy of the bill was pasted in the register maintained for keeping record and the other copy of the CBI Vs. Vinay Kumar Pandey & Anr. Page No.113 of 361 bill was forwarded to the Pay and Account Office; a separate TA/DA folder was maintained in respect of every Member physically; the Pay and Account Office vetted the documents and the documents were sent for the signatures of the Pay and Account Officer. They had also stated that the form Ex.PW4/E was submitted by A1 on the basis of which the bill Ex.PW5/B was prepared and original TA/DA register of Lok Sabha Secretariat of A1 is Ex.PW5/C and the original TA bill dated 05.11.2012 is at page 46 of the same. A2 during his statement under Section 313 Cr.P.C. had stated that what PW4, PW5 and PW7 had deposed regarding the procedure to get TA/DA claim reimbursed was a part of the procedure that was to be followed for TA/DA claim and he knew about the same because he had worked for some MPs as PA.
121. At the outset it is the contention of A1 that the TA form was not submitted by him and that PW5 had also not stated that he had received the said document from A1. During cross- examination PW4 stated that the notice branch is in a different building from the MSA Branch. She was not aware of the working of the notice branch. Therefore, she could not tell what registers were maintained with respect to the receipt of the TA/DA forms as well as the documents enclosed with the same. It was not in her knowledge that along with the TA/DA Bill which was put up before the senior officer, the Dealing Assistant also put up a noting file containing the details of who had received the TA/DA form, where it was received and who had handed over the form. As such, PW4 could not say about the receipt of the TA/DA forms. During cross-examination PW5 stated that no separate entry was made in any register regarding CBI Vs. Vinay Kumar Pandey & Anr. Page No.114 of 361 receipt of form from an MP for processing his claim and no such entry was made in respect of Ex.PW4/E. He admitted that he made no endorsement on Ex.PW4/E regarding receipt of the same. PW5 had also thus stated that no separate entry was made in any register regarding receipt of form of an MP for processing his claim (though he had stated about A2 being the PA of A1 which would be discussed separately) and it was argued by the Ld. Counsel for A1 that the only way to show that the form had been submitted was by way of register through which the document was received but PW5 had stated that there was no such register which was either stated deliberately or to prevent any defence being built up and as such there was no record to corroborate the case of the prosecution that the bill was received. It is true that there is no document which evidences the receipt of the TA form by the MSA branch but the witnesses have consistently stated about receipt of the TA form and about processing the same and preparing the bill on the basis of the same. The Ld. Counsel for A1 had then argued that submission of the TA form was not attributed to A1 and it may be mentioned that none of the witnesses had stated that A1 had personally submitted the TA form Ex.PW4/E but they had also stated that the form could be submitted either personally or through PA or given in the notice branch of the MSA. Even otherwise, it cannot be disputed that the form claiming reimbursement of TA was submitted in the MSA Branch and it is not necessary that it should have been proved that the form was submitted by A1 himself, moreso as the beneficiary of the reimbursement would have been A1.
122. It is then the contention of A1 that the TA form CBI Vs. Vinay Kumar Pandey & Anr. Page No.115 of 361 Ex.PW4/E did not bear his signatures. As per the case of the prosecution, not only the TA form Ex.PW4/E but also the original declaration and acknowledgement bore the signatures of A1. While PW4 could not identify the signatures of A1, PW5 had duly deposed about identifying the signatures of A1 on Ex.PW4/E and on the original declaration and acknowledgement stapled on the front page of the TA bill Ex.PW5/B at point B and C (pink slip). Further PW4 had stated about handing over the copy of specimen signatures of A1 to the IO which is Ex.PW4/J. PW5 had also stated that the verification of the name and signatures on the TA/DA form was done from the specimen signatures of the Members sent to the MSA branch and that he could identify the signatures of A1 as he had seen his specimen signatures during the course of his duty. He also identified the signatures of A1 on Ex.PW5/D which is the original specimen signatures of A1. During cross-examination PW5 stated that the office allotted MPs to different Dealing Assistants for processing their bills. There was no specific order but the branch itself decided the allocation. He had not handed over any such order to the IO in the present case nor the IO had asked him for any such order. Thus, PW5 had reiterated about the allocation of MPs to different Dealing Assistants for processing their bills though no such order was handed over in the present case. However, PW5 had also identified his signatures on Ex.PW5/B and had further stated about preparing the same. As such, nothing much turns on the question of allocation of MPs to different Dealing Assistants.
123. PW5 was also cross-examined regarding the pink slip and he admitted that in the pink slip on Ex.PW5/B there was a column for revenue stamps but no revenue stamp was affixed on CBI Vs. Vinay Kumar Pandey & Anr. Page No.116 of 361 Ex.PW5/B and volunteered the revenue stamp had been put at point C and the PA or whosoever got the form signed obtained the signatures and put the revenue stamp later on and if the revenue stamp was not put, then the form was not taken. He admitted that the signatures of Shri Vinay Kumar Pandey were not there on the revenue stamp. He admitted that he had never seen accused Shri Vinay Kumar Pandey writing personally. Thus, the signatures of A1 were not there on the revenue stamp but it is not the case that the revenue stamp was not affixed.
124. PW20 had deposed that he had put his signatures on Ex.PW5/D to verify the specimen signatures of A1 when he became the MP and he identified the signatures of A1 at point A. During cross-examination by Ld. Counsel for A2, PW20 stated that he could identify the signatures of the MPs whose signatures he had verified and not of all the MPs. He had perhaps identified the signatures of 20 to 25 MPs at that time. He could identify their signatures if shown to him. He denied the suggestion that he was giving the statement under the pressure of CBI as CBI had shown him the specimen signatures already. During cross- examination by Ld. Counsel for A1, PW20 was asked if he could tell the names of 20-25 MPs, whose signatures he had stated he had identified which was disallowed. He stated that he could identify the signatures of the 20-25 MPs of 14 th Lok Sabha, whose signatures he had identified if shown to him without being told/shown their names. He had taken permission from his Senior Officers for deposing in the matter. He had produced and shown the permission. He stated that the signatures specimen forms were maintained in the Table Office of the Lok Sabha Secretariat. He denied the suggestion that without being told/shown the CBI Vs. Vinay Kumar Pandey & Anr. Page No.117 of 361 names of the 20-25 MPs, whose signatures he had identified, he would not be able to identify their signatures. He denied the suggestion that the signatures were not done by A1 in his presence. Thus, nothing was extracted during the cross- examination of PW20 to doubt his identification of the signatures of A1.
125. The prosecution had also examined the handwriting expert to prove the signatures of A1 on Ex.PW4/E and on the original declaration and acknowledgement stapled on Ex.PW5/B and had also obtained specimen signatures of A1. PW51 Shri Mukesh Rawat, Clerk, Bank of India, CGO Complex, Electronic Niketan deposed that a letter had been received by the Branch Head from CBI requesting for a witness and he was deputed by the Branch Head for the purpose. He had gone to the office of CBI on 25.07.2016. In the office of CBI, the specimen signatures of accused Vinay Kumar Pandey whom he identified were taken in his presence which were given by him voluntarily. He stated that in D-94 Ex.PW46/E, the signatures S-1 to S-8 were taken in his presence and his signatures are at point B. During cross- examination by Ld. Counsel for A1 PW51 stated that he had not brought the copy of the letter which was received by the Branch Head from CBI requesting for a witness. He stated that he had not been to the CBI office in any other case as a witness. As such, there is nothing to doubt that the specimen signatures of A1 were taken in the presence of PW51.
126. PW46 had proved her report Ex.PW46/B. PW46 was shown D-94 which is specimen signatures of A1 Shri Vinay Kumar Pandey marked S1 to S8 bearing stamp of CFSL, CBI, CBI Vs. Vinay Kumar Pandey & Anr. Page No.118 of 361 New Delhi with case number and exhibit number on every page which she identified and the same is Ex.PW46/E. She was shown D-15 which is Ex.PW2/E (colly) and bore the admitted signatures of A1 Shri Vinay Kumar Pandey bearing stamp of CFSL, CBI, New Delhi with case number and exhibit number A- 1 to A-4 on every page (3 pages). She was also shown D-9 which is Ex.PW4/J and bore the admitted signatures of A1 Shri Vinay Kumar Pandey bearing stamp of CFSL, CBI, New Delhi with case number and exhibit number A-5 (reproduced copy). She was shown D-3 which is Ex.PW4/E and contained the questioned signatures and handwriting marked Q-1, Q-4 to Q-6 and bore the rubber stamp of CFSL, CBI, New Delhi with case number and exhibit number Q-1, Q-4 to Q-6. She was also shown D-47 which is Ex.PW5/B and contained the questioned signatures and handwriting marked Q-9, Q-10 and Q-11 and bore the rubber stamp of CFSL, CBI, New Delhi with case number and exhibit number Q-9, Q-10 and Q-11.
127. During cross-examination by Ld. Counsel for A1, PW46 stated that she had not done any specialized course in handwriting analysis. She had done B.Sc. with Botany, Zoology and Chemistry as subjects. She joined CFSL in the year 1993. Thus, PW46 had not done any specialized course in handwriting analysis but on that basis her report cannot be doubted. The Ld. Counsel for A1 had argued that without specialized knowledge, the report of the handwriting expert could not be accepted and reliance in this regard was placed on the judgment in Ramesh Chandra Agrawal v. Regency Hospital Ltd. and Ors. (supra) wherein the Hon'ble Supreme Court had observed as under:
CBI Vs. Vinay Kumar Pandey & Anr. Page No.119 of 361 "EXPERT OPINION:
The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed. The other requirements for the admissibility of expert evidence are:
i) that the expert must be within a recognized field of expertise
ii) that the evidence must be based on reliable principles, and
iii) that the expert must be qualified in that discipline.
[See Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 ed., Cambridge University Press, p.178]"
Thus, it was held that the expert must be within a recognised field of expertise and must be qualified in that discipline. Reliance in this regard was also placed on the judgment of the Hon'ble Supreme Court in State of Himachal Pradesh v. Jai Lal and Ors. (supra) wherein it was observed as under:
"17. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.120 of 361
18. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.
19. The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in Court and has to face cross- examination."
However, in the instant case, there is no reason to doubt the expertise of PW46 considering that it is stated in the report Ex.PW46/B itself that PW46 was a Sr. Scientific Assistant (Document) and joined CFSL in the year 1993 and she had assisted in examination of about 1500 cases comprising of 1.5 lac exhibits (approximately) and had imparted training to students of various Universities. Thus, it can be seen that PW46 was highly experienced in her field.
128. During further cross-examination PW46 stated that she had not taken any pictures or photographs when she had carried out the procedure in the present case and volunteered that she prepared observation sheet. Video Spectral Comparator-IV was used which did not generate a printout and in the present case as well no printout was generated. Again said, in the present case no printer was available so printout was not generated. She admitted that if the printer was available, printout could have been generated. Thus, PW46 had initially stated that Video CBI Vs. Vinay Kumar Pandey & Anr. Page No.121 of 361 Spectral Comparator-IV was used which did not generate a printout but again said that in the present case no printer was available so printout was not generated. As such, no printout was available and the Ld. Counsel for A1 had submitted that PW46 had taken a sham excuse as no printout was taken in the present case and further in a lab like the CFSL, it could not be believed that a printer would not be available. However, again on that basis the report of PW46 cannot be doubted.
129. PW46 stated that the observation sheets are part of the file maintained at CFSL and were not sent along with the report. She had brought the file containing the observation sheets. Copies of the observation sheets are Ex.PW46/P1 (colly) (OSR). As such, when asked for, PW46 had placed the observation sheets on record. PW46 stated that in the observation sheets the questioned signatures/writing were kept in juxtaposition with the standard i.e. admitted as well as specimen signatures/ writing provided. She admitted that the observation sheets were the basis of the report and volunteered the original documents sent for examination and furnishing of expert opinion were examined thoroughly with the help of scientific aids and by applying the principles of handwriting examination, the report was prepared. She admitted that in the observation sheets the photocopies of the questioned signatures/writing and of the standard signatures/writing were pasted. She denied the suggestion that she did not examine the documents thoroughly and correctly. She further denied the suggestion that her observations in the report were incorrect or that her conclusions in her report were incorrect or that she deliberately did not take the printout from the Video Spectral Comparator-IV under the influence of the CBI as the CBI Vs. Vinay Kumar Pandey & Anr. Page No.122 of 361 same would have been in favour of the accused. Thus, PW46 admitted that the observation sheets were the basis of the report but she also volunteered that the original documents sent for examination and furnishing of expert opinion were examined thoroughly with the help of scientific aids and by applying the principles of handwriting examination, the report was prepared. As such, nothing has come out in the cross-examination of PW46 to doubt the report submitted by her.
130. A perusal of Ex.PW46/B shows that it was stated therein as under:
"The questioned signatures marked Q-1 to Q-3, Q-9 and Q-10 are consistent with the standard signatures marked S-1 to S-8 and A-1 to A-4 attributed to Vinay Kumar Pandey, due to the following reasons:
i) Manner of execution of initial stroke with the nature of its start, its anticlockwise movement having loop, its upward movement, eliptical shape of its body having extended horizontal stroke, loop at its terminal along with direction of finish as observed in the questioned signatures is similarly observed in the standard signatures within the range & extent of their natural variations.
ii) Similar habit of underscoring the signatures between both the sets of signatures.
The aforesaid points of similarity observed between both the sets of signatures indicating that both the sets of signatures may have been written by one and the same person."
Thus, in the report, the similarities between the questioned signatures and the standard signatures were highlighted and it was stated that the similarities indicated tht both the sets of signatures may have been written by one and the same person.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.123 of 361
131. The Ld. Counsel for A1 had argued that the report was inconclusive as it did not categorically state that the questioned signatures were of A1, rather it stated that they may have been written by one and the same person. However, it is also stated in the report that the questioned signatures were consistent with the standard signatures attributed to A1. Even otherwise, it is settled law that the report of the handwriting expert is only an expert opinion which can be used as corroborative evidence. The Ld. Counsel for A1 himself, in this regard had relied upon several judgments on the point that 'science of handwriting comparison is a weak piece of evidence and accused ought not to be convicted on the uncorroborated opinion of a handwriting expert', namely S.P.S. Rathore v. CBI and Ors. (supra); S. Gopal Reddy v. State of Andhra Pradesh (supra); State (Delhi Administration) v. Dilbagh Rai and Others (supra); Ramakant Dubey v. State of U.P. (supra) and Siba Prasad Satpathy v. Republic of India (supra). In S.P.S. Rathore v. CBI and Ors. (supra), the Hon'ble Supreme Court had observed as under:
"27. We are of the opinion that expert evidence as to handwriting is only opinion evidence and it can never be conclusive. Acting on the evidence of any expert, it is usually to see if that evidence is corroborated either by clear, direct or circumstantial evidence. The sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. A court is competent to compare the disputed writing of a person with others which are admitted or proved to be his writings. It may not be safe for a court to record a finding about a person's writing in a certain document merely on the basis of expert comparison, CBI Vs. Vinay Kumar Pandey & Anr. Page No.124 of 361 but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of a handwriting expert is also relevant in view of Section 45 of the Evidence Act, but that too is not conclusive. It has also been held by this Court in a catena of cases that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. It follows that it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing. It is opinion evidence and it can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence.
Xxx
30) It is thus clear that uncorroborated evidence of a handwriting expert is an extremely weak type of evidence and the same should not be relied upon either for the conviction or for acquittal. The courts, should, therefore, be wary to give too much weight to the evidence of handwriting expert. It can rarely, if ever, take the place of substantive evidence. Before acting on such evidence, it is usual to see if it is corroborated either by clear, direct evidence or by circumstantial evidence."
It was thus held that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not and also that a Court was competent to compare the disputed writing of a person with others which are admitted or proved to be his writings and that a Court could itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. Reliance was also placed on the judgment in Magan Bihari Lal v. The State of Punjab (1977) 2 SCC 210 wherein it was observed as under:
"It is true that B. Lal, the handwriting expert, deposed that the handwriting on the forged Railway Receipt Ex.PW10/A was that of the same person who wrote the specimen handwritings Ex.PW27/37 CBI Vs. Vinay Kumar Pandey & Anr. Page No.125 of 361 to 27/57, that is the appellant, but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution then the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State MANU/SC/0107/1956 : 1957 Cri LJ 559 that it is unsafe to treat expert hand- writing opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad v. Md. Isa MANU/SC/0040/1962 : [1963] 3 SCR 722 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar MANU/SC/0278/1963 : AIR 1964 SC 529 where it was pointed out by this Court that experts evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. It is interesting to note that the same view is also echoed in the judgments of English and American courts. Vide Gurney v. Langlands 1822 8 & All 330 and Matter of Alfead Foster's Will 34 Mich 21. The Supreme Court of Michigan pointed out in the last mentioned case. "Every one knows how very unsafe it is to rely upon any one's opinion concerning the niceties of penmanship-Opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil". We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence, being opinion CBI Vs. Vinay Kumar Pandey & Anr. Page No.126 of 361 evidence is by its very nature, weak and infirm and cannot of itself form the basis for a conviction. We must, therefore, try to see whether, in the present case, there is, apart from the evidence of the handwriting expert B. Lal, any either evidence connecting the appellant with the offence."
In Ramakant Dubey v. State of U.P. (supra), it was observed as under:
"13. A careful perusal of the above decision of Apex Court it is clear that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This type of evidence being opinion evidence is weak and infirm and cannot of itself form the basis of conviction."
132. The Ld. Counsel for A1 had also relied upon the judgment of Hon'ble High Court of Delhi in Sandeep Dixit v. State Crl. Rev. 260/2011 decided on 27.04.2012 MANU/DE/2351/2012 wherein it was held as under:
"It has been submitted that the specimen handwriting of the petitioner were obtained during the course of investigation and sent to GEQD Hyderabad, along with the aforesaid affidavits for expert opinion. It has been averred that the words "Signed before me" and the date "19.07.1999" have been opined by the handwriting expert to be in the handwriting of the present petitioner. Admittedly, there is no independent witness of the prosecution who had seen the petitioner signing the said affidavits. It is settled proposition of law that expert opinion is not a conclusive proof of the validity of the handwriting or document in question in the absence of any independent corroboration. The report of handwriting expert is not included in the list of documents which can be accepted as valid evidence without examining the author as per the scheme of Section 293 Cr.P.C. Even otherwise, the said specimen handwriting of the petitioner was obtained without the permission of the Court by the investigating agency. In Ram Chandra v. State of Uttar Pradesh MANU/SC/0107/1956 : AIR (1957) SC 381, 388 it is observed that "the expert evidence as to handwriting is opinion evidence and it can CBI Vs. Vinay Kumar Pandey & Anr. Page No.127 of 361 rarely, if ever, take the place of substantive evidence. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee MANU/SC/0278/1963 : AIR (1964) SC 529 it is observed that acting on such evidence it is usual to see if it is corroborated either by clear, direct or by circumstantial evidence. In State of Gujarat v. Vinaya Chandra Chhota Lal Pathi Criminal Appeal No. 43 of 1964, it is held that "a court is competent to compare disputed writings of a person with others which are admitted or proved to be his writings. It may not be safe for a court to record a finding about a person's writing in certain document merely on the basis of comparison, but a court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of handwriting expert is also relevant in view of Section 45 of the Evidence Act but that too is not conclusive. It has also been held that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not."
Hence I am in agreement with the contention of the learned counsel for the petitioner that the learned ASJ has gravely erred in not appreciating the fact that the opinion of an expert under section 45 of the Indian Evidence Act is merely an opinion and not a conclusive proof of the validity of the handwriting in question and the learned ASJ exceeded its jurisdiction by ordering the framing of charge against the petitioner merely on the report of the GEQD without corroboration.
Assuming that the learned ASJ was in two minds regarding the culpability of the petitioner due to the opinion of the handwriting expert, still the view favouring the accused should have been adopted in the light of settled legal proposition. It is one of the golden principles of criminal law that if after appreciation of evidence on record, the Court finds the possibility of two equally good views, the one favouring the accused is to be accepted."
The law in this regard is well settled that a conviction cannot be based solely on the basis of expert opinion and there has to be substantial corroboration. In the instant case, there is corroboration in the sense that the signatures of A1 have been CBI Vs. Vinay Kumar Pandey & Anr. Page No.128 of 361 identified by PW5. Further, no suggestion was put to PW4 or PW5 that the signatures on Ex.PW4/E were not of A1 and the said defence was clearly taken as an after-thought.
133. A1 in support of his case had examined DW1 Shri Deepak Jain who deposed that he was working as a private handwriting and fingerprint expert since 1990. During the said period, he had examined thousands of documents of disputed nature and already given his report/ opinion in more than four thousand cases. He had done his B.Sc., afterwards he obtained one year certificate in forensic science from Delhi University in the year 1987-88, he had also obtained practical training in all aspects of handwriting and fingerprint examination for about two years and also made special studies in the said fields. He stated that in the present case, he had examined the disputed signatures Q-1 from the document bearing No.D-3, marked Q-9 and Q-10 from document bearing No.D-7 and compared the same with the comparative signatures marked as A-1 to A-4 from document bearing No.D-15, marked A-5 from document bearing No.D-9 and marked S-1 to S-8 from document bearing No.D-94.
134. DW1 stated that he had examined and compared the said documents from the Court record with due permission from the Court on 23.07.2022 with the aid of necessary scientific instrument and also taking their exposures with the digital camera from which their enlarged photographs had been got prepared by him under his instruction. After examination and comparison from the documents as well as from the enlarged photograph, he came to the conclusion that the disputed signatures marked Q-1, Q-9, Q-10 were not written by one and CBI Vs. Vinay Kumar Pandey & Anr. Page No.129 of 361 the same person Shri Vinay Kumar Pandey whose comparative signatures are marked A-1 to A-5 and S-1 to S-8. The details of reasons and observations on the basis of which he had formed the said opinion are mentioned in his report dated 01.08.2022 which is Ex.DW1/A. The photographs which are 32 in number are pasted on six juxtaposed chart papers and are collectively Ex.DW1/B (colly). The certificate under Section 65 B of Indian Evidence Act is Ex.DW1/C. He had also enclosed his profile with his report Ex.DW1/D. He stated that the photographs Ex.DW1/B (colly) are the true photographs of the signatures under comparison. Thus, DW1 had proved his report Ex.DW1/A wherein he had opined that the disputed signatures Q-1, Q-9 and Q-10 were not written by one and the same person whose comparitive signatures were marked A-1 to A-5 and S-1 to S-8.
135. During cross-examination by the Ld. SPP for CBI DW1 stated that he had done his B.Sc. in Physics, Mathematics and Chemistry. He had not brought any documents in support of his graduation. He had done his B.Sc. from Kurukshetra University in 1987. He had done practical training as a student of certificate course in the CFSL, CBI. He did not remember when and how many times he had gone to CFSL, CBI. He denied the suggestion that he had prepared a false profile Ex.DW1/D in support of himself without any supporting document. Thus, DW1 was cross-examined regarding his qualifications but nothing much turns on the same. He stated that at present, he was doing independent work from a chamber at Tis Hazari Court. He used to charge his professional fees for providing his services. He also charged in the present case. The Ld. Sr. PP for CBI had argued that DW1 was an interested witness as he was paid by his client CBI Vs. Vinay Kumar Pandey & Anr. Page No.130 of 361 and DW1 had stated that he had charged in the present case. However, on that basis the report of DW1 cannot be thrown out.
136. Further, DW1 admitted that he had given his report on the basis of the photographs but he had also examined the documents when he had taken the photographs. He admitted that he had not prepared his report at the time of taking the photographs. The original was not before him when he prepared his report after reaching the conclusion. He denied the suggestion that he had given a false report in favour of the accused as he had been paid by him on the questioned documents. He denied the suggestion that he had not adopted proper techniques/ instruments of examination of questioned documents for saving the accused in the present case. Thus, DW1 admitted that he had given his report on the basis of the photographs and though he stated that he had also examined the documents when he had taken the photographs, he admitted that he had not prepared his report at the time of taking the photographs and the original was not before him when he prepared his report after reaching the conclusion.
137. The Ld. Counsel for A1 had argued that a defence witness is entitled to equal weightage as prosecution witnesses and in this regard reliance was placed on the judgment in Sonu v. The State (Govt. of NCT), Delhi (supra) wherein it was observed as under:
"In this regard, it may also be noted that the Supreme Court in Dudh Nath Pandey v. State of Uttar Pradesh reported as (1981) 2 SCC 166, opined that Courts should avoid the error of attributing motives to defence witnesses merely because they are examined by the defence. Defence CBI Vs. Vinay Kumar Pandey & Anr. Page No.131 of 361 witnesses are entitled to equal treatment with those of the prosecution and Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. To a similar extent, in State of U.P. v. Babu Ram reported as (2000) 4 SCC 515, the Supreme Court has observed as under:
"23. Depositions of witnesses, whether they are examined on the prosecution side or defence side or as court witnesses, are oral evidence in the case and hence the scrutiny thereof shall be without any predilection or bias. No witness is entitled to get better treatment merely because he was examined as a prosecution witness or even as a court witness. It is judicial scrutiny which is warranted in respect of the depositions of all witnesses for which different yardsticks cannot be prescribed as for those different categories of witnesses."
17. Later, in Munshi Prasad and Others v. State of Bihar reported as (2002) 1 SCC 351, the Supreme Court made the following observation on the appreciation of evidence of defence witnesses:
"3. ...we wish to clarify that the evidence tendered by the defence witnesses cannot always be termed to be a tainted one by reason of the factum of the witnesses being examined by the defence. The defence witnesses are entitled to equal respect and treatment as that of the prosecution. The issue of credibility and trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution - a lapse on the part of the defence witnesses cannot be differentiated and be treated differently than that of the prosecutors' witnesses."
Thus, it has been held that the evidence tendered by a defence witness cannot always be termed as a tainted one. The law in this regard is well established that equal weightage has to be given to the evidence of defence witnesses as of prosecution witnesses and the report of DW1, in the instant case, cannot be thrown out merely because DW1 had been produced in the witness box by A1 or that he had charged in the present case. DW1 in his report CBI Vs. Vinay Kumar Pandey & Anr. Page No.132 of 361 Ex.DW1/A had opined as under:
"After examination and comparison of the signatures from the above referred original documents as well as from their enlarged photographs, I reached to the following observations and reasons:-
1. The comparative signature marked A-5 is a photostat signature, therefore, it can usefully be taken, along with other comparative signatures, for the purpose of examination of formation of letters and strokes, alignment of the writing line and the angle of the slant.
2. The comparative signatures marked A-1 to A-5 belong to year 2009 and the comparative signatures marked S-1 to S-8 belong to year 2016, but despite a gap of 7 years in their execution, all these signatures are showing consistencies in all the writing habits.
Pertinently, there is a formation of hook at the terminus of middle loop, i.e., loop made between upper and lower horizontal strokes in all the comparative signatures belonging to the period of year 2009, but such type of hook, no matter it is small in size, is also present, at places, in the comparative signatures belonging to year 2016. Suffice to say, according to the principles of Science of Handwriting Comparison, all the comparative signatures marked A-1 to A-5 and S- 1 to S-8 can be collectively taken as 'Suitable Standard Signatures' for establishing the identity of the disputed signatures marked Q-1, Q-9, Q-
10.3. A comparison of the disputed with comparative signature shows that both the sets of signatures are not falling in the similar range of natural variations of the same person with regards to their size, curves, angles and spacings in regards to their executional mode of letters and also in all other writing habits, either general or personal, as explained infra.
4. The manner of writing and quality of the strokes in both the sets of signatures also shows unequal development of handwriting, freedom, fluency and continuity in the motion of pen and hand, where the comparative signatures are written with fast speed of writing whereas the disputed signatures are written with slow and drawn speed CBI Vs. Vinay Kumar Pandey & Anr. Page No.133 of 361 of writing.
5. The disputed signatures are written with restricted pen scope, which is extended in the comparative signatures.
6. The comparative signatures are written with better executional skill than that of the disputed signatures.
7. The disputed signatures are written with finger movement of hand, whereas the comparative signatures are written with forearm movement of hand.
8. From the quality of the strokes, it is observed that the disputed signatures are written with heavy pen pressure than that of the comparative signatures.
9. The disputed signature marked Q-1 is written with horizontal alignment of writing line, marked Q-9 is written with ascending alignment of the writing line and marked Q-10 is written with descending alignment of the writing line. Suffice to say, the disputed signatures marked Q-1, Q-9, Q-10 are written with mixed angle of slant whereas all the comparative signatures are consistently written with ascending alignment of writing line.
10. Differences in the mode of execution of letters or their combination, their detailed design, way and place of joining of strokes, nature of curves and angles, directional approach of the strokes proportionate size of the letters and strokes, relative spacing between the letters and strokes are also observed in between the disputed and comparative signatures, which may be observed as under:-
1. The signatures under examination are written in a cursive manner, therefore, their corresponding structural formations have been examined and compared inter-se and in comparison to each other in disputed and comparative signatures.
2. In the lower part of the signatures, there is an open or a blind loop at the joining of slanting downward stroke, from right upward to left downward, with the horizontal line in the disputed signatures, which is demonstrated by arrow head 1 in the disputed signatures, but there is an angular or retraced joining at the same place in the comparative signatures, CBI Vs. Vinay Kumar Pandey & Anr. Page No.134 of 361 which is demonstrated by arrow head A, at places, in the comparative signatures.
3. In the upper part of the signatures, there is a bigger horizontally extended loop having bigger gap between both the arms at the left side in the disputed signatures, but the left loop made in the comparative signatures at the same place is shorter in size.
4. In the upper part of the signatures, there is an elongated horizontally extended loop having smaller gap between both the arms at the right side in the disputed signatures, but the right loop made in the comparative signatures is shorter in size.
5. In the upper part of the signatures, there is a bigger size of loop to the lower side of the horizontal stroke in the disputed signatures than the loop made at the same place in the comparative signatures.
6. No hook is made at the terminus of middle loop in the disputed signatures, which is present, at places, in the comparative signatures.
11. After examination and comparison of both the sets of the signatures, inter-se and in comparison to each other, I observed that there are fundamental differences in between the disputed and comparative signatures due to their different authorship, which are neither superficial nor incidental.
OPINION:- Taking into consideration all the above mentioned observations and others cumulatively, my considered opinion is that the disputed signatures marked Q-1, Q-9, Q-10 are not written by one and the same person Sh. Vinay Kumar Pandey, whose comparative signatures are marked A-1 to A-5 and S-1 to S-8."
Thus, DW1 had opined that the disputed signatures were not of A1. As such, there are two reports before the Court- one produced by GEQD expert Ex.PW46/B and one produced from the side of the defence Ex.DW1/A, both of which give contrary opinions on the disputed signatures of A1. While the report of DW1 is more detailed and extensive, it cannot be said that the conclusions drawn therein are correct and both the experts have CBI Vs. Vinay Kumar Pandey & Anr. Page No.135 of 361 given their reasons for their respective opinions. In these circumstances, the Court is under a duty to itself compare the disputed signatures with the admitted and specimen signatures and it is found that there is no material difference between the two in the present case and it can safely be said that the signatures on the TA Form Ex.PW4/E and on the original declaration and acknowledgement pasted on Ex.PW5/B are of A1.
138. The Ld. Counsel for A1 had argued that as regards the claim for reimbursement by A1, Ex.PW4/E was the most important document which was attributed to A1 but there was no one who had witnessed the signing of the TA Form and nobody had seen A1 signing the said document and there was no witness to that effect or to the effect that A1 had confided in anyone that he had signed the said document. It is true that no witness was examined who could state that the TA Form Ex.PW4/E was signed by A1 in his presence but there is no requirement that there should have been an eyewitness to the same. Further, it was for the said reason that the TA Form was sent to CFSL for comparison of questioned signatures of A1 with his admitted signatures to show if Ex.PW4/E had indeed been signed by A1. Thus, the said contention is not legally tenable when the signatures of A1 on Ex.PW4/E have been held to be proved and the evidence is documentary in nature. It was also contended that there was no person to connect A1 to the document, so the prosecution had examined PW46 who is a handwriting expert to connect the signatures. It was also submitted that Ex.PW4/E was the only document allegedly signed by A1 and there was no direct evidence connecting A1 to the document and only the CBI Vs. Vinay Kumar Pandey & Anr. Page No.136 of 361 opinion of the handwriting expert was there. However, there can be no such inference that PW46 was examined only as there was no person to connect A1 to Ex.PW4/E and as noted above, Ex.PW4/E was sent to CFSL to show if the same bore the signatures of A1 or not. Once the signatures of A1 on Ex.PW4/E stand proved, the contention that there was no direct evidence to connect A1 to Ex.PW4/E becomes irrelevant.
139. It is then the case of the accused persons that there is nothing to show that the TA Form was accompanied by tickets and boarding passes and the officials of Lok Sabha Secretariat had not taken due care to check the discrepancies in the Form and if that had been done, the Form would have been returned to A1 and there would have been no reimbursement of the amount. Admittedly, the tickets and boarding passes had been weeded out before the registration of the case (which aspect would be adverted to later). During cross-examination PW4 stated that no noting was put up along with the bill containing the details of the flights and the passengers' name as well as the seat number of the passenger on the boarding pass. She admitted that it was not mentioned in Ex.PW4/A when the Air tickets and boarding passes were weeded out. She did not remember if she had sent any document to CBI containing the details of flight, the names of the passengers, seat numbers of the passengers, the number of boarding passes and sector of flights. She denied the suggestion that had she or the officers below taken care to see and verify the details, the bill could not have been passed and volunteered she was not in the office at that time. Thus, PW4 was cross-examined on behalf of A1 but she had volunteered that she was not in the office at the relevant time.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.137 of 361
140. During cross-examination PW5 admitted that no entry was made in any register regarding the documents accompanying the TA/DA form. He admitted that he made no endorsement on Ex.PW4/E regarding the documents that were attached with it and volunteered after the bill was prepared in E-wisdom, the copy was pasted in the register. He admitted that there was no mention in Ex.PW4/E regarding the enclosures with it. He admitted that in Ex.PW4/E there was no name of any passenger, nor the number of boarding passes nor the number of flights and volunteered there was no column in the form for such details. Thus, PW5 admitted that no entry was made in any register regarding the documents accompanying the TA/DA form nor he had made any endorsement on Ex.PW4/E regarding the documents that were attached with it and there was no mention in Ex.PW4/E regarding the enclosures with it and in Ex.PW4/E there was no name of any passenger, nor the number of boarding passes nor the number of flights. During cross-examination PW26 also stated that no register was maintained regarding the documents that were submitted along with the TA/DA form. As such, no details of passengers or flights or boarding passes were available in Ex.PW4/E and PW5 had volunteered that there was no column in the form for such details. It may be mentioned that A1 in his statement under Section 313 Cr.P.C. had stated that the TA/DA bill had overwriting at two places and it did not contain the names of the passengers so the TA/DA form was not properly filled and that the name of the companions had to be mentioned in the TA/DA form. It is pertinent that PW5 volunteered that there was no column in the form for such details and a perusal of the form Ex.PW4/E and the proforma for the same Ex.PW4/F CBI Vs. Vinay Kumar Pandey & Anr. Page No.138 of 361 also shows that there was no column wherein the details of the passengers/ companions or flights could be mentioned. Further, Ex.PW4/E had overwriting at two places but that was only in respect of writing 'PERSONAL' and the place of arrival in the word 'CHENNAI' and was not such as would create any doubt on the document when the signatures of A1 on Ex.PW4/E stand duly proved. It is true that there was no register or endorsement which mentioned the details of the documents that were submitted with the TA Form, however, it is seen that in Ex.PW5/B, some of the particulars of the journey were mentioned.
141. During further cross-examination, PW5 stated that he had personally fed the data in the E-wisdom software relating to Ex.PW4/E. He admitted that he had personally taken the two printouts of the bill which was generated. During cross- examination PW56 stated that Ex.PW5/A had been prepared by Belamuram. The printout of the same was also taken by Belamuram as per his statement. He had not taken any certificate under Section 65B from Belamuram in respect of Ex.PW5/A. He denied the suggestion that Ex.PW5/A was also a manipulated document or that Ex.PW4/E (D-3) was also a manipulated document. It was argued by the Ld. Counsel for A1 that no certificate under Section 65B Indian Evidence Act had been produced in support of the bill Ex.PW5/B or in support of Ex.PW5/A and as such it was not admissible and once the bill could not be looked at, the entire case of the prosecution stood demolished. However, there is no merit in the said contention as Ex.PW5/B is the bill which was generated on feeding the data in the E-wisdom software relating to the TA Form and is primary evidence and not secondary evidence. Further Ex.PW5/B was CBI Vs. Vinay Kumar Pandey & Anr. Page No.139 of 361 duly signed by several of the officers who have been examined as witnesses in the present case including by PW5 and PW5 had stated that he had personally fed the data in the E-wisdom software relating to Ex.PW4/E and personally taken the two printouts of the bill which were generated and as such, the contention that there should have been a certificate under Section 65B Indian Evidence Act in support of Ex.PW5/B is legally not tenable. Even as regards Ex.PW5/A, the original in the form of Ex.PW5/C was proved on record.
142. PW5 admitted that in Ex.PW5/B the name of the Airlines by which the journey was undertaken was not mentioned. He admitted that the name of no passenger was mentioned in Ex.PW5/B nor flight number was mentioned. He admitted that in Ex.PW5/B there was no reference of any boarding pass nor it showed which seat was allocated to the passengers. As such in Ex.PW5/B, the name of the Airlines or the names of the passengers or the flight numbers or number of boarding passes were not mentioned. PW5 stated that it was mentioned in Ex.PW5/B that there were total 14 boarding passes. He admitted that if a flight was changed a fresh boarding pass was issued and volunteered the number of journeys was 14 and not of boarding passes and the number of boarding passes would have been more. He denied the suggestion that he had intentionally given a false answer that there were 14 boarding passes. He admitted that in Ex.PW5/B there was no reference of the total number of boarding passes. He admitted that there was no document to show how many boarding passes were there in total. The Ld. Counsel for A1 had contended that PW5 had stated about 14 boarding passes but thereafter he had stated that the CBI Vs. Vinay Kumar Pandey & Anr. Page No.140 of 361 number of journeys was 14 and not of the boarding passes and in fact there was falsity as the number of boarding passes would have been more and showed his complicity in the crime and the errors were not innocent errors but deliberate errors and it was not stated how he had come to know about 14 boarding passes when the number of boarding passes was not mentioned which showed that he had counted and what he had stated was missing in the documents. However, PW5 had initially stated that it was mentioned in Ex.PW5/B that there were total 14 boarding passes but then he admitted that the number of journeys was mentioned and not of the boarding passes and that there was no document to show how many boarding passes were there in total and the fact that he had initially stated that there were total 14 boarding passes cannot be glossed over to draw any presumption of his complicity in the crime when he had himself volunteered that the number of journeys was 14 and not of boarding passes and even otherwise documentary evidence would prevail over the oral testimony of the witness. During cross-examination PW56 stated that he could only state after seeing the statement of Belamu Ram under Section 161 Cr.P.C. that he had taken the TA bill after checking the original boarding passes and original tickets. He was shown the statement of Belamu Ram under Section 161 Cr.P.C. which is Ex.PW56/P12 and he referred to the same. However, even no specific question being put to PW5 that he had taken the TA Bill after checking the original boarding passes and the original tickets.
143. PW5 admitted that the second copy of the bill was pasted in the TA/DA register of the Member concerned and in the present case, the same was Ex.PW5/C. He stated that the TA/DA CBI Vs. Vinay Kumar Pandey & Anr. Page No.141 of 361 register of a Member was valid for 5 years and volunteered if it got filled up, then another register was issued. He admitted that the said register contained pastings upto page 70. He stated that in Ex.PW5/C at page 46, the name of the Airlines was mentioned. He admitted that there was no reference of any flight number, name of passengers, boarding passes and volunteered the name of Shri Vinay Kumar Pandey was there as a first passenger as the bill was prepared in his name. He admitted that it was not mentioned that Shri Vinay Kumar Pandey was the first passenger and volunteered as the bill was prepared in his name so he would be the first passenger. He admitted that the names of the other six companions were not mentioned in Ex.PW5/C. Thus, PW5 stated that in Ex.PW5/C at page 46, the name of the Airlines was mentioned though he admitted that there was no reference of any flight number, name of passengers, boarding passes and volunteered that the name of Shri Vinay Kumar Pandey was there as a first passenger as the bill was prepared in his name though he also admitted that it was not mentioned that Shri Vinay Kumar Pandey was the first passenger. However, there is merit in what he volunteered that as the bill was prepared in his name so he would be the first passenger. He admitted that the names of the other six companions was not mentioned in Ex.PW5/C. Thus, even in Ex.PW5/C the details of the other passengers were not mentioned. However, it is seen that in Ex.PW5/A which is the certified copy of the TA/DA register of A1 and in Ex.PW5/C which is the original register, the details in the sense that the particulars of the journeys performed and ticket numbers were mentioned as also the name of the Airlines though there was no mention of the boarding passes. No specific CBI Vs. Vinay Kumar Pandey & Anr. Page No.142 of 361 suggestion was put to PW5 that the entries in Ex.PW5/A or Ex.PW5/C were not proper or not as per the record.
144. During cross-examination by Ld. Counsel for A1, PW56 stated that the tickets number which were investigated in the present case were 0982066418881 to 0982066418887. No other ticket was investigated in the present case. He was shown Ex.PW5/A (D-6) and he stated that he would have to check from reply of Air India if ticket number 09820667418881 at point X was also investigated in the present case. He did not find any document which showed that the said ticket number was investigated in the present case and he did not remember if he had investigated the said ticket number in the present case. Thus, it was put to PW56 if ticket number 09820667418881 as mentioned in Ex.PW5/A was also investigated in the present case and he stated that he did not find any document which showed that the said ticket number was investigated. It may be mentioned that A1 in his statement under Section 313 Cr.P.C. had stated that in the present case, there was a clear discrepancy in relation to ticket numbers which allegedly were different from the alleged ticket numbers of the present case and that despite there being discrepancy especially in the ticket numbers in Ex.PW5/A, no verification was got done. However, a perusal of Ex.PW5/A or Ex.PW5/C would show that the ticket number would have been mentioned as 09820667418881 as a typograhical error as all the other tickets which were mentioned were 0982066418881 to 0982066418887 and even the number 0982066418881 was mentioned once and at another spot 09820667418881 was mentioned perhaps as a typographical error by including the number 7. It may be mentioned that PW5 was not specifically CBI Vs. Vinay Kumar Pandey & Anr. Page No.143 of 361 cross-examined in this respect.
145. During further cross-examination PW5 admitted that Mark A did not bear his signatures at any place. The statement Mark A was read to him and found to be correct by him. He admitted that he made a statement to the IO that he also made sure if the details filled in the TA form were as per the enclosed tickets and boarding passes. He admitted that he further stated to the IO that he matched the details mentioned on the tickets and boarding passes with the details mentioned in the TA/DA form with respect to the date of journey, mode of journey, sector in which journey was performed, name of passenger etc. and volunteered they matched the names of only the first passenger. He admitted that no details were mentioned in the TA/DA form but the name of the first passenger was matched and also verified from the register of MPs available with them. The same is also as per the record as it is seen that in Ex.PW4/E, the names of the companions or other details were not there but the date of journey, mode of journey, sector in which journey was performed were mentioned.
146. Further, PW5 admitted that Shri Vinay Kumar Pandey was a Member of many Parliamentary Committees but he could not say if he was the Convener of the Legislative Party. He admitted that he had no personal communication with Shri Vinay Kumar Pandey in respect of the bill in question. He denied the suggestion that he was deposing falsely to save the real culprits and the accused who was a victim was made as an accused. He denied the suggestion that there were no boarding passes attached to the TA/DA form Ex.PW4/E or for the said reason the number CBI Vs. Vinay Kumar Pandey & Anr. Page No.144 of 361 of boarding passes, name of the passengers, flight number, seat number had not been mentioned in any document. He denied the suggestion that since he had not fed any details of the boarding passes therefore, he made no objection with respect to the weeding out of the said boarding passes. He further denied the suggestion that since there were no boarding passes at all therefore, he could not even tell the total number of boarding passes. He denied the suggestion that since there were no signatures what-so-ever on the boarding passes and so-called tickets, the original documents had been intentionally destroyed so that it could not be inquired that he wrongly prepared the two printouts Ex.PW5/B and Ex.PW5/C. Thus, PW5 admitted that he had no personal communication with Shri Vinay Kumar Pandey in respect of the bill in question and that would imply that there was no discrepancy found in the TA Form which was submitted by A1. He also denied the suggestion that there were no boarding passes attached to the TA/DA form Ex.PW4/E or for the said reason the number of boarding passes, name of the passengers, flight number, seat number had not been mentioned in any document or that for the said reason he had not objected to the boarding passes or tickets being destroyed but nothing much turns on the same as no document has been pointed out wherein the details as referred to above ought to have been mentioned and Ex.PW5/C did contain the name of the Airlines and the ticket numbers. The Ld. Counsel for A1 had argued that there was no specific averment by PW5 that he had compared the signatures of A1 on the Form with the specimen signatures available with him and he had also not met A1 nor seen him writing and he was only acting in the nature of a person who had compared the documents CBI Vs. Vinay Kumar Pandey & Anr. Page No.145 of 361 but was not acquainted with the writing of A1 and as such the writing of A1 was not corroborated by PW5 and his statement was contrary to what was there in the documents and he was clearly an accomplice in crime but he had been left out deliberately and he was in conspiracy with someone. However, no specific suggestions were put to PW5 in that respect and there is nothing to evidence that PW5 was in conspiracy with someone. It is true that there was no specific averment by PW5 that he had compared the signatures of A1 on the Form with the specimen signatures available with him but he had stated that he could identify the signatures of Shri Vinay Kumar Pandey as he had seen his specimen signatures during the course of his duty and that he was handling the TA/DA bill of Shri Vinay Kumar Pandey at the time the TA/DA form in question was submitted and further he had identified the form Ex.PW4/E as having been processed by him. Further, it is seen that PW5 had identified the signatures of Shri Vinay Kumar Pandey on the form Ex.PW4/E and on the original declaration and receipt acknowledgment Ex.PW5/B.
147. During cross-examination by the Ld. Counsel for A1, PW6 stated that both the printouts of the bill prepared by the Dealing Assistant were received by him. He admitted that he had stated to the IO that the details that were filled in the TA/DA register of the MP were filled as per the tickets and the boarding passes. He did not remember if he had stated to the IO that he matched the details mentioned on the tickets and boarding passes with the details mentioned in the TA/DA form with respect to date of journey, Airlines, sector, name of passenger/passengers. He admitted that he used to forward the bill only after satisfying CBI Vs. Vinay Kumar Pandey & Anr. Page No.146 of 361 himself that the details mentioned on the tickets and boarding passes matched those contained in the TA/DA form. He admitted that in Ex.PW4/E the names of the passengers, their seat numbers or the numbers of the tickets were not mentioned. The form Ex.PW4/E was never put up before him. Ex.PW5/B was put up before him. He admitted that in Ex.PW5/B it was not mentioned as to what was the total number of boarding passes, the name of the passengers on the boarding passes or the seat numbers, or the ticket numbers. He had not sent the bill back to the Dealing Assistant for furnishing the number of boarding passes, name of passengers or the boarding passes or the seat numbers or the ticket numbers. He denied the suggestion that he had not sent the same to the Dealing Assistant since there were no boarding passes at all. He admitted that the details of ticket numbers and the flight numbers were not mentioned in Ex.PW5/B. He admitted that in Ex.PW5/C there was no mention of boarding passes, flight number, name of passengers and total number of boarding passes and volunteered ticket numbers and name of Airlines were mentioned.
148. PW6 further admitted that he had not sent any written note to the Dealing Assistant to furnish the details of boarding passes, flight number, name of passengers and total number of boarding passes and volunteered he told him verbally. He admitted that after he told the Dealing Assistant, he had put up the bill with all the details mentioned therein as aforesaid. He did not remember if he had then signed the new printout which was taken. He did not remember if he was shown the corrected bill by the Ld. PP in the court on the previous date. He did not remember if he had then forwarded the corrected bill to the DDO. He CBI Vs. Vinay Kumar Pandey & Anr. Page No.147 of 361 admitted that as a senior officer, it was his duty to correct the mistakes done by junior officers. He admitted that during his entire tenure, he had not met Shri Vinay Kumar Pandey personally ever nor he had ever seen him writing or signing. He denied the suggestion that he was deposing falsely to save the real culprits and the accused who was a victim was made an accused. He further denied the suggestion that there were no boarding passes attached to the TA/DA form Ex.PW4/E or for the said reason number of boarding passes, name of the passengers, flight number, seat number had not been mentioned in any document. He further denied the suggestion that since there were no boarding passes at all, therefore, he could not even tell the total number of boarding passes. Thus, PW6 admitted that in Ex.PW4/E the names of the passengers, their seat numbers or the numbers of the tickets were not mentioned and he also stated that the form Ex.PW4/E was never put up before him. He also admitted that in Ex.PW5/B it was not mentioned as to what was the total number of boarding passes, the name of the passengers on the boarding passes or the seat numbers, or the ticket numbers or the flight numbers and that in Ex.PW5/C there was no mention of details but he volunteered that the ticket numbers and name of Airlines were mentioned. The Ld. Counsel for A1 had argued that it was evident that the bill had discrepancies as the ticket numbers had been wrongly mentioned and there were seven tickets but eight had been mentioned and the same had been admitted by the IO during cross-examination but deliberately the discrepancy was ignored. The said aspect has already been adverted to above. Even otherwise, it is seen that in Ex.PW5/C, though the ticket number 09820667418881 was also mentioned, CBI Vs. Vinay Kumar Pandey & Anr. Page No.148 of 361 in respect of both the sectors only 7 tickets each were mentioned and the sequence of their mentioning further lends credence to the fact that there was a typographical error in mentioning the said number.
149. PW6 had admitted that after he told the Dealing Assistant, he had put up the bill with all the details mentioned therein as aforesaid but he did not remember if he had then signed the new printout which was taken or if he was shown the corrected bill by the Ld. PP in the Court or if he had then forwarded the corrected bill to the DDO. As such, PW6 had stated that the Dealing Assistant had put up a corrected bill before him which was not as per the case of the prosecution and no such bill was produced on record. PW6 had also stated that Ex.PW4/E was not put up before him and he was re-examined by the Ld. Sr. PP for CBI and he was shown Ex.PW4/E and he stated that he did not remember whether it was put up before him. He was shown Ex.PW5/A and he stated that he had processed the same and his signatures were at point B. During cross-examination by Ld. Counsel for A1, PW6 admitted that on the first page of Ex.PW5/A, his signatures were not there. He admitted that ExPW4/E did not bear his signatures nor it contained any note of his. As such Ex.PW4/E did not bear the signatures of PW6. However, PW6 had stated about Ex.PW5/B being put up before him though he had also spoken about the corrected bill with all the details being put up before him. The Ld. Counsel for A1 had argued that in his examination in chief PW6 had stated that he had checked the form whereas in his cross-examination he had stated that the form was not put up before him; he had stated that he used to match the details but if CBI Vs. Vinay Kumar Pandey & Anr. Page No.149 of 361 the form was never put up before him, he could not have matched the details and during re-examination by the Ld. Sr. PP for CBI he did not remember if the form was put up before him or not and as such he did not agree with the case of the prosecution. It is true that PW6 had stated that he did not remember if the form was put up before him and if the form was not put up before him, he could not have matched the details but there are also other witnesses who had stated about processing the form and the bill.
150. During cross-examination by Ld. Counsel for A1, PW7 admitted that the Air ticket bears the name of the passenger and the number of the flight and also contains details about the originating area and destination and about all the journeys. She stated that Ex.PW5/A was put up before her by the Dealing Assistant Belamu Ram. Only Ex.PW5/A was put up before her and no other document was put up before her. She did not remember if Belamu Ram had also brought any noting or that he had asked her to certify the bill and volunteered as long time had lapsed. She admitted that Ex.PW5/A was not the original bill but a photocopy. She had been handed over the document to certify the same in order to give it to CBI or any other authority and as such being a senior officer, she was bound to attest the document put up before her. She admitted that there was no official noting that she had attested a photocopy of a document. She had not verified the photocopy from the original and as the documents had to be handed over, so she attested the same. She was not aware at the time of attesting the document Ex.PW5/A that the documents mentioned therein had been destroyed or not. She denied the suggestion that despite knowing fully well that the original documents had been destroyed, she certified the CBI Vs. Vinay Kumar Pandey & Anr. Page No.150 of 361 document Ex.PW5/A. She admitted that a document could not be attested unless and until the original was brought and she compared the same with the original and volunteered in the present case being a senior officer and as the documents were required to be handed over to CBI, she attested the same during official course of duty. She denied the suggestion that it was not an official duty to attest a document without seeing the original and comparing the same with the original.
151. During cross-examination by the Ld. Counsel for A2, PW7 stated that there was no rule that a document which was a photocopy could be attested without verifying the same from the original and volunteered the same was as per practice. Thus, PW7 stated that Ex.PW5/A was put up before her by the Dealing Assistant Belamu Ram and no other document was put up before her. PW7 was extensively cross-examined on Ex.PW5/A and she admitted that it was not the original bill but a photocopy and in fact it is seen that Ex.PW5/A was part of the TA/DA register of A1. She was cross-examined on certifying the said document and she had stated that being a senior officer, she was bound to attest the document put up before her and she had not verified the photocopy from the original and as such, attesting or certifying a document without seeing the original would be meaningless. However, it is also pertinent that the original register containing Ex.PW5/A has been produced on record and proved by the prosecution, the relevant page being page 46 which was exhibited as Ex.PW5/C and no specific question was put to PW7 during cross-examination regarding Ex.PW5/C. CBI Vs. Vinay Kumar Pandey & Anr. Page No.151 of 361
152. During cross-examination by Ld. Counsel for A1, PW26 stated that CBI had enquired from her in the present case and recorded her statement. She had not stated to the IO that in case there were serious discrepancies in the bill the same was referred to the Ministry of Civil Aviation. She was confronted with Ex.PW26/P1 wherein it was so stated. Again said, she did not remember, if she had so said. Thus, in her statement to the IO Ex.PW26/P1, PW26 had stated that in case there were serious discrepancies in the bill, the same was referred to the Ministry of Civil Aviation. However, in the present case, none of the witnesses have stated about there being any discrepancies, much less serious discrepancies in the bill and even during cross- examination, no such discrepancies could be extracted as for the details that were not mentioned, there was no column in respect of the same. As such, no question would have arisen of referring the bill to the Ministry of Civil Aviation.
153. During further cross-examination PW26 stated that the details regarding the TA/DA Bill were entered in the computer by the Dealing Assistant. She admitted that two printouts were taken of the bill from the computer. She admitted that in the TA/DA register there was no entry as to who had taken the printout and volunteered the printouts were taken by the Dealing Assistant. The same was also deposed by the other witnesses. PW26 was not aware whether the stamps of security check were put on the boarding pass before the passenger boarded the flight. She could not say that a boarding pass had no usage until the stamp of security check was put on the same. She had checked the ticket number, name of MP and airline boarding stamp. She stated that Ex.PW5/C was the printout of the entry CBI Vs. Vinay Kumar Pandey & Anr. Page No.152 of 361 made in the computer system. She had taken permission from her senior officers for deposing in the Court that day. She had brought the same and the same was shown. During cross- examination by Ld. Counsel for A2, PW26 stated that since she had verified the bill by putting her signatures on Ex.PW5/C, it meant that there was no discrepancy in the bill, boarding pass and tickets and volunteered the bill was received by her after it had been vetted and verified by the Dealing Assistant. The Ld. Counsel for A1 had argued that PW26 had stated that the boarding passes had stamp of the Airlines which was contrary to the case of the prosecution that A1 had not boarded the flight and it is seen that PW26 had stated that she had checked the airline stamp but merely on that basis, the case of the prosecution cannot be doubted especially considering that PW26 was examined nearly 10 years after she would have dealt with the documents in question.
154. It is thus seen that Ex.PW4/E was the TA form submitted by or on behalf of A1 for claiming reimbursement on the basis of which the bill Ex.PW5/B was prepared. There was no endorsement anywhere as to the documents that were received along with Ex.PW4/E and admittedly the tickets and the boarding passes had been weeded out. However, the ticket numbers and name of airline and sector of journey and dates were mentioned in Ex.PW5/C. There were some discrepancies in the testimony of PW6 but that cannot be regarded as sufficient to discard the case of prosecution as otherwise, the witnesses have remained consistent regarding the procedure that was followed for processing the TA form for claiming reimbursement. Moreover, the witnesses had reiterated that the TA Form was accompanied CBI Vs. Vinay Kumar Pandey & Anr. Page No.153 of 361 by tickets and boarding passes and all the witnesses had stated that there were no discrepancies noted, otherwise the Form would have been returned to the Member.
155. Witnesses were further examined by CBI who had processed the bill after it was received in the Pay and Account Office. PW9 Ms. Anjana Batra, Deputy Secretary, Lok Sabha Secretariat deposed that she was posted as Under Secretary in PACF Branch in Lok Sabha Secretariat in November 2016. She stated that after the bill relating to claim for the reimbursement of TA/DA of a Member of Parliament was received by the Pay and Account Office (PAMG Branch), the same was marked to dealing hand who audited the same and put it up before the Executive Officer. The Executive Officer signed the bill and sent the same to the Pay and Account Officer who also signed the same and then the same was sent to the PACF branch for making the cheque. The cheque was then put in the SBI Account of the Member. She proved D-44 which is letter No.8 (I)/1/PA/MG/2016 dated 15.11.2016 written by her to Shri Asif Jalal, SP, CBI, New Delhi and she identified her signatures on Ex.PW9/A. She proved D-45 which is seizure memo dated 17.11.2016 and she stated that by the said seizure memo, the documents mentioned therein were seized by the IO and the same is Ex.PW9/B. She proved D-46 which is letter No.8 (I)/1/PA/MG/2016 dated 17.11.2016 written by her to Shri Asif Jalal, SP, CBI, New Delhi as Ex.PW9/C. She proved D-75 which is seizure memo dated 15.12.2016 by which the documents mentioned therein were seized by the IO as Ex.PW9/D. She proved D-76 which is letter No.8 (I)/1/PA/MG/2016 dated 15.12.2016 written by her to Shri Asif Jalal, SP, CBI, New Delhi CBI Vs. Vinay Kumar Pandey & Anr. Page No.154 of 361 as Ex.PW9/E. She stated that she had handed over D-48 (Ex.PW6/A), D-49, D-50, D-51 and she had certified the same and handed over to the IO and the same bore her signatures and rubber stamp and are Ex.PW9/F, Ex.PW9/G and Ex.PW9/H. She stated that she had compared the documents with the originals and then certified the same. She had handed over D-77, D-78, D-79, D-80 and D-81 to the IO but she had never processed the said documents. PW9 had thus stated that after the Pay and Account Officer signed the bill, the same was sent to the PACF branch for making the cheque and the cheque was then put in the SBI Account of the Member.
156. PW10 Ms. Shalini Nayyar, Executive Officer, Lok Sabha Secretariat deposed that she was posted as Senior Executive Assistant in PAMG Branch in Lok Sabha Secretariat in October 2016 and in 2012, she was posted as Executive Assistant in PAMG. She stated that after the bill relating to claim for the reimbursement of TA/DA of a Member of Parliament was received by the Pay and Account Office (PAMG Branch) from the MSA Branch, the same was marked to the dealing hand who checked the same and whether the calculations had been done properly and the same was signed by the DDO. It was also checked if there were balance Air Journeys in the account of the Member. If the bill was found in order and the Member was eligible for reimbursement of the TA/DA claim, the bill was passed and put up before the Executive Officer or the Supervisory Officer. The Executive Officer checked the bill whether it was signed by the DDO and the calculations had been done properly and if the bill was found in order, he signed the bill and sent the same to the Pay and Account Officer who also CBI Vs. Vinay Kumar Pandey & Anr. Page No.155 of 361 checked the bill and whether the Member was eligible and if everything was found in order, he signed the same and then the same was sent to the PACF branch for making the cheque. The cheque was then put in the SBI Account of the Member. A diary register was maintained in the PAMG branch regarding the bills which were received from the MSA Branch.
157. PW10 was shown D-81 which is original TA/DA audit register of Members of Parliament of 15th Lok Sabha of the PAMG Branch and is Ex.PW10/A. She was shown Page 55 (printed page number 50) which contained details of Air Journeys travelled by the Member Shri Vinay Kumar Pandey, IC No.461 and she identified the writing of Mrs. Kamla Goel who was senior to her at that time. She stated that X to X showed entries in respect of two bills No.5444 and 5470 dated 06.11.2012. She was shown Ex.PW5/B and she identified her signatures and stated that Bill No.5470 was put up before her by the concerned Dealing Assistant. She checked the same and after finding it in order, sent the same to the Supervisory Officer. PW10 further deposed that in 2012, the PAMG branch did not receive the Air tickets and the boarding passes from the MSA branch and only one copy of the bill was received. The ticket numbers, number of boarding passes or the name of Airline were not mentioned in the copy of TA/DA bill received by PAMG branch. Thus, PW10 also stated that after the bill relating to claim for the reimbursement of TA/DA of a Member of Parliament was received by the Pay and Account Office (PAMG Branch) from the MSA Branch, the same was checked and if the bill was found in order, the bill was passed and put up before the Executive Officer who also checked the bill and if the bill was found in order, he signed the bill and CBI Vs. Vinay Kumar Pandey & Anr. Page No.156 of 361 sent the same to the Pay and Account Officer who also checked the bill and if everything was found in order, he signed the same and then the same was sent to the PACF branch for making the cheque which was then put in the SBI Account of the Member. She also stated that Bill No.5470 was put up before her, she checked the same and after finding it in order, sent the same to the Supervisory Officer.
158. PW11 Shri M.L.K. Raja, Director, Lok Sabha Secretariat deposed that he was posted as Pay and Account Officer in Lok Sabha Secretariat in 2012. He stated that after the bill relating to claim for the reimbursement of TA/DA of a Member of Parliament was received by the Pay and Account Office (PAMG Branch) from the MSA Branch, the same was marked to the dealing hand who checked the eligibility of the Member regarding the balance Air Journeys in the account of the Member and also the arithmetic calculation. If the bill was found in order and the Member was eligible for reimbursement of the TA/DA claim, the bill was put up before the Executive Officer. The Executive Officer checked the bill and counter signed the same and then sent the same to the Pay and Account Officer who also checked the arithmetic calculation and whether the Member was eligible and if everything was found in order, he signed the same and then the same was sent to the bill section for making the cheque. A diary register was maintained in the PAMG branch regarding the bills which were received from the MSA Branch. Only the bill which was prepared by the MSA branch and was signed by the DDO was received by PAMG branch and tickets and boarding passes were not received. The ticket numbers, number of boarding passes or the name of Airline were not CBI Vs. Vinay Kumar Pandey & Anr. Page No.157 of 361 mentioned in the copy of TA/DA bill received by the PAMG branch.
159. PW11 was shown Ex.PW5/B and he identified his signatures at point E and he stated that Bill No.5470 was put up before him by Smt. Anita Khanduri, the then Executive Officer. He checked the same and signed the same and thereafter the branch took it for further processing it. He was shown D-80 which is the original cheque of Lok Sabha Secretariat Pay and Account Office bearing No.343384 dated 06.11.2012 of Rs.10,33,836/- in the name of Shri Vinay Kumar Pandey and he stated that the same was counter signed by him and is Ex.PW11/A. He stated that the said cheque was issued against the TA/DA claim of the concerned Member. This was a consolidated cheque against two claims. Thus, PW11 also deposed on the same lines as PW10 and he also identified his signatures on Ex.PW5/B and he stated that Bill No.5470 was put up before him by Smt. Anita Khanduri, the then Executive Officer. He checked the same and signed the same and he had also counter signed the cheque which is Ex.PW11/A which was a consolidated cheque against two claims.
160. PW12 Ms. Shashi Prabha Sharma deposed that in October 2016, she was posted in PAO, Lok Sabha Secretariat as Under Secretary and had remained in the PAO from 2007/2008 till 2017. She proved D-36 which is the seizure memo dated 21.10.2016 as Ex.PW12/A and she stated that the documents mentioned therein were seized from her by the IO. She proved D- 37 which is letter No.8(i)/1/PA(MG)/2016 dated 21.10.2016 addressed to Shri Asif Jalal Superintendent of Police, CBI and CBI Vs. Vinay Kumar Pandey & Anr. Page No.158 of 361 she stated that her signatures were there on Ex.PW12/B. She proved D-38 which is certified copy of TA/DA bill No.2012- 13/11/5470 dated 05.11.2012 and she stated that the same was certified by her and bore her signatures and rubber stamp and is Ex.PW12/C. She was shown D-39 which is certified copy of bill register of PA (MG) branch with relevant page No. being 50 Sl. No.85 in the name of Dr. V.K. Pandey, constituency No. 461 and she stated that the same was certified by her and bore her signatures and rubber stamp and is Ex.PW12/D. She proved D- 71 which is letter No.8(i)/1/PA(MG)/2016 dated 10.10.2016 addressed to Shri Asif Jalal, Superintendent of Police, CBI as Ex.PW12/E.
161. PW13 Ms. P. Jyoti, Deputy Secretary, Lok Sabha Secretariat deposed that in 2010, she was posted as Executive Officer in PAO and remained posted there till 2015. She stated that the TA/DA claim bills of MPs were passed by 304 PA (MG) branch which was part of PAO. Then the bill was received in her office for preparation of cheques. Dealing Assistant used to prepare the cheque. Then it was put up before her and she used to check the date, name, amount in words and in figures and compared with the bill to see if the amount tallied and if the same was found in order, she used to put up the cheque before Ms. Veena Dureja, the then Under Secretary for signatures. After the signatures, the cheque used to go back to the Dealing Assistant. If the amount of the cheque was more than Rs.10 Lakhs, then signatures of two persons were required and other than Ms. Veena Dureja, Shri M.L.K. Raja used to sign the cheque. She was shown Ex.PW5/B and she stated that she had signed the same in verification of the cheque number, date and amount. She was CBI Vs. Vinay Kumar Pandey & Anr. Page No.159 of 361 shown D-77 which is original TA bill No.2012-13/11/5444 dated 02.11.2012 of Rs.62,452/- and is Ex.PW13/A and she stated that the same bore her signatures in verification of cheque number, date and amount.
162. PW13 was shown Ex.PW11/A and she stated that the said cheque was prepared in lieu of TA/DA bill of Shri Vinay Kumar Pandey for an amount of Rs.10,33,836/- and was dated 06.11.2012. She had verified the date, name and amount of the said cheque and thereafter put it up before Ms. Veena Dureja. She did not make any entry anywhere regarding verifying the details of the cheque. The same was a consolidated cheque against bills Ex.PW5/B and Ex.PW13/A. Thus, PW13 had stated that the bill was received in her office for preparation of cheque. She had also signed Ex.PW5/B in verification of the cheque number, date and amount. She also proved the original TA bill No.2012-13/11/5444 dated 02.11.2012 of Rs.62,452/- as Ex.PW13/A and stated that Ex.PW11/A was a consolidated cheque against bills Ex.PW5/B and Ex.PW13/A.
163. PW14 Ms. Veena Dureja deposed that she was posted as Executive Officer in PAO from 2008-09 and remained posted there till 2014. At that time, she was signatory to the cheque. She was in the Cheque and Funds (CF) section of PAO branch. She used to receive the cheque duly prepared. If the amount of the cheque was less than Rs.10 Lakhs, she used to sign the same and if the amount was more than Rs.10 Lakhs, it required two signatories. She only used to sign the cheque. If the Member had specified only one account number, then the consolidated cheque could be prepared in respect of several bills but if the MP had CBI Vs. Vinay Kumar Pandey & Anr. Page No.160 of 361 specified different account numbers then the consolidated cheque would not be prepared. She only used to check if the amount was correctly mentioned in figures and in words in the cheque. The amount in the cheque was verified from the bill by the person who used to prepare the cheque and not by her. She was shown Ex.PW11/A and she stated that her signatures were there on the same. The said cheque was prepared for an amount of Rs.10,33,836/- in the name of Shri Vinay Kumar Pandey and was dated 06.11.2012. She had signed the same as signatory/Executive officer. The bills were not put up before her at the time of signing the cheque. She stated that Ex.PW13/A and Ex.PW5/B did not bear her signatures or any endorsement by her. Thus, PW14 was a signatory to the cheque and she identified her signatures on the cheque Ex.PW11/A and she stated that the bills were not put up before her at the time of signing the cheque.
164. PW15 Smt. R. Anna Laxmi deposed that she was working as Sr. Executive Assistant, Lok Sabha Secretariat in 2012. She was shown Ex.PW5/B and she stated that she had written the details of the cheque on the same i.e. the amount of the cheque was total Rs.10,33,836/-, cheque was bearing No.343384 and dated 06.11.2012. The same did not bear her signatures. The cheque was in the name of Shri Vinay Kumar Pandey. She was shown Ex.PW9/F and she stated that the details in the counterfoil of cheque No.343384 for Rs.10,33,836/- were filled by her. The original counterfoil (D-78) is Ex.PW15/A. She was shown Ex.PW11/A and she stated that the same was filled by her. The same was signed by her senior officer Smt. Veena Dureja and she identified her signatures. She stated that the TA/DA bill was received in Pay and Account Office after audit CBI Vs. Vinay Kumar Pandey & Anr. Page No.161 of 361 by the MSA branch. On the said date, the dealing hand Ms. Sangeeta Nayal was on leave so Ms. Veena Dureja asked her to prepare the cheque. She prepared the cheque on the basis of the amount mentioned in the TA/DA bill and after preparing the cheque, she put up the same before Ms. Veena Dureja. Thus, PW15 had stated about writing the details of the cheque on Ex.PW5/B though it did not bear her signatures and the details in the counterfoil of cheque No.343384 for Rs.10,33,836/- Ex.PW9/F were also filled by her; original counterfoil (D-78) being Ex.PW15/A. She had also filled Ex.PW11/A and stated that she had prepared the cheque on the basis of the amount mentioned in the TA/DA bill.
165. PW16 Smt. Sangeeta Nayal, Executive Officer, Lok Sabha Secretariat deposed that in 2012 she was posted as Sr. Executive Assistant, Lok Sabha Secretariat and remained at the said post till December 2018. She stated that after the TA/DA bill was received from the MSA branch, the same went to the Audit branch of Pay and Account Office. After being audited, the same went for the signatures of the Pay and Account Officer and then it came to the Cheque and Fund Branch. All the bills were collected and arranged according to the IC number of the Member. The account number of the Member was tallied with that given in the audit branch and the bill was checked to ensure that the amount in figures and words tallied as also the name and IC number of the Member and then one consolidated cheque was prepared in the name of the Member. She stated that in 2012, Ms. Jyoti and Ms. Veena Dureja were the Executive officers. After preparing the cheque, she used to put it up before the Executive Officer who was available for signatures and the consolidated list was CBI Vs. Vinay Kumar Pandey & Anr. Page No.162 of 361 also handed over to the Executive Officer. The Executive Officer used to cross tally the bill and the list prepared by her for the amount and then used to sign the cheque and it was sent through the messenger to the account of the MP in SBI. At times self cheques were also prepared which were collected by the Member or their PS for which the cheque was sent to the Parliamentary Notice branch. PW16 was shown Ex.PW9/G (original is D-79) and she stated that the entry at page 143 dated 06.11.2012 from Sl. No.81 to 85 was filled in by her in Ex.PW16/A. The entry at Sl. No.84 was in the name of Shri Vinay Kumar Pandey for an amount of Rs.10,33,836/- consolidated cheque. On the day when the cheque in question Ex.PW11/A was prepared i.e. 06.11.2012, she was on leave. Thus, PW16 stated what happened to the TA/DA bill after it was received from the MSA branch.
166. PW22 Shri Ramesh Chand Aheria deposed that he was posted in MSA Branch Lok Sabha Secretariat in 2013-14 perhaps as Under Secretary. His duty in the MSA branch was to check the TA/DA bills which were submitted as also boarding passes and the same were then submitted to the DDO MSA branch as the DDO was the authorized signatory. The RTI matters were supervised by the DDO during the said period. He was not cross-examined on behalf of the accused persons despite opportunity being given.
167. PW25 Smt. Anita Khanduri, Deputy Secretary, Lok Sabha Secretariat deposed that she was Executive Officer in MG Branch of Pay & Account Office from 2009 onwards. The TA/DA Bills of MPs were received in the MG Branch from the MSA Branch. Her duties included auditing TA/DA Bills of the CBI Vs. Vinay Kumar Pandey & Anr. Page No.163 of 361 Members. She had received the TA/DA bill in the present case from the Dealing Assistant, whose name she did not remember. She checked the name and whether the concerned MP had journeys due in his account and the total of the bill as also the road mileage. If the bill was in order, she would sign the same and send the same to the Pay and Account Officer. She stated that D-47 which is Ex.PW5/B was in the name of Vinay Kumar Pandey and pertained to air journey by him along with six companions and the same bore her signatures. The total amount of the bill was Rs.9,71,384/-. The identity number of Vinay Kumar Pandey was 461 as mentioned in Ex.PW5/B. She had checked the bill and then signed it and thereafter sent the same to Pay and Accounts Officer. In the said bill, 14 journeys were claimed regarding which entry was made by the Dealing Assistant. The tickets and boarding passes were not received in their Branch at that time. PW25 stated that the Dealing Assistant made entries in D-108 which is Ex.PW5/C (Page-46) regarding the passing of bill for Rs.9,71,384/- and she signed the same in verification of the bill. Thus, PW25 stated that she had received the TA/DA bill in the present case Ex.PW5/B which was in the name of Vinay Kumar Pandey whose identity number was 461 as mentioned in Ex.PW5/B; she had checked the bill and then signed it and thereafter sent the same to Pay and Accounts Officer. She signed in Ex.PW5/C (Page-46) in verification of the bill.
168. PW49 Ms. Suman Kalra deposed that she joined Lok Sabha Secretariat in November 1983 as LDC and in 2012, she was posted in Notice Office, Parliament House and in December 2016, she was posted in Pay and Accounts Office as Executive CBI Vs. Vinay Kumar Pandey & Anr. Page No.164 of 361 Officer. She proved D-65 which is letter dated 07.12.2016 and is Ex.PW49/A and she stated that vide the said letter the information regarding investigation as asked for was provided to SP CBI AC-III. During cross-examination by Ld. Counsel for A1 PW49 admitted that she did not have any personal knowledge about the contents of Ex.PW49/A and volunteered the same was not her work.
169. Thus, the witnesses had stated that after the bill relating to claim for the reimbursement of TA/DA of a Member of Parliament was received by the Pay and Account Office (PAMG Branch) from the MSA Branch, the same was checked and if the bill was found in order, the bill was passed and put up before the Executive Officer who also checked the bill and if the bill was found in order, he signed the bill and sent the same to the Pay and Account Officer who also checked the bill and if everything was found in order, he signed the same and then the same was sent to the PACF branch for making the cheque which was then put in the SBI Account of the Member. The witnesses who had prepared the cheque or signed the same were also examined.
170. During cross-examination by Ld. Counsel for A1, PW9 admitted that Pay and Account Officer was the final authority who signed the bill after which the same was forwarded to PACF branch. She admitted that there was a separate head of the PACF branch. She admitted that all the documents that she handed over to the IO were with the Payment Branch from where she had taken them and handed over to the IO. She had handed over all the documents that were available pertaining to the CBI Vs. Vinay Kumar Pandey & Anr. Page No.165 of 361 present case to the IO and no other document was available with the Payment Branch. Thus, nothing material came out in the cross-examination of PW9. During cross-examination by Ld. Counsel for A1, PW10 admitted that PAMG was a branch of the PAO Office. There were three branches of the PAO office and MG stood for Member Gazetted. She admitted that Ex.PW10/A was not specific to any Member and contained entries in respect of several Members and volunteered the IC number of the Members was mentioned therein. She admitted that the column referring to as Division Number, date, usual place of residence, session, name of the bankers was blank in the said register. She admitted that the first entry in the register was of bill dated 12 th June. She could not say which was the year of the said entry and volunteered the writing was of Smt. Kamla Goel and only she could tell about the year. She admitted that the last entry at page 58 (printed page No.53) was dated 11.03.2014 and the serial number was 127. She could not say what was the total amount that was credited to the account of the Members in relation to the bills from No.1 to 127. She stated that all entries were in the writing of Smt. Kamla Goel. She stated that on page 55 (printed page No.50) with reference to bill No.5444 at column No.4, FJ meant Forward Journey and RJ referred to Return Journey. At Serial No.86 in column No.4 regarding bill No.5470, it was mentioned as A/JS which meant Air Journeys. She admitted that the object in column No.5 was blank and volunteered it meant Air Journeys only. If it was a personal journey, then that was covered under the expression object of journey. She admitted that in the column object of journey, personal journey was not mentioned in respect of bill No.5470. PW10 was thus extensively CBI Vs. Vinay Kumar Pandey & Anr. Page No.166 of 361 cross-examined regarding Ex.PW10/A which is the TA/DA Audit Register of MPs and it was argued that Kamla Goel who had made the entries had not been examined. However, PW10 had duly identified the writing of Kamla Goel. PW10 admitted that in the column object of journey, personal journey was not mentioned in respect of bill No.5470 but it is seen that the same had been mentioned in Ex.PW4/E and on that basis, the entries in the register Ex.PW10/A cannot be doubted.
171. During further cross-examination PW10 admitted that only the three papers which constituted Ex.PW5/B were received in the PAMG branch from the MSA branch. The bill was received in PAMG branch by the person looking after ECR (Enrollment Control Register) first of all. He put his initials in the Register regarding receipt of the bill. Ex.PW5/B bore the signatures of ECR at point D but she could not say who was the concerned officer who signed. Smt. Kamla was the dealing hand at that time. The bill in question bore her (my) signatures as Dealing Assistant though Smt. Kamla was the Dealing Assistant at that time. She admitted that CBI had made enquiries from her in the present case and also recorded her statement. She did not remember if she had stated to the IO that Smt. Kamla was the Dealing Assistant at that time. She admitted that she could not say what was the total number of Air tickets and boarding passes as the same were not received along with Ex.PW5/B by the PAMG Branch. She admitted that she had not written any letter that she would not process the bill without the boarding passes and tickets or their total number being informed and volunteered as per the procedure that was followed at that time, the tickets and boarding passes were not received in the PAMG branch. She CBI Vs. Vinay Kumar Pandey & Anr. Page No.167 of 361 admitted that the Bill Ex.PW5/B was processed by her without details regarding the names of the passengers, number of flights, ticket numbers, seat numbers and volunteered as per the procedure that was followed at that time, the tickets and boarding passes were not received in the PAMG branch and there were balance Air Journeys in the account of the accused Shri Vinay Kumar Pandey. Thus, PW10 admitted that only the three papers which constituted Ex.PW5/B were received in the PAMG branch from the MSA branch and she could not say what was the total number of Air tickets and boarding passes as the same were not received along with Ex.PW5/B by the PAMG Branch. It is pertinent that PW10 had volunteered that as per the procedure that was followed at that time, the tickets and boarding passes were not received in the PAMG branch and all the witnesses had consistently stated to that effect. She had also admitted that the Bill Ex.PW5/B was processed by her without the details but she again volunteered that as per the procedure that was followed at that time, the tickets and boarding passes were not received in the PAMG branch and nothing to the contrary has even been shown.
172. PW10 further admitted that pages 2 and 3 of Ex.PW5/B did not bear signatures of any officer from the MSA Branch either of the Dealing Assistant or of the DDO. However, it is seen that the witnesses from MSA branch had identified their signatures on the first page of Ex.PW5/B and even the signatures of PW26 who was the DDO were there as also on Ex.PW5/C. PW10 admitted that purpose of journey or halt columns were also blank and volunteered the bill was received as it is from MSA Branch and the same mentioned Air Journeys. She admitted that she had not made any noting on the bill or on the file that she CBI Vs. Vinay Kumar Pandey & Anr. Page No.168 of 361 was processing the bill which contained blank columns and volunteered as per the procedure that was followed at that time, the tickets and boarding passes were not received in the PAMG branch. She admitted that she had totaled the fare amount and volunteered she had also checked the balance Air journeys in the account of Shri Vinay Kumar Pandey. Thus, nothing material has been extracted in the cross-examination of PW10 to doubt the case of the prosecution and only efforts were made to point out things which were not mentioned but it is also seen that the relevant details were contained as required in the documents.
173. PW10 was also cross-examined on certain discrepancy in the amount and she stated that the amount mentioned as Rs.9,71,064/- on page 2 of Ex.PW5/B was finally written as Rs.9,71,384/- on page 1 of Ex.PW5/B as it also included the amount towards Road Mileage of 20 Kms. The amounts were mentioned in Ex.PW5/B by the MSA Branch and she did not change the amount and volunteered PAMG did not change the amount in the bill and only processed the bill as received from MSA Branch. Thus, PW10 had duly explained the difference in amount on the two pages. PW10 admitted that she had stated to the IO that Vinay Kumar Pandey along with 6 companions performed a journey from Delhi to Port Blair and returned via Chennai by Air India on 03.11.2012. After the document was shown to her drawing her attention to the fact that Chennai was not mentioned in Ex.PW5/B, she stated that she had not stated about Chennai as Ex.PW5/B only mentioned Port Blair to Delhi and did not mention Chennai. After the document was shown to her drawing her attention to the fact that Air India was not mentioned in Ex.PW5/B, she stated that she had not stated CBI Vs. Vinay Kumar Pandey & Anr. Page No.169 of 361 about Air India as Ex.PW5/B only mentioned Port Blair to Delhi and did not mention Air India and volunteered the bill did not mention the name of the Airline so there was no question of stating about Air India to the IO. She could not say if the IO had recorded a wrong statement of hers and volunteered the IO had not shown her statement after recording the same and she did not remember if the document was shown to her at the time when her statement was recorded. PW10 was thus cross-examined on certain discrepancies in her statement recorded by the IO qua the documents and she reiterated what was there in the documents. Even otherwise, the documentary evidence would prevail over what was recorded in the statement of the witness by the IO.
174. PW10 had further stated that she had forwarded the bill after signing the same to her senior officer who checked the bill and thereafter signed the same. She denied the suggestion that she had not applied her mind while processing the bill. She denied the suggestion that had she taken care to see the original tickets and boarding passes she would have found that along with the TA bill not even a single ticket and a single boarding pass was attached and then she would not have passed the bill. She denied the suggestion that for ulterior motives and personal gains, the officials of the MSA Branch put up a totally wrong and false bill and despite being in the audit department, she utterly failed in her duty to find that a false and a fabricated bill had been forwarded to her and her department by the MSA Branch. She denied the suggestion that to term such a bill as a TA/DA bill was a misnomer or that the IO had wrongly recorded her statement. Thus, suggestions were put to PW10 which she denied and even nothing has come out in her cross-examination to doubt her CBI Vs. Vinay Kumar Pandey & Anr. Page No.170 of 361 testimony. There is also nothing to substantiate what were the personal gains that would accrue to officials of the MSA branch by putting up the bill in question.
175. During cross-examination by Ld. Counsel for A1, PW11 admitted that the purpose of the bill being received by the PAO office from the MSA Branch was to ascertain that the bill had been prepared properly. He admitted that the crux of the purpose of sending the bill to PAO office was that the entries made in the bill could be tallied with the relevant documents. He admitted that when he signed Ex.PW5/B he had only three pages which constituted Ex.PW5/B and that pages 2 and 3 of Ex.PW5/B did not bear the signatures of any officer of MSA branch. He admitted that the said two pages did not contain the name of the six passengers, number of tickets, number of boarding passes, flight numbers and how many flights were changed or the name of the Airline and volunteered the name of the MP was contained in the bill. He admitted that the bill contained the name of the MP as the bill pertaining to him was being processed. In normal course, the DDO and the dealing officers in PAO signed on page 3 of the bill and he would sign the same only after seeing the signatures of the concerned officers but he could not say how in the present case, the bill was signed by him without the signatures of the DDO and the dealing hand on page 3 of Ex.PW5/B. He admitted that he had not put his signatures on page 2 and 3 of Ex.PW5/B. He stated that he checked only the arithmetic calculations and the eligibility of the Member before signing the bill. Thus, PW11 admitted that when he signed Ex.PW5/B he had only three pages which constituted Ex.PW5/B and that pages 2 and 3 of Ex.PW5/B did not bear the CBI Vs. Vinay Kumar Pandey & Anr. Page No.171 of 361 signatures of any officer of MSA branch which was also so stated by PW10 and he could not say how in the present case, the bill was signed by him without the signatures of the DDO and the dealing hand on page 3 on Ex.PW5/B. However, it is not the case that the bill was not signed by DDO at all and the signatures of the DDO were there on page one of Ex.PW5/B.
176. PW11 was further asked if it was correct that the rules required that the complete details be mentioned in the bill regarding the flight numbers, ticket numbers, number of boarding passes and names of passengers to which he replied that it was the combined scrutiny by MSA Branch and further by PAO and in that process the details were verified. Thus, even PW11 had not stated that all the details were required to be mentioned in the bill. He stated that the PAO office did not check the correctness of the individual entries in TA/DA bill with respect to fare amount. He was not aware whether other than the copy of the bill which was put up before him any other copy of the bill was made which might have had different contents. He denied the suggestion that there was no prevalent procedure which said that the bill which was forwarded to PAO office should not have the ticket numbers, the name of the passengers, flight numbers, boarding passes numbers mentioning the name of the passengers. He denied the suggestion that since they utterly failed to call the most important documents i.e. original tickets and boarding passes he would have found that along with the TA bill, not even a single ticket and a single boarding pass was attached and then he would not have passed the bill. He denied the suggestion that for ulterior motives and personal gains, the officials of the MSA Branch put up a totally wrong and false bill and despite being in CBI Vs. Vinay Kumar Pandey & Anr. Page No.172 of 361 the audit department, he utterly failed in his duty to find that a false and a fabricated bill had been forwarded to him and his department by the MSA Branch. He denied the suggestion that to term such a bill as a TA/DA bill was a misnomer or that there was a total non-application of mind while processing the bill and had they applied their mind, it would have come to the knowledge that Belamuram had intentionally, deliberately made false and wrong entries for ulterior motives and gain. Similar suggestions were put to PW11 as to PW10 which he denied and even nothing material has come out in the cross-examination of PW11 to show that the proper procedure was not followed.
177. During cross-examination by Ld. Counsel for A1, PW12 admitted that she remained as Executive Officer in PAO and therefore she had the knowledge of the working of the PAO branch. The IO had met her in the present case on 21.10.2016. She admitted that the IO asked her for copies of certain documents. She obtained photocopies of the documents through her peon and then she put her signatures and rubber stamp on the same after verifying the same from the original. She stated that no noting was made regarding taking the photocopies of the documents and thereafter certifying them and volunteered the documents were available in the same section. She admitted that the documents were in CF section and volunteered CF section was part of PAO branch. The head of the three sections under PAO including CF section was the Pay and Account Officer who at that time was the Deputy Secretary. She admitted that she had not annexed any certificates to the documents that she had compared the photocopies to the originals and thereafter certified them. She denied the suggestion that she had attested the CBI Vs. Vinay Kumar Pandey & Anr. Page No.173 of 361 documents without having seen the original and comparing the same with the originals. Thus, PW12 had stated about putting her signatures and rubber stamp on the photocopies after verifying the same from the original.
178. The witnesses were also cross-examined on there being one consolidated cheque in respect of two bills. During cross-examination by the Ld. Counsel for A1, PW13 admitted that the Dealing Assistant had decided that there should be one cheque against two bills and after preparing the cheque he put it up before her. She admitted that the cheque did not bear her signatures anywhere. She admitted that whether the cheque pertained to the salary or benefits or TA/DA of an MP, after the cheque was signed, the Dealing Assistant sent the same directly to the bank account of the MP or the PA of the MP used to collect the cheque. She admitted that in the present case the cheque was directly sent to the bank account of the MP. Again said, she was not aware of the position regarding the cheque in the present case and the Dealing Assistant would know the same. She stated that no intimation was sent to the MP regarding the clearance of the bill, preparation of the cheque and sending of the cheque to the account of the MP and volunteered the PS of the MPs themselves approached to find out about the same both from the branch and from the bank. No record was maintained of the PS who approached to find out the status of the bill/cheque. Thus, PW13 admitted that the Dealing Assistant had decided that there should be one cheque against two bills. She admitted that the cheque did not bear her signatures anywhere. Further, it had come out during her cross-examination that no intimation was sent to the MP regarding the clearance of the bill, preparation of the cheque and CBI Vs. Vinay Kumar Pandey & Anr. Page No.174 of 361 sending of the cheque to the account of the MP.
179. PW13 further admitted that the IO had recorded her statement in the present case in her office. She had stated to the IO that the Dealing Assistant scrutinized the bill to verify whether approval had been given by the Pay and Account Officer and his signatures are there and volunteered the same was very important as without the signatures of the Pay & Account Officer, the cheque would not be prepared. She had also stated that the bill was prepared in MSA branch which was vetted and audited by the PA (MG) branch. By this she meant that the PA(MG) branch verified whether the bill had been prepared properly and if it was not prepared properly, the same was returned to the MSA branch. She had only checked if the amount in the cheque tallied with the amount in the bill as also if the name, date and amount were written correctly in the cheque. She had not checked any other details and volunteered her job was confined only to this. Thus, PW13 stated that she had only checked if the amount in the cheque tallied with the amount in the bill as also if the name, date and amount were written correctly in the cheque and she had not checked any other details and there is even nothing on record to suggest that her job entailed more than that. Various suggestions were put to her which she denied and she denied the suggestion that illegal acts of the concerned officers of the MSA branch which amounted to grave misconduct on their part in processing the bill bearing No.2012-2013/11/5470 dated 05.11.2012 which claim was never submitted by the accused had led to the cheque in question being prepared and thereby false prosecution of the accused. She further denied the suggestion that before presenting the cheque in question before her by the CBI Vs. Vinay Kumar Pandey & Anr. Page No.175 of 361 dealing hand of CF branch, the dealing hand did not scrutinize the bill as it did not have any approval of the Pay and Account Officer as well as the approval of the DDO of the MSA branch. She admitted that cheques of lakhs of rupees pertaining to salary and other benefits had gone to the account of the accused during the period 2009 to 2012 and volunteered cheques for lakhs of rupees go to the account of all the MPs. She denied the suggestion that had intimation been sent to the accused regarding the preparation of the cheque and sending it to his account in advance, it could have prevented the withdrawals which were done in a routine manner from the account. She denied the suggestion that there was no bill in the eyes of law and still the cheque was prepared. Thus, nothing material could be extracted during the cross-examination of PW13.
180. It was argued on behalf of the accused persons that the IO had not seized the TA form in respect of bill dated 2.11.2012. During cross-examination PW56 stated that he had not seized TA form in respect of bill number 2012-2013/11/5444 dated 02.12.2012 of A1. He denied the suggestion that he had not conducted the investigation fairly or that he had protected the real culprits and falsely implicated the accused under pressure from his higher officials. However, it is seen that the original TA bill pertaining to the said claim is on record and original TA bill No.2012-13/11/5444 dated 02.11.2012 of Rs.62,452/- was proved by PW13 as Ex.PW13/A and she stated that the same bore her signatures in verification of cheque number, date and amount. As such, nothing much turns on the said contention when the bill is on record. It is true that if the documents annexed with the form in question (Ex.PW4/E) had been weeded out, there would have CBI Vs. Vinay Kumar Pandey & Anr. Page No.176 of 361 been subsequent forms which would show the correct position but it is also seen that the sample TA form had been proved on record. It was then argued that the other TA forms could have been sent for the purpose of comparison of signatures of A1 but the record shows that enough admitted signatures of A1 were already available. As such, the contention that other TA Forms ought also to have been seized in the present case is without merit.
181. During cross-examination by the Ld. Counsel for A1, PW14 stated that she had never worked in the audit section of PAO. She admitted that she was not aware at the time of signing the cheque whether it was a consolidated cheque or was against one bill. To her knowledge there was no rule that the bill would not be put up before her at the time of signing the cheque. She admitted that she would sign the cheque with the amount contained in the same irrespective of whether the amount had been correctly filled or not by the person preparing the cheque and volunteered the person who had prepared the cheque had the duty to check the same before preparing the cheque and putting it up before her. She denied the suggestion that despite being one of the highest authorities to sign the cheque above Rs.10 lakhs, she utterly failed in her duty to check the same from the bill and also to see whether in the eyes of law any bill was there which warranted the making of the cheque. She denied the suggestion that it was her duty to see the bill before signing the cheque and had she performed her duty diligently, it would have been writ large that she had signed a wrong cheque and volunteered if the bill was put up along with the cheque, she would see the same but if the bill was not put up, she used to sign the cheque and her CBI Vs. Vinay Kumar Pandey & Anr. Page No.177 of 361 duty was only as a signatory of the cheque. She could not say whether the bill was put up before her before signing the cheque in question in the present case. Thus, PW14 admitted that she was not aware at the time of signing the cheque whether it was a consolidated cheque or was against one bill. She had stated that to her knowledge there was no rule that the bill would not be put up before her at the time of signing the cheque and it was argued by the Ld. Counsel for A2 that the bill should have been put up before PW14 but deliberately it was not done but it is pertinent that PW14 had stated that she was only supposed to sign the cheque and that her duty was only as a signatory of the cheque.
182. PW14 further admitted that her statement was recorded by Inspector CBI. She did not remember if the statement was read over to her or not. She had seen her statement that day before deposing in the Court. She admitted that she had stated to the IO that as Executive Officer, it was her duty to check and match the bill amount passed by the Pay and Account officer before signing the cheque. A question was put to her that if she had seen the bill, she would have come to know that the same did not have the signatures of DDO or Pay and Account officer and that the cheque had been wrongly prepared to which she replied that it was the duty of the person who had prepared the cheque to have verified if the signatures of the DDO and the Pay and Account Officer were there on the bill and without that no one would have prepared the cheque. She had not stated falsely to the IO that as Executive Officer, it was her duty to check and match the bill amount passed by the Pay and Account Officer before signing the cheque. She admitted that the Dealing Assistant had to decide whether there should be one cheque CBI Vs. Vinay Kumar Pandey & Anr. Page No.178 of 361 against two or more bills and after preparing the cheque he put it up before the Executive Officer. Thus, PW14 admitted that she had stated to the IO that as Executive Officer, it was her duty to check and match the bill amount passed by the Pay and Account Officer before signing the cheque but she had also stated that it was the duty of the person who prepared the cheque to carry out the verification. She admitted that the Dealing Assistant had to decide whether there should be one cheque against two or more bills.
183. PW14 further admitted that whether the cheque pertained to the salary or benefits or TA/DA of an MP, after the cheque was signed, the Dealing Assistant sent the same directly to the bank account of the MP. As such, even PW14 had stated that the cheque was sent directly to the bank account of the MP. Further suggestions were put to PW14 which she denied and she denied the suggestion that illegal acts of the concerned officers of the MSA branch which amounted to grave misconduct on their part in processing the bill bearing No.2012-2013/11/5470 dated 05.11.2012 which claim was never submitted by the accused had led to the cheque in question being prepared and thereby false prosecution of the accused. She further denied the suggestion that before presenting the cheque in question before her by the Executive Officer of CF branch, the dealing hand did not scrutinize the bill as it did not have any approval of the Pay and Account Officer as well as the approval of the DDO of the MSA branch or that there was no bill in the eyes of law and still the cheque was prepared.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.179 of 361
184. During cross-examination by Ld. Counsel for A1, PW15 admitted that Ex.PW9/F and Ex.PW15/A started from 12.07.2012 and ended on 28.06.2013 (pg. 438, Sl. No.440) and volunteered she was not the dealing hand and the same was maintained by the dealing hand but as on that day the dealing hand was not available, she made the cheque and made the entry in Ex.PW15/A. She admitted that the entry in Ex.PW15/A was made in respect of all the cheques that were made and the same was not specific to any MP. She admitted that she had not verified the amount of Rs.69316 mentioned 14 times in Ex.PW5/B and volunteered the bill was received by her after being audited. She could not tell how the said figure was arrived at nor she could show any document from which the said figure might have been arrived at. She could not say that if the figure was given wrongly, a wrong cheque would be prepared and volunteered the bill was received after being audited. There was no communication with the accused Shri Vinay Kumar Pandey while preparing the cheque. As such PW15 was cross-examined on the amount mentioned in Ex.PW5/B but she also stated that the bill was received after being audited.
185. PW15 further stated that the IO had recorded her statement in the present case. She had not stated to the IO that the ticket numbers were not mentioned in the bill and she was confronted with the statement Ex.PW15/P1 wherein it was so stated. Thus, PW15 was confronted with her statement wherein she had stated that the ticket numbers were not mentioned in the bill but that was as per the procedure about which the witnesses have deposed. PW15 admitted that the cheque was prepared on the basis of the bill which was received after auditing but she CBI Vs. Vinay Kumar Pandey & Anr. Page No.180 of 361 could not say if it mentioned the ticket number, boarding pass, passengers names, flight number, purpose of journey and the seat number and volunteered she prepared the cheque as instructed by her senior. She denied the suggestion that her senior told her to prepare the cheque in the absence of the said things. She admitted that she did not note the said things nor brought it to the notice of the concerned branch and volunteered the bill was received after auditing and it was not for her to check the documents. She denied the suggestion that if she had called for the boarding passes and the tickets, she would have come to know that there was not a single boarding pass and ticket duly signed by the accused on record or that Belamuram was bent upon doing illegal acts and preparing false document and inserting false figure of Rs.69,316/-. She denied the suggestion that in such a situation the cheque in question would not have been prepared or that the acts of officials of MSA branch, PAMG and CF branch of preparing the cheque without looking at the documents and the relevant rules amounted to grave misconduct or that the illegal preparation of the cheque had resulted in the preparation and sending of a consolidated cheque of Rs.10,33,836/- to the account of the accused and a sum of Rs.9,71,384/- had been wrongly credited. Thus, PW15 denied the suggestions put to her and maintained the stand that the bill was received by her after the same was audited.
186. During cross-examination by Ld. Counsel for A1, PW16 stated that she was on leave on 06.11.2012 but the entry in Ex.PW16/A was made by her on the next day in respect of the work done on the previous date. She did not make any noting that the entry was being made on 07.11.2012. She denied the CBI Vs. Vinay Kumar Pandey & Anr. Page No.181 of 361 suggestion that she had deliberately antedated the entry to show it of 06.11.2012 and volunteered the date would be put of the day on which the cheque was prepared. She admitted that the cheque was prepared on the basis of the amount mentioned in the bill and the boarding passes duly signed by the Member and the tickets were not checked and volunteered that was not their job. She admitted that the cheque in question was not a self cheque but was a consolidated cheque which was sent directly to the account of the Member. She denied the suggestion that their duty was to see from the original tickets as well as boarding passes whether the amount had been correctly shown in the bill and there were particulars of the passenger, ticket number, boarding pass number, flight number and the purpose of the journey. Thus, PW16 denied the suggestion that she had deliberately antedated the entry in Ex.PW16/A to show it of 06.11.2012. She reiterated that it was not their job to check that the boarding passes were duly signed by the Member or to check the tickets. PW16 also admitted that the cheque in question was a consolidated cheque which was sent directly to the account of the Member. It was argued on behalf of the accused persons that two TA bills had been consolidated and one cheque was prepared but none of the witnesses had stated the reason for clubbing the bills but PW16 had deposed that all the bills were collected and arranged according to the IC number of the Member; the account number of the Member was tallied with that given in the audit branch and the bill was checked to ensure that the amount in figures and words tallied as also the name and IC number of the Member and then one consolidated cheque was prepared in the name of the Member and as such, it does not appear to be the case that only in CBI Vs. Vinay Kumar Pandey & Anr. Page No.182 of 361 the present case, a consolidated cheque was prepared and in other cases as well, consolidated cheques would be prepared.
187. During cross-examination by the Ld. Counsel for A1, PW25 stated that the register Ex.PW5/C is of the MSA Branch and even the printout, which is pasted in the same is taken out by the MSA Branch. She only used to verify the bill and sign the same. The particulars in the bill were verified from the register available in the physical form and also from the computer. Her statement was recorded by the IO. She did not remember if she had stated to the IO that she used to verify the particulars of the bill from the computer as well. She was shown the statement Ex.PW25/P1 and it was not recorded therein that verification was made from the computer. She admitted that the tickets and boarding passes were not received by her as it was not required as per procedure at that time. She had not given any comment on Ex.PW5/C that the same was verified from the computer and volunteered no such comment was given as per practice. She could not admit or deny the suggestion that she had not verified the details of the bill from the computer. She had taken permission from her senior officers for deposing in the Court. She had brought the same and the same was shown. She denied the suggestion that she had not been authorized by the Competent Authority to depose in the present matter. Thus, PW25 stated that she only used to verify the bill and sign the same and reiterated that the tickets and boarding passes were not received by her as it was not required as per procedure at that time. The Ld. Counsel for A1 had argued that PW25 had stated about verifying the bill from the computer which was not stated in her statement under Section 161 Cr.P.C. and as such it was an improvement but it is CBI Vs. Vinay Kumar Pandey & Anr. Page No.183 of 361 relevant that she had also stated about verifying the particulars in the bill from the register available in the physical form.
187A. The Ld. Counsel for A1 had also contended that no rule had been proved to establish that the procedure existed as per which the documents were not put up before the officers and in fact the persons who had been examined as witnesses were suspects themselves and obviously they would try to shield themselves but their version was believed and no witness had been produced who could have said that in the past also such a procedure was followed; if PW10 had checked the bill properly, it would have been found that there were shortcomings and the Branch would have questioned the Member which did not happen in the present case; PW11 also could not give any logic as to why the details were not there and there was nothing to show any such procedure or logic why the documents were not sent and if the documents were not to be processed along with the bill, there was no reason to ask the Member for the details and only a bare statement of the witnesses was there and they did not have any annexures or details with them but as per them, they verified the bill and processed the same. It was argued that this showed that either the documents were manipulated or were not prepared properly or they were prepared later and there was negligence on the part of the officials and they did not process the bill properly. No doubt, no rule has been produced on record which would establish that as per the procedure, the documents were not sent to other branches from MSA branch which further processed the bill and prepared the cheque such as the Pay and Account Office and the PAMG but all the witnesses had consistently deposed about the procedure that was followed and CBI Vs. Vinay Kumar Pandey & Anr. Page No.184 of 361 that the documents were not received in the Pay and Account Office and the PAMG. Even the contention that if the documents were not to be processed along with the bill, there was no reason to ask the Member for the details is without merit as only if the documents were there could details be entered in Ex.PW5/B and Ex.PW5/C i.e. the two copies of the bill that were generated and it cannot be said that the documents were not looked into. Further, as the necessary details were already entered in the bill, there may have been no requirement to forward the documents to other officers and in these circumstances, if the other officers processed the bill without having any annexures or details with them, no fault can be found with the same. When the documents (TA form, bill and TA register) have been duly produced and proved on record, no presumption can be drawn that the documents were manipulated or were not prepared properly or they were prepared later or that there was negligence on the part of the officials and they did not process the bill properly.
188. A perusal of the evidence shows that the bill was received in the Pay and Account Office after signatures of the DDO where it was processed and thereafter the cheque was prepared and the witnesses had consistently deposed that they did not receive the documents attached with the TA Form. None of the witnesses had stated about there being any discrepancy in the bill and though signatures of DDO were not there on page 2 and 3 of the bill Ex.PW5/B, the same were there on the first page. A consolidated cheque in respect of two bills was prepared and the original TA Bill dated 2.11.2012 for an amount of Rs.62,452/- was proved as Ex.PW13/A. It has also come out in the evidence of the witnesses that the cheque was directly sent to the account CBI Vs. Vinay Kumar Pandey & Anr. Page No.185 of 361 of the Member and there is merit in the contention on behalf of A1 that it was clear that A1 had not deposited the cheque in his account and that there was no allegation that A1 had collected the cheque and thereafter put the same in his account but that cannot lead to any inference that there was no direct evidence of A1 taking part in the crime when there is other material on record and what is of significance is that the cheque was deposited in the account of A1 and the said cheque was prepared on the basis of the TA form Ex.PW4/E that was submitted and bore the signatures of A1.
189. The prosecution had further examined 3 bank witnesses and PW1 Shri Sudhir Kumar Malhotra, Assistant General Manager, State Bank of India deposed that on 05.11.2016, he was posted and working as Chief Manager, SBI, Sansadiya Soudh Branch, New Delhi. He stated that he had certified D-35 which is Ex.PW1/A. The same is a cheque dated 06.11.2012 issued by Pay and Account Officer, Lok Sabha, bearing No.343384 for Rs.10,33,836/- issued in favour of Shri Vinay Kumar Pandey. He stated that the cheque was paid by their branch and credited to the account of Shri Vinay Kumar Pandey bearing No.30780472914. The same is a Government cheque issued by Lok Sabha which is payable only by the branch where the account is maintained but could be deposited anywhere in branch of SBI. He stated that he had written the letter D-34 to Insp. CBI in the office of Superintendent of Police and the same is dated 16.09.2016 and is Ex.PW1/B. During cross-examination by the Ld. Counsel for A1, PW1 could not say by looking at the cheque Ex.PW1/A as to how many consolidated TA/DA bills the same pertained to. He was not cross-examined on behalf of A2 CBI Vs. Vinay Kumar Pandey & Anr. Page No.186 of 361 despite opportunity being given.
190. PW2 Shri S. Balasubramanian, Chief Manager, State Bank of India deposed that on 18.07.2016, he was posted as Branch Manager, SBI, Parliament House Branch. He stated that D-11 which is letter dated 12.07.2016 was issued by him in favour of Insp. Mohan Kumar, office of CBI AC-III, New Delhi and the same is Ex.PW2/A. He stated that D-12 which is certificate under Section 2A read with Section 2 (8) of Bankers Books of Evidence Act, 1891 dated 12.07.2016 was issued by him and the same is Ex.PW2/B. He stated that D-13 which is certificate under Section 2A read with section 2 (8) of Bankers Books of Evidence Act, 1891 dated 12.07.2016 was issued by him and the same is Ex.PW2/C. He stated that D-14 which is Statement of Account pertaining to account No.30780472914 in the name of Shri Vinay Kumar Pandey w.e.f. 01.01.2012 to 31.12.2013 was certified by him and is Ex.PW2/D. PW2 was shown the entry dated 06.11.2012 at point B and he stated that it showed credit of amount of Rs.10,33,836/- in the account of Shri Vinay Kumar Pandey from the account of Lok Sabha Secretariat bearing No.30011244250 maintained at Sansadiya Soudh Branch. He was shown entry dated 09.11.2012 at point C and he stated that it showed debit of amount of Rs.2,50,000/- vide cheque No.975871 paid to Shri Arvind by cash. He was shown D-15 which is original Account opening form pertaining to Account No.30780472914 in the name of Shri Vinay Kumar Pandey along with photocopy of Identity card issued by Election Commission of India, copy of PAN Card, copy of Certificate of Election, copy of I-card issued by Lok Sabha Secretariat to Shri Vinay Kumar Pandey and he stated that the same was certified by CBI Vs. Vinay Kumar Pandey & Anr. Page No.187 of 361 the concerned officer at the time of opening the account and the same is dated 02.06.2009 and is Ex.PW2/E (colly) and was handed over by him to the IO vide Ex.PW2/A. He further stated that if a Member desired immediate payment of his dues, he had to approach the concerned officer of Lok Sabha and the individual cheque may be issued in his favour and the Member deposited the cheque in the branch.
191. PW2 further stated that D-31 which is letter No.91, dated 20.08.2016 addressed to Insp. Mohan Kumar, CBI, AC-III was issued by him and the same is Ex.PW2/F. He stated that as regards D-32 which is cheque No.975871 for an amount of Rs.2,50,000/- dated 09.11.2012 of account No.30780472914 in the name of Shri Vinay Kumar Pandey, the said amount was paid by cash to Shri Arvind whose signatures were there on the back of the cheque and the cheque is Ex.PW2/G. During cross- examination by Ld. Counsel for A1, PW2 could not say as to against how many TA/DA Bills the cheque for Rs.10,33,836/- was issued. The payment of cheque dated 07.11.2012 for Rs.25,000/- was in cash but it could not be said from where it was paid. The amount had been paid to Veer Vinay. What he had stated that "If a Member desires immediate payment of his dues he has to approach the concerned officer of Lok Sabha and the individual cheque may be issued in his favour and Member deposits the cheque in the branch" was on the basis of what was stated to him by the Members. He could not tell the name of any such member or the date when he was so told.
192. PW3 Shri Mayank Sharma, Assistant Manager, SBI, Parliament House, New Delhi proved D-10 which is seizure CBI Vs. Vinay Kumar Pandey & Anr. Page No.188 of 361 memo dated 12.07.2016 as Ex.PW3/A and he stated that vide the said seizure memo, he had handed over the documents mentioned therein i.e. Ex.PW2/B, Ex.PW2/C, Ex.PW2/D, Ex.PW2/E (colly), Ex.PW2/A to the IO on 12.07.2016. He proved D-30 which is seizure memo dated 22.08.2016 as Ex.PW3/B and vide the same, he had handed over Ex.PW2/F and Ex.PW2/G to the IO. He stated that when a cheque is presented at the branch by a customer, the signatures on the cheque are matched with the signatures in specimen signature form contained in the bank system and if the signatures match, the payment is made. He was not cross-examined on behalf of the accused persons despite opportunity being given.
193. PW1, PW2 and PW3 had thus proved the cheque which was credited to the account of A1 Ex.PW1/A and had also stated about the bank account of A1. It is also the case of the prosecution that a cheque for Rs.2,50,000/- was deposited in the bank account of A1 and the amount was withdrawn by cash by A1 and PW2 had also proved the said cheque and the debit entry regarding the same in the Statement of Account. The Ld. Counsel for A1 had argued that from the testimony of PW13 it was clear that there was no way that the Member could know that the bill had been cleared and the cheque was sent as no intimation was sent to the MP regarding the clearance of the bill and there was no system by which A1 would have been informed that the cheque had been deposited in his account and as such he never came to know that the cheque was deposited in his account and the amount in question was credited to his account. The witnesses had stated about the cheque being deposited directly in the bank account of the Member and no one had stated that A1 CBI Vs. Vinay Kumar Pandey & Anr. Page No.189 of 361 himself had deposited the cheque in his account or that they had informed A1 about the deposit of the cheque; there was no message to him and it was not even the case that the copy of the statement of account was dispatched to A1 every month which could have shown that he had knowledge of the fact of deposit of cheque. There is merit in the contention of the Ld. Counsel for A1 that in 2012, there was no system of sending messages about credit of any amount nor there is anything to show that any intimation from Lok Sabha Secretariat was sent to A1 regarding the reimbursement of the amount against Ex.PW4/E. However, the contention that A1 was not aware of the reimbursement of the amount in his account is hard to believe. PW2 had proved the Statement of Account of A1 w.e.f. 01.01.2012 to 31.12.2013 as Ex.PW2/D and a perusal of the same would show that the balance in the said account had always remained low and the maximum amount in the account prior to the entry in question was Rs.8,02,365 on 17.07.2012, that too when an amount of Rs.7,69,763/- was credited in the account of A1 towards TADA but again from 20.07.2012, the balance had remained below Rs.2,00,000/- till the amount in question was reimbursed. It cannot be accepted that a person, even though an MP would not be aware of the balance in his account and on the day prior to the credit of the amount of Rs.10,33,836/- in his account on 06.11.2012, there was only an amount of Rs.38,612/- in the said account.
194. PW2 was shown the entry dated 06.11.2012 at point B and he stated that it showed credit of amount of Rs.10,33,836/- in the account of Shri Vinay Kumar Pandey from the account of Lok Sabha Secretariat bearing No.30011244250 maintained at CBI Vs. Vinay Kumar Pandey & Anr. Page No.190 of 361 Sansadiya Soudh Branch. Thus, the amount of Rs.10,33,936/- was credited on 06.11.2012 and the fact that a cheque of Rs.2,50,000/- was issued and debited on 9.11.2012 would itself show that A1 would have been aware of the said amount being credited to his account. PW2 was shown entry dated 09.11.2012 at point C and he stated that it showed debit of amount of Rs.2,50,000/- vide cheque No.975871 paid to Shri Arvind by cash. Not only this but an amount of Rs.2,00,000/- was further withdrawn on 12.11.2012 and by 21.11.2012, the amount in the account was reduced to Rs.33,330/-. If an amount of more than Rs.10 lakhs was withdrawn within a period of 15 days, it cannot be believed that A1 would not have been aware of the deposit of the said amount in his account. As such, the said contention raised on behalf of A1 is baseless. It thus, stands established that the form Ex.PW4/E for reimbursement of TA claim was signed by A1, it was submitted with the MSA branch, it was processed and then the amount of Rs.10,33,836/- (including for the bill dated 2.11.2012) was credited in the account of A1 on 06.11.2012 and further the said amount was utilized by A1 within a short span which belies the contention put forth on behalf of A1 that he was not aware of the deposit of the cheque or reimbursement of the amount in his account.
WEEDING OUT OF DOCUMENTS
195. It is the case of the prosecution itself that the boarding passes and the tickets attached to the TA/DA form had been weeded out even prior to the registration of the case. As per the first supplementary charge sheet that was filed, investigation on the role of the officials of Lok Sabha Secretariat had revealed CBI Vs. Vinay Kumar Pandey & Anr. Page No.191 of 361 that as per the letter dated 05.07.2016, the original tickets and boarding passes submitted by A1 along with the TA claim were weeded out by the Lok Sabha Secretariat and that the tickets and boarding passes submitted by the Members of the 15 th Lok Sabha from August, 2011 to March, 2013 along with their TA/DA claims including the tickets and boarding passes submitted by A1 were weeded out in the month of April, 2014 before registration of the case. It was revealed that there was a practice in the MSA branch of Lok Sabha Secretariat to weed out the ticket and boarding passes submitted by the Members of Parliament along with their TA/DA claims annually. It was stated that there was no evidence to establish the connivance between the officials of Lok Sabha Secretariat with the accused persons though it was also stated that the weeding out was contrary to the rules of Lok Sabha Secretariat and a Self-Contained Note was being sent to take suitable action against the erring officials of Parliament Secretariat though it was not stated specifically in the charge sheet as to how the weeding out was contrary to the rules of Lok Sabha Secretariat as was contended by the Ld. Counsel for A1. In fact it is the case of the accused persons that the weeding out of the tickets and the boarding passes had prejudiced their defence.
196. The Ld. Counsel for A1 had argued that not a single witness to weeding out was examined and made part of the first charge sheet. As regards weeding out, PW4 had stated in the statement under Section 161 Cr.P.C. that the documents were retained for five years. It was nowhere mentioned when the documents were in fact weeded out. Even the case of CBI was that the weeding out was contrary to the rules but what kind of defect was there and the extent of defect and whether it was CBI Vs. Vinay Kumar Pandey & Anr. Page No.192 of 361 culpable or not was not stated by CBI and how the weeding out was wrong was not stated. The file was destroyed before time and all of sudden, a noting was made and there was no date when the weeding out was actually done and even there was no instruction specifically but that was not stated so by the witnesses. Even if A1 had filed the TA/DA form, A1 had no role as it was not the case that he had put pressure on anyone to weed out the documents or to destroy the documents. It could be a case that he was implicated and the record was destroyed and then the inquiry was made and CBI registered the case. As per the case of CBI, the source had given the details of everything meaning someone in the Secretariat had access to everything as the amount was stated as also the date and even the names of the passengers were stated and it was after the destruction of the record that the complaint was made. Further all the witnesses to the weeding out were not part of the first charge sheet but were part of the second charge sheet pursuant to the orders of the Court and no attempt was made by CBI to find out the objective behind the destruction of the documents. It was argued that the relevant witnesses were PW22, PW38, PW39, PW42 and PW43 and it had come on record that contrary to the rules, the documents had been destroyed.
197. CBI in respect to weeding out had examined several witnesses and PW4 Smt. Punam Sharma was shown D-110 which is the original file maintained at MSA Branch, Lok Sabha Secretariat for weeding out old records and is Ex.PW4/B (colly). She stated that page 11 of Ex.PW4/B was the note-sheet regarding weeding out of old records. As per GFR 289 weeding out of old records was carried out. Her signatures were there on CBI Vs. Vinay Kumar Pandey & Anr. Page No.193 of 361 page 11 dated 18.03.2014 of Ex.PW4/B and on page 12 dated 26.03.2014 of Ex.PW4/B. She also identified the signatures of Shri Hooda on page 11 and of Joint Secretary Shri R.S. Kambo on page 11 and of Shri Ahiliya; of Shri Hooda on page 12; of Shri Ahiliya and of J.S. She stated that the documents were finally weeded out as per the decision of J.S who at that time was Shri R.S. Kambo. She stated that old record could be retained as per GFR 289. D-121 which are GFR rules 2005 are Ex.PW4/C (colly). D-122 which pertains to weeding out of records relating to accounts is Ex.PW4/D. As per the same, the TA/DA claim documents were to be retained for a period of 3 years or one year after the completion of audit whichever was later. She could not say when the documents of the present case were weeded out. Thus, PW4 had stated that the documents of the present case were weeded out as per the decision of the JS and she also stated that as per the rules, the TA/DA claim documents were to be retained for a period of 3 years or one year after the completion of audit whichever was later.
198. During cross-examination by Ld. Counsel for A1, PW4 stated that the charge that she held in respect of sales and records pertained to sale of publications and mementos and the records were of the entire office, mainly the records which were to be preserved forever or for long term. The MSA Branch was located in Lok Sabha Annexe. She admitted that MSA Branch had its own record room and volunteered short term records were retained there and almost all branches had their own record rooms. The Joint Secretary was the Incharge of the Record Room of the MSA Branch. Similarly, other Joint Secretaries were Incharge of their respective branches. She admitted that the CBI Vs. Vinay Kumar Pandey & Anr. Page No.194 of 361 records of the MSA Branch were kept in lock and key. Again said, she had never accessed the record room and some of the record may be kept outside also. She admitted that Belamu Ram was working under her. She could not say if Belamu Ram used to keep the record of TA/DA bills of the MPs who he was dealing with in the record room. She was not Incharge of the record room of the MSA Branch directly. Thus, PW4 admitted that MSA Branch had its own record room and that the Joint Secretary was the Incharge of the Record Room of the MSA Branch. She could not say if Belamu Ram used to keep the record of TA/DA bills of the MPs who he was dealing with in the record room and she stated that she was not Incharge of the record room of the MSA Branch directly.
199. During further cross-examination PW4 stated that there was no such rule that the documents which were to be destroyed, a report in their respect would be sent to the JS every week. She could not produce any document to show what documents were destroyed during her tenure. She had handled the file regarding the weeding out of the documents of the present case. She admitted that no noting or document was put up before her by Belamu Ram or any other concerned official that the boarding passes were occupying a lot of space and they be destroyed. She was shown page 10 of Ex.PW4/B (colly) and she stated that the said page was of 2013 when she had not joined and the same had not been put up before her. She admitted that pages 1 to 10 of Ex.PW4/B (colly) were not produced before her. She did not check the previous record before signing on page 11 CBI Vs. Vinay Kumar Pandey & Anr. Page No.195 of 361 of Ex.PW4/B (colly). She admitted that page 11 of Ex.PW4/B, contained the proposal for weeding out of only the Air Tickets pertaining to 15th Lok Sabha. Again said, it did not mention Air Tickets but mentioned TA/DA registers. She admitted that Page 11 of Ex.PW4/B in item A mentioned about destruction of Air Tickets from August 2011 to March 2013. She admitted that the JS had put an objection to the same and then she drew his attention to Rule 289 GFR. She did not know about Rule 289 GFR at present. At the point when she showed the same to the JS, she knew about the same. She admitted that the Joint Secretary had put a noting to the effect "follow rule 289 of GFR to retain the old records for the period so prescribed". Thus, PW4 had handled the file regarding the weeding out of the documents of the present case though she admitted that no noting or document was put up before her by Belamu Ram or any other concerned official that the boarding passes were occupying a lot of space and they be destroyed. She stated that she did not check the previous record before signing on page 11 of Ex.PW4/B (colly) but nothing much turns on the same. It is pertinent that PW4 admitted that page 11 of Ex.PW4/B, contained the proposal for weeding out of only the Air Tickets pertaining to 15 th Lok Sabha, again said, it did not mention Air Tickets but mentioned TA/DA registers but then she admitted that Page 11 of Ex.PW4/B in item A mentioned about destruction of Air Tickets from August 2011 to March 2013 and a perusal of the document also shows that air tickets from August, 2011 to March, 2013 were mentioned. She admitted that the JS had put an objection to the same and then she drew his attention to Rule 289 GFR and that the Joint Secretary had put a noting to the effect "follow rule 289 of GFR CBI Vs. Vinay Kumar Pandey & Anr. Page No.196 of 361 to retain the old records for the period so prescribed" and a perusal of Ex.PW4/B (colly) also shows the same.
200. During further cross-examination PW4 admitted that CBI had inquired from her regarding the destruction of records and she had given her statements to CBI. She admitted that she had stated to the IO that as per rule 289, the record could be destroyed after 3 years or after one year of the completion of audit. She had not stated to the IO that there were separate rules for Lok Sabha Secretariat appendix 24 or that the period for retention of TA/DA records was 5 years and volunteered she did not know any such thing at that time. She was confronted with the statement dated 15.01.2018 wherein it was so stated and the said statement is Ex.PW4/P1. Thus, it is seen that in her statement Ex.PW4/P1 PW4 had stated that the period for retention of TA/DA records was 5 years whereas before Court she had stated that the record could be destroyed after 3 years or after one year of the completion of audit. However, what would be material to be considered would be the rule position and not what PW4 had stated when the rules have also been produced before the Court. PW4 had further stated that she had not given any instruction for destruction of the records and she had forwarded the file to the Under Secretary and then to the dealing hand and volunteered thereafter, the file did not come back to her. She stated that she was not present at the time of destruction of the documents of the present case. She admitted that she did not receive any report that the tickets of the present case were being destroyed. She admitted that in item A on page 11 of Ex.PW4/B only Air Tickets had been mentioned and not boarding passes and volunteered air tickets included boarding passes. She was aware CBI Vs. Vinay Kumar Pandey & Anr. Page No.197 of 361 that Air tickets were different and boarding passes were different. She had not given any order that electronic image be taken of the documents which were being destroyed and volunteered there was no such precedent at that time to her knowledge. Thus, PW4 admitted that in item A on page 11 of Ex.PW4/B only Air Tickets had been mentioned and not boarding passes and that she was aware that Air tickets were different and boarding passes were different and it is seen that in Ex.PW4/B (colly) only air tickets were mentioned. She also stated that she had not given any order that electronic image be taken of the documents which were being destroyed and volunteered there was no such precedent at that time to her knowledge and she had also stated that the documents were weeded out as per the decision of the JS. PW4 admitted that it was not mentioned in Ex.PW4/A when the Air tickets and boarding passes were weeded out. She was not aware of the date when the Air Tickets and boarding passes were weeded out and it is seen that in Ex.PW4/B, the actual date of weeding out of the record is not mentioned.
201. PW4 denied the suggestion that due to glaring illegal acts of hers, the Air tickets if any submitted with the TA/DA bill had been destroyed resulting in gross injustice to the accused or that despite there being no order on the file, the boarding passes if any enclosed with the TA/DA bill had been destroyed and the most vital and important piece of evidence had been lost. She denied the suggestion that by her illegal act or of her department with respect to destruction of records of the present case, the persons who were the real conspirators of the crime had not been found out and the real conspiracy could not be dug out. However, it cannot be disputed that the record had been destroyed even CBI Vs. Vinay Kumar Pandey & Anr. Page No.198 of 361 before the case was registered.
202. During cross-examination by Ld. Counsel for A1, PW5 could not say when the original tickets were destroyed as the same did not pertain to him. He stated that it was not in his knowledge that the file had been moved for destruction of the tickets in question and volunteered a common file was moved for destruction of tickets and at that time, the present case had not been lodged. He had no knowledge that the boarding passes of the present case were destroyed or not. Again said, all the documents pertaining to the said period were weeded out and volunteered the boarding passes are attached to the tickets and would be destroyed along with the tickets. He had not seen the file regarding weeding out of documents at the relevant time but he had seen it later. He had not written any letter or note to senior officers requesting that the boarding passes and the tickets in the present case be not destroyed. PW5 denied the suggestion that till the tickets and boarding passes were destroyed they remained in his custody. He stated that the same were kept in the store in the office. He admitted that no electronic image of the tickets and boarding passes was preserved. He stated that there was no order of any senior officer that the tickets and boarding passes of the present case had to be preserved. He denied the suggestion that by the illegal act of his and the officials, the E-tickets had been destroyed and the most important fundamental right of the accused to save himself had been taken away by weeding out of the tickets and the so-called boarding passes or that due to the weeding out of the tickets and boarding passes, the important right of the accused to send the same to the CFSL to compare the signatures had been smashed. He denied the suggestion that since CBI Vs. Vinay Kumar Pandey & Anr. Page No.199 of 361 he had not fed any details of the boarding passes therefore he made no objection with respect to the weeding out of the said boarding passes. He denied the suggestion that since there were no signatures what-so-ever on the boarding passes and so-called tickets, the original documents had been intentionally destroyed so that it could not be inquired that he wrongly prepared the two printouts Ex.PW5/B and Ex.PW5/C. He denied the suggestion that there was no document on record to show that the boarding passes should be weeded out. Thus, even PW5 could not say when the original tickets were destroyed but he also stated that the same did not pertain to him. He had stated that he had no knowledge that the boarding passes of the present case were destroyed or not but again said, all the documents pertaining to the said period were weeded out and volunteered the boarding passes are attached to the tickets and would be destroyed along with the tickets which is materially what PW4 had also volunteered when she stated that air tickets included boarding passes. As such, it was in the knowledge of PW5 that the documents pertaining to the period in question were weeded out. PW5 had not written any letter or note to senior officers requesting that the boarding passes and the tickets in the present case be not destroyed but even no reason has been stated why he would have written any such letter or note. Similar suggestions were put to him as those put to PW4 which he denied as also that since he had not fed any details of the boarding passes therefore he made no objection with respect to the weeding out of the said boarding passes but it is significant that he had stated that he had not seen the file regarding weeding out of documents at the relevant time but he had seen it later so there would have been no CBI Vs. Vinay Kumar Pandey & Anr. Page No.200 of 361 occasion for him to raise any objection to the weeding out of documents.
203. PW6 was shown Ex.PW4/B (colly) and he identified his signatures on page 10 of the note-sheet. He stated that he had put the note regarding weeding out of old record of MSA Branch on 06.06.2013. As such, PW6 had stated about putting the note regarding weeding out of old record of MSA Branch on 06.06.2013. During cross-examination by Ld. Counsel for A1, PW6 admitted that in Ex.PW4/B (colly) the boarding passes were not specifically mentioned. The signatures at point X were of the JS. He admitted that the JS had put the note that the Air tickets be not destroyed. He was not aware if the tickets and boarding passes of the present case had been destroyed and volunteered whatever documents were destroyed were not destroyed in his presence. He denied the suggestion that by the illegal act of his and the officials, the E-tickets had been destroyed and the most important fundamental right of the accused to save himself had been taken away by weeding out of the tickets and the so-called boarding passes or that due to the weeding out of the tickets and boarding passes, the important right of the accused to send the same to the CFSL to compare the signatures had been smashed or since there were no signatures what-so-ever on the boarding passes and so-called original tickets, they had been intentionally destroyed. He further denied the suggestion that there was no document on record to show that the boarding passes should be weeded out. Thus, PW6 admitted that in Ex.PW4/B (colly) the boarding passes were not specifically mentioned. He admitted that the JS had put the note that the Air tickets be not destroyed but it is seen that the JS had put the note regarding retaining air CBI Vs. Vinay Kumar Pandey & Anr. Page No.201 of 361 tickets on the note put up by PW6 for destruction of air tickets for the period August, 2011 to August, 2012 and not for the period in question. PW6 was not aware if the tickets and boarding passes of the present case had been destroyed and had volunteered that whatever documents were destroyed were not destroyed in his presence. Similar suggestions were put to him as were put to PW4 and PW5 which he denied as also that since there were no signatures what-so-ever on the boarding passes and so-called original tickets, they had been intentionally destroyed but in absence of the boarding passes and the tickets being before the Court, it cannot be said that there were no signatures on the same.
204. PW22 Shri Ramesh Chand Aheria deposed that Shri Poonam Sharma used to put up the file for weeding out of record relating to TA/DA bills to the Executive Officer and thereafter to the DDO. The Joint Secretary was the approving authority for weeding out of records. One peon/attendant was the custodian of the record. The supervisory role was played by the Executive Officer. He identified his signatures on D-110 which is Ex.PW4/B (colly) page 11. He marked the file to Smt. Poonam Sharma and then to Shri N.S. Hooda, Director, MSA Branch and ultimately the file went to the Joint Secretary Shri R.S. Kambo. He identified the signatures of Shri N.S. Hooda. He stated that after approval by the JS on 26.03.2014 the file went to Poonam Sharma and thereafter it came to him as the Executive Officer was on leave. He handed over the file to Poonam Chand. He did not make any further remark in the file in the said regard. There was no date in the file as to when the record was weeded out but it was after 26.03.2014. He was not cross-examined on behalf of CBI Vs. Vinay Kumar Pandey & Anr. Page No.202 of 361 the accused persons despite opportunity being given. Thus, PW22 had mainly stated about the movement of the file relating to weeding out of the documents and he had also stated that approval was taken from the Joint Secretary on 26.03.2014 and the weeding out had been done thereafter.
205. PW38 Shri Punam Chand, Executive Officer, Lok Sabha, Question Branch deposed that in 2012-13 he was posted as Executive Assistant in MSA branch, Lok Sabha. He was looking after the work of TA/DA of MPs. The MPs used to submit forms for TA/DA and miscellaneous work and he used to prepare the bill to be processed further. He stated that in D-110 which is Ex.PW4/B (colly), on page 11 the entry regarding weeding out of old records including Air Tickets was made by him at point X to X and it bore his signatures. He stated that he had put up the file for further processing to the Executive Officer/Under Secretary. He had also seen page 12 wherein entry made by him was at point Y to Y and it bore his signatures. He stated that the file did not come back to him thereafter and volunteered he was transferred from there in 2015. CBI had inquired from him in the present case in his office. Thus, PW38 had put up the note regarding the weeding out of the Air Tickets from August, 2011 to March, 2013 which it is seen is dated 18.03.2014 and he also stated about the movement of the file. When a query was put up by the JS on 20.03.2014, he had also responded to the same. During cross-examination by the Ld. Counsel for A1 PW38 admitted that he had told CBI whatever was in his knowledge and he volunteered whatever was asked of him. He was shown his statement Ex.PW38/P1 and he stated that he had made the said statement to CBI. As such nothing material CBI Vs. Vinay Kumar Pandey & Anr. Page No.203 of 361 had come out in the cross-examination of the said witness.
206. PW39 Shri Rajinder Singh Kambo deposed that around 2014, he was posted in MSA Branch, Lok Sabha as Joint Secretary. The MSA Branch used to handle claims of TA/DA of MPs, Medical bills and other miscellaneous facilities. He had a supervisory role and there was a Director under him as also Additional Director, Dy. Secretary, Under Secretary and so on. He stated that in D-110 which is Ex.PW4/B (colly), at page 11 the entry regarding weeding out of old records including Air Tickets was made by him at point Z to Z and it bore his signatures. He had sent the file back to the Director for clarifications. He had also seen page 12 wherein entry made by him was at point Z1 to Z1 and it bore his signatures. He stated that he was the competent authority for weeding out and he had given directions for weeding out of old records as per entry X to X on page 11. He stated that CBI had inquired from him in the present case. The file went down the hierarchy and ultimately reached the branch where the Section Officer/ Assistant who was the custodian of the file took necessary action. He stated that weeding out was done as there was huge problem of storage due to space crunch and at that time computerization was still at a nascent stage. He was not cross-examined on behalf of the accused persons. Thus, PW39 had stated that he was the competent authority for weeding out and he had given directions for weeding out of old records as per entry X to X on page 11. He had raised the query as what periodicity was prescribed for retention of records on the subject and whether there was compliance with the said instructions on which PW38 had responded by drawing attention to Rule 289 of GFR appendix 13 CBI Vs. Vinay Kumar Pandey & Anr. Page No.204 of 361 whereafter PW39 had directed to 'follow Rule 289 of GFR to retain the old records, for the period so prescribed' vide his noting dated 26.03.2014. It is pertinent that he had stated that he had given directions for weeding out and he was the competent authority and there is nothing to dispute that. PW39 had also stated the reason for weeding out that is, there was huge problem of storage due to space crunch and at that time computerization was still at a nascent stage and it is also seen in Ex.PW4/B that the reason for weeding out was stated as 'a substantial space in the record room allotted in MSA Branch presently occupied with non-usable records, details of which are available elsewhere. To over-come space crunch problem...' weeding out of certain items including air tickets from August, 2011 to March, 2013 was proposed.
207. PW42 Ms. Savita Bhatia, Dy. Secretary, Lok Sabha Secretariat deposed that from February 2013 till November 2014, she was posted in MSA Branch of Lok Sabha Secretariat as Executive Officer. She stated that D-110 which is Ex.PW4/B (colly) page-11 bore her signatures. She stated that the file regarding weeding out of tickets mentioned in Ex.PW4/B, page- 11 was put up before her by the junior for approval and after inquiry about the procedure for the same, she had forwarded the same to Under Secretary Shri Ramesh Aheria. She stated that the file was not received back by her later. She was not cross- examined on behalf of the accused persons. PW42 had thus, mainly stated about the file for weeding out coming before her and its movement.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.205 of 361
208. PW45 Shri Narendra Singh Hooda deposed that on 30.11.2014 he retired as Director from Lok Sabha Secretariat. He was perhaps posted in the MSA branch of Lok Sabha Secretariat as Incharge in the years 2012 to 2014. As Director, his job was of supervision in the MSA Branch. The MSA branch used to take care of Members of Parliament salaries and allowances etc. He was shown D-110 which is Ex.PW4/B (colly) and he stated that the weeding out was carried out as per rule 289 of GFR. As the record room was very small and there was space crunch, the record regarding TA/DA bills of MPs was retained for one year and thereafter weeded out. The record was otherwise available in the registers. The proposal at page No.10 for weeding out the old records was in respect of Air Tickets etc. of 15th Lok Sabha Members from August 2011 to August 2012 (details of all weeding out of old record was mentioned at point Y to Y at page 10 as also that the record was available in the registers). The same also bore his signatures at point B on page 10. He had marked the same to the JS on 07.06.2013. After approval he had received the file on 18.03.2014, some query was raised and the final approval of the JS was received on 26.03.2014 and thereafter he marked the file to Additional Director for further proceedings vide his signatures on page 11 of Ex.PW4/B (colly) and on page 12 of Ex.PW4/B (colly). He could not say when the record was actually weeded out. He did not know A1 and A2. He was not cross-examined on behalf of the accused persons. Thus, PW42 had stated that the weeding out was carried out as per rule 289 of GFR. He had also stated the reason for weeding out i.e. as the record room was very small and there was space crunch, the record regarding TA/DA bills of MPs was retained for one year CBI Vs. Vinay Kumar Pandey & Anr. Page No.206 of 361 and thereafter weeded out. The Ld. Counsel for A1 had argued that the objective for the weeding out of the record was not inquired into but it is seen that PW39 and PW42 had stated the reason for weeding out of the record i.e. space crunch. It is pertinent that PW45 also stated that the record was otherwise available in the registers. He could not say when the record was actually weeded out and it is seen that none of the witnesses have stated when the record was actually weeded out but it is quite apparent that the record would have been weeded out after 26.03.2014 as the approval of the Joint Secretary for weeding out of the record was of the said date.
209. It is thus, seen that boarding passes were not specifically mentioned in the proposal for weeding out of documents note X to X in Ex.PW4/B (colly) though PW4 and PW5 had volunteered that air tickets included boarding passes. Further, none of the witnesses could state when the documents were actually weeded out and they had mainly stated about the movement of the file. The JS was the competent authority and he had directed to follow Rule 289 of GFR for retaining the old records, for the period so prescribed. GFR 289 has been referred to and Annexure to Appendix 13 is available in the file which is Ex.PW4/B (colly) and as per the same, it is seen that the period of retention of record regarding grant of TA advance and LTC advance was one year. A perusal of the file also shows that in the past, proposals for weeding out the air tickets had been put up even before the expiry of one year. In respect of the air tickets in question which pertain to November, 2012, the proposal for weeding out was put up on 18.03.2014 i.e. after the expiry of one year and thereafter, the approval of the JS who was the CBI Vs. Vinay Kumar Pandey & Anr. Page No.207 of 361 competent authority for the same as deposed by PW39, was taken and thereafter the weeding out was carried out and the JS while granting approval had directed to follow Rule 289 of the GFR. It is the case of the prosecution itself that weeding out was contrary to the rules of Lok Sabha Secretariat. During cross-examination PW56 had stated that it had come out during investigation that the weeding out in the present case was contrary to the rules of Lok Sabha Secretariat. However, he had not specified how and even the CBI had not stated in the charge sheet as to how the weeding out was contrary to the rules of Lok Sabha Secretariat. PW56 did not remember if it was in his knowledge at the start of investigation in the present matter that the original documents had been weeded out. However, it is seen that it had come on record during investigation that the original documents had been weeded out.
210. The GFR rules 2005 are Ex.PW4/C (colly) (D-121) and as per the same the retention period in respect of TA/ Transfer TA claims is 3 years, or 1 year after completion of audit whichever is later. Nothing has been brought on record to show that audit had already taken place in the present case when the proposal for weeding out of the record was put up or the actual weeding out was done. Ex.PW4/C (colly) also contains the Annexure to Appendix 13 which was put up in Ex.PW4/B (colly) but it is pertinent that the latter refers to 1 year retention period in respect of grant of TA advance while 1st page of Ex.PW4/C prescribes the retention period for TA/Transfer TA claims as 3 years, or 1 year after completion of audit whichever is later and the present case concerns TA claim and not grant of TA advance. Further, D-122 pertains to weeding out of records relating to CBI Vs. Vinay Kumar Pandey & Anr. Page No.208 of 361 accounts and is Ex.PW4/D and the same is stated to be part of Manual of Office Procedures of Lok Sabha Secretariat and as per the same, the TA/DA Bills of MPs were to be retained for 5 years. However, considering the evidence that has come on record, the said 5 years period would be for the bills which are generated by the MSA branch on the basis of the TA claim form and would not pertain to the documents put up with the TA claim form. As such the period of retention of documents relating to TA claims would be as per Ex.PW4/C i.e. 3 years, or 1 year after completion of audit whichever is later whereas in the present case, the documents would have perhaps been destroyed in 2014 and there is no dispute that the tickets and boarding passes had been weeded out prior to the registration of the present case in 2016. Thus, the weeding out had been carried out contrary to the rules for the same but it is also to be noted that the case was registered on 21.03.2016 i.e. beyond the period of three years from November, 2012 and in any case the documents would not have been available when the case was registered. There is merit in the contention of the Ld. Counsel for A1 that even if A1 had filed the TA/DA form, it was not the case that he had put pressure on anyone to weed out the documents or to destroy the documents and none of the witnesses have deposed to that effect. It was also argued that as per the case of CBI, the source had given the details of everything meaning someone in the Secretariat had access to everything as the amount was stated as also the date and even the names of the passengers were stated and perhaps it was done to implicate A1 and it was after the destruction of the record that the complaint was made but nothing much turns on the same as the details of the source CBI Vs. Vinay Kumar Pandey & Anr. Page No.209 of 361 cannot be divulged and even if the complaint was made after destruction of some of the record, it is to be seen if the case against the accused persons is otherwise proved.
EVIDENCE REGARDING GENERATION OF BOARDING PASSES, DELETION OF CHECK-IN HISTORY ETC.
211. It is the case of the prosecution that A1 had claimed reimbursement in respect of a journey which was never performed and several witnesses were examined to depose about generation of boarding passes, deletion of check in history and that the flight manifests did not reflect that A1 and his companions had performed the journey in respect of which the reimbursement was claimed. PW27 Shri N.S. Nair, Officer Canteen, IFS, GSD Building, Terminal - II, IGI Airport deposed that in 2012, he was deputed to the Commercial Department and his duties included generating boarding passes, checking them etc. at Terminal-III, IGI Airport. After entering the airport, the passenger would go to the counter of the concerned Airlines for check-in purposes. Passenger would show the ticket and ID and the same was verified in the computer system and if the PNR and ticket were okay after tallying from the system, then the boarding pass was issued to the passenger. The persons sitting at the check-in counter could either be employees of the Airlines or outsourced staff. He was issued ID by Indian Airlines. Every person sitting at the counter was issued an ID. He would put his ID number in the computer system in order to operate it to generate the boarding passes. PW27 stated that the MPs would go to the business class counter where they would be issued the boarding passes. At the time of booking the ticket, there was a CBI Vs. Vinay Kumar Pandey & Anr. Page No.210 of 361 remark if a person was MP or MLA or Minister. In case the protocol office of the VIP called in advance, then the concerned staff would generate their boarding passes in advance. Special handling services were available for passengers who were sick or disabled and for VIPs.
212. PW27 further stated that he did not know the accused Vinay Kumar Pandey. He did not remember any Sonali Pandey by name but she would be there in the staff. He did not remember Nidhi Khanam by name but she might have been there in the staff. He stated that he had never instructed Sonali Pandey or Nidhi Khanam to issue boarding passes in the name of Vinay Kumar Pandey and thereafter to delete the same. PW27 stated that as per D-114, which is duty register of commercial department of AIR India Ltd. for November 2012 (containing pages 1 to 370) Ex.PW27/A, his attendance was marked on pages 5 and 6 on 01.11.2012 afternoon shift at T-3, IGI Airport. The said register was signed by the Counter Manager who was the authority to maintain the register and was not signed by the persons on duty. As per the register, on the said date Nidhi Khanam and Priyanka were on duty amongst others. He stated that D-21 which is flight manifest of Air India flight No.AI549 operated on 01.11.2011 was not the check-in history but only a computer-generated list of passengers containing names of passengers, ticket number, name of flight, date of journey. He stated that D-56 which is original of D-21 was only a computer- generated list of passengers. The check-in history contained name of the passenger, date, place of boarding and destination, PNR number, Ticket number and mobile number of the passenger. He was not cross-examined on behalf of the accused CBI Vs. Vinay Kumar Pandey & Anr. Page No.211 of 361 persons despite opportunity being given. Thus, PW27 had stated about the procedure that was followed after the passenger entered the airport. He had also stated that the MPs would go to the business class counter where they would be issued the boarding passes and in case the protocol office of the VIP called in advance, then the concerned staff would generate their boarding passes in advance.
213. PW27 also stated that as per Ex.PW27/A, his attendance was marked on pages 5 and 6 on 01.11.2012 afternoon shift at T-3, IGI Airport. Further, as per the register, on the said date Nidhi Khanam and Priyanka were on duty amongst others. The Ld. Counsel for A1 had argued that Nair had stated that he did not give instructions so on whose instructions PW48 generated boarding passes was not clear and who handed over the boarding passes to whom was not clear. It is pertinent that PW27 stated that he had never instructed Sonali Pandey or Nidhi Khanam to issue boarding passes in the name of Vinay Kumar Pandey and thereafter to delete the same and there is nothing on record to show who had instructed Sonali Pandey or Nidha Khanam to issue the boarding passes in the name of A1 and thereafter to delete the same.
214. PW28 Shri Jitender Kumar, Sr. Supervisor, IGI Airport, T-3 deposed that from 2011 to 2013 he was posted in ticketing at T-3 and he used to issue tickets. The passenger after entering the airport directly went to the check-in counter of the concerned airline. The staff at the check-in counter checked the ticket number, name and ID of the passenger and generated the boarding pass for the passenger. The boarding pass was issued by CBI Vs. Vinay Kumar Pandey & Anr. Page No.212 of 361 the counter staff. After taking the boarding pass, the passenger proceeded for security check. After the security check the passenger proceeded for boarding the flight from the boarding gate. At the boarding gate, the passenger showed the boarding pass and the screening machine screened it and thereafter the passenger could proceed to board the flight if the boarding pass was in order.
215. PW28 stated that there were 13 digits in the ticket number of Air India. The first three digits were the airline code and the remaining 10 were the ticket number. In 2012 the tickets starting with the number 4 were manual tickets and those starting with numbers 2 and 9 were E-tickets. The tickets starting with number 2 were issued from the Air India office and those starting with number 9 were issued by Travel agents in 2012. In case of E-ticket, a passenger could avail four sectors and if another sector was added, then another ticket number would be added in conjunction (the last digit of the ticket number would change). A passenger could travel from Delhi to Chennai and Chennai to Port Blair and then from Port Blair to Chennai and from Chennai to Delhi on one E-ticket. PW28 further stated that if in 2011-12 a passenger had a manual ticket of Air India, the ticket number would not show on the boarding pass. Only if E-ticket was taken would the ticket number show on the boarding pass. Same applied even if it was a case of block booking. Thus, PW28 had also stated about the procedure that was followed after the passenger entered the airport though he did not state about any specific procedure being followed in case of VIPs. He had also stated about the digits in the ticket numbers of Air India and that in case of E-ticket, a passenger could avail four sectors and that if CBI Vs. Vinay Kumar Pandey & Anr. Page No.213 of 361 E-ticket was taken the ticket number would show on the boarding pass. During cross-examination by Ld. Counsel for A1, PW28 stated that he had not handled the present case personally in that he had not issued any tickets etc. and as such the tickets in the present case were not issued by PW28. The Ld. Counsel for A1 had argued that PW28 had stated that the ticket numbers for manual tickets were not shown on boarding passes but the ticket numbers would be shown on the boarding passes if there were e- tickets and the present was the case of e-tickets and it was the case of the accused also that the tickets were e-tickets and the numbers also showed that it was e-tickets as number 9 was there and as such the case was consistent that the tickets were e-tickets. However, there is no dispute in the present case that the tickets in question were e-tickets.
216. PW34 Shri Deepak Mathur, Assistant Manager (Commercial), Air India, Safdarjung Airport deposed that he was posted as Instructor/ Counter Manager from 2006 to 2015 for the Check-in System being used by Air India which was also called SITA System. He stated that there were two systems, which were working simultaneously which are reservation and check-in. The reservation data got transferred to the Check-in System about 72 to 48 hours before the departure of the flight. He stated that tickets could be purchased by the passenger in 2012 through City Booking Offices, Airport Booking Office and Authorized Travel Agents. Before 2012, there were only manual tickets. In 2012, the process of e-ticketing started and was in transition wherein both manual tickets as well as e-tickets were accepted for check-in at the Airport. In case a passenger was holding a manual ticket, then the same was presented at the counter at the time of check-in and the ticket CBI Vs. Vinay Kumar Pandey & Anr. Page No.214 of 361 number was manually updated in the system. In case of an e-ticket, the e-ticket was reflected in front of the name of the passenger booked on the flight and no physical ticket was required. He stated that before issuing a boarding pass, as per procedure, the photo identity card of the passenger was checked. The entry was made in the check-in system. Technically, there was no difference in case of VIP persons but due to protocol, sometimes the representative of the VIP might collect the boarding card on his behalf and would advise when the VIP arrived. He stated that once the passenger received the boarding card, he proceeded for security check and then to the respective boarding gate for boarding the aircraft. No entry was made in respect of the passenger during security check but the entry was made at the boarding gate, once the boarding was done. Thus, PW34 had stated that in 2012, the process of e- ticketing was started and the present case is based on e-tickets. He also stated that before issuing a boarding pass, as per procedure, the photo identity card of the passenger was checked and that technically, there was no difference in case of VIP persons but due to protocol, sometimes the representative of the VIP might collect the boarding card on his behalf and would advise when the VIP arrived.
217. PW34 further stated that if a passenger wanted to make a block booking for an Air India flight, the same could be done on a time limit basis wherein the names of the passenger, contact number and the PNR were generated from any Air India Office or Air India Authorized Agents. Once the PNR was generated, the same needed to be ticketed within the time limit assigned to the booking. PW34 proved D-82, which is the seizure memo dated 31.10.2016 as Ex.PW34/A. He proved D-83, which is certificate under Section 65B of Indian Evidence Act, 1872 as Ex.PW34/B. CBI Vs. Vinay Kumar Pandey & Anr. Page No.215 of 361 He proved D-84 which is letter dated 31.10.2016, addressed to Insp. Mohan Kumar, AC-III, CBI as Ex.PW34/C. He stated that vide the said letter he had handed over the documents mentioned therein to the IO i.e. certified copy of passenger check-in history of AI 0540 dated 01.11.2012, AI 0439 dated 01.11.2012 and AI 0549 dated 02.11.2012 (D-85, 1 to 69 pages including covering page) and the same are Ex.PW34/D. The certified copies (D-86, 1 to 99 pages including covering page) are Ex.PW34/E. The certified copies (D- 87, 1 to 67 pages including covering page) are Ex.PW34/F. PW34 proved D-88 which is seizure memo dated 14.12.2016 as Ex.PW34/G. He also proved D-89 which is certificate under Section 65B of Indian Evidence Act, 1872 as Ex.PW34/H.
218. PW34 proved D-90 which is letter dated 14.12.2016, addressed to Insp. Mohan Kumar, AC-III, CBI as Ex.PW34/I and he stated that vide the said letter he had handed over documents mentioned therein to the IO i.e. certified copy of passenger check-in history of AI0042 dated 01.11.2012, AI0142 dated 01.11.2012 and AI0429 dated 01.11.2012 (D-91, 1 to 59 pages including covering page) which are Ex.PW34/J (colly). The certified copies (D-92, 1 to 42 pages including covering page) are Ex.PW34/K (colly). The certified copies (D-93, 1 to 51 pages including covering page) are Ex.PW34/L (colly). PW34 proved D-96 which is seizure memo dated 14.12.2016 as Ex.PW34/M. He proved D-97 which is letter dated 14.12.2016, addressed to Insp. Mohan Kumar, AC-III, CBI as Ex.PW34/N. He proved D-99 which is certificate under Section 65B of Indian Evidence Act, 1872 as Ex.PW34/O.
219. PW34 stated that as per Ex.PW34/D (colly) page 41 at point X to X1 the PNR No.YKX5C was mentioned in the name of Pandey A. K. Mr. but no ticket was generated. Similarly on page 42 CBI Vs. Vinay Kumar Pandey & Anr. Page No.216 of 361 at point X to X1 same PNR Number was mentioned for Pandey Ishu Mr. but no ticket was generated. As per Ex.PW34/D (colly) page 43 at point X to X1 the PNR No.YKX5C was mentioned in the name of Pandey V. K. Mr. but no ticket was generated. The passengers (six) were checked-in as per check-in history at 16.31 hours on 01.11.2012 and all were deleted from the check-in system at 16.38 hours. PW34 further deposed that as per Ex.PW34/F (colly) page 38 to 40 at point X to X1 the PNR No.YKX5C was mentioned in the name of Pandey A. K. Mr., Epsita Ms., Ishu Mr., Manya Ms., Seema Mrs., V. K. Mr. but no ticket was generated. The passengers (six) were checked-in as per check-in history at 16.31 hours on 01.11.2012 and all were deleted from the check-in system at 16.38 hours. As per Ex.PW34/E (colly) no passengers by the aforesaid names were checked in on flight No.AI0439 on 01.11.2012, flight No.AI0142 on 01.11.2012, AI0042 on 01.11.2012 and AI0429 on 01.11.2012.
220. PW34 proved D-98 which is certified copy of passenger check-in history of AI0550 dated 02.11.2012 as Ex.PW34/R (colly); of AI0788 dated 02.11.2012 which is Ex.PW34/R1 (colly); of AI09602 dated 03.11.2012 which is Ex.PW34/R2 (colly); of AI0550 dated 03.11.2012 as Ex.PW34/R3 (colly); of AI0788 dated 03.11.2012 which is Ex.PW34/R4 (colly); of AI0430 dated 02.11.2012 which is Ex.PW34/R5 (colly); of AI0539 dated 02.11.2012 which is Ex.PW34/R6 (colly); of AI0440 dated 02.11.2012 which is Ex.PW34/R7 (colly); of AI0143 dated 02.11.2012 which is Ex.PW34/R8 (colly); of AI043 dated 02.11.2012 which is Ex.PW34/R9 (colly); of AI0440 dated 03.11.2012 which is Ex.PW34/R10 (colly); of AI0430 dated 03.11.2012 which is Ex.PW34/R11 (colly); of AI0549 dated 01.11.2012 which is Ex.PW34/R12 (colly); of AI09601 dated CBI Vs. Vinay Kumar Pandey & Anr. Page No.217 of 361 01.11.2012 which is Ex.PW34/R13 (colly); of AI0787 dated 01.11.2012 which is Ex.PW34/R14 (colly); of AI0539 dated 03.11.2012 which is Ex.PW34/R15 (colly); of AI0143 dated 03.11.2012 which is Ex.PW34/R16 (colly); of AI043 dated 03.11.2012 which is Ex.PW34/R17 (colly); of AI9601 dated 02.11.2012 which is Ex.PW34/R18 (colly); of AI0787 dated 02.11.2012 which is Ex.PW34/R19 (colly); and of AI9602 dated 02.11.2012 which is Ex.PW34/R20 (colly). He stated that he had himself taken out the printout from the check-in system and then handed over to the IO. Thus, PW34 stated that as per Ex.PW34/D (colly) and Ex.PW34/F (colly) the PNR No.YKX5C was mentioned in the name of Pandey A. K. Mr. and others but no tickets were generated. He had also stated that the passengers (six) were checked-in as per check-in history at 16.31 hours on 01.11.2012 and all were deleted from the check-in system at 16.38 hours while as per Ex.PW34/E (colly) no passengers by the aforesaid names were checked in on flight No.AI0439 on 01.11.2012, flight No.AI0142 on 01.11.2012, AI0042 on 01.11.2012 and AI0429 on 01.11.2012.
221. PW35 Shri S.S. Pirakalathan deposed that he joined Air India on 08.09.1978 as Traffic Assistant and retired as a Senior Manager on 31.01.2017. He was aware of the procedure for booking tickets through Air India. In 2011-12 only Electronic Tickets were available which could be purchased directly from Air India office or by passenger himself Online or through approved travel agents and no manual tickets were available. They had the SITA Reservation System for the purpose of booking tickets. During cross-examination by Ld. Counsel for A1 PW35 stated that in 2016 he had joined the investigation of the CBI Vs. Vinay Kumar Pandey & Anr. Page No.218 of 361 present case with Air India. He had stated all the facts deposed by him to the CBI officials. He admitted that he had stated to the CBI in his statement that "passengers with the tickets come to the airport to check-in. On verification of ID proof and E-ticket the passenger is allowed to check-in. Entries in this regard are also made in the SITA system which starts showing him as checked in. Thereafter, boarding card is issued to the passenger". Thus, in his statement to the IO, PW35 had stated that on verification of ID proof and e-ticket, the passenger was allowed to check-in but there is nothing in his statement to infer to the contrary that check-in could not be done without e-tickets or only on the basis of PNR.
222. PW40 Shri Dharampal deposed that he had retired from Safdarjung Airport as Dy. Manager Commercial with Air India. 90 percent of his service was in the Reservation Department. In 2008, a new software was introduced for reservation namely SITA and he was instructor of the reservation system. He was shown D-54 which is Ex.PW31/C (colly) i.e. Original Flight Manifest of AI540 operated on 01.11.2012 and AI549 operated on 02.11.2012. He stated that AI540 was from Delhi to Chennai and AI549 was from Chennai to Port Blair. He was shown D-85 which is Ex.PW34/B (colly) [ought to be Ex.PW34/D (colly)] i.e. passenger check-in history of AI540 dated 01.11.2012 from Delhi to Chennai. He stated that on page 41 there were seven tickets under the PNR No.YKX5C. The said tickets were not reflected in the flight manifest Ex.PW31/C (colly). Similar was the position in respect of AI549 operated on 02.11.2012 i.e. Ex.PW34/F (colly) (page 38 to 40). He stated that without a valid ticket a passenger could not board a flight nor CBI Vs. Vinay Kumar Pandey & Anr. Page No.219 of 361 could a boarding pass be generated without a valid ticket and volunteered the ticket number was mentioned on the boarding pass. As such PW40 had stated that without a valid ticket a boarding pass could not be generated and the ticket numbers under the PNR No.YKX5C were not reflected in the flight manifests Ex.PW34/D (colly) and Ex.PW31/C (colly).
223. PW43 Shri Lokinder Yadav deposed that in 2017, he was posted as Sr. Manager Vigilance, Head Quarters at Air India Office, Safdarjung. He stated that he had written the letter dated 25.04.2017 (D-112) addressed to SP CBI AC-III and the same is Ex.PW43/A. Vide the said letter he had given intimation regarding the name and contact address of the Counter Manager of Air India at the Airport, Delhi on 01.11.2012 and the same was Mr. N.S. Nair. Thus, PW43 had stated about giving intimation that PW27 was the Counter Manager on 01.11.2012. During cross-examination by Ld. Counsel for A1, PW43 stated that in 2012, he was posted at IGI, Terminal-III, Air India Vigilance Department. He had not dealt with any matter relating to the present case in 2012. He had mentioned in the letter Ex.PW43/A that the information was provided by office of Manager, Delhi Airport, Air India. He did not remember if the said information was provided to him in writing or verbally. The Ld. Counsel for A2 had adopted the said cross-examination. As such, PW43 had not dealt with any matter relating to the present case in 2012 and had only provided certain information to CBI about who the Counter Manager was on 01.11.2012.
224. PW44 Ms. Nida Khanam deposed that in 2017, she was working with Air India SATS. She joined Air India in 2011 CBI Vs. Vinay Kumar Pandey & Anr. Page No.220 of 361 as Customer Service Agent which was a contractual post and in November 2012, she was posted at Terminal-III of IGI Airport as CSA. She was responsible for ground handling and customer dealing i.e. handling the counter, passenger check-in and boarding. She was issued the system ID with unique identification number. In 2012, SITA system was used for check- in. When the passenger came to the check-in counter his ticket was checked and also identity proof was taken and then the ticket was checked from the system, if everything was in order, then the boarding pass was issued to the passenger. When the entry was made in the check-in system, the boarding pass was automatically generated. If thereafter the passenger did not wish to travel then the check-in history could be deleted from the system. She stated that as per Ex.PW34/B (colly) (D-85) [ought to be Ex.PW34/D (colly)], page-41 on PNR YKX5C, seven boarding passes were generated for Delhi to Chennai as per the entry at point Y from the ID No.AGT10322 on 01.11.2012, at 16:31 which referred to the customer service agent who had generated the boarding passes. The same were then deleted from her ID No.AGT11578 at 16:38 on 01.11.2012. She stated that as per Ex.PW34/F (colly) (D-87), pages-38 to 40, seven boarding passes were generated for Chennai to Port Blair as per the entry at point Y from the ID No.AGT10322 on 01.11.2012, at 16:31 for travel on 02.11.2012, which referred to the customer service agent who had generated the boarding passes. The same were then deleted from her ID No. AGT11578 at 16:38 on 01.11.2012. She stated that as the check-in history was deleted, it meant that the passengers must not have traveled. She did not remember at whose instance she had deleted the check-in history. Thus, PW44 CBI Vs. Vinay Kumar Pandey & Anr. Page No.221 of 361 had also stated about the procedure that was followed when the passenger came to the check in counter at the airport and that when the entry was made in the check-in system, the boarding pass was automatically generated. It is pertinent that PW44 stated that if thereafter the passenger did not wish to travel then the check-in history could be deleted from the system. She had stated about seven boarding passes being generated from the ID No.AGT10322 on 01.11.2012, at 16:31 which were then deleted from her ID No.AGT11578 at 16:38 on 01.11.2012 and the same was true in respect of Ex.PW34/D (colly) and Ex.PW34/F (colly) (D-87). She also stated that as the check-in history was deleted, it meant that the passengers must not have traveled but she did not remember at whose instance she had deleted the check-in history.
225. PW48 Ms. Sonali Pandey deposed that from 2010- 2011, she worked at Terminal-I with AIATSL which had a contract with Air India. In 2011, she was transferred to AISATS as Customer Service Agent (CSA) and worked on the said post till 2013. As CSA, she used to check-in passengers and got them boarded and looked after arrivals. She was given ID as CSA bearing No.10322. She stated that in the year 2012, when the passenger came to the check-in counter they would ask the name of the passenger and check the ID and they would issue the boarding pass to the passenger. To her knowledge, in 2012 a passenger could not check-in without a PNR and even a VIP could not check-in without a PNR. Along with the PNR number there used to be name and contact number of the passenger, destination and the date. In the case of VIPs or senior persons, if the Duty Manager told them, then they would issue the boarding pass without checking the details as such persons would come CBI Vs. Vinay Kumar Pandey & Anr. Page No.222 of 361 when the flight was about to close. Counter Manager used to remain at the counter and supervise the counters. She could not say about the Duty Manager. She was shown D-85 which is Ex.PW34/D (colly) (pages 41,42,43). The same pertained to AI0540 operated on 01.11.2012, Delhi to Chennai. The group code U7, PNR No. YKX5C in name of A.K. MR. Pandey is Mark X and Y. The code of the next connecting flight was AI0549 on 02.11.2012 to IXZ from Chennai. OTHS referred to input regarding details of flight or other important information regarding the passenger of the flight. The same was generated from her ID 10322 on 01.11.2012 at 16:31. The same was deleted from the ID of the agent 11578 on 01.11.2012 at 16:38. The said ID was of Nidha Khanum or Khatum who was her colleague. The group code U7, PNR No.YKX5C in name of Ishu Pandey is Mark X, in the name of Seema Pandey is Mark X1 on page 42 and Mark X on page 43, in the name of V.K. Pandey is Mark X1 on page 43, in the name of Epsita Pandey on pages 41 and 42 is Mark Z to Z1, in the name of Manya Ms Pandey on page 42 is Mark Z2 and in the name of J. K. Srivastava on page 59 is Mark X. The code of the next connecting flight was AI0549 on 02.11.2012 to IXZ from Chennai. The same was generated from her ID 10322 on 01.11.2012 at 16:31. The same was deleted from the ID of agent 11578 on 01.11.2012 at 16:38. The said ID was of Nidha Khanum or Khatum who was her colleague.
226. PW48 was shown D-87 which is Ex.PW34/F (colly) (pages 38 to 40). She stated that the same pertained to AI0549 operated on 02.11.2012, from Chennai to Portblair. The group code AI7, PNR No.YKX5C in the name of A.K. MR. Pandey is Mark X to Y on page 38. The same was generated from her ID CBI Vs. Vinay Kumar Pandey & Anr. Page No.223 of 361 10322 on 01.11.2012 at 16:31. The same was deleted from the ID of agent 11578 on 01.11.2012 at 16:38. The said ID was of Nidha Khanum or Khatum. The group code AI7, PNR No.YKX5C in the name of Ishu Pandey is Mark X, on page 39, in the name of Seema Pandey is Mark X1 and Mark X on page 39, in the name of V. K. Pandey is Mark X on page 40, in the name of Epsita Pandey on page 38 and 39 is Mark Z to Z1, in the name of Manya Ms Pandey on page 39 is Mark X2 and in the name of J.K. Srivastava is Mark X on page 59. The same was generated from her ID 10322 on 01.11.2012 at 16:31. The same was deleted from the ID of agent 11578 on 01.11.2012 at 16:38. The said ID was of Nidha Khanum or Khatum.
227. PW48 deposed that the said boarding passes were generated on the instructions of the then Manager and there were no ticket numbers nor any flight coupons and in such a case the debit was on the employee. She stated that she had generated the boarding passes and though the documents showed deletion of the check-in history, she could not say if the passenger could have proceeded further. If the passenger could not travel or there was some change then the passenger could get the check-in history deleted. She stated that Ex.PW27/A (D-114) page 5 showed her presence from 13:30 to 21:05 on duty. She could not say who was the Counter Manager then. Nidha Khanam was also on duty on that day. Thus, PW48 also stated the procedure that was followed when the passenger came to the check-in counter at the airport. It is significant that PW48 stated that to her knowledge, in 2012 a passenger could not check-in without a PNR and even a VIP could not check-in without a PNR and as such there had to be a PNR number. It is seen that the PNR CBI Vs. Vinay Kumar Pandey & Anr. Page No.224 of 361 number is duly reflected in the documents but no evidence has been produced by the prosecution to show from where the PNR number was generated or through whom the tickets were booked on which the PNR number was generated or even when the tickets were booked and the PNR was generated.
228. PW48 had stated that in the case of VIPs or senior persons, if the Duty Manager told them, then they would issue the boarding pass without checking the details as such persons would come when the flight was about to close but no details of the Duty Manager are forthcoming in the present case and PW43 had stated that as per the record, the Counter Manager of Air India at the Airport, Delhi on 01.11.2012 was Mr. N.S. Nair. However, PW27 N.S. Nair had stated about Ex.PW27/A being signed by the Counter Manager which meant that he was not the Counter Manager on the said date. No investigation was done by CBI further in this respect as to who actually was the Duty Manager on the said date or who was the Counter Manager on whose instructions the boarding passes were issued in the present case and then the check in history was deleted. PW48 also stated that Ex.PW34/D (colly) (pages 41,42,43) reflected PNR No.YKX5C and the same was generated from her ID 10322 on 01.11.2012 at 16:31 and was deleted from the ID of the agent 11578 on 01.11.2012 at 16:38 which was of Nidha Khanum or Khatum who was her colleague and the same was also true in respect of the next connecting flight AI0549 on 02.11.2012 to IXZ from Chennai. PW48 had deposed that the said boarding passes were generated on the instructions of the then Manager but no details of the said Manager were forthcoming during evidence and she could not also say who was the Counter CBI Vs. Vinay Kumar Pandey & Anr. Page No.225 of 361 Manager then. She had also stated that there were no ticket numbers nor any flight coupons and that in such a case the debit was on the employee though in the present case, there is nothing to show if there was any debit on any employee and that could be also for the reason that thereafter the check in history was deleted within a few seconds. It is pertinent that she had stated that she had generated the boarding pass and also that if the passenger could not travel or there was some change then the passenger could get the check-in history deleted.
229. The witnesses had thus, stated about the system for booking of tickets, the procedure followed at the airport for check in and that in the present case, boarding passes were generated and thereafter the check in history was deleted. During cross-examination PW56 stated that it did not come out during investigation from where the E-tickets used in the present case were printed. As per the investigation the boarding passes had been printed by Air India, IGI Airport, New Delhi and volunteered later on the check in history was deleted. It did not come out during investigation who had purchased the E-tickets. It came out during investigation that the boarding passes were printed either by Sonali Pandey or Nida Khanam and volunteered one of them had printed the boarding passes and the other one had deleted the check-in history. Thus, even the IO had stated that it did not come out during investigation from where the e- tickets used in the present case were printed or who had purchased the e-tickets though he had stated that the boarding passes were printed by Air India, IGI Airport and were printed either by Sonali Pandey or by Nida Khanam. As contended by the Ld. Counsel for A1 there was no witness who stated that A1 CBI Vs. Vinay Kumar Pandey & Anr. Page No.226 of 361 was connected with the issuance of boarding passes or that A1 had presented himself or someone else to receive the boarding passes or who stated that A1 or A2 was instrumental in getting the check-in-history deleted.
230. There was also no evidence as to who got the E- tickets and PNR generated and from where and when and there was no witness who had stated that he had seen A1 getting the PNR generated or who stated that A1 was associated with the generation of PNR. During cross-examination PW56 could not tell the name of the company which was looking after the information technology requirements of Air India and volunteered however, the software used was SITA. He did not remember if he had tried to find out from anyone in Air India as to who was looking after the software and IT requirements for Air India. He stated that they had a unit in CBI called TEFSU whose help they could take on need basis for IT requirements. He did not take any assistance from TEFSU in the present case and volunteered it was not required. He had not inquired from any person from the IT department of Air India and volunteered he was not aware if there was a separate IT department in Air India. He did not inquire from any IT person of Air India as to from where the PNR in the present case was generated and volunteered he inquired from officials of Air India. Thus, the IO had stated that he did not inquire from any IT person of Air India as to from where the PNR was generated though he volunteered that he had inquired from the officials of Air India but there is nothing on record to show from where the PNR in the present case was generated. It was also contended by the Ld. Counsel for A1 that it may be that the tickets and boarding passes had been CBI Vs. Vinay Kumar Pandey & Anr. Page No.227 of 361 weeded out but other evidence would be available regarding generation of tickets but even that had not been brought on record and it is seen that there is nothing on record to demonstrate that any efforts were made to trace out how the e- tickets or PNR were generated or by whom or from where or when or even to show to whom the boarding passes were handed over.
231. The witnesses were also cross-examined regarding the deletion of the check-in history. During cross-examination PW34 had stated that the IO had come to his office to inquire about the present case. He did not remember the date but they were regularly coming for inquiry of the present case. He was shown his statement dated 26.10.2016 page 2, para 1 and he stated that he had so stated to the IO. The statement is Ex.PW34/P1. He stated that if the PNR was generated on the basis of booking for a particular time period and the ticket was not taken within the said time period, the PNR got automatically deleted from the system. In the present case the check-in history was not automatically deleted. He was shown Ex.PW34/D (colly) page 19, and he stated that the passenger mentioned at entry 2 at point X namely Neeraj Gopal had not travelled on the said date as the PNR details showed as XRES i.e. PNR had been cancelled. He was shown page 69 of Ex.PW34/D (colly) and he stated that Mr. Desai was not a passenger but he was crew and was on board. Same was on entry Y. Thus, PW34 had stated that in the present case the check-in history was not automatically deleted meaning thereby that the same had been got deleted.
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232. It may be mentioned that the Ld. Counsel for A1 had objected to the documents on the ground of admissibility and proof but it is seen that PW34 had stated that the documents produced by him were certified copies and the same were certified by him and bore his signatures and further he had deposed that he had himself taken the printouts. Moreover, during cross-examination, no question was put to him regarding the basis for certifying the said documents. As such, there is no reason to dispute the documents Ex.PW34/J, K, L, O and R. The Ld. Counsel for A1 had argued that in Ex.PW34/D the date on the top was important and it was there in every document but in D-92 there was no date on the top. During cross-examination PW56 stated that he had joined Shri Deepak Mathur during the investigation of the present case. He was shown Ex.PW34/C (D-
84) as also Ex.PW34/D (colly) to Ex.PW34/F (colly). He could not say as to what the date 14.10.2016 at point X in Ex.PW34/D (colly) pertained to. He did not remember if he asked the witness Deepak Mathur about the said date. He was shown the statements of Shri Deepak Mathur recorded under Section 161 Cr.P.C. dated 26.10.2016, 31.10.2016 and 14.12.2016 which are Ex.PW56/P6, Ex.PW56/P7 and Ex.PW56/P8. As per the same, he had not asked him about the date 14.10.2016 at point X in Ex.PW34/D (colly). He could not say as to what the date 27.10.2016 at point X in Ex.PW34/F (colly) pertained to. He did not remember if he asked the witness Deepak Mathur about the said date. He was shown the statements of Shri Deepak Mathur recorded under Section 161 Cr.P.C. dated 26.10.2016, 31.10.2016 and 14.12.2016 which are Ex.PW56/P6, Ex.PW56/P7 and Ex.PW56/P8 and as per the same, he had not asked him about the CBI Vs. Vinay Kumar Pandey & Anr. Page No.229 of 361 date 27.10.2016 at point X in Ex.PW34/F (colly). As such, in the statements of PW34 recorded by the IO, there was no mention of the dates on the top of the documents but on that basis the documents cannot be doubted. Similarly, even if the date on top was not there in D-92 Ex.PW34/K (colly) nothing much turns on the same and on that basis the genuineness of the document cannot be doubted and even otherwise, the said check-in history was filed only to show that A1 and his companions had not travelled on the flights they pertained to and it was not the check- in history of the flights specifically in consideration.
233. During further cross-examination PW34 stated that he had not stated in his statement to the CBI that all the printouts were taken by him and volunteered the IO Inspector Mohan Kumar used to be present when he took the printouts. He denied the suggestion that the IO was not present at the time when the printouts were taken or that he had not taken the printouts himself or that for the said reason he had not mentioned in the certificate under Section 65 B of Indian Evidence Act that he had taken out the printouts himself or that he had deposed falsely in this regard at the behest of CBI. Thus, PW34 had stated about taking the printouts himself and also volunteered that the IO used to be present when he took the printouts. During cross- examination PW56 admitted that Shri Deepak Mathur had told him that only an authorized person having access could take the printout of the check-in history. He had not taken any document to show that Shri Deepak Mathur was authorized to take the printout of the check-in history and volunteered as he was authorized so he could take the printout. He denied the suggestion that Shri Deepak Mathur was not authorized to take CBI Vs. Vinay Kumar Pandey & Anr. Page No.230 of 361 the printout of the check-in history. Thus, there is nothing on record to show that PW34 was authorized to take the printouts but even the seniors of PW34 have been examined in the present case and none of them had stated that PW34 had taken the printouts without any authorization.
234. PW56 did not remember if Shri Deepak Mathur had told him that he had taken the printouts of check-in history himself. He was shown Ex.PW56/P6, Ex.PW56/P7 & Ex.PW56/P8 and he referred to page 2 of the statement of the witness dated 31.10.2016 from portion X to X1, however, he had not stated specifically about taking the printout himself. He was shown D-89 and D-99 which are Ex.PW34/H and Ex.PW34/O and he stated that the witness had not stated therein about taking the printout himself and volunteered he had certified the printout to be true production copy of the original. PW56 denied the suggestion that the check-in history seized by him was a manipulated document. Thus, in the statements of PW34 recorded by the IO, it was not mentioned that he had taken the printouts himself. The Ld. Counsel for A1 had argued that if PW34 had taken the printout, he should have stated so in the certificate under Section 65B Indian Evidence Act but the certificate did not say that he had taken out the printouts and the origin of the document itself was doubtful and the certificate was also doubtful but even if it was not so mentioned in the certificate, PW34 had deposed in the Court categorically that he himself had taken the printouts. It was also argued that the IO had not stated that the printouts were taken out in his presence but even no question was put to PW56 in that regard. PW34 also stated that they did not have letter heads in their name. Company CBI Vs. Vinay Kumar Pandey & Anr. Page No.231 of 361 letter heads were available but they were used for sending letters and not for handing over documents. The Ld. Counsel for A1 had argued that there were no letter heads in the documents but nothing much turns on the same and PW34 had stated that the company letter heads were used for sending letters and not for handing over documents.
235. PW34 further stated that the data was not stored in parts separately in different departments. The data from SITA was procured by Data Mart. He could not say if the data remained on the server and volunteered only the technical team could tell. He could not even say if the server was of Air India or of SITA. He could not say if the SITA system malfunctioned and volunteered he had not come across any such instance. He could not say if the SITA system was upgraded at any point of time from 2012 to 2016 and volunteered only the technical team could tell. He admitted that as he was not from the technical team so he could not say if the system had malfunctioned at any point of time between 2012 to 2016. As such, PW34 was cross-examined on the server being of Air India or SITA and about the system having malfunctioned or having been upgraded but he had volunteered that only the technical team could tell. The Ld. Counsel for A1 had argued that PW34 could not say if the system had malfunctioned which was an important aspect of Section 65B Evidence Act but it is also pertinent that PW34 had stated that he was not from the technical team and it is seen that the said aspect is covered in the certificates (which will be adverted to later).
236. The Ld. Counsel for A1 had argued that the check-in- history was shrouded in mystery and deletion of check-in history CBI Vs. Vinay Kumar Pandey & Anr. Page No.232 of 361 was not proved and that the certificates under Section 65B of the Evidence Act were not proper and were defective in the eyes of law but it is seen that Ex.PW34/B and H clearly mention that the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information of sale, regularly carried on over that period by the person having his authorization and having control over the use of the computer, the information was regularly fed into the computer in the ordinary course of the activities, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents and that the conditions laid down in Section 65B of the Indian Evidence Act were satisfied. As such, there was due compliance of the law and the check in history cannot be disputed. It may also be mentioned that check-in history of several flights has been produced to show that A1 and his companions had not travelled on the said flights but the check-in history having most bearing on the present case is Ex.PW34/D (colly) and Ex.PW34/F (colly) and nothing could be extracted during cross- examination of PW34 to doubt the documents or what he had deposed regarding the deletion of the check-in history.
236-A. It may be mentioned that A1 in his statement under Section 313 Cr.P.C. had stated that even as per the record of the Lok Sabha Secretariat i.e. Ex.PW37/C, his children did not use the surname Pandey rather used the surname 'Vatsa' which facts were also mentioned in the supplementary charge sheet and that the alleged TA/DA claim should have been returned by the MSA CBI Vs. Vinay Kumar Pandey & Anr. Page No.233 of 361 branch of the Lok Sabha Secretariat on the said ground alone. The Ld. Counsels for the accused persons had also argued to that effect. A perusal of Ex.PW37/C (D-116) which is the original nomination form (E-form) submitted by Dr. Vinay Kumar Pandey (Ex. MP) containing names of family members shows that the children of A1 used the surname 'Vatsa' whereas according to PW34, as per Ex.PW34/D (colly) page 41 at point X to X1 the PNR No.YKX5C was mentioned in the name of Pandey A. K. Mr. but no ticket was generated; similarly on page 42 at point X to X1 same PNR Number was mentioned for Pandey Ishu Mr. but no ticket was generated; as per Ex.PW34/D (colly) page 43 at point X to X1 the PNR No.YKX5C was mentioned in the name of Pandey V. K. Mr. but no ticket was generated; as per Ex.PW34/F (colly) page 38 to 40 at point X to X1 the PNR No.YKX5C was mentioned in the name of Pandey A. K. Mr., Epsita Ms., Ishu Mr., Manya Ms., Seema Mrs., V. K. Mr. but no ticket was generated. Even PW48 had deposed that Ex.PW34/D (colly) (pages 41,42,43) pertained to AI0540 operated on 01.11.2012, Delhi to Chennai; the group code U7, PNR No. YKX5C in name of A.K. MR. Pandey is Mark X and Y; in name of Ishu Pandey is Mark X, in the name of Seema Pandey is Mark X1 on page 42 and Mark X on page 43, in the name of V.K. Pandey is Mark X1 on page 43, in the name of Epsita Pandey on pages 41 and 42 is Mark Z to Z1, in the name of Manya Ms Pandey on page 42 is Mark Z2 and in the name of J. K. Srivastava on page 59 is Mark X and Ex.PW34/F (colly) (pages 38 to 40) pertained to AI0549 operated on 02.11.2012, from Chennai to Portblair; the group code AI7, PNR No.YKX5C in the name of A.K. MR. Pandey is Mark X to Y on page 38; in CBI Vs. Vinay Kumar Pandey & Anr. Page No.234 of 361 name of Ishu Pandey is Mark X, on page 39, in the name of Seema Pandey is Mark X1 and Mark X on page 39, in the name of V.K. Pandey is Mark X on page 40, in the name of Epsita Pandey on page 38 and 39 is Mark Z to Z1, in the name of Manya Ms Pandey on page 39 is Mark X2 and in the name of J.K. Srivastava is Mark X on page 59.
236-B. It is thus seen that in Ex.PW34/D (colly) and Ex.PW34/F (colly) the PNR was mentioned in the name of Pandey A.K. and Pandey Ishu, Seema Pandey, Epsita Pandey and Manya Pandey whereas the children of A1 did not use the surname Pandey as per the case of the accused persons. However, it is not the case of the accused persons that the first names were not of the family members of A1 and in any case the documents enured to the benefit of A1. As regards the question that the alleged TA/DA claim should have been returned by the MSA branch of the Lok Sabha Secretariat on the said ground alone that the surnames used were different, it is pertinent that in the TA Form Ex.PW4/E, there was no space for entering the details of the companions and the bill was prepared in the name of A1 as he was the MP. The details such as the surnames would be available only in the tickets and the boarding passes and even if there was a discrepancy, it is not the case that the journeys could be availed only by the family members or children of A1 whose details were available with the Lok Sabha Secretariat and the journeys could be availed by any companions as is also evident from the name of J.K. Srivastava being also there under the PNR No.YKX5C and quite clearly his particulars would not be available with the Lok Sabha Secretariat. This is borne out by the testimony of the witnesses including PW5 who had deposed that apart from CBI Vs. Vinay Kumar Pandey & Anr. Page No.235 of 361 official journeys, a Member was entitled to 34 Air journeys in a year which included journeys by companions, family members as well; the spouse was entitled to 8 Air journeys in addition to the same during the year and the reimbursement for journeys undertaken by the companions was on account of the Member and the witnesses had not stated that the 34 air journeys in a year included journeys only by family members. As such, the said contention that due to difference in the surname of the children of A1 in the documents, the TA form should have been returned is baseless.
237. During cross-examination by Ld. Counsel for A1 PW40 stated that he had not handed over any document to CBI to show that he was instructor for the reservation system nor to show that 90 percent of the time he was posted in reservation department. He admitted that in 2012 a person could purchase a ticket manually from their office or electronically through the travel agents. If the passenger approached their office for purchase of ticket, after finding out the details if the passenger wished to purchase a ticket, the PNR was generated and then the timing was confirmed and the fare was informed and the passenger was asked the mode of payment. When a passenger booked a ticket through a travel agent, once he booked the ticket the PNR was generated for a particular time. There was no hard and fast rule for which (time) the PNR would remain valid and the same depended on the sector and availability. Thus, PW40 had stated how the tickets could be booked.
238. During further cross-examination, PW40 admitted that before check-in, payment had to be made and volunteered CBI Vs. Vinay Kumar Pandey & Anr. Page No.236 of 361 the ticket would be generated only after payment was made and on the basis of PNR one could not enter the Airport. If a person booked a ticket, paid for it but was unable to board the flight, the name of the passenger would not be reflected in the Flight Manifest. If a passenger was not able to travel even after generation of boarding pass the amount paid by him remained suspended till refund was demanded i.e. it remained with the Airlines. It is pertinent that PW40 admitted that before check-in, payment had to be made and volunteered the ticket would be generated only after payment was made and on the basis of PNR one could not enter the Airport. It may be mentioned that in the instant case the ticket numbers were not reflected in the passenger check in history. PW40 had stated that on page 41 of Ex.PW34/D (colly), there were seven tickets under the PNR No.YKX5C which were not reflected in the flight manifest Ex.PW31/C (colly). However, Ex.PW34/D (colly) shows that under the PNR No.YKX5C, seven passengers were reflected though ticket numbers were not mentioned and in fact there is no space wherein the ticket number had to be provided. PW40 had stated that if a person booked a ticket, paid for it but was unable to board the flight, the name of the passenger would not be reflected in the Flight Manifest and that if a passenger was not able to travel even after generation of boarding pass the amount paid by him remained suspended till refund was demanded i.e. it remained with the Airlines. As such, even from the testimony of PW40 it is evident that there may be situations where the passenger many not be able to travel even after generation of boarding passes. Irrespective of the question of tickets, it is the case of the prosecution that A1 and his companions had not CBI Vs. Vinay Kumar Pandey & Anr. Page No.237 of 361 boarded the flight so their names were not reflected in the Flight Manifest.
239. The Ld. Counsel for A1 had submitted that PW40 Dharampal had stated that the ticket numbers had to be there if the boarding passes were there and on the basis of PNR number, one could not enter the airport and had also spoken about revenue and payment which also meant that the check-in could not be done unless payment was made. The IO was cross-examined in this respect and PW56 admitted that he had joined Dharampal in the investigation. He could only state after seeing the statement of Dharmpal Dy. Manager, Commercial (Reservation Infrastructure) that generation of boarding passes without tickets was against the rules, regulations of Air India and also wrong from the point of view of security of the Airport. He was shown the statement of Dharampal recorded under Section 161 Cr.P.C. dated 23.02.2018 which is Ex.PW56/P11 and he stated that it was so stated therein. It is true that PW40 had reiterated that without a valid ticket, a boarding pass could not be generated and that payment had to be made before the check-in but it is also significant that it is the case of the prosecution that the boarding passes had been got generated and thereafter the check-in history was got deleted in a few seconds and if as per the case of the prosecution, the same was done on the instructions of someone who could not be identified, the question of insistence on payment before the boarding passes were generated would not arise.
240. The Ld. Counsel had further argued that PW40 was corroborated by another witness PW34 Deepak Mathur whose CBI Vs. Vinay Kumar Pandey & Anr. Page No.238 of 361 cross-examination showed that tickets had been purchased, otherwise the PNR would have got deleted and that deletion was not automatic, however, when PW34 had stated about deletion not being automatic, he had stated that the check in history was not deleted automatically in the present case and he had not stated anything to the effect that the PNR was deleted or not in the present case. On the other hand, during cross-examination PW56 stated that during investigation, he came to know that at that time check-in could be done only on the basis of PNR and tickets were not necessary. He did not remember if he had collected any rule or guideline from Air India permitting the same. He did not remember if he had asked for an answer in writing from Air India in this regard. As such, there is nothing on record to the effect that check-in could be done only on the basis of PNR and tickets were not necessary and most of the witnesses had also stated about the necessity of tickets. However, it may be that the generation of boarding passes without tickets was against the rules, regulations of Air India and also wrong from the point of view of security of the Airport and there might have been culpability of Air India officials though no official of Air India has been made an accused in the present case, but on that basis, the case against the present accused persons cannot be thrown out and the case against them would turn on its own merits. Further, it has come on record through the testimony of PW34 that in Ex.PW34/D (colly) and in Ex.PW34/F (colly) the names of the passengers were mentioned but no tickets were generated.
241. PW48 had deposed about the generation of boarding passes and during cross-examination by the Ld. Counsel for A1, PW48 stated that Ex.PW27/A used to be in the custody of the CBI Vs. Vinay Kumar Pandey & Anr. Page No.239 of 361 person who allocated the duty. Her name at entry C was not in her writing. She had not signed the said register and volunteered she was present when the duty was allocated and her name was mentioned. She could not tell who had allocated the duty to her on 01.11.2012. Thus, PW48 was cross-examined on being on duty on 01.11.2012 and it was also argued by the Ld. Counsel for A1 that the person who had made the entries in the duty register Ex.PW27/A had not been examined. The IO was cross-examined in this respect and PW56 admitted that he had joined Nidha Khanum and Sonali Pandey in investigation. He did not remember how he had reached the said witnesses. He could not say in whose writing Ex.PW27/A was prepared. He did not remember if any name Neena Saini had come up during investigation. He was shown the statement of Shri Prithvi Singh under Section 161 Cr.P.C. dated 17.11.2017. He admitted that the said statement which is Ex.PW56/P9 contained the name of Neena Saini as the person who had written the details of allocation of duties for 01.11.2012 for afternoon shifts in the duty register on page No.6. Neena Saini was the working shift Incharge (HRD) during the period. He had not recorded the statement of Neena Saini. He denied the suggestion that the duty register was a manipulated document. Thus, as per the statement of Shri Prithvi Singh, Neena Saini was the person who had written the details of allocation of duties for 01.11.2012 but she had not been examined in the present case. However, no suggestion whatsoever was put to PW27 that the duty register was manipulated and fabricated or even to PW48 that she was not on duty on 01.11.2012 and as such there is nothing to dispute that PW48 was on duty on 01.11.2012.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.240 of 361
242. The Ld. Counsel for A1 had argued that even the ID number of PW48 was not established and merely because she had come before the Court, the ID number could not be believed and she could be a propped up witness and that PW48 was an introduced witness to complete the chain. However, PW48 had duly identified her ID number and even no suggestion was put to her that the said ID number did not belong to her. PW48 was shown page 35 of Ex.PW34/D (colly) and she stated that in the entry at point A, the number AGT9998 belonged to an agent but she could not tell as to who the said number belonged to. Same was her answer in respect of No.AGT7167. Quite clearly, PW48 could not be expected to know or remember to which agent the said numbers belonged though she had specifically stated that the numbers belonged to agents.
243. PW48 further stated during cross-examination that when a passenger came for check-in, the system reflected the name of the passenger, PNR number, flight details, date, destination. When the boarding pass was issued to a passenger, the system did not reflect whether the passenger had already paid the revenue or not but the ticket number or the flight coupon would be reflected. As such, PW48 had also stated that when the boarding pass was issued to a passenger, the ticket number or flight coupon would be reflected though in the instant case, as deposed by her, there were no ticket numbers nor any flight coupons. The Ld. Counsel for A1 had argued that as per PW48, there were no ticket numbers meaning that no money was paid against the generation of boarding passes but considering the facts of the present case wherein the check in history was deleted soon after the generation of boarding passes, the possibility of the CBI Vs. Vinay Kumar Pandey & Anr. Page No.241 of 361 boarding passes being generated without the tickets being there cannot be ruled out.
244. The Ld. Counsel for A1 had argued that PW48 had made several improvements in her testimony and during cross- examination PW48 admitted that when she had given her statement to the CBI she had not mentioned that in the case of VIPs or senior persons, if the duty manager told them then they would issue the boarding pass without checking the details as such persons would come when the flight was about to close. She admitted that when she had given her statement to the CBI, she had not mentioned that the said boarding passes were generated on the instructions of the then Manager and there were no ticket numbers nor any flight coupons and in such a case the debit was on the employee. She denied the suggestion that she had made improvements in her statement given that day at the behest of the prosecuting agency. However, even if that is so, PW48 had stated about the generation of boarding passes. The Ld. Counsel for A1 had argued that during cross-examination PW48 had stated that when boarding pass was issued, flight coupon or ticket number had to be reflected and that was an improvement but it was not even corroborated so it was at best a hypothesis but that does not deflect from the fact that she had stated categorically about the generation of boarding passes in the present case.
245. During cross-examination PW56 stated that he could state only after seeing the statement of Ms. Sonali Pandey if she had told him that the boarding passes were generated on the saying of Shri N.S. Nair and volunteered she had told him that the same were generated at the instance of the duty manager. He CBI Vs. Vinay Kumar Pandey & Anr. Page No.242 of 361 was shown the statement of Sonali Pandey recorded under Section 161 Cr.P.C. on 17.11.2017 which is Ex.PW56/P10 wherein it was stated that Shri N.S. Nair was the Counter Manager on 01.11.2012 in afternoon shift and boarding cards were generated as per his directions. Thus, as per the statement of PW48 given to the IO, PW27 Shri N.S. Nair was the Counter Manager who had given directions for generation of boarding passes but when examined in Court, PW27 had denied giving any such instructions and there is nothing to establish who had given the directions for generation of boarding passes. Further, on going through the statement of Sonali Pandey, PW56 stated that Sonali Pandey had not stated to him as to whom the boarding passes were handed over to. He did not remember if he carried out any investigation as to where the boarding passes had gone from Sonali Pandey. He denied the suggestion that he was deliberately avoiding the question to protect the real culprits or that he did not make any efforts to further trace the boarding passes so generated. However, there is nothing to show that any specific investigation was carried out as to whom the boarding passes were handed over after they were generated by PW48.
246. PW48 further stated that in case a passenger entered the Airport and did not travel after the check-in, then senior officer was informed who called a staff person on duty who got the exit entry done after informing CISF and making the entry in the CISF register and as such, she had also stated that there could be situations where the passenger did not travel after check-in and she stated what happened when a person did not travel after the check-in. A Court question was put to PW48 that if it was a case of VIP how was the exit done to which she stated that VIPs CBI Vs. Vinay Kumar Pandey & Anr. Page No.243 of 361 were handled by separate protocol. She stated that the procedure for exit of VIPs would be the same but was handled by separate protocol. The IO was also cross-examined in this respect and PW56 did not remember if he had inquired whether the security at entry and exit in the airport was under the control of CISF. He did not remember if he had inquired from any officer of CISF in the present case. He had not seized any document from CISF in the present case. He could only state on seeing the statement of Shri N. S. Nair if there was any protocol officer at the Airport. He was shown the statement of Shri N.S. Nair recorded under Section 161 Cr.P.C. dated 25.05.2017 and he stated that it was not mentioned so therein. He did not remember if there was any protocol officer at the Airport. Thus, no document was seized from CISF to show if any exit entry was made on 01.11.2012. However, nothing has come out in cross-examination of PW48 to doubt her testimony that she had generated the boarding passes and thereafter the check-in history was deleted.
247. PW44 had deposed about the boarding passes being generated and thereafter the check-in history being deleted from her ID. The Ld. Counsel for A1 had argued that this showed that the system was open for making alteration and modification in the system either completely or to some extent but nothing much turns on the same as the witnesses have stated that there might be situations where the passenger could not travel after check-in and such situations had to be provided for. During cross-examination by the Ld. Counsel for A1 PW44 stated that she had not handed over any document to the CBI showing that she had joined Air India on a contractual post. She had also not handed over any document to CBI to show that she was issued and was in CBI Vs. Vinay Kumar Pandey & Anr. Page No.244 of 361 possession of ID No. AGT11578 on 01.11.2012. However, there is nothing to dispute that the said ID No. belonged to PW44. PW44 also did not remember as to of how many passengers she had deleted the check-in history on 01.11.2012. She admitted that when the check-in history was deleted, the boarding passes should be taken back. She did not remember if she had taken the boarding passes back in the present case. Thus, as per PW44, the boarding passes should have been taken back and she did not remember if she had taken the boarding passes back in the present case. As per the case of the prosecution, the boarding passes were annexed with the TA Form when it was submitted for claiming reimbursement in the present case so clearly they must have been handed over to someone though there is no evidence on record as to whom the boarding passes were handed over. PW44 did not even remember who was the Counter Manager on the said date and as observed above, there is no clear evidence as to who was the Counter Manager on 01.11.2012 though PW43 had deposed about giving intimation that Shri N.S. Nair was the Counter Manager on the said date.
248. PW44 was also cross-examined on being on duty and she stated that she did not remember if on 02.11.2012 she was on duty at IGI, Terminal-III nor did she remember about 30.10.2012. She did not remember on the date when CBI recorded her statement that she had deleted the said entries on 01.11.2012. She admitted that she had deposed on that day about the deletion of entries only on the basis of the documents shown to her. However, nothing much turns on the same as the witness cannot be expected to remember what happened nearly 9 years back, considering that her testimony was recorded before the Court in CBI Vs. Vinay Kumar Pandey & Anr. Page No.245 of 361 2021 and even her statement was recorded by the IO after almost 4 years of the alleged incident. Further, PW44 admitted that if an entry was deleted, the reason for deleting the same was also mentioned. A Court question was put to her as to where the reason for deletion of entry was mentioned to which she replied that the same was mentioned in the check-in system. She stated that the reason for deletion of the check-in history was not mentioned in Ex.PW34/D (colly) and Ex.PW34/F (colly). As such contrary to what PW44 had stated, no reason was mentioned for deletion of entries in Ex.PW34/D (colly) and Ex.PW34F (colly).
249. PW44 also did not remember if she had deleted the entries but as the code mentioned in the said documents was hers so she stated that she had deleted the entries. She stated that the code was issued by the Airlines. Perhaps the code was given in writing but it was also communicated verbally. She admitted that the record that the said code was issued to her would be available with the Airlines. It is true that no record has been produced to show that the said code was issued to PW44 but PW44 had clearly identified the code mentioned in the documents to be hers and even if she did not remember several other things and had deposed on the basis of the record, her identification of her code cannot be doubted on that basis. The Ld. Counsel for A1 had argued that PW44 was not a witness of fact but was deposing as per the documents as she had stated that she was deposing on the basis of documents and could not say if the documents were correct or not. However, the evidence in cases such as the present would mainly be documentary and a witness cannot be expected to remember everything that had happened nearly 9 years prior. CBI Vs. Vinay Kumar Pandey & Anr. Page No.246 of 361 The Ld. Counsel had also argued that some other authority would have the number but was not produced, however, it is reiterated that PW48 had duly identified her number and there is no merit in the contention that there was a possibility that her number was misused when the witness herself had not stated to that effect, nor any suggestion was put to her to that effect.
250. PW44 further stated that no written guidelines were shown to her during training or otherwise as to in which circumstances the entries could be deleted and volunteered if the passenger did not travel then the entry was deleted. Again, no guidelines have been produced as to in which circumstances, the entries could be deleted but PW44 had volunteered that if the passenger did not travel, then the entry was deleted. PW44 admitted that it was not mentioned in Ex.PW34/D (colly) or in Ex.PW34/F (colly) that the passengers had made a request that they did not wish to travel but even then, it cannot be disputed that the entries were deleted and it is not the case set up by A1 that he had wanted to travel or had travelled but the entry was deleted. PW44 stated that the record of deletion of entries was maintained in the system itself. She was not aware whether the entries which were deleted were sent to Civil Aviation. PW44 stated that the list of passengers could be accessed by anyone at any time from the Airlines. During cross-examination PW56 did not remember if he had taken any rule or guideline from Air India which showed that at the instance of the Counter Manager the check-in history could be deleted. He did not remember if it had come during investigation that Air India had issued any show cause notice to its employees. However, it has come in the testimony of the witnesses that there could be situations where a CBI Vs. Vinay Kumar Pandey & Anr. Page No.247 of 361 person could not travel after check-in and in such a situation, the possibility of provision being there for deletion of check-in history being there could not be ruled out. Even otherwise, in the instant case, the witnesses have categorically stated about the deletion of check-in history. Nothing material has come out in the cross-examination of PW44 to doubt her statement that she had deleted the entries from the check-in history after the generation of the boarding passes.
251. From the testimony of the witnesses, it stands established that boarding passes were generated and thereafter the check in history was deleted from the system though there is no evidence as to on whose instructions, the boarding passes were generated or to whom they were handed over or on whose instructions, the check-in history was deleted. None of the witnesses had stated that A1 or A2 had given instructions for the generation of boarding passes or for deletion of check-in history or were present at the airport or the boarding passes were handed over to either of them. The witnesses had stated about the generation of boarding passes but did not speak about handing them over to A1 or to anyone else or even to the Counter Manager or about PW48 keeping them with herself and it was not shown how they came out. There is also merit in the contention that there was no evidence produced by the prosecution to prove that A1 or A2 were present in the airport that day or then they made the exit entry. However, it cannot be lost sight of that the boarding passes which were generated enured to the benefit of A1 and the same were put up with the TA form to claim reimbursement. The Ld. Counsel for A1 had also contended that the witnesses had stated about the boarding passes CBI Vs. Vinay Kumar Pandey & Anr. Page No.248 of 361 being generated so it could not be said that they were forged and the witnesses had stated that the boarding passes were genuinely issued but then it is the case of the prosecution that A1 and his companions did not travel on the said boarding passes and after the boarding passes were generated, the check-in history was got deleted which shows that the boarding passes were got generated only for a specific purpose i.e. to claim reimbursement of TA claim on the basis of the said boarding passes.
252. The prosecution, in order to show that A1 had not performed the journey had produced several flight manifests and examined witnesses in that respect. PW28 had deposed about flight manifests and that flight manifest was the list of passengers which was generated after all the passengers had boarded the flight. Since 2015 he was posted at Flight Handling Unit which used to receive the flight manifests. After the flight took off and the flight manifest was generated, the same was received by the Screening Cell which verified if all the passengers who were on the flight had a ticket or not and after verifying, the same was sent to the FHU. The next day FHU would screen the flight manifest to check that there was no mistake and if it was found in order it was sent to the Bombay Revenue Office. They were using SITA software. The report contained the name of the passengers, ticket number and also contained sector wise details of the flight, flight number and date. Normally SITA contained E- tickets but in some cases, provision was made for manual tickets in case of charter flights and for those availing the super saver scheme. He stated that Flight Interrupted Manifest (FIM) contained the details where the passengers were transferred to another flight if a flight was disturbed and this was a manual CBI Vs. Vinay Kumar Pandey & Anr. Page No.249 of 361 document. Copy of the same was also sent to the Bombay Revenue Office. Flight Manifest was first generated at boarding gate and after the passengers had boarded the flight, copy of it was sent to the Captain along with the trim and load sheet. After the flight took off, one copy was sent to the Screening Cell.
253. PW28 stated that JL and GV were commands contained in the software to generate the flight manifest. The copy of the same was given to the commander and the screening cell. The trimer was the person authorized to prepare trim and load sheet. The trimers were authorized licence holders and were part of the staff of the Airlines. He stated that if there was a discrepancy in the flight manifest in the sense that any passenger was found travelling without the ticket, then the staff who had issued the boarding pass was called and inquiry was made and if he failed, the amount of ticket was debited from the account of the Ground Handling Agency. No passenger whose name was not there in the flight manifest could travel on the flight. The first flight manifest was JLGV and contained the name of passenger, seat number, boarding number and second list was JLNZ which contained passenger name and ticket number only and the second list was only for the purpose of sending to Bombay Revenue Office. JL was common command in SITA for both JLGV and JLNZ. He stated that D-54 was flight report generated by screening cell on the flight manifest of 01.11.2012 of the flight AI042. The same did not contain ticket numbers 0982066418881 to 0982066418887 nor did it contain the name of Vinay Kumar Pandey. The said document is Mark PW28/1. He stated that he had not dealt with the said manifest. During investigation the said document was shown to him but it had not been generated by CBI Vs. Vinay Kumar Pandey & Anr. Page No.250 of 361 him. Thus, PW28 had stated when and how the flight manifests were generated and where they were sent and he categorically stated that no passenger whose name was not there in the flight manifest could travel on the flight. He had also stated that D-54 which was flight report generated by screening cell on the flight manifest of 01.11.2012 of the flight AI042 did not contain ticket numbers 0982066418881 to 0982066418887 nor did it contain the name of Vinay Kumar Pandey though he had not dealt with the said manifest.
254. During cross-examination by Ld. Counsel for A1, PW28 admitted that CBI had called him to its office for inquiry. He had told CBI whatever he knew about the procedure. He had stated paras 3 and 4 of page 2 of his statement dated 12.08.2016 which is Ex.PW28/P1 to the IO. He stated that there was no written entry made when the Flight Manifest was sent by Service Controller/ Dispatch Cell nor any entry was made by Screening Cell when it received the same. If the document was in soft format, it was sent by E-mail to the Bombay Revenue Office and the hard copies were sent at the end of the month by courier to the Bombay Revenue Office and entry in that respect was made in the register for the purpose. The report mentioned in para 4 of Ex.PW28/P1 was prepared by Customer Service Agent/ ground handling staff. The said report was sent along with Flight Manifest to Bombay Revenue Office. He had stated para 2 of his statement dated 04.11.2016 which is Ex.PW28/P2 to the IO. Thus, PW28 had stated about the procedure in his statements to the IO. The Ld. Counsel for A1 had argued that the testimony of PW28 was important as it was the allegation of the prosecution that A1 had not travelled and Flight Manifest was the principal CBI Vs. Vinay Kumar Pandey & Anr. Page No.251 of 361 document which the prosecution had relied on to show that A1 had not travelled. It is true, as argued by the Ld. Counsel that the person who had generated the flight manifests relied upon by the prosecution had not been identified by the prosecution to say that this was the person who had generated the flight manifests at the boarding gate on the said date but the evidence in this regard would be documentary in nature and the relevance of the said evidence is only to corroborate that A1 had not travelled on the flights, as PW44 and PW48 and other witnesses have already proved that the check-in history was deleted.
255. The Ld. Counsel had submitted that to check any variance in flight manifests, the Screening Cell verified the same and it was the job of the Screening Cell to verify if all the passengers had boarded. However, no witness had been examined to say about the same or that verification had been done in the instant case. The Flight Handling Unit was also there to check and followed the same procedure but no one from that unit was even examined. While this refers to the procedure, the fact that no witness from the Screening Cell or Flight Handling Unit was examined would have no bearing on the present case as the purpose of producing the flight manifests was only to show that A1 had not travelled and in fact PW28 had stated about being posted at Flight Handling Unit since 2015. The Ld. Counsel had made reference to the statement of PW28 recorded on 12.08.2016 wherein he had stated the entire procedure and that what was sent to the Controller of Revenue was the report along with the flight manifests and argued that in the present case no report was produced at all and the flight manifests had no meaning without the report as it was checked at two places. CBI Vs. Vinay Kumar Pandey & Anr. Page No.252 of 361
256. The IO was also cross-examined in this respect and PW56 stated that he had examined Jitender Kumar during investigation of the present case. He had examined him as he had knowledge of the operations of Air India. He informed him that the flight manifest was printed by service controller/ dispatch cell. He also informed him that the next day the said printout was provided to screening cell/ flight handling unit by the controller/ dispatch cell. He did not try to find out who was the person from the dispatch cell, who had printed the original flight manifest in the present case. He denied the suggestion that he did not fairly investigate the case to screen the real offender and to falsely implicate the accused persons. He did not carry out any investigation to find out from the flight handling unit/ screening cell as to who was the person who had tallied the details provided by the dispatch cell and whether the details were correct or not and if any discrepancies were found, the corrections made if any. Whatever he had asked Jitender Kumar was contained in his statement which is Ex.PW56/P3. As far as he remembered, he had asked Jitender Kumar as to where all the travel history data was available. He denied the suggestion that he had not asked the same and that is why the same was not reflected in Ex.PW56/P3. Thus, PW56 had stated that he did not try to find out who was the person from the dispatch cell, who had printed the original flight manifest in the present case and that he did not carry out any investigation to find out from the flight handling unit/ screening cell as to who was the person who had tallied the details provided by the dispatch cell and whether the details were correct or not and if any discrepancies were found, the corrections made if any but nothing much turns on the same as it is also not the case of CBI Vs. Vinay Kumar Pandey & Anr. Page No.253 of 361 A1 that he had travelled by the flight but his name was wrongly not shown in the flight manifest.
257. Further, PW56 stated that he had not seized the report along with the flight manifest, as informed to him by Shri Jitender Kumar, sent by the screening cell/ flight handling unit to the Controller of Revenue which was made after matching the details of the flight with the details available in the system which report contained the number of passengers boarded, their ticket numbers, details of passengers boarded on the basis of paper ticket, the ticket number of the paper tickets and the passengers boarded on the basis of flight intercepted manifest and volunteered he had informed that name and ticket number for all the passengers travelled in a plane was mentioned in the manifest and it was impossible to fly in a plane without mentioning the name and ticket number in the flight manifest. He denied the suggestion that he had deliberately not seized the said report as the same would not have matched with the flight manifest. Thus, PW56 had stated that he had not seized the report but he had also volunteered that PW28 had informed that name and ticket number for all the passengers travelled in a plane was mentioned in the manifest and it was impossible to fly in a plane without mentioning the name and ticket number in the flight manifest. As such there is no merit in the contention raised by the Ld. Counsel as it is the case of the prosecution that the check-in history stood deleted already and the flight manifest was produced only for the purpose of showing that the names of A1 and his companions were not reflected therein as persons who had travelled by the said flights. It was also argued that there was a register but the same was not produced to show that the flight manifests were CBI Vs. Vinay Kumar Pandey & Anr. Page No.254 of 361 sent to the Bombay Revenue Office and during cross- examination PW56 stated that he had not seized any register to show that the original flight manifest in the present case had been dispatched from the flight unit to the Controller of Revenue but again nothing much turns on the same. Thus, there is no merit in the contentions raised, considering that it is the case of the prosecution that the check-in history stood deleted already and the flight manifests were produced only for the purpose of showing that the names of A1 and his companions were not reflected therein as persons who had travelled by the said flights.
258. PW29 Shri Rajender Kumar deposed that in July 2016, he was posted as Manager, Finance at Traffic Cash Section, Safdarjung Airport Booking Office, New Delhi and in 2012, he was already promoted as Manager (Finance). He stated that Accelya Kale Solutions Ltd. maintained the data for Air India regarding tickets, details of flights, certificate etc. The Head Quarters of the said company was situated in Mumbai. As Manager (Finance) Air India Ltd., he had several cashiers working under him. At the relevant time, Air India had given him additional charge of issuing travel certificates to the passengers. The payment for the sale of tickets and the travel certificates was deposited by the cashier with his office in the evening and then it was tallied on day to day basis and next day the same was deposited in the bank. The travel certificate was issued against a boarding pass but if the boarding pass was not available, then the travelling data of the flight was called for and on checking the same, the travel certificate was issued. The travelling data of the flight was retained for 16 months. In case the matter was more than 16 months old, then the data was called for from Accelya CBI Vs. Vinay Kumar Pandey & Anr. Page No.255 of 361 Kale Solutions Ltd. The travel certificate was mostly issued to Government employees to settle their claim in their office.
259. PW29 stated that he had certified D-18 which is passenger manifest of Air India No.AI550 operated on 03.11.2012 and is Ex.PW29/A. On a court question being put to him as to how the data regarding flight manifest was maintained, he stated that the same went into the computer system from which they generated print out. On being asked on what basis did he certify Ex.PW29/A, he stated that Mr. Sukendu Basu who was Manager Vigilance called him to his office and told him about the present case and showed him Ex.PW29/A and asked him to certify the same and thereafter he certified the same. He had not seen the original/in the computer before certifying Ex.PW29/A and volunteered the time was short. He stated that D-56 (pages 10, 11, 12) which is also flight manifest of flight No.AI550 was the direct print out taken from the computer and Ex.PW29/A was a photocopy of the same. He stated that he had certified D-19 which is passenger manifest of Air India No.AI788 operated on 03.11.2012 and is Ex.PW29/B; D-20 which is passenger manifest of Air India No.AI787 operated on 01.11.2012 and is Ex.PW29/C; D-21 which is passenger manifest of Air India No.AI549 operated on 01.11.2012 and is Ex.PW29/D; D-24 which is passenger manifest of Air India No.AI9601 operated on 02.11.2012 and AI9602 operated on 02.11.2012 and the same are Ex.PW29/E (colly); D-24 which is passenger manifest of Air India No.AI549 and AI550 operated on 02.11.2012 and the same are Ex.PW29/F (colly); D-24 which is passenger manifest of Air India No.AI787 and AI788 operated on 02.11.2012 and the same are Ex.PW29/G (colly). He stated that Mr. Sukendu Basu CBI Vs. Vinay Kumar Pandey & Anr. Page No.256 of 361 showed him Ex.PW29/B, C, D, E, F (colly) and G (colly) and asked him to certify the same and thereafter he certified the same. He stated that D-56 (pages 8, 9) which is also flight manifest of flight No.AI788; D-56 (pages 39 to 43) which is also flight manifest of flight No.AI787; D-56 (pages 56 to 59) which is also flight manifest of flight No.AI549 were the direct print outs taken from the computer and Ex.PW29/B and Ex.PW29/C and Ex.PW29/D were photocopies of the same. He stated that D- 54 and D-56 which are also flight manifests of flight No.AI549 operated on 02.11.2012 and AI550 operated on 02.11.2012, AI9602 operated on 02.11.2012, AI9601 operated on 02.11.2012, AI788 operated on 02.11.2012 and AI787 operated on 02.11.2012 and AI550 operated on 02.11.2012 were the direct print outs taken from the computer and Ex.PW29/E, Ex.PW29/F and Ex.PW29/G (colly) are the photocopies of the same. Thus, PW29 had stated about the direct printouts of the flight manifests and their photocopies which he had certified. It is pertinent that PW29 had stated that Mr. Sukendu Basu who was Manager Vigilance called him to his office and told him about the present case and showed him the documents and asked him to certify the same and thereafter he certified the same and he had not seen the original/in the computer before certifying them and volunteered the time was short.
260. During cross-examination by Ld. Counsel for A1, PW29 stated that he was called to CBI office for investigation in the present case. He was called once or twice. He had spoken to Mr. Mohan verbally and his statement was not recorded in his presence. He was shown his statement recorded under Section 161 Cr.P.C. and he stated that he had stated what was contained CBI Vs. Vinay Kumar Pandey & Anr. Page No.257 of 361 therein to the officials of CBI. He admitted that it was not mentioned in the statement under Section 161 Cr.P.C. that he had certified any documents and volunteered he had not written the said statement. He had not stated to the CBI officials that he had certified any document. He admitted that in Ex.PW29/A to Ex.PW29/G (colly) it was not mentioned anywhere that he was certifying the said documents and volunteered the time was short. He had not seen the original/in the computer in respect of Ex.PW29/B to Ex.PW29/G (colly) before certifying the said documents. He stated that the documents which he had certified were not received by him. The same were received by Mr. Sukendu Basu. He had not taken out the printouts of documents contained in D-54 and D-56. Thus, even during cross- examination PW29 had stated that he had not seen the original/ in computer in respect of the documents. As such, certifying a document without seeing the original/ in the computer would render the certification of the document invalid and the Ld. Counsel for A1 had also argued that the certification was without any consequence and had no value to CBI as PW29 had not seen the originals and had certified the documents only on the asking of another witness.
261. At the same time, it is seen that Ex.PW29/A, Ex.PW29/B, Ex.PW29/C, Ex.PW29/D, Ex.PW29/E, F and G are not of much significance in the present case as they do not relate to the flights in question and only the flight manifest in relation to AI 549 operated on 02.11.2012 would be of relevance as it is the case of the prosecution that A1 and his companions had allegedly travelled from Chennai to Port Blair on 02.11.2012 and the original of the same has been proved through another witness. CBI Vs. Vinay Kumar Pandey & Anr. Page No.258 of 361 The other flight manifests had only been collected to demonstrate that A1 and his companions had not travelled by even the said flights which operated on the days in question. The said flight manifests were also stated to have been certified by Shri Tarun Prabha Shankar Attavar, besides the fact that direct printouts of the said manifests were also placed on record as D-54 and D-56.
262. PW30 Shri Tarun Prabha Shankar Attavar deposed that he was working with Accelya Kale Solutions Ltd., Mumbai till September 2020 as Sr. Manager (Account Management) and in 2016, he was working in the said company as Sr. Manager (Account Management) at Mumbai. He stated that their company was into Revenue Accounting. Whatever tickets were sold, reconciliation had to be done for the purpose of finance and the entire data was received in the system maintained by their company for Air India Ltd. Their company used to receive the data electronically from the respective sales branches of Air India. The software which was used was a registered software by the name of REVERA. The data regarding flight manifests was also received by their company in electronic form. The data was uploaded firstly on the AIR India system and from there it was transmitted to their system for the purpose of carrying out reconciliation. PW30 stated that the IATA regulated the entire Airlines Industry and they followed the guidelines issued by it. It was the Global International body. For every sale of ticket, there had to be an uplift i.e. passenger had to travel on the ticket and when the passenger travelled and boarding pass was generated, there was an uplift which got transmitted to their system. If no journey was performed, then the ticket was refunded. If a passenger purchased a ticket in a month for travel in the next CBI Vs. Vinay Kumar Pandey & Anr. Page No.259 of 361 month, then they waited either for claim for refund by the passenger or actual journey performed by the passenger for reconciling the data. If there was a sale of ticket, the entry was received in the system and if the journey was performed, then the entry regarding the same was also received and if the journey was performed over multiple sectors, the same was also tracked and if refund was claimed then entry was received regarding the amount refunded by Air India to the passenger. Thus, PW30 had stated how the sale of tickets was accounted for.
263. PW30 further stated that as the Account Manager he managed the relations between Accelya and Air India and if there was any issue, he was the point of contact. If manual transactions took place, then the manual documents were transmitted to them which they then digitized. The processing office of the company was located in Mumbai. It was mandatory for Air India to send all flight manifests to their company as there had to be 100% reconciliation. He stated that he had printed D-18 which is passenger manifest of Air India No.AI550 operated on 03.11.2012 Ex.PW29/A from the system and it bore his signatures and stamp; he had printed D-19 which is passenger manifest of Air India No.AI788 operated on 03.11.2012 Ex.PW29/B; D-20 which is passenger manifest of Air India No.AI787 operated on 01.11.2012 Ex.PW29/C; D-21 which is passenger manifest of Air India No.AI549 operated on 01.11.2012 Ex.PW29/D; D-24 which is passenger manifest of Air India No.AI9601 operated on 02.11.2012 and AI9602 operated on 02.11.2012 Ex.PW29/E (colly); D-24 which is passenger manifest of Air India No.AI549 and AI550 operated on 02.11.2012 Ex.PW29/F (colly); D-24 which is passenger CBI Vs. Vinay Kumar Pandey & Anr. Page No.260 of 361 manifest of Air India No.AI787 and AI788 operated on 02.11.2012 Ex.PW29/G (colly) from the system and the same bore his signatures and stamp. He stated that D-27 which is certificate under Section 65 B Indian Evidence Act was issued by him and is Ex.PW30/A. He stated that D-28 is the certificate regarding Revenue Accounting System REVERA used by Accelya Kale Solutions Ltd. and the same was issued by him and is Ex.PW30/B. He stated that he had printed D-29 which is passenger manifest of Air India flight No.AI042/142/429/430 and 540 operated on 01.11.2012 from the system and the same are Ex.PW30/C (colly). He stated that the ticket numbers as mentioned in Ex.PW30/A were not reported in flight manifests Ex.PW30/C (colly) or in Ex.PW29/A, B, C, D, E, F & G which meant that the passengers had not travelled on the said tickets. Thus, PW30 had stated about himself printing Ex.PW29/A to Ex.PW29/G and also Ex.PW30/C (colly) and he further stated that the ticket numbers as mentioned in Ex.PW30/A were not reported in flight manifests Ex.PW30/C (colly) or in Ex.PW29/A, B, C, D, E, F & G which meant that the passengers had not travelled on the said tickets
264. During cross-examination by Ld. Counsel for A1, PW30 stated that he did not remember if he had handed over any document to CBI showing that he was employed with Accelya. There was service contract between Air India and Accelya. He had not handed over copy of the said service contract to CBI. He had not handed over any letter to CBI showing that he was authorized to hand over documents and information to CBI. He denied the suggestion that he was not authorized by the company to hand over documents and information to CBI. Thus, PW30 CBI Vs. Vinay Kumar Pandey & Anr. Page No.261 of 361 had stated that he had not handed over copy of service contract between Air India and Accelya to the IO and he had also not handed over any letter to CBI showing that he was authorized to hand over documents and information to CBI but there is even nothing to show that Accelya had taken any action against PW30 for handing over documents unauthorizedly to CBI. The Ld. Counsel for A1 had argued that the service contract between Air India and Accelya had not been placed on record by CBI but there would even be no need for such a contract as the case is not based on the service contract but on the documents which were generated pertaining to the present case and it is also not the case of the accused persons that there was no such service contract between Accelya and Air India and no such suggestion was put to PW30.
265. Further, PW30 was shown his statement under Section 161 Cr.P.C. and he stated that the information contained therein at page 2 para 2 at point X to X1 was stated by him to CBI officials in Mumbai. The Ld. Counsel for A1 had argued that the said witness had stated in his statement under Section 161 Cr.P.C. that the statement was recorded in Mumbai whereas the IO had stated that he had come to the office of CBI. During cross- examination PW56 stated that as far as he remembered, he had never gone to the office of Accelya Kale and their officer had come to his office in Delhi. However, nothing much turns on the same as it is not disputed that the statement of PW30 was recorded under Section 161 Cr.P.C. During further cross- examination PW30 stated that the flight manifests were received in digitized form by their company as well as manually and they digitized them. The flight manifests of the present case were CBI Vs. Vinay Kumar Pandey & Anr. Page No.262 of 361 received by their office in manual form and then digitized by their office. The original flight manifests in manual form were digitized by them and originals were sent to Air India so the original flight manifests were not handed over by him to CBI officials. As such, PW30 had stated that the original flight manifests were not handed over by him to CBI officials and even otherwise, he had stated about taking printouts and handing them over. A question was put to him on what date were the flight manifests sent back by him or his office to Air India which was disallowed. The Ld. Counsel for A1 had submitted that PW30 was the most important witness who had the original documents in his custody but he did not state that the documents were sent back and there were a lot of contradictions in the statements as to who took the printouts from Accelya as the originals were not available but PW30 had stated that the originals were sent to Air India so the original flight manifests were not handed over by him to CBI officials and he had stated about taking the printouts himself. The Ld. Counsel for A1 had argued that if the original flight manifests were with Accelya, then they should have been taken from there but no one had stated so and if the originals had been taken, then the report would also have been obtained with them. However, PW30 had not stated about having the original flight manifests.
266. PW30 stated that in and out record was maintained as to when the flight manifests were received by their office and sent back to Air India. He did not hand over any such record to CBI. PW30 stated that the flight manifests were not received by any covering letter or E-mail from Air India. The flight manifests were received by the In and Out department of their company CBI Vs. Vinay Kumar Pandey & Anr. Page No.263 of 361 and the said department scanned the same. He had no concern with the said department. The Ld. Counsel for A1 had argued that even no in and out record had been proved and no individual witness was examined from the In and Out department to say that the flight manifests were received by them correctly, scanned and then entered into the system so the link was missing and there were connecting records which showed the genuineness of the transactions but the same were not seized but on that basis, the flight manifests which were printed from the system cannot be doubted. It was argued that it was confirmed by the IO that the original flight manifests were sent back and cross-examination of the IO was also referred to.
267. During cross-examination PW56 admitted that he had interrogated Tarun Prabha Shankar Attavar in the present case who was Manager, Accelya Kale Solution Ltd. He could recollect only after seeing his statement if he had told him that the original flight manifests of the Air India flights were sent to them. On seeing the statement dated 09.08.2016 which is Ex.PW56/P2, he stated that Tarun Prabha Shankar had told him that Air India Ltd. provided information to them in two forms i.e electronic and manual, all electronic information was directly interfaced through secure medium to a system where it got loaded. He further informed that manifest of the Air India flights and any exchange or refund document created at an Airport was sent to them in original through Air India Ltd. Office at Kalina, Mumbai. He had not told him that the original flight manifest was returned to Air India by them and volunteered other witness had informed that the manifests which had been seized in the case were sent back to Air India and from where the same were provided to CBI. CBI Vs. Vinay Kumar Pandey & Anr. Page No.264 of 361 As far as he remembered, he had recorded the statement of only one witness from Accelya Kale Solution Ltd. He could tell only after checking the record if he had seized any document from Accelya Kale directly. As per the record, there was no document which was seized by him from Accelya Kale directly. He could not recollect if he had issued any letter to Accelya Kale to produce original flight manifest to him. He denied the suggestion that he was deliberately avoiding to answer the said question as he had not issued any letter to Accelya Kale to produce original flight manifest to him. He denied the suggestion that he personally went to the office of Accelya Kale at Mumbai for the purpose of investigation. He had not asked Accelya Kale to produce any register to show when original flight manifests were received by them and volunteered he had asked for original flight manifests from Air India and he got the same. Both the fact that the original flight manifests were received by Accelya Kale and that he had seized the original flight manifests from Air India were not contradictory and were correct. He denied the suggestion that he was incorrectly stating the same as his investigation did not justify the said statement. Thus, PW56 was extensively cross-examined and he had volunteered that other witness had informed him that the original flight manifest was returned to Air India.
268. Further, PW56 was not able to recollect what were the contents of the letter dated 22.07.2016, VIGHQ/CBI/16/171 issued by Shri Sukhendu Shekhar Basu, Manager, Vigilance Air India which he had shown to Shri Tarun Prabha Shankar during the investigation, at the time of recording the statement. He was not able to recollect if he had seized the report in which flown CBI Vs. Vinay Kumar Pandey & Anr. Page No.265 of 361 data for the year 2012 for passenger Vinay Kumar Pandey was provided on the basis of data available in their system as mentioned in the statement of Shri Tarun Prabha Shankar on the basis of which he had stated that Vinay Kumar Pandey had not travelled to Port Blair in the year 2012. He denied the suggestion that he was incorrectly stating that he had not seized the said report or the same had not been deliberately filed in the Court. Thus, no such report has been filed in the Court in which flown data for the year 2012 for A1 was provided on the basis of the data available in the system as mentioned in the statement of PW30.
269. PW30 was then cross-examined on the attestation of the flight manifests and he stated that the flight manifests were generally attested by Manager of the Air Lines who was on duty. He did not remember if the flight manifests in the present case were attested or not. PW30 was also cross-examined regarding the certificate under Section 65B of the Indian Evidence Act Ex.PW30/A and he stated that Ex.PW30/A was prepared as per the protocol followed by their company. He admitted that it was not mentioned in Ex.PW30/A from which computer system the printout had been taken. He had taken the printout from his own laptop. He could not tell the make of the said laptop. Thus, PW30 admitted that it was not mentioned in Ex.PW30/A from which computer system the printout had been taken but it is pertinent that he also stated that he had taken the printout from his own laptop though he could not tell the make of the said laptop. The Ld. Counsel for A1 had submitted that the Section 65B certificate was not proper as the printout was taken of the scanned documents and the original had been printed by someone else CBI Vs. Vinay Kumar Pandey & Anr. Page No.266 of 361 and there was no Section 65B certificate of that person. As such it was not primary evidence and not even secondary evidence as the document had been scanned and printout was taken and it did not meet the requirements of Section 65B of the Indian Evidence Act. However, what is significant in the present case is that the documents were scanned in ordinary course and as part of procedure and the printout was then taken of the said scanned documents by PW30 himself.
270. The Ld. Counsel had also argued that D-27 (Ex.PW30/A) did not specify the conditions which were satisfied as per law and as such the law had not been followed in letter and spirit and the certificate was silent on most parts and only stated that it was produced by the witness from the computer using the printer and was a true reproduction to the best of his knowledge. The Ld. Counsel for A1 had relied on several judgments in which the requirements of a certificate under Section 65B of the Indian Evidence Act were laid down. It was submitted that the judgment in Anvar P.V. v. P.K. Basheer (supra) had been overruled but it still laid down the essentials of the certificate. In the said judgment, it was observed as under:
"22. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
Thus, it was held that the requirements of Section 65B of the Indian Evidence Act must be satisfied. This has been reiterated in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal CBI Vs. Vinay Kumar Pandey & Anr. Page No.267 of 361 and Ors. (supra) on which also reliance was placed by the Ld. Counsel for A1. The law in this regard is well-established that electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements of Section 65B of the Indian Evidence Act are not satisfied. The Ld. Counsel had then relied upon several judgments on the point that 'mere marking of exhibit on a document does not dispense with its proof' namely L.I.C. of India and Ors. v. Ram Pal Singh Bisen (supra) and Ramnish Geer and Ors. v. CBI and Ors. (supra). In L.I.C. of India and Ors. v. Ram Pal Singh Bisen (supra), it was observed as under:
"26. We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law."
Further, in Ramnish Geer and Ors. v. CBI and Ors. (supra) it was observed as under:
"19. It has been observed by the Hon'ble Supreme Court in Sait Tarajee Khimchand v. Yelamarti Satyam, MANU/SC/0022/1971 : (1972) 4 SCC5620 as well as in Narbada Devi Gupta v. Birendra Kumar Jaiswal and Anr. MANU/SC/0862/2003 :
(2003) 8 SCC 745, that mere marking of a document as exhibit by the court cannot be held to be due proof of its contents.
23. Thus, it is a settled law that admission or exhibiting of documents in evidence and proving the same before the court are two different processes. Contents of the document cannot be proved by mere filing the document in a court. Under the law of evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Mere marking a document as an 'exhibit' will not absolve the duty to prove the documents in accordance with the provisions of law."
CBI Vs. Vinay Kumar Pandey & Anr. Page No.268 of 361 The law is well-established that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. However, a perusal of Ex.PW30/A shows that it is stated therein that the documents produced were system generated printout from the company's REVERA software and as such the name of the software was also mentioned and Ex.PW30/A has to be read in conjunction with Ex.PW30/B which is the certificate regarding Revenue Accounting System REVERA used by Accelya Kale Solutions Ltd. and was issued by PW30 and in the same, the process was stated as also that view access to REVERA software had been provided to Air India and it was not editable. Thus, the software that was used itself was not editable. It is settled law that exact wordings of Section 65B Indian Evidence Act need not be reproduced in the certificate and there should be compliance in letter and spirit and if Ex.PW30/A and Ex.PW30/B are read together, it cannot be said that Section 65B of the Indian Evidence Act had not been complied with or that the documents could not be looked into due to lack of compliance with Section 65B of the Indian Evidence Act. Even otherwise, as observed above, Ex.PW29/A, Ex.PW29/B, Ex.PW29/C, Ex.PW29/D, Ex.PW29/E, F and G are not of much significance in the present case nor Ex.PW30/C (colly) except the flight manifest in respect of AI 540 operated on 01.11.2012 and the flight manifest in relation to AI 549 operated on 02.11.2012 which would be of relevance.
271. It was contended on behalf of A1 that no record in respect of sale or revenue generation was handed over. During CBI Vs. Vinay Kumar Pandey & Anr. Page No.269 of 361 cross-examination PW29 had stated that he had not handed over any sale report to the CBI. When the tickets are sold and cash is received by the cashiers, the entry is made in the computer and on the basis of the same the sale report is generated. The Ld. Counsel for A1 had argued that if the sale in the present case was not reflected, it could be understood but the same was not even produced so it showed that there was something fishy and his testimony did not help the case of CBI. However, there is other evidence on record. The Ld. Counsel for A1 had argued that PW30 was one of the most important witnesses for CBI and according to him there were two kinds of data - one for the purpose of revenue received from the respective sales branches and the other with respect to the flight manifests. It was submitted that no data generated from the Air India system was produced and the data from where it was generated was not produced but only from the agency. No record was handed over regarding revenue generation though the main job of Accelya was to accumulate data for reconciliation of revenue but PW30 did not give revenue report to show if there was any missing link. During cross-examination PW30 admitted that he had not handed over any record pertaining to Revenue generation in relation to the flight manifests of the present case but it is not the case that any revenue was generated in relation to the PNR in question in the present case and there is other material evidence on record to show that A1 had not travelled by the flights in question.
272. During cross-examination PW56 stated that he had joined Shri Rajender Kumar, Manager Finance Air India during investigation and had recorded his statement. He did not remember if he had told him that the original flight manifest CBI Vs. Vinay Kumar Pandey & Anr. Page No.270 of 361 remained with Air India Finance though he remembered that he had stated that the same remained with Air India. He was confronted with the statement of Shri Rajender Kumar, dated 25.07.2016, under Section 161 Cr.P.C. which is Ex.PW56/P1 wherein it was not stated that the original flight manifest remained with Air India or Air India Finance. He had stated to him that the travel data of Air India passengers for last 16 months was available in the check-in-system of Air India. He further informed him that for the data older than 16 months they had to approach Accelya Kale Solution Ltd. And volunteered he stated regarding the passengers to travel by Air India. As such PW56 was also cross-examined on what was told to him by PW29 but nothing much turns on the same.
273. PW31 Shri Ajit Karmakar, DGM (Finance), Air India Ltd. deposed that in 2012 he was posted as AGM (Finance) at Santacruz Old Airport Office and he was responsible for receiving sales data from entire network of Air India and supervising sales accounting with the help of outsourced party or vendor. After receiving the data, they ensured that data had been received from everywhere and tallied the same with station control and did the appropriate General Ledger Accounting. He stated that the flight manifests are generated at the respective Airport offices and then they are forwarded in digitized form to Central account office Mumbai/outsourced party i.e. Accelya Kale Solutions Ltd. The same procedure applies for all flights of Air India across the country. The said manifests were received on a daily/weekly basis. The original manifest was maintained at the concerned Airport office and wherever the soft copy was not received, the hard copy was forwarded to them which they CBI Vs. Vinay Kumar Pandey & Anr. Page No.271 of 361 scanned and retained at their office. Air India had appointed Accelya as Passenger Revenue Accounting/MIS Solution.
274. PW31 further deposed that close out messages are generated after flight is closed i.e. boarding is complete and flight is ready for departure. The close out message is the total on board count and is generated specifically for each flight. ETLR refers to Electronic Lift File generated from SITA reservation software on daily basis for passengers who had been accepted on the flight for travel and was based on the ticket number. He stated that Air India used SITA reservation system to issue tickets at booking offices, Airport offices and website whereas agents used various GDS system i.e. Global Distribution System to issue tickets under BSP i.e. Billing Settlement Plan/ARC i.e. Airline Reporting Corporation. In SITA system ticket series started from 21 whereas in BSP and ARC neutral series was used other than
21. This helped to avoid duplicacy in ticket numbers creating accounting difficulties. He stated that check in history was also available in SITA system which remained live for two years and provided passenger history of a particular flight. He proved D-52 which is seizure memo dated 28.11.2016 vide which he had handed over the documents mentioned therein to Inspector Mohan Kumar and is Ex.PW31/A, the documents being original flight manifests of several flights i.e. AI042 operated on 01.11.2012, AI0429 operated on 01.11.2012, AI439 operated on 01.11.2012, AI540 operated on 01.11.2012 and AI549 operated on 02.11.2012 from Chennai to Port Blair.
275. PW31 proved D-53 which is covering letter dated 28.11.2016 addressed to Inspector Mohan Kumar as CBI Vs. Vinay Kumar Pandey & Anr. Page No.272 of 361 Ex.PW31/B. He stated that he had handed over flight manifests of AI042 operated on 01.11.2012, AI0429 operated on 01.11.2012, AI439 operated on 01.11.2012, AI540 operated on 01.11.2012 and AI549 operated on 02.11.2012 and the same are Ex.PW31/C (colly) (pages 1 to 41). He stated that the ticket numbers as mentioned in Ex.PW31/B were not accounted for in the Air India Revenue Accounting System i.e. they were not received as sale nor they received any utilization in the form of uplift or refund. He proved D-55 which is seizure memo dated 28.11.2016 vide which he had handed over the documents mentioned therein to Inspector Mohan Kumar as Ex.PW31/D. PW31 proved D-56 which are flight manifests which he had handed over to the IO and the same are original flight manifests of AI9602 operated on 03.11.2012, AI9602 operated on 03.11.2012, AI788 operated on 03.11.2012, AI550 operated on 03.11.2012 and AI9602 operated on 02.11.2012, AI9602 operated on 02.11.2012 and AI9601 operated on 02.11.2012, AI788 operated on 02.11.2012 and AI787 operated on 02.11.2012, AI550 operated on 02.11.2012 and AI9601 operated on 01.11.2012, AI787 operated on 01.11.2012 and AI9601 operated on 01.11.2012 and AI549 operated on 01.11.2012 and the same are Ex.PW31/E (colly) (pages 1 to 58). PW31 proved D-73 which is covering letter dated 12.12.2016 addressed to Inspector Mohan Kumar and is Ex.PW31/F. He proved D-74 which is flight manifest of Air India flight No.AI043 operated on 03.11.2012 and he stated that he had authorized Mr. Shivadekar, Officer Finance of Air India to hand over the said flight manifests to the IO vide covering letter Ex.PW31/F. The flight manifests along with other documents are Ex.PW31/G (colly). Thus, CBI Vs. Vinay Kumar Pandey & Anr. Page No.273 of 361 PW31 stated that check in history was also available in SITA system which remained live for two years and provided passenger history of a particular flight and he had also proved several original flight manifests. He had also stated that the ticket numbers as mentioned in Ex.PW31/B were not accounted for in the Air India Revenue Accounting System i.e. they were not received as sale nor they received any utilization in the form of uplift or refund.
276. During cross-examination by Ld. Counsel for A1 PW31 admitted that the basis of his stating "the ticket numbers as mentioned in Ex.PW31/B were not accounted for in the Air India Revenue Accounting System i.e. they were not received as sale nor we received any utilization in the form of uplift or refund"
was the information provided by Air India to Accelya Kale Solutions. He admitted that in Ex.PW31/B it was mentioned that based on the data available with them through their service provider M/s. Accelya Kale Solutions Ltd., ticket numbers mentioned therein had not been accounted in the Air India Revenue Accounting System and that in view of the same, it had neither been accounted as sales and consequently utilization of the ticket either in the form of uplift nor refund had been reported and volunteered the same was on the basis of information provided to Accelya by Air India. The data mentioned in the letter Ex.PW31/B referred to the data available in the REVERA system and it was not possible to hand over the entire data to CBI. He stated that he had given the flight manifests to the IO. He had not handed over any accounting data to the IO and volunteered tickets were not accounted for in the system and the data was not asked for. Thus, PW31 had reiterated that the tickets CBI Vs. Vinay Kumar Pandey & Anr. Page No.274 of 361 were not accounted for in the system and it was also so stated in Ex.PW31/B based on the data available with Air India through their Service Provider M/s. Accelya Kale Solutions Ltd. Ticket numbers 0982066418881 to 0982066418887 had not been accounted in the Air India Revenue Accounting System which implied that it had neither been accounted as a sales and consequently utilization of the ticket either in the form of uplift nor refund had been reported. The Ld. Counsel for A1 had argued that during cross examination PW31 had stated that he himself had not taken steps to see if the tickets had been accounted for and his statement was based on the information provided by Accelya and his letter to IO was Ex.PW31/B and there was no inquiry by the witness at his own level but he was relying on the information provided by Accelya but clearly it is not the case that PW31 himself had handled the case and he could not be expected to take steps to see if the tickets had been accounted for and he would depose only on the basis of the information that was available. It was also argued that the person from Finance could have spoken about the revenue but the material was not before the CBI and Air India itself was suspected so their witnesses could not be believed but there is no reason to disbelieve the testimony of PW31. No suggestion was put to PW31 that the said averments were not correct and as such it stands established that the ticket numbers in question were not accounted in the Air India Revenue Accounting System.
277. During further cross-examination PW31 stated that the CBI had made inquiry from him for the first time in 2016 perhaps in August 2016. No other official in Air India had asked for documents from him prior to CBI asking for the same. He CBI Vs. Vinay Kumar Pandey & Anr. Page No.275 of 361 knew Sukhendu Basu and volunteered he had sent the mail raising queries to him. He had sent the mail somewhere in August 2016. He had not handed over copy of the said mail to CBI and volunteered he had handed over what was asked for. He stated that there was no conversation between him and Mr. Sukhendu either oral or written that the original manifests were not traceable. He admitted that it was mentioned in D-42 that Mr. Sukhendu had spoken to him about the original flight manifests not being available and volunteered it was difficult to recollect if any such conversation had taken place. He denied the suggestion that he was deliberately avoiding to give the correct answer in the said regard. Thus, PW31 had stated that no other official in Air India had asked for documents from him prior to CBI asking for the same though he later volunteered that Sukhendu Basu had sent the mail raising queries to him somewhere in August 2016. He had also stated that there was no conversation between him and Mr. Sukhendu either oral or written that the original manifests were not traceable but later admitted that it was mentioned in D-42 that Mr. Sukhendu had spoken to him about the original flight manifests not being available. However, what he volunteered that it was difficult to recollect if any such conversation had taken place also has merit as it may not be possible to recollect the conversations that had taken place around 5 to 6 years prior.
278. PW31 also stated during cross-examination that CBI had made inquiry from him in the present case and he told them whatever he knew about the case. He was shown his statement under Section 161 Cr.P.C. page 1 para 2 from point X to X1 and he stated that he had stated the said facts to CBI. No In and Out CBI Vs. Vinay Kumar Pandey & Anr. Page No.276 of 361 record of the flight manifests was maintained by their office and volunteered Accelya maintained the same. Thus, PW31 had stated that the In and Out record was maintained by Accelya though the same has not been produced in the instant case. He was shown Ex.PW31/C (colly), page 1, Ex.PW31/E (colly) page 46, Ex.PW31/G (colly) page 4, and he could not say who had prepared the same and volunteered the concerned station Manager of the Airport office prepared the same and he could not identify the signatures. However, the same would have no bearing on the present case.
279. The Ld. Counsel for A1 had contended that PW31 had given the original flight manifests to CBI and he contradicted PW28 as PW28 had stated that the originals were sent in all cases while PW31 stated that the originals were sent only in some cases. However, that cannot be regarded as such a contradiction as would go to the root of the case. It was argued that PW31 had produced the original flight manifests and they were objected to as being electronic record and they could not have been exhibited without a certificate under Section 65B of the Indian Evidence Act. Admittedly, they were not generated at the Airport and the person who generated the flight manifests was not identified and only the documents handed over by the witness to CBI were proved. However, the said objection is without basis as though the flight manifests were printed from the computer but that was done in ordinary course of business wherein the printout was generated on the basis of the data entered and it is seen that the flight manifests are accompanied by original documents such as statement of uplifted passenger document which is duly signed by the person who had prepared it or the Station Manager CBI Vs. Vinay Kumar Pandey & Anr. Page No.277 of 361 (though the signatures of the said persons were not identified) and as such, they cannot be regarded as secondary evidence. The original flight manifest in respect of AI 540 operated on 01.11.2012 is also on record duly signed by the Station Manager as also of AI 549 operated on 02.11.2012 duly signed by the concerned staff. The Ld. Counsel had pointed out that the check- in-history was the second circumstance to show that A1 had not travelled and the flight manifests duly show the same.
280. The IO was also cross-examined regarding making inquiries from PW31 and PW56 stated that he had inquired from Shri A.U. Karmarkar during investigation. He was shown Ex.PW31/B (D-53) and he admitted that as per the said document, the original flight manifest of the flights from Delhi to Chennai operated on 01.11.2012 and from Chennai to Portblair on 02.11.2012 were received by him on 28.11.2016. However, there was no contradiction between what was stated by Shri S.S. Pirakalathan that the original flight manifests were kept for only two years whereas, the original manifests were provided to him by Shri A.U. Karmakar on the same day as Shri S.S. Pirakalathan was from the Chennai Airport and Shri A.U. Karmakar was from the head office of Air India at Mumbai and they were in possession of the original flight manifests. He could only say after checking the statement of Shri A.U. Karmakar if he had told him from where he had received the original flight manifest. He was shown the statement of Shri A.U. Karmakar recorded under Section 161 Cr.P.C. on 28.11.2016 which is Ex.PW56/P5 and he stated that Shri A.U. Karmakar had told him as to from where he had obtained the original flight manifest. He denied the suggestion that he was deliberately avoiding to answer the CBI Vs. Vinay Kumar Pandey & Anr. Page No.278 of 361 question correctly and had given a misleading answer. Even though the witnesses may have stated different time periods for retaining flight manifests, the fact of the matter is that the original flight manifests were produced and duly proved by PW31.
281. PW56 further stated that he had obtained the scanned copy of the flight manifest from Accelya Kale which were the same so there was no reason to doubt the original flight manifest which were handed over by Shri A.U. Karmakar. He did not make any effort to record the statement of any passenger whose name was reflected in any of the flight manifests. He admitted that with the original flight manifests no certificate under Section 65 B of the Indian Evidence Act was taken. Thus, the IO had obtained the scanned copy of the flight manifests but later the originals were also obtained. It is true that no passenger whose name was reflected in the flight manifests was examined but there was even no need for the same as there is no reason to doubt the flight manifests, more so as it is not the case set up by A1 that he had travelled but his name was not reflected in the flight manifests. Further, as observed above, since the original flight manifests were produced, there would be no requirement of any certificate under Section 65B of the Indian Evidence Act in support of them.
282. PW32 Shri Sukhendu Sekhar Basu deposed that in 2016 he was posted as Manager, Vigilance, Air India at Head Quarters, Delhi and thereafter he was promoted as Sr. Manager Vigilance. He stated that after the flight departed the list of the passengers who had boarded the flight was generated and the CBI Vs. Vinay Kumar Pandey & Anr. Page No.279 of 361 same was done by the commercial department of Air India. The entire material went in the M/s. Accelya Kale system and they maintained the record for 3 years as per his knowledge. One copy of the flight manifest was retained in the concerned Airport. Anyone having the sign-in code could retrieve the same from the system. The material was sent to Accelya Kale in soft format. He proved D-16 which is seizure memo dated 22.07.2016 as Ex.PW32/A and he stated that vide the said seizure memo, the documents mentioned therein were provided to the IO Insp. Mohan Kumar. He proved D-17 which is covering letter dated 22.07.2016 written by him to SP AC-III of CBI as Ex.PW32/B and he stated that vide the said covering letter he had handed over the certified copy of Passenger Manifest of flight No.AI549 dated 01.11.2012, AI787 dated 01.11.2012, AI550 dated 03.11.2012 and AI788 dated 03.11.2012. The said passenger manifests were certified by Shri Rajender Kumar, Manager, Air India and Shri Tarun Prabha Shankar Attavar, Sr. Manager of Accelya Kale and he identified their signatures and the said documents are Ex.PW29/A, B, C and D.
283. PW32 proved D-22 which is seizure memo dated 22.07.2016 as Ex.PW32/C and he stated that vide the said seizure memo the documents mentioned therein were provided to the IO Insp. Mohan Kumar. He proved D-23 which is covering letter dated 22.07.2016 written by him to SP AC-III of CBI as Ex.PW32/D and he stated that vide the said covering letter he had handed over the certified copy of Passenger Manifests of flight No.AI9601/9602 operated on 02.11.2012, AI549/550 dated 02.11.2012 and AI787/788 dated 02.11.2012. The said passenger manifests were certified by Shri Rajender Kumar, Manager, Air CBI Vs. Vinay Kumar Pandey & Anr. Page No.280 of 361 India and Shri Tarun Prabha Shankar Attavar, Sr. Manager of Accelya Kale and the said documents are Ex.PW29/E, F and G. He proved D-26 which is covering letter dated 09.08.2016 written by Shri Satyapal Menon, Dy. Manager Vigilance, Air India Vigilance Head Quarters and he stated that the said letter was issued on his instructions to SP AC-III of CBI and the same is Ex.PW32/E. He proved D-42 which is letter dated 07.11.2016 and D-43 which is letter dated 07.11.2016 written by him to SP AC-III of CBI and the same are Ex.PW32/F and Ex.PW32/G respectively and vide the said letters he had provided the information mentioned therein to CBI and he had handed over copy of Flight Manifests of AI0540 dated 01.11.2012 and of AI549 dated 02.11.2012 to CBI. The flight manifests are Mark PW32/1 (colly). He stated that he had obtained the said documents from Director Commercial of Air India Head Quarters.
284. PW32 proved D-66 which is letter dated 05.12.2016 written by him to SP AC-III of CBI as Ex.PW32/H and he stated that vide the said letter he had handed over certified copy of Flight Manifests of AI043 dated 03.11.2012, AI142 dated 01.11.2012, AI429 dated 01.11.2012, AI439 dated 01.11.2012 and AI540 dated 01.11.2012 to CBI. The said passenger manifests were certified by Shri Tarun Prabha Shankar Attavar, Sr. Manager of Accelya Kale by putting his signatures and stamp. The said documents are Ex.PW32/I (colly) (from page 3 to page 36 of D-66). He stated that he had also handed over the certificate issued by Shri Tarun Prabha Shankar Attavar to the IO which is ExPW32/J. He proved D-69 which is letter dated 18.11.2016 as Ex.PW32/K. He stated that along with the said CBI Vs. Vinay Kumar Pandey & Anr. Page No.281 of 361 letter he had forwarded letter dated 17.11.2016 to the IO written by DGM Reservation, Air India Ltd, to DGM Vigilance which department he was looking after. He had received the said letter and the same is Ex.PW32/L. Thus, PW32 had deposed about several documents and flight manifests.
285. During cross-examination by Ld. Counsel for A1, PW32 stated that as Manager Vigilance in 2016, he used to report to CVO i.e. Chief Vigilance Officer. He was looking after day to day administrative jobs besides looking after investigations assigned to him as well as overlooking vigilance functioning of all other regions. Mr. Deepak Mathur also used to work in his office. He was his junior. In the absence of the CVO he used to look after the functioning of the Vigilance Department in the Head Quarters but all requirements by the CBI were initially addressed to the CVO as per the routine and from there they used to come to him. He stated that their department did not by itself have any information and they used to coordinate between the other departments and CBI. He had confirmed from A. Karmakar what was stated in para 4 of Ex.PW32/F. He admitted that first he had sent the requirement as mentioned in para 4 of Ex.PW32/F to Mr. Karmakar and thereafter he had checked and informed him. Thus, PW32 stated that their department did not by itself have any information and they used to coordinate between the other departments and CBI. It was argued by the Ld. Counsel for A1 that Ex.PW32/F was the letter by PW32 to the IO and it showed that by 22.08.2016 they had no documents but later the same were produced in Court and as such it should have been shown from where and how they were produced and there should have been connecting links but that was not done. It may be so that CBI Vs. Vinay Kumar Pandey & Anr. Page No.282 of 361 initially it was stated that the documents were not available but later the flight manifests were produced but once the original flight manifests have been produced and even no suggestion was put to the material witnesses that the same were manipulated or fabricated documents, there is no merit in this contention.
286. PW32 further stated that the manual mentioned in para 3 of Ex.PW32/G was not handed over to CBI by him. He had not placed on record any document to show whether the flight manifests were retained for 2 years as mentioned in Ex.PW32/G or 3 years as stated by him and volunteered he had stated that the said documents were retained by Accelya Kale for 3 years. A perusal of Ex.PW32/G which is dated 07.11.2016 shows that it was mentioned therein that it was informed by Mr. Pirakalathan that the documents, i.e. flight manifests were not available as the same were retained for two years only as per official procedure. However, that would be by Air India and PW32 had volunteered that he had stated that the said documents were retained by Accelya for 3 years. The Ld. Counsel for A1 had also contended that different periods had been stated by the witnesses for retention of records but when original flight manifests have been produced, nothing much turns on the said contention.
287. PW32 also stated during cross-examination that the reservation manager had informed him in writing that the details pertaining to PNR No.YKX5C could not be traced from the historical records for the flight/sector as mentioned in para 4 of Ex.PW32/G. He had not handed over the letter by the reservation manager in the said regard to the CBI nor CBI had asked for it.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.283 of 361 He stated that historical records referred to the details regarding PNR number from the date of its booking to the completion of the journey and even if the ticket was cancelled, the same would be recorded. He admitted that no historical record regarding the above PNR number was available with his department till 07.11.2016. As such, PW32 had admitted that no historical record in respect of the PNR number in question was available with his department. PW56 was also cross-examined in this regard and he was shown Ex.PW32/G (D-43) and he stated that he did not make any efforts to find out the details of the reservation manager mentioned in para 4 of Ex.PW32/G nor tried to record his statement, who had informed, as per the letter to Shri Sukhendu S. Basu that the details could not be traced from the historical records for the flight/sector mentioned in the letter as mentioned above. He had received the said letter dated 07.11.2016. He did not recall if he had given a reply to Shri Sukhendu S. Basu. Thus, the IO had also not tried to find out the details of the reservation manager or to record his statement but would have been unnecessary when it was stated that the historical records were not available.
288. PW33 Shri Prakash Shivadekar deposed that in 2012, he was posted at Old Airport Office of Air India, Mumbai. He stated that the flight manifest contained the details of the passengers who had boarded the flight. It contained the flight number, date and sector. The flight manifest was generated in the back office of the Airport concerned as soon as the flight departed and the soft copy was maintained by the service provider Accelya Kale. Initially, only the soft copy was sent after the flight departed and later on the hard copy was sent by courier CBI Vs. Vinay Kumar Pandey & Anr. Page No.284 of 361 or post. He stated that Accelya used to scan the hard copy and retain it for a couple of years and thereafter returned the same to Revenue Accounts, Finance Department of Air India. After the coupons were closed, the details were sent the next day to Accelya which downloaded the same and maintained the same in their system. The same applied for the entire Air India network. After the flight departure CC i.e. complete closure message was generated and they were also called COM i.e. close out messages. On the basis of the said messages, Accelya got actual number of on board passengers on a particular flight. Boarded coupons were converted to flown and the flown coupon file went to Accelya and was called ETLR i.e. Electronic Ticket Lift Record. The same was generated ticket number wise. FIM referred to Flight Interrupted Manifest and if a flight was cancelled and the passenger was to be transferred to another flight or another carrier then the passenger was transferred through FIM. He proved D-72 which is seizure memo dated 13.12.2016 as Ex.PW33/A and he stated that vide the said seizure memo the documents mentioned therein were provided to the IO Insp. Mohan Kumar.
289. PW33 further stated that he had handed over the covering letter Ex.PW31/F, Ex.PW31/G (colly) to the IO and as per Ex.PW31/G (colly) apparently no revenue was generated against ticket No.0982066418881 to 0982066418887. He was not aware what 21 series pertained to and the sales people would know the same. The code of Air India is 098. He stated that the flight manifest was the only source of ticket passenger history. Check in history contained the name of the passenger, ticket number, boarding number and seat number. Thus, PW33 had CBI Vs. Vinay Kumar Pandey & Anr. Page No.285 of 361 stated about generation of flight manifests and what all was sent to Accelya and he also stated that the flight manifest was the only source of ticket passenger history. During cross-examination PW33 stated that he only wanted to say that he could not trace the tickets in Ex.PW31/G (colly) when he stated in his examination in chief that "As per Ex.PW31/G (colly) apparently no revenue was generated against ticket No.0982066418881 to 0982066418887". Thus, PW33 had stated that he could not trace the tickets in Ex.PW31/G (colly). The Ld. Counsel for A1 had submitted that PW33 gave no clarification on accounts but he had stated that he could not trace the tickets and other witnesses had also stated so.
290. PW34 deposed that the data was collected with the Departure Control System and stored there. To his knowledge, it was not sent. Again said, it was then sent to Central Revenue Account. The record of manual ticket was not reflected in the Check-in System. He stated that the entry in respect of the passenger was made at the boarding gate once the boarding was done. The same SITA System was used at the boarding gate. As soon as the passenger boarded the flight, the system would reflect as the flight coupon status as boarded and the same could be seen in the check-in history. He stated that the bar-code on the boarding pass was scanned at the boarding gate at the time of boarding, which enabled the staff to establish that all check-in passengers had boarded the flight. The passenger name list was also sent to the destination so that in case of a system break down, the destination should know the number of passengers who had arrived. After the boarding and departure of the flight, the check-in data was uploaded or could be seen by Central Revenue Accounts (CRA) and other CBI Vs. Vinay Kumar Pandey & Anr. Page No.286 of 361 departments concerned with the revenue. The back-up staff at the Airport prepared the revenue statement, which contained the number of paid passengers, direct transit passengers and the staff. There were several attachments with the statement. The same were sent to CRA for reconciliation. The entire information pertaining to the passengers, who had travelled remained with Air India Data Mart/ Check-in System. Thus, PW34 had stated about the maintenance of the data. He had also proved check in history of several flights, which aspect has already been dealt with.
291. During cross-examination PW34 stated that in 2016 he was posted in Air India Vigilance as Assistant Manager. Sukhendu Shekhar Basu was also working with Air India and perhaps he was the Manager. He used to report to Mr. Sukhendu Shekhar Basu. He used to brief his seniors or report to them before and after handing over any documents to CBI. Thus, PW34 had stated about reporting to Shri Sukhendu Shekhar Basu i.e. PW32. PW34 admitted that the Vigilance Department was coordinating with CBI in regard to investigation in the present case. He admitted that the Vigilance Department itself did not maintain any records and it used to call for the records from the other departments and then hand over to CBI. The Ld. Counsel for A1 had argued that during cross-examination of PW34, it came out how the vigilance department came into the picture in investigation and their purpose was to obtain things suitable to CBI. Deepak Mathur was his junior and had no information on his own but had only coordinated to produce the records. It was submitted that it was not explained why a person from Vigilance was examined and not a person from the concerned department but nothing much turns on the same as the Vigilance Department CBI Vs. Vinay Kumar Pandey & Anr. Page No.287 of 361 may have been given the task of coordinating with investigating agencies and in fact PW32 had stated during cross-examination that all requirements by the CBI were initially addressed to the CVO as per the routine and from there they used to come to him. He stated that their department did not by itself have any information and they used to coordinate between the other departments and CBI. Further, even if the Vigilance Department did not have any information on its own and was also coordinating to produce the records, no presumption can be drawn that their purpose was to obtain things suitable to CBI. It may be mentioned that once it is not even the case set up by A1 that he had performed the journey, there could not have been any record with any department which would have shown that A1 and his companions had performed the journey.
292. During further cross-examination PW34 admitted that on 26.10.2016 the documents were not available with him so the documents which were available were handed over to CBI on 31.10.2016 and volunteered it was a long drawn out process to collect the documents. As such, PW34 had stated that on 26.10.2016, the documents were not available with them and it was argued on behalf of A1 that the documents were handed over subsequently and that the witness had stated that on 26.10.2016 the documents were not available so he had only given the statement and also that PW34 had stated that he had taken the printout himself so he should have given the documents whereas his senior stated that till 07.11.2016 they did not have the records so it was not possible to reconcile the documents but nothing much can be read into the same as whenever the documents were available, they were handed over. The Ld. Counsel for A1 had CBI Vs. Vinay Kumar Pandey & Anr. Page No.288 of 361 argued that PW32 was important for the accused as he had belied the version of PW34 Deepak Mathur and he had stated that the record by Accelya was kept for three years and as per him the record was available and he had stated about the procedure by which the record was available. The Ld. Counsel had referred to Ex.PW32/G as per which as on 07.11.2016 no historical record was available in relation to PNR number and Deepak Mathur furnished it on 31.10.2016 which was the contradiction to be explained by CBI and reference was also made to cross- examination of PW34. However, there is no apparent contradiction and it cannot be contended that even when the documents were available, they should not have been provided and at the most it could be a case of lack of coordination. Moreover, even if the rules provided certain period of retention of records, if the same had not been destroyed and were provided subsequently even after the expiry of the said period, it could not be said that the record could not be looked at. The Ld. Counsel for A1 had also submitted that there were three statements of PW34 under Section 161 Cr.P.C. dated 26.10.2016, 31.10.2016 and 14.12.2016 and he had told his Senior everything and he stated about getting information from other departments and handing over to CBI but nothing much turns on the same as he would provide the information as was asked for and as was available. As such, nothing has come out to doubt the testimony of PW34.
293. PW35 deposed that the passenger Flight Manifest told about the name of the passenger and on which ticket he travelled with the number of the tickets. On the top of the passenger Flight Manifest it was commonly mentioned as to what was the CBI Vs. Vinay Kumar Pandey & Anr. Page No.289 of 361 destination of the flight as also the port of departure and the date and flight number. When the passenger was checked-in in the Departure Control System (DCS) the information was collected and kept in the data base. Air India had appointed M/s. Accelya Kale Solutions Ltd. who collected the data from the DCS and analyzed the same further about the Revenue matters. In the actual record of the Airport, the hard copy was maintained for two years for their reference purpose and in the data base system it was maintained for 10 years as per Air India Manual. Thus, PW35 had also deposed about the flight manifests and about Accelya collecting the data and also that in the actual record of the Airport, the hard copy was maintained for two years and in the data base system, it was maintained for 10 years as per Air India Manual.
294. During cross-examination by Ld. Counsel for A1 PW35 stated that he had handed over a letter dated 24.11.2016 to the IO during investigation. He admitted that he had stated to the CBI in his statement that "the letter dated 24.11.2016 explained that certificate regarding the usage of ticket numbers 0982066418881 to 0982066418887 to travel Delhi to Chennai 01.11.2011 and Chennai to Port Blair 02.11.2012 as required could not be produced due to record management flight Manifest are kept only for two years". He admitted that the letter dated 24.11.2016 had not been shown to him that day. Thus, PW35 had stated about handing over a letter dated 24.11.2016 to the IO. PW56 stated that he (PW35) had handed over letter bearing No.MAA/AP/5-2/480 dated 24.11.2016 but the same had not been produced on record and as such the said letter is not on record. PW56 was also cross-examined on examining PW35 and CBI Vs. Vinay Kumar Pandey & Anr. Page No.290 of 361 on a query put to him, he stated that he would have to check from the statement of the concerned witness and he was shown the statement of Shri S.S. Pirakalathan, Sr. Manager, Admn, Air India, Chennai recorded under Section 161 Cr.P.C. dated 28.11.2016 and he stated that Shri S.S. Pirakalathan had stated to him that Flight Manifest of the flight from Delhi to Chennai on 01.11.2012 and from Chennai to Port Blair on 02.11.2012 could not be produced as record management flight manifest were kept only for two years and so he could not give the certificate regarding the use of ticket in question and he did not tell him if the ticket numbers were reflected in the flight manifest or not. The statement of S.S. Pirakalathan is Ex.PW56/P4. Thus, PW35 had stated to the IO that the flight manifests were kept for only two years so he could not give the certificate regarding the use of the ticket in question.
295. During further cross-examination PW35 did not remember if he had handed over copy of Air India manual to CBI. He was shown his statement Ex.PW35/P1 from point A to A1 wherein it was stated that he had handed over copy of Air India manual to CBI and he stated that he then remembered the same. The IO was cross-examined on examining PW35 and PW56 stated that he had examined Shri S.S. Pirakalathan, Sr. Manager (Admn.) Chennai, Air India Ltd. Since it was mentioned in the statement of Shri S.S. Pirakalathan, he would have taken the Air India Manual in the instant case. He admitted that he had told him that the record of flight manifest was kept for a period of two years. He did not remember if any seizure memo was prepared in respect of seizing the copy of Air India Manual. He did not remember if he had read the Air India CBI Vs. Vinay Kumar Pandey & Anr. Page No.291 of 361 Manual in the context in which it was given to him. He denied the suggestion that he deliberately did not prepare the seizure memo of the Air India Manual nor he filed the same in the Court in order to prejudice the defence of the accused persons. Thus, PW56 was cross-examined on seizing the Air India Manual but he did not remember if any seizure memo was prepared in respect of seizing the same. Though a suggestion was put to him that he had not filed the Air India Manual in order to prejudice the defence of the accused persons which he denied but even the accused persons did not try to get the same summoned, if it is their case that it would have supported their version.
296. PW35 was also confronted with certain things deposed by him which did not find mention in his statement under Section 161 Cr.P.C. and he stated that he did not remember if he had mentioned in his statement Ex.PW35/P1 to the CBI "When the passenger is checked-in in the Departure Control System (DCS) the information is collected and kept in the data base". He was confronted with the statement Ex.PW35/P1 wherein it was not so recorded. He was not sure if Accelya had access to the DCS and volunteered he was not a computer engineer. He was not sure if Accelya was authorized to have access to the DCS. Thus, PW35 was not sure if Accelya was authorised to have access to the DCS. It may be mentioned that PW35 admitted that a Flight Manifest was different from check- in history. He admitted that the check-in history is recorded at the time of check-in of the passenger and the Flight Manifest is prepared after the flight has closed. Further, he stated that he had informed the CBI that "In the actual record of the Airport the hard copy is maintained for two years for our reference purpose CBI Vs. Vinay Kumar Pandey & Anr. Page No.292 of 361 and in the data base system it is maintained for 10 years as per Air India manual". He was confronted with the statement Ex.PW35/P1 wherein it was not mentioned that in "the data base system it is maintained for 10 years as per Air India manual". He denied the suggestion that the improvements made by him in his statement were at the behest of the CBI. Thus, in his statement to the IO, PW35 had not stated that the data base system was maintained for 10 years as per Air India manual but as noted above, though the witnesses have stated different time periods for retention of the records but the original flight manifests were produced eventually. Further, PW35 had stated that check-in history was different from flight manifest and as per him the flight manifests were kept for only two years.
297. PW57 Ms. Veena Sukumaran deposed that in 2016, she was posted as Manager (Finance), Air India Mumbai. She stated that vide D-100 which is Ex.PW56/F she had handed over the documents mentioned therein to the IO Mohan Kumar. She was shown D-101 to 104 which are the original passenger Manifests of Air India Flight No.AI 143 operated on 03.11.2012 from Chennai to Delhi, of AI 430 operated on 03.11.2012 from Chennai to Delhi, of AI 440 operated on 03.11.2012 from Chennai to Delhi, of AI 539 operated on 03.11.2012 from Chennai to Delhi and the same are Ex.PW56/F (colly). Thus, PW57 had stated about certain flight manifests though their only value is to show that A1 and his companions had not even travelled on the said flights. During cross-examination by the Ld. Counsel for A1 PW57 stated that the letter No.6648 dated 09.12.2016 mentioned in Ex.PW56/F (colly) was addressed to her senior and not to her. She did not remember what was written CBI Vs. Vinay Kumar Pandey & Anr. Page No.293 of 361 in the said letter and volunteered her boss told her to hand over the files and she did the same. She did not recollect if she had read the letter dated 09.12.2016. Her boss was Shri A.U. Karmakar. She admitted that it was not mentioned in Ex.PW56/F that she was handing over documents to the IO. Thus, PW57 stated that the letter dated 09.12.2016 was addressed to her sernior and volunteered that she had handed over the files as her boss told her to do the same though it was not mentioned in Ex.PW56/F that she was handing over the documents to the IO. She also did not remember if the IO had got any document or any seizure memo signed from her at the time of taking the documents.
298. During further cross-examination PW57 stated that she had personally located the original Manifests as mentioned in the letter Ex.PW56/F. The same were received from Madras Airport and volunteered she was Incharge of keeping the documents at that time. She could not recollect if the said documents were demanded from her prior to 09.12.2016 by her office or by CBI. At no stage she told her office that the said documents could not be found. She stated that no inventory was made that the documents were received by her office. She had not handed over any document to CBI to show that the said documents were in her custody at that time. She admitted that the said documents were not created by her. She admitted that the Passenger Manifest was an electronically created and printed document. She denied the suggestion that the document Ex.PW56/F (colly) was a manipulated document at the behest of the CBI. Thus, PW57 stated that she had personally located the original Manifests as mentioned in the letter Ex.PW56/F and the CBI Vs. Vinay Kumar Pandey & Anr. Page No.294 of 361 same were received from Madras Airport. During cross- examination PW56 denied the suggestion that the alleged original manifests were also manipulated documents but there is nothing to show the same.
299. It is thus seen that several witnesses were examined by the prosecution to depose regarding the procedure for check- in followed at the airport, generation of boarding passes, deletion of check-in history and the flight manifests to show that A1 and his companions had not performed the journey in respect of which the TA claim was raised. As contended by the Ld. Counsel for A1, nothing came on record to show from where the PNR was generated or by whom or when or to show from where the tickets were generated or by whom and when and there was also nothing specific to link A1 or even A2 to the generation of the PNR number or the tickets. It has however, come on record that boarding passes were generated on 01.11.2012 in respect of the flight from Delhi to Chennai and thereafter from Chennai to Port Blair but soon after the generation of boarding passes, the check- in history was deleted. The Ld. Counsel for A1 had cross- examined the witnesses at length and also submitted that the deletion of check-in history was not established, however from the deposition of the witnesses and the material on record, it stands established that the check-in history stood deleted. There is, however, merit in the contention of the Ld. Counsel for A1 that there is nothing to show on whose instructions the boarding passes were generated or on whose instructions the check in history was deleted or even to show that A1 or A2 were present at the airport on the said day or to show to whom the boarding passes were handed over or how they reached A1.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.295 of 361
300. The Ld. Counsel had submitted that it was the settled law that 'in a case of circumstantial evidence, the entire chain of evidence must be complete and the conclusion which is arrived after examining the chain of evidence must point towards the culpability of the accused and to no other conclusion'. Reliance in this regard was placed on the judgment in Munikrishna and Ors. v. State by Ulsoor PS (supra) wherein it was observed as under:
"11. It is a case of circumstantial evidence and in a case of circumstantial evidence, the entire chain of evidence must be complete and the conclusion which is arrived after examining the chain of evidence must point towards the culpability of the Accused and to no other conclusion.
12. In a case of circumstantial evidence, the Court has to scrutinize each and every circumstantial possibility, which is placed before it in the form of an evidence and the evidence must point towards only one conclusion, which is the guilt of the Accused. In other words, a very heavy duty is cast upon the prosecution to prove its case, beyond reasonable doubt.
In Musheer Khan @ Badshah Khan and Anr. v. State of Madhya Pradesh MANU/SC/0065/2010 : (2010) 2 SCC 748 dated 28.01.2010, this Court while discussing the nature of circumstantial evidence and the burden of proof of prosecution stated as under:
39. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances.
40. Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical formula" since "that is impossible". However, proof must mean such evidence as would induce CBI Vs. Vinay Kumar Pandey & Anr. Page No.296 of 361 a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches". The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and vents through which the Accused may escape. Therefore, certain Rules have been judicially evolved for appreciation of circumstantial evidence.
41. To my mind, the first Rule is that the facts alleged as the basis of any legal inference from circumstantial evidence must be clearly proved beyond any reasonable doubt. If conviction rests solely on circumstantial evidence, it must create a network from which there is no escape for the Accused. The facts evolving out of such circumstantial evidence must be such as not to admit of any inference except that of guilt of the Accused. (See Raghav Prapanna Tripathi v. State of U.P. [MANU/SC/0127/1962 : AIR 1963 SC 74 : (1963) 1 Cri LJ 70])
42. The second principle is that all the links in the chain of evidence must be proved beyond reasonable doubt and they must exclude the evidence of guilt of any other person than the Accused. (See State of U.P. v. Dr. Ravindra Prakash Mittal [MANU/SC/0402/1992 : (1992) 3 SCC 300 : 1992 SCC (Cri) 642 : 1992 Cri LJ 3693], SCC p. 309, para 20.)
43. While appreciating circumstantial evidence, we must remember the principle laid down in Ashraf Ali v. King Emperor [MANU/WB/0218/1917 : 21 CWN 1152 : 43 IC 241] (IC at para 14) that when in a criminal case there is conflict between presumption of innocence and any other presumption, the former must prevail.
44. The next principle is that in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the Accused and are incapable of explanation upon any other reasonable hypothesis except his guilt."
CBI Vs. Vinay Kumar Pandey & Anr. Page No.297 of 361
301. Further, reliance was placed on the judgment in Raj Kumar Singh v. State of Rajasthan (supra) wherein it was observed as under:
"Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved and `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between `may be' and `must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
Reliance was also placed on the judgments in Ramesh Bhai and Another v. State of Rajasthan (supra) and in Oliver Kujur and Ors. v. State of Delhi (supra). The law in this regard is well- established. However, the present case is based on documentary evidence which is corroborated by the oral testimony of the witnesses and once it stands established that the boarding passes were generated and thereafter the check-in history was deleted, it CBI Vs. Vinay Kumar Pandey & Anr. Page No.298 of 361 cannot be insisted upon that the prosecution should also have established on whose instructions the same had been done or it should have proved to whom the boarding passes were handed over, before any finding of guilt could be given against the accused persons, as without doubt, the beneficiary in the present case would be A1. Moreover, if complicity of some other persons in the offence has not been established, it does not wash away the allegations against the accused persons.
302. During cross-examination PW56 admitted that the role of Air India officials as suspects was also looked into during investigation in the present case. He stated that he had sent a communication to both Air India and Lok Sabha Secretariat to take action against its employees. The copy of the said communication had not been placed on record and volunteered the same was mentioned in the charge sheet. He did not remember as to against which employee, Air India and Lok Sabha Secretariat were requested to take action. After going through the charge sheet, he stated that request was made to Air India and Lok Sabha Secretariat to take action against their employees as per para 17 of the final report dated 13.03.2018. He stated that he had not examined any person from Air India as an accused in the present case and volunteered he had examined persons from Air India and recorded their statements. Thus, PW56 had stated about sending a communication to both Air India and Lok Sabha Secretariat to take action against its employees and he also stated that he had not examined any person from Air India as an accused in the present case and volunteered he had examined persons from Air India and recorded their statements. However, even if no official from Air India had been made an accused in the present CBI Vs. Vinay Kumar Pandey & Anr. Page No.299 of 361 case, the case against the present accused persons has to be decided on its own merits.
303. The prosecution had also led evidence to show that the flight manifests did not reflect that A1 and his companions had performed the journey. The Ld. Counsel for A1 had cross- examined the witnesses at length and advanced detailed arguments on how there were discrepancies in the statements of the witnesses as to the period for which the record was retained and about the proof of the said documents and that the prosecution had not been able to explain how the documents were obtained. It is seen that the prosecution had produced flight manifests of several flights which were operated on 01.11.2012, 02.11.2012 and 03.11.2012, perhaps by way of abundant caution to demonstrate that A1 and his companions had not travelled on any of the said flights. As regards the flights which were most material i.e. AI 540 operated on 01.11.2012 and AI 0549 operated on 02.11.2012, the original flight manifests were duly proved and the same did not reflect the PNR number in question. It may also be mentioned that no suggestion whatsoever was put to any of the witnesses that despite A1 and his companions having travelled by the said flights, their names were deliberately not reflected in the flight manifests.
304. It is also seen that when his statement under Section 313 Cr.P.C. was recorded A1 had stated that as per law, no notice under Section 91 Cr.P.C. could have been issued to him seeking information from him in relation to which he was already facing criminal investigation. He admitted that his reply is Ex.PW56/E. He had categorically mentioned in the said reply that he had CBI Vs. Vinay Kumar Pandey & Anr. Page No.300 of 361 visited Port Blair once during his tenure as a Member of Parliament in the capacity of the Member of the Estimates Committee of the Parliament in the year 2012-13. He had further stated that he did not remember the exact dates of his visit to Port Blair and the same could be obtained from the Parliament along with other details. However, the IO did not investigate the said aspect deliberately. It was then to his information that the said dates and duration of visit were from 09.01.2013 to 16.01.2013 which was mentioned at page No.51 of Ex.PW5/C (D-108). The tour was from Lucknow to Delhi to Goa, Mangalore, Chennai, Port Blair, Chennai, Tirupati, Delhi, Lucknow. An amount of Rs.402005/- was reimbursed to him on account of the said travel as TA/DA. Thus, A1 himself had stated that he had visited Port Blair once during his tenure as a Member of Parliament in the capacity of the Member of the Estimates Committee of the Parliament in the year 2012-13 and the said dates and duration of visit were from 09.01.2013 to 16.01.2013 and as such he had nowhere stated that he had visited Port Blair from 01.11.2012 to 03.11.2012. The Ld. Counsel for A1 had argued that the statement under Section 313 Code of Criminal Procedure cannot be the sole basis for conviction of the accused and in this regard had relied upon several judgments. In Raj Kumar Singh v. State of Rajasthan (supra) it was observed as under:
"36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C. is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C. CBI Vs. Vinay Kumar Pandey & Anr. Page No.301 of 361 cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution's evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C. is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C.
An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself."
Thus, it was held that the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution and also that an adverse inference could be taken against the accused only and only if the incriminating material stood fully established.
305. The Ld. Counsel had also placed reliance on the judgment in Mohan Singh v. Prem Singh and Ors. (supra) and on the judgment in Ashok Singh and Ors. v. State of U.P. and Ors. (supra) wherein it was observed as under:
"51. Thus in view of the aforementioned legal position, it is clear that the statements given by the accused persons can be used for the purpose of appreciation of evidence and can also be used for corroboration of the prosecution evidence. But the CBI Vs. Vinay Kumar Pandey & Anr. Page No.302 of 361 burden of the prosecution to prove its case beyond reasonable doubt is not reduced to any extent."
Even in this judgment, it was held that the statements given by the accused persons can be used for the purpose of appreciation of evidence and can also be used for corroboration of the prosecution evidence. In the instant case, the statement of A1 under Section 313 Cr.P.C. can only be said to corroborate the prosecution evidence which establishes that A1 and his companions had not performed the journey for which reimbursement was claimed and there is no basis for the contention that it was not proved that A1 did not travel and the evidence on record did not qualify the test of evidence.
ROLE OF A2
306. It is the case of the prosecution that A2 was working as PA/PS of A1 and had filled up the TA form which was used to claim reimbursement for a journey which was not performed by A1. Not only this, the cheque for Rs.2,50,000/- dated 9.11.2012 which was used to withdraw money from the account of the A1 also bore the name and signatures of A2 at the back. This showed that A1 in conspiracy with A2 had submitted the TA form and claimed reimbursement for a journey not performed. Initially the contention raised on behalf of A2 was that there was nothing to show that A2 was the PA/PS of A1 though it is seen that A1 in his statement under Section 313 Cr.P.C. had stated that A2 was his PA. Several witnesses were examined by the prosecution to establish that A2 was the PA/ PS of A1 and PA/PS pass was issued in favour of A2. PW5 had deposed that one Tiwari was the PA of A1 at that time and he identified A2 as the PA of A1 at the CBI Vs. Vinay Kumar Pandey & Anr. Page No.303 of 361 relevant time and stated that A2 used to come to their office at that time for all the works of A1. It may be mentioned that PW4 could not say about the receipt of the TA/DA forms. During cross-examination by Ld. Counsel for A1 PW5 stated that no separate entry was made in any register regarding receipt of form from an MP for processing his claim and no such entry was made in respect of Ex.PW4/E. He admitted that he made no endorsement on Ex.PW4/E regarding receipt of the same. As such, there was no entry made regarding receipt of form of MP for processing the claim and even in respect of Ex.PW4/E, no such entry has been proved on record.
307. During cross-examination by the Ld. Counsel for A2, PW5 could say that A2 was the PA of Shri Vinay Kumar Pandey as the form containing details of PA of a Member was received by the MSA Branch and the form in respect of A2 was also received in their branch. He had not personally handed over the form to the IO and volunteered the branch had handed over the form to CBI. He denied the suggestion that Shri Arvind Tiwari was not the PA of Shri Vinay Kumar Pandey at the relevant time and volunteered he had the form showing the same. He denied the suggestion that he did not remember anything or that under the pressure of CBI he was stating that A2 was the PA of Shri Vinay Kumar Pandey in 2012 and he had identified him. He denied the suggestion that there was no document in MSA Branch which proved that A2 was the PA of Shri Vinay Kumar Pandey in 2012. Thus, PW5 had stated about A2 being the PA of A1 and that the form containing details of PA of a Member in respect of A2 was received in their branch.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.304 of 361
308. PW17 Shri Avinash Chaturvedi, Joint Director, Security, Lok Sabha Secretariat deposed that he was posted as Joint Director Security in CPIC in March 2016 and he was heading the CPI Cell. The said Cell used to issue passes for entry to the Parliament House Complex. He stated that as per rules, sitting Members of Parliament could have one PA/PS pass, one driver pass and one vehicle pass. For getting the PA/PS pass issued from March 2016 onwards, he always requested the Hon'ble Member to bring the concerned person whom they wanted to appoint as PA/PS in the CPI Cell. The Member was required to address a letter to the Secretary General, Lok Sabha in this regard. The Member himself got the Police verification of the concerned person done which was forwarded to them and then the pass was issued. The validity of the pass was 6 months and the first time that the pass was issued for PA/PS, signatures of the Member were obtained in the issuing register maintained by CPI Cell. The photograph of the concerned person was taken in the computerized system and a photo pass was issued.
309. PW17 stated that the covering letter No.09/71/CPIC/2016 dated 16.02.2017 addressed to Insp. Mohan Kumar, CBI, AC-III (D-124) was written by him and the same is Ex.PW17/A. Vide the said letter, he had handed over documents to the IO which were mentioned in the letter and the same were seized vide seizure memo (D-123) which is Ex.PW17/B. He stated that D-126 which is letter dated 26.09.2012 written by Shri Vinay Kumar Pandey to Secretary General for issuance of PA/PS pass in favour of Shri Arvind Kumar from CPIC was handed over by him to the IO from the records maintained in CPI Cell and is Mark PW17/C. On the basis of the said letter, pass was issued in CBI Vs. Vinay Kumar Pandey & Anr. Page No.305 of 361 favour of Shri Arvind Kumar on behalf of Dr. Vinay Kumar Pandey as per their records. The certified copy of the said letter is D-61 and it was certified by him vide his signatures and rubber stamp and the same is Ex.PW17/E. He stated that D-127 which is original form for general pass for PA/PS of Member Lok Sabha dated 24.09.2012 containing declaration of Shri Vinay Kumar Pandey regarding appointment of Shri Arvind Kumar as his PA/PS was handed over by him to the IO from the records maintained in CPI Cell and is Mark PW17/D and the certified copy of the said form is D-62 which was certified by him and is Ex.PW17/F.
310. PW17 stated that D-59 which is letter No.09/71/CPIC/2016 dated 17.11.2016 was written by him to Insp. Mohan Kumar, CBI, AC-III, New Delhi and is Ex.PW17/G and by the said letter he had handed over certified copies of the documents mentioned therein to the IO. He stated that D-60 which is certified copy of register for particulars of PA/PS Pass to the Member (pg No.230) was certified by him after comparing with the original and is Ex.PW17/H. He stated that a register for particulars of PA/PS pass to Member is maintained for the purpose of their records and every six months when the pass was renewed, the register was updated. As per the record Shri Arvind Kumar remained the PS of Dr. Vinay Kumar Pandey from 24.09.2012 to 31.05.2014. The signatures of the Member were made in the column meant for that purpose but he did not identify the signatures of Dr. Vinay Kumar Pandey as he was not posted there in 2012. Thus, PW17 had deposed that letter dated 26.09.2012 was written by Shri Vinay Kumar Pandey to Secretary General for issuance of PA/PS pass in favour of Shri CBI Vs. Vinay Kumar Pandey & Anr. Page No.306 of 361 Arvind Kumar from CPIC on the basis of which, pass was issued in favour of Shri Arvind Kumar on behalf of Dr. Vinay Kumar Pandey as per their records and the certified copy of the letter is Ex.PW17/E. It is pertinent that even A1 in his statement under Section 313 Cr.P.C. had stated that he wrote a letter dated 26.09.2012 on his letter head to Secretary General, Parliament requesting for issuance of a PA/PS pass in favour of A2 who was his personal secretary from 26.09.2012 onwards on the basis of the details given by him in the form for the issuance of General Pass for PS/PA of an MP to the Centralised Pass Issue Cell, Lok Sabha Secretariat with his signatures, however, it was not a general pass but a pass for PA/ PS. PW17 also proved the certified copy of form for general pass for PA/PS of Member Lok Sabha dated 24.09.2012 containing the declaration of Shri Vinay Kumar Pandey regarding appointment of Shri Arvind Kumar as his PA/PS as Ex.PW17/F and the certified copy of the register for particulars of PA/PS Pass to the Member (pg No.230) as Ex.PW17/H as per which Shri Arvind Kumar remained the PS of Dr. Vinay Kumar Pandey from 24.09.2012 to 31.05.2014.
311. During cross-examination by Ld. Counsel for A1, PW17 stated that the rule regarding police verification of the PA/PS existed even prior to 2016. His statement was recorded by the IO. He admitted that he had stated to the IO that the police verification was got done by CPIC and volunteered police verification was got done by the Member but in case of doubt CPIC also got the same done. He had stated to the IO that police verification was got done by the Member and in case of doubt, the same was got done by CPIC. He was confronted with the statement Ex.PW17/P1 wherein it was not so stated. He could not CBI Vs. Vinay Kumar Pandey & Anr. Page No.307 of 361 say whether in the present case police verification was got done by CPIC and volunteered he was not in CPIC at the relevant time and if the pass was issued, police verification would have been done. Thus, PW17 was cross-examined regarding who had got the police verification of the PA/PS done and there were discrepancies in his statement in that regard but he had also volunteered that he was not in CPIC at the relevant time. Even otherwise, nothing much turns on the same when he had mainly proved the documents i.e. the letter written by A1 to Secretary General for issuance of PA/PS pass in favour of Shri Arvind Kumar from CPIC, certified copy of form for general pass for PA/PS of Member Lok Sabha dated 24.09.2012 containing the declaration of Shri Vinay Kumar Pandey regarding appointment of Shri Arvind Kumar as his PA/PS and further deposed that as per the record Shri Arvind Kumar remained the PS of Dr. Vinay Kumar Pandey from 24.09.2012 to 31.05.2014.
312. During cross-examination by the Ld. Counsel for A2, PW17 admitted that in Ex.PW17/E there was no mention of any identification of Shri Arvind Kumar such as father's name, passport number, Aadhar number or his address. In Ex.PW17/H there were no signatures of the Member in the column meant for same against the name of Shri Arvind Kumar. He stated that from Ex.PW17/H it could not be said when Arvind Kumar became PS of Dr. Vinay Kumar Pandey for the first time and volunteered he could have been PS earlier as well. The signatures of the PA/PS were obtained in the same register. The signatures at point X to X1 were of Shri Arvind Kumar as the signatures are of the person who was appointed as PA/PS. In the name of the PA/PS the name was written as Arvind Kumar and the signatures were in the CBI Vs. Vinay Kumar Pandey & Anr. Page No.308 of 361 name of Arvind Tiwari. He could not say if Arvind Kumar and Arvind Tiwari are one and the same person and volunteered he was not posted in CPI Cell at the relevant time. When asked if it was correct that the specimen signature of proposed PA/PS had been given in Ex.PW17/F at point X to X, he stated that the same was matter of record. He denied the suggestion that Ex.PW17/H was not a genuine document or that he had not tallied the same with the original. Thus, in Ex.PW17/E there was no mention of any identification of Shri Arvind Kumar such as father's name, passport number, Aadhar number or his address and in Ex.PW17/H there were no signatures of the Member in the column meant for same against the name of Shri Arvind Kumar. However, he stated that the signatures at point X to X1 were of Shri Arvind Kumar as the signatures are of the person who was appointed as PA/PS. He had stated that in the name of the PA/PS the name was written as Arvind Kumar and the signatures were in the name of Arvind Tiwari but nothing much turns on the same as it is not necessary that the signatures should be same as the name entered. He could not say if Arvind Kumar and Arvind Tiwari were one and the same person but it is also seen that A1 had not disputed that A2 was the PA/PS of A1 and a perusal of Ex.PW23/B which is the Form for General Pass for PA/PS of a Member in the name of A1 for issuance of PA/PS pass in favour of A2 as well, the name of the PA or PS is mentioned as Arvind Kumar whereas the signatures are in the name of Arvind Tiwari.
313. PW21 Shri Satish Gupta, Dy. Director (Technical), Lok Sabha Secretariat, Parliament Security deposed that in November 2016, he was posted as Security Officer (Technical) in Lok Sabha Secretariat. He stated that they were using Integrated CBI Vs. Vinay Kumar Pandey & Anr. Page No.309 of 361 Pass Issuing System for issuing of passes. There was a Central Pass Issuing Cell which issued passes to all PA/PS of concerned MPs. A form was filled up for the said purpose by the PA/PS which was endorsed by the concerned MP. Prior to that the concerned MP would sent a request letter to the Secretary General, Lok Sabha for issuing a pass for PS/PA. The form was submitted in CPIC by the PS/PA, his photograph was taken and the pass was made for six months. Police verification of the PA/PS was also got done for issuing pass after the letter was sent to the Secretary General. The pass could be extended after six months and even thereafter if the concerned MP made the request. The details of the pass were stored in IPIS software maintained by the CCS Technical Wing in the Parliament. Thus, PW21 had stated the procedure for issuance of a PA/PS pass which was materially the same as deposed by PW17.
314. PW21 also stated that vide D-133 which is seizure memo dated 11.07.2017, the documents mentioned therein were seized by Insp. Mohan Kumar, CBI, AC-III from him and the same is Ex.PW21/D. He had certified D-111 which is copy of Lok Sabha Pass for PA/PS No.07/01/001546 issued to Anil Kumar as PA/PS to Dr. Vinay Kumar Pandey @ Vinnu for the period from 13.01.2014 to 31.05.2014 and the same is Ex.PW21/E. He had certified the same on the basis of the record maintained in their server system. The Pass was first issued to Arvind in September 2012 and thereafter extended. He stated that the ID number of the Pass remained the same and did not change when it was extended. He was not cross-examined on behalf of A2 despite opportunity being given. Thus, PW21 had also stated about the pass being issued to A2 though the name was stated as CBI Vs. Vinay Kumar Pandey & Anr. Page No.310 of 361 Anil Kumar and the pass was issued from 13.01.2014 to 31.05.2014 which period is not relevant for the present case. He had stated about the pass being issued to A2 first in September, 2012 and that thereafter it was extended.
315. PW23 Smt. Veena Negi deposed that in February, 2017, she was posted as Executive Officer in Lok Sabha Secretariat and she was posted as Assistant in CPIC Cell when it was newly set up but she did not remember the date and year. She stated that in Mark-PW17/C (D-126), which is letter dated 26.09.2012 written by A1 to Secretary General Lok Sabha Secretariat, the marking 0701/1546 had been written by her in her handwriting and the said document is Ex.PW23/A. She stated that the said marking was done by her as PA/PS Pass was issued on request of Dr. Vinay Kumar Pandey. She identified the signatures of Dr. Vinay Kumar Pandey on the same on the basis that the letter was written by him and otherwise she did not identify his signatures. She stated that 0701/1546 was the Pass Number issued to PS/PA of Dr. Vinay Kumar Pandey. As per the letter, the pass was issued to Shri Arvind Kumar. The identity number IC461 written below the signatures of A1 was the identity number of A1/concerned MP. She stated that she had written on Mark-PW17/D (D-127), which is original form for general pass for PA/PS of the Member dated 24.09.2012, the number 0702/1546 in her hand and the said document is Ex.PW23/B. Perhaps, there was a mistake while writing the number in Ex.PW23/B but the pass number issued to PS/PA of Dr. Vinay Kumar Pandey was 0701/1546. The material number was 1546.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.311 of 361
316. PW23 stated that the letter of request and application form for issuance of PA/PS pass were received by their Officers from the concerned MP, who marked the same to them for issuance of the pass. The same was sent to Watch and Ward/ Security for verification. If the verification was done, then the pass was issued by them. She stated that she used to make the pass and then send it to the officer for signatures. Before the pass was handed over to the PA/PS or the MP concerned, entry regarding the same was made in a register maintained for the purpose. The signatures of the person, who received the pass were obtained in the register. The pass was not handed over to any third person. She deposed that the entry in D-125 (from pages 1-308), which is original register for particulars of PA/PS pass to MP concerned page No.230 (printed number) and page No.231 (in blue ink) had been made by her. The register is Ex.PW23/C. The pass number 1546 was issued to Arvind Kumar, Address 143, South Avenue on 24.09.2012 valid upto 31.12.2012. The pass was received by Shri Arvind Kumar as shown by his signatures in the remark column at point B. Thus, PW23 had also stated about the procedure for issuance of the PA/PS pass and further that in Mark-PW17/C (D-126), the marking 0701/1546 had been written by her in her handwriting which was done by her as PA/PS Pass was issued on request of Dr. Vinay Kumar Pandey. She also stated that 0701/1546 was the Pass Number issued to PS/PA of Dr. Vinay Kumar Pandey and that as per the letter Ex.PW23/A, the pass was issued to Shri Arvind Kumar. She reiterated that the pass number 1546 was issued to Arvind Kumar, Address 143, South Avenue on 24.09.2012 valid upto 31.12.2012 and the same was received by CBI Vs. Vinay Kumar Pandey & Anr. Page No.312 of 361 Shri Arvind Kumar as shown by his signatures in the remark column at point B.
317. PW23 further deposed that the said pass was renewed from time to time and entries had been made by her except the entry for renewal of pass from 03.01.2013 to 30.06.2013. On that day, she may have been on leave. There were signatures of Shri Arvind Kumar towards receipt of the pass every time it was renewed. She was not cross-examined on behalf of A1 despite opportunity having been given. During cross-examination by the Ld. Counsel for A2, PW23 stated that she did not identify the signatures of Shri Arvind Kumar and volunteered whoever received the pass would sign in the register and the officer used to bring the concerned person to whom the pass was issued with or without the MP concerned. She could not admit or deny the suggestion that the signatures at point B on Ex.PW23/C were not of Arvind Kumar and volunteered whoever had been brought to take the pass would have signed the register. She could not say if A2 had come in her presence and signed the register and volunteered she did not know A2 and her job was to prepare the pass and issue the pass and the same could be handed over to the concerned person by anyone in the office after obtaining the signatures in the register. As such, PW23 had stated that she did not identify the signatures of Shri Arvind Kumar but she reiterated that whoever had been brought to take the pass would have signed the register and it is not the case put up on behalf of A2 that PA/PS pass was never issued to him and in fact no suggestion was put to the witnesses that no such pass was ever issued to A2. During cross-examination by Ld. Counsel for A2, PW18 was shown D-126 and D-127 and asked if permission was CBI Vs. Vinay Kumar Pandey & Anr. Page No.313 of 361 taken from the Hon'ble Speaker for handing over the documents to the IO to which he stated that he would be able to say only if the document was in his custody and nothing much turns on the same.
318. The CBI had also got the signatures of A2 in the original register for particulars of PA/PS pass to MP Ex.PW23/C examined by CFSL. The CBI had sought to collect some documents which could be used as admitted handwriting and signatures of A2 for the purpose of comparison as the request of the CBI seeking permission to obtain specimen signatures of A2 was disallowed vide order dated 24.01.2020 of my Ld. Predecessor. However, the request of CBI for taking back the document D-127 for sending the same to CFSL for obtaining expert opinion was allowed as also to collect admitted signatures of A2 from any other document. The questioned document and specimen documents were sent to CFSL for examination. PW46 was recalled for re-examination after filing of supplementary charge sheet and was shown D-134 which is forwarding letter dated 10.07.2018 and report dated 29.06.2018 bearing No.CFSL/2017/D-1299 (three pages). She stated that the letter was signed by Shri N.B. Bardhan, Director CFSL, New Delhi whose signatures she identified and the same is Ex.PW46/G. By the said letter the report dated 29.06.2018 was forwarded to SP CBI AC-III. The report bore her signatures on both the pages and is Ex.PW46/H and also her rubber stamp on the second page. She was shown D-132 which is specimen signatures of A2 Arvind Kumar @ Arvind Tiwari, S/o Shri Gyanendra Tiwari from S-1 to S-10 bearing the rubber stamp of CFSL on each page bearing case No.CFSL 2017/D-1299 and the same is Ex.PW46/I CBI Vs. Vinay Kumar Pandey & Anr. Page No.314 of 361 (colly). She stated that the specimen signatures along with questioned signatures were sent to CFSL for examination and furnishing of expert opinion. She was shown D-125 which is Ex.PW23/C and page 231 of Ex.PW23/C was the questioned document Marked Q1 and the same bore the stamp of CFSL and case No.CFSL 2017/D-1299. She stated that after the examination, further material i.e. admitted and specimen signatures were asked for to arrive at any opinion.
319. A perusal of the report Ex.PW46/H shows that it was stated therein:
"The questioned signatures marked Q-1 when scientifically examined and compared with the specimen signatures marked S-1 to S-10 attributed to Arvind Kumar @ Arvind Tiwari, after examination and comparison, it has been felt necessary to have admittedly genuine signatures of the contemporary period along with few more sheets of specimen signatures containing similar comparable material as that of the questioned ones of the person concerned for further examination and to arrive at any opinion."
Thus, further material was sought for the purpose of examination and to arrive at any opinion regarding the alleged signatures of A2 on Ex.PW23/C. During cross-examination by Ld. Counsel for A2 PW46 admitted that at present the report was inconclusive and volunteered further material i.e. admitted and specimen signatures were asked for to arrive at any opinion. As such, in respect of the alleged signatures of A2 on Ex.PW23/C, the report was inconclusive. However, merely on that basis, it cannot be disputed that A2 was the PA/PS of A1. It is pertinent that A1 in his statement under Section 313 Cr.P.C. had admitted that he had written a letter dated 26.09.2012 requesting for issuance of a CBI Vs. Vinay Kumar Pandey & Anr. Page No.315 of 361 PA/PS pass in favour of A2 and he had also stated that it was a matter of record that on the basis of the said letter, pass was issued in favour of A2 on his behalf as per the record as also that A2 remained his PS from 24.09.2012 to 31.05.2014. He also stated that it was a matter of record that the Pass was first issued to A2 in September 2012 and thereafter extended and that the ID number of the Pass remained the same and did not change when it was extended and in fact, he stated that as per the record, the same was Mr. Arvind Kumar and not Anil Kumar as per Ex.PW21/E. He also stated that it was a matter of record that pass number 1546 was issued to A2, Address 143, South Avenue on 24.09.2012 valid upto 31.12.2012 and the pass was received by A2 and that the pass was renewed from time to time.
320. A2 in his statement under Section 313 Cr.P.C. had admitted that A1 had issued letter for issuance of pass to him as PS but his role was specified only to the extent of taking care of affairs of A1 at his residence especially regarding the management of staff and taking care of the people who used to come at the residence of A1 from his constituency. He had admitted that request of renewal of his appointment as a PS of A1 was made by A1 but nowhere in the records his signature was taken and in the records especially in the document Ex.PW17/H, his signatures were not available. It is pertinent that a request for renewal of appointment of A2 as PS of A1 could have been made only if A2 was appointed as the PS of A1 in the first place, thus it is clear that A2 was working as the PS of A1. It may be that A2 denied his signatures in Ex.PW17/H but that does not take away from the fact that A2 was working as PS of A1. A2 in his statement under Section 313 Cr.P.C. had stated that the alleged CBI Vs. Vinay Kumar Pandey & Anr. Page No.316 of 361 form for issuance of pass for PA/PS had not been filled up by him and his photographs were not taken by the CCS technical wing of the Parliament but it has come on record that the PA/ PS pass was issued to A2 and thereafter renewal of the same was also sought and he himself had admitted that his pass for PA/PS was extended from time to time but he had never filled up the form for issuance of pass and never ever his photographs and signatures were taken by security personnel or concerned officials engaged in the security of the Parliament. Thus, even A2 was aware that his pass for PA/PS was extended from time to time. He had stated that he was not aware whether pass bearing No.0701/1546 was issued to him or not as he had never applied for issuance of pass to him as PA/PS of A1 and that he had never gone to the Parliament premises to collect the pass as PA/PS of A1 but it is seen that he was aware that his pass was extended from time to time and he had admitted that in his knowledge his pass as PA/PS of A1 was renewed on various occasions without obtaining his signature or photographs and further he had never applied for renewal of pass for PA/PS of A1. He had stated that 143, South Avenue was allotted to A1 and he (A2) was not residing at the said address and his address at that point of time in Delhi was at Masjid Mod, South Ex. Part-II but it also shows that he was aware of the said address.
321. PW5 and PW56 were cross-examined regarding salary being paid to A2 as PA/ PS and during cross-examination by the Ld. Counsel for A2, PW5 stated that at present, the maximum salary which was payable to the PS/PA of a Member was Rs.40,000/- and he did not remember what was the salary payable in 2012 but it was payable by the MSA Branch. He did CBI Vs. Vinay Kumar Pandey & Anr. Page No.317 of 361 not personally have any document showing that the salary was paid to Shri Arvind Tiwari but the branch would have the said document. He denied the suggestion that no salary was paid to Shri Arvind Tiwari as PA of Shri Vinay Kumar Pandey from the MSA Branch in 2012. Thus, PW5 had stated that salary was payable to PS/PA by MSA branch though he did not personally have any document showing that the salary was paid to A2 and stated that the branch would have the said document. However, no such document has been produced on record.
322. PW8 had proved that she had handed over certain documents to CBI and she proved D-105 which is seizure memo dated 22.12.2016 as Ex.PW8/A and D-106 which is a letter dated 22.12.2016 as Ex.PW8/B. In para 6 of the letter, it was stated that "with regard to original documents pertaining to appointment of Shri Arvind Kumar as PS to Shri Vinay Kumar Pandey, it may be mentioned that Shri Vinay Kumar Pandey had never informed the Lok Sabha Secretariat about the appointment of Shri Arvind Kumar as his PS. He had also never requested for payment of salary to Shri Arvind Kumar for being his Personal Secretary and no payment had been made by the Secretariat to Shri Arvind Kumar in such a situation, the MSA Branch is not in possession of any such document." During cross-examination by Ld. Counsel for A1, PW8 stated that she did not remember to whom a Member had to address a letter for appointment of PS. She stated that the information in para 6 of the letter was given after approval from the competent authority. She denied the suggestion that despite the documents on record qua the matter referred to in para 6, she gave a wrong information to the DIG, CBI, fully knowing that she was furnishing a false information. CBI Vs. Vinay Kumar Pandey & Anr. Page No.318 of 361 Thus, PW6 had stated that the information in para 6 of the letter was given after approval from the competent authority. Further what was stated in the letter cannot be regarded as false information as none of the witnesses have stated about salary being paid to A2 by MSA Branch and even A1 had stated in his statement under Section 313 Cr.P.C. about paying salary to A2 in cash. It may be mentioned that A2 in his statement under Section 313 Cr.P.C. had stated that he had never received any salary or allowance from A1 as PA of A1 but he had worked for him on specific occasions. He had association with him to take care of the people who used to come at the residence of A1 from his constituency especially regarding their medication in AIIMS, Safdarjung, their arrangements for railway tickets etc. As such A2 himself had admitted working for A1 on specific occasions and of having association with A1.
323. During cross-examination by the Ld. Counsel for A2, PW56 stated that he had inquired regarding salary paid to A2 from Lok Sabha Secretariat and it was found that no salary was being paid to A2 from the Lok Sabha Secretariat and volunteered however, it had also come during investigation that A2 was the PA of A1. He denied the suggestion that if a person is a PA, salary would be paid to him and volunteered even if salary was not paid to a person he could be the PA. He did not recall if he had examined any witness who could state about the policy regarding the salary to be paid to the PA of an MP. He denied the suggestion that he had not done any investigation in the said regard or that he was giving an evasive reply by stating that he did not remember. He could not tell even on seeing the charge- sheet if any witness had been examined in the said regard. CBI Vs. Vinay Kumar Pandey & Anr. Page No.319 of 361 During investigation, it did not come out as to whom salary was paid as the PA of A1. Thus, PW56 stated that it was found that no salary was being paid to A2 from the Lok Sabha Secretariat and it did not come out as to whom salary was paid as the PA of A1. However, only on the basis that salary was not paid to A2 from Lok Sabha Secretariat, it cannot be said that A2 was not the PA of A1 and in fact A1 in his statement under Section 313 Cr.P.C. had stated that he used to give cash to Arvind Tiwari to deposit in the bank during the said period for which he never took any account from him whether he had deposited the same or not. He stated that he used to give cash salary to Arvind Tiwari and not just to him but he was also paying his driver, cook etc in cash and Arvind Tiwari being the PS used to manage everything. Thus, A1 had categorically stated about A2 being his PS.
324. The witnesses were also examined regarding any entry being recorded if the PA/PS entered the Parliament and during cross-examination by the Ld. Counsel for A2, PW5 stated that he did not remember the dates on which Shri Arvind Tiwari had come to MSA Branch for work of Shri Vinay Kumar Pandey. He stated that there was no entry in any register for coming to the MSA branch. Whether anyone could be allowed to come into the MSA branch was a matter pertaining to the security and not to him. He stated that the concerned person had to show the pass to the security for entry into the MSA Branch. A question was put to him as to on the day that Shri Arvind Tiwari came to MSA Branch, did he show the pass to security which was disallowed as the witness had already stated that the matter pertained to security. PW5 stated that A2 used to come to him alone in 2012. In 2012 A2 used to wear spectacles. He did not remember how CBI Vs. Vinay Kumar Pandey & Anr. Page No.320 of 361 many times A2 met him in 2012. He did not remember how many other PAs had met him in 2012 and volunteered no such record was maintained. He stated that if a PA or PS appeared before him, then only he could say if he remembered him from 2012. He could not narrate the names of the PAs of 29 MPs of MP and 26 MPs of UP in 2012. Thus, PW5 could not narrate the names of PAs of other MPs but he had stated about A2 coming to MSA branch for work of A1 and no suggestion was put to him that he had never met A2. During cross-examination PW56 stated that during investigation, Belamu Ram, who had received the TA bill did not remember who had submitted the TA bill in question to him. He did not remember, if any register was maintained, where the TA bill was submitted in the Lok Sabha Secretariat. He denied the suggestion that register was maintained for the said purpose and he deliberately and intentionally did not produce the register before the Court. Thus, PW56 stated that PW5 did not remember who had submitted the TA bill in question and even PW5 had not stated specifically that A2 had submitted the TA Form in question though he had stated about A2 coming to the MSA branch.
325. PW21 had deposed that when the concerned PA/PS entered the Parliament, on the basis of the bar code on the pass which was scanned by the security personnel, the location from which the entry was made was recorded in the server. He identified his signatures on D-128 which is a letter dated 11.07.2017 addressed to Superintendent of Police, CBI, AC-III and the same is Ex. PW21/A. Vide the said letter, he had provided the documents attached with the letter. He identified his signatures and rubber stamp on D-129 which is certificate under CBI Vs. Vinay Kumar Pandey & Anr. Page No.321 of 361 Section 65 B of Indian Evidence Act dated 11.07.2017 and the same is Ex.PW21/B. He stated that he had certified D-130 which is person log report with respect to ID 0701 and PID 001546 from 03.11.2012 to 06.11.2012 and the same is Ex.PW21/C. He stated that the said person log report was generated from the computer and thereafter he certified the same. As per the same, on 06.11.2012 at 11.18.34 a.m. accused Arvind entered the Parliament from VIP gate through flap barrier 2A located at Parliament House Annexe. There was only one entry by accused Arvind during the said period as per the record. It is pertinent that A1 in his statement under Section 313 Cr.P.C. had not denied the same and stated that it was a matter of record.
325-A. During cross-examination by the Ld. Counsel for A1, PW21 stated that he had not stated in Ex.PW21/B as to from which computer the same was taken out and volunteered the material was stored in the server and there were many work- stations. It was not stated in Ex.PW21/B from which printer the print was taken out and volunteered he could identify the said printer and computer. He stated that the server was maintained by ECIL and was not in his exclusive control. He denied the suggestion that neither he had taken the printout of Ex.PW21/C nor he was authorized to do so or that the certificate Ex.PW21/B was not in compliance with Section 65B of Indian Evidence Act. Thus, PW21 had stated about the person log report as per which, on 06.11.2012 at 11.18.34 a.m. accused Arvind entered the Parliament from VIP gate through flap barrier 2A located at Parliament House Annexe and there was only one entry by accused Arvind during the said period as per the record. It was contended on behalf of A1 that Ex.PW21/B was not in CBI Vs. Vinay Kumar Pandey & Anr. Page No.322 of 361 compliance of Section 65B of the Indian Evidence Act and PW21 was also cross-examined regarding the same but it is also seen that no suggestion whatsoever was put to PW21 that A2 had not entered the Parliament House on the said date at the said time. A2 in his statement under Section 313 Cr.P.C. had admitted that on various occasions he had visited the Lok Sabha Secretariat and even Parliament House but for that the CISF followed all the protocols of security and photographs were taken. He stated that in the present case, CBI had not filed any evidence of his photographs being taken by CISF. However, the person log report is there though it is of 06.11.2012 whereas the TA Form Ex.PW4/E was dated 05.11.2012 and even the bill Ex.PW5/B was prepared on the basis of the Form on 05.11.2012. It thus stands established that A2 was the PA/PS of A1 at the relevant time and a PA/PS pass was issued to A2 at the request of A1 though there is nothing specific to show that A2 had gone to submit the TA form Ex.PW4/E as the bill prepared on the basis of the said form was dated 05.11.2012 whereas the entry of A2 is stated to be of 06.11.2012.
326. It is then the case of the prosecution that the TA form Ex.PW4/E was filled up by A2 and CBI had sent the questioned documents along with specimen writing of A2 to CFSL for examination. In this respect, specimen handwriting of A2 was obtained for the purpose of being sent to CFSL. PW52 Shri Ajay Kumar Meena, ASO in Delhi Jal Board, Enforcement Division deposed that on 18.07.2016, he was posted in Vigilance Branch as UDC. A letter was received in his office from CBI requesting for two witnesses and he and Shri Satyajit Kumar were deputed to be the witnesses. On 18.07.2016 he reached the CBI office at CBI Vs. Vinay Kumar Pandey & Anr. Page No.323 of 361 10 a.m. The details of personal journey were given by Arvind Tiwari in his handwriting in his presence and the same are S-9 to S-24 and his signatures are there on every page. The said document is Ex.PW46/F (colly). He was not sure if the person whose handwriting was taken was present in the Court that day or not. The Ld. SPP had pointed out A2 but the witness stated that he was still not sure though the face appeared familiar. Thus, PW52 had deposed about the specimen handwriting of A2 being taken in his presence though he was not sure if the person whose handwriting was taken was present in the Court or not.
327. During cross-examination by the Ld. Counsel for A2, PW52 stated that he was called to AC-III in CBI but he did not remember the name of the officer who called him. The letter requiring two witnesses was received in his office but not by him personally. The letter was received by AO (Vigilance). He was not sure on which date the said letter was received by AO (Vigilance). AO (Vigilance) had given a written order deputing him and Shri Satyajit Kumar to be witnesses. He had taken the said authority letter with him to the CBI office. He had not brought the said letter that day. He would have to check if the said letter was still in his possession. He denied the suggestion that no such letter was given to him or that he was stating to that effect at the instance of CBI. He stated that he had been to the CBI office as witness in several cases. He remained in the CBI office from about 10 a.m. to 3-4 p.m. on 18.07.2016. He had made entry at the gate of CBI office regarding the time. He had not made any entry or put any signatures at the time of leaving the CBI office. He did not remember if he had got a pass made for entry into CBI office on 18.07.2016 and volunteered at times CBI Vs. Vinay Kumar Pandey & Anr. Page No.324 of 361 direct entry was also made. He did not remember if on 18.07.2016 he had called IO Mohan Kumar and entered the office of CBI directly. He reached the cabin of the IO at 10 a.m. and volunteered he had shown the letter to the Duty Officer who made the entry and then he went to the cabin of the IO. He did not remember who was present in the cabin of IO Mohan Kumar when he reached there. He did not remember for how much time he remained in the cabin of the IO. He could not say exactly how many persons came in the cabin of the IO in his presence and volunteered apart from him and Mr. Satyajit Kumar, there were three-four other persons including the person whose handwriting was taken. The person whose handwriting was taken came just after he and Satyajit Kumar reached the cabin of the IO. He also remained there till 3 to 4 p.m. He had put his signatures on Ex.PW46/F (colly) after the said person had given the specimen handwriting. As he was in the Vigilance branch of DJB, his duty was often put for going to the CBI office. He remained in the Vigilance branch for about two years. He denied the suggestion that the specimen handwriting in Ex.PW46/F (colly) was not written in his presence. He stated that he had come to the Court for deposing for the third time that day. He admitted that in all the three matters he had come to depose in CBI matters but he denied that he had come always only to identify the handwriting. He denied the suggestion that he had deposed falsely at the instance of CBI. Thus, PW52 was extensively cross-examined on behalf of A2 but nothing material has come out in his cross- examination to doubt that the specimen handwriting Ex.PW46/F (colly) was taken in his presence.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.325 of 361
328. PW53 was the other witness in his whose presence, as per the case of CBI, the specimen handwriting of A2 was taken. PW53 Shri Satyajit Kumar, Senior Assistant, AC (Water) Delhi Jal Board deposed that on 18.07.2016, he was posted in Directorate of Vigilance Branch as UDC. A letter was received in his office from CBI requesting for two witnesses and he and Shri Ajay Meena from his department were deputed to be the witnesses. On 18.07.2016 he reached the CBI office at about 10 a.m. The handwriting given by Arvind Tiwari was identified by him and he put his signatures on S-9 to S-24 on every page at point C. The said document is Ex.PW46/F (colly). He identified Arvind Tiwari present in the Court. Thus, PW53 had identified the handwriting given by A2 and he also identified A2 in the Court. During cross-examination by Ld. Counsel for A2 PW53 stated that he was called to AC-III in CBI but he did not remember the name of the officer who called him. The letter requiring two witnesses was received in his office in the name of Directorate of Vigilance but not by him personally. He did not remember on which date the said letter was received by Directorate of Vigilance. The Directorate of Vigilance gave a forwarding letter to him and he took the same to the CBI office. He did not remember the date on which the Directorate of Vigilance had given him the forwarding letter. He had taken the said authority letter with him to the CBI office. He had not brought the said letter. He was not sure if the said letter was still in his possession. He denied the suggestion that no such letter was given to him or that he was stating to that effect at the instance of CBI. He stated that he had been to the CBI office as witness in two-three cases apart from the present case. He used to CBI Vs. Vinay Kumar Pandey & Anr. Page No.326 of 361 go to the CBI office in every case as a witness. He used to be a witness to search or to the documents. He had been a witness to handwriting or signatures in one or two cases apart from the present case. He did not remember till what time he remained in the CBI office on 18.07.2016. He did not even remember for how many hours he remained in the CBI office on that day. He reached the cabin of the IO around 11 a.m. He did not remember who was present in the cabin of the IO when he reached there. He did not remember how much time he remained in the cabin of the IO.
329. PW53 further stated that in his presence the accused Arvind Tiwari had written the documents and he had verified the same. It took the accused about 1-2 hours to write the documents. He identified the accused Arvind Tiwari as he had come to the office of CBI and he had seen him there. He had seen the accused Arvind Tiwari for the first time in 2016. He had not seen him thereafter. He admitted that when he reached the cabin of the IO on 18.07.2016 at about 11 a.m., the accused Arvind Tiwari was not present there and volunteered he reached later. He did not remember for how much time Arvind Tiwari remained in the cabin of the IO on 18.07.2016. He stated that he was posted in Directorate of Vigilance, so he was deputed as witness on request by CBI. He was posted in the Vigilance Department for about two years. He denied the suggestion that he did not identify the accused Arvind Tiwari or that at the behest of CBI he had identified him that day. He did not remember how many persons he had met on 18.07.2016 from morning till evening. He denied the suggestion that he was deposing falsely at the instance of CBI. Thus, PW53 was also extensively cross-examined on behalf CBI Vs. Vinay Kumar Pandey & Anr. Page No.327 of 361 of A2. A2 in his statement under Section 313 Cr.P.C. had stated that PW56 had manipulated various documents especially he did not take his specimen signature in course of investigation. Further, he had never taken his signatures in the course of investigation before the alleged two independent witnesses. However, nothing material has come out in the cross-examination of PW52 and PW53 to doubt that the specimen handwriting Ex.PW46/F (colly) was taken in their presence or to doubt identification of A2 by PW53 in the Court.
330. PW46 had proved the CFSL report No.CFSL-2016/D- 1085 dated 25.11.2016 as Ex.PW46/B. She was shown D-95 which is specimen handwriting of A2 Shri Arvind Tiwari, marked S9 to S24 (16 pages) bearing stamp of CFSL, CBI, New Delhi with case number and exhibit number on every page which she identified and the same is Ex.PW46/F (colly). She was shown D- 3 which is Ex.PW4/E and contained the questioned signatures and handwriting marked Q-1, Q-4 to Q-6 and bore the rubber stamp of CFSL, CBI, New Delhi with case number and exhibit number Q-1, Q-4 to Q-6. She was shown D-32 which is Ex.PW2/G and contained the questioned signatures and handwriting marked Q-2, Q-3, Q-7 and Q-8 and bore the rubber stamp of CFSL, CBI, New Delhi with case number and exhibit number Q-2, Q-3, Q-7 and Q-8. She was also shown D-47 which is Ex.PW5/B and contained the questioned signatures and handwriting marked Q-9, Q-10 and Q-11 and bore the rubber stamp of CFSL, CBI, New Delhi with case number and exhibit number Q-9, Q-10 and Q-11. Thus, Q4 to Q6 are the questioned handwriting in Ex.PW4/E which was alleged to have been filled CBI Vs. Vinay Kumar Pandey & Anr. Page No.328 of 361 by A2. In the report Ex.PW46/F (colly), PW46 had opined as under:
"Handwriting evidence points to the writer of the specimen English writings marked S-9 to S-24 attributed to Arvind Tiwari being the person responsible for writing the questioned English writings marked Q-4 to Q-6 and Q-11, due to the following reasons:
The questioned English writings are written freely showing smooth line quality and natural variations. Qualities of imitation are not present in them. The specimen English writings are also written freely showing smooth line quality and natural variations.
Both the questioned and the specimen English writings agree with each other in general and individual writing characteristics such as movement, slant, spacing, alignment, relative size & proportion of letters. The skill & line quality of the questioned English writings are also found consistent with these qualities of the specimen English writings."
Some of the points of similarity were detailed in the report including similar habit of putting vertical strokes between day, month and year in both the sets of writings. It was then opined "I have not observed any fundamental difference between both the sets of writings. Cumulative consideration of the aforesaid points of similarity observed in both general and individual writing characteristics constitute the basis for the aforesaid opinion." Thus, in respect of the questioned writing on the TA Form Ex.PW4/E, PW46 had opined that the handwriting evidence pointed to A2 being responsible for writing the questioned writing as also in respect of Q11 which was part of the declaration and receipt acknowledgement submitted with the TA. No suggestion was put to PW46 to dispute her report on behalf of A2 and even in the cross-examination done on behalf of A1, nothing had come out to doubt the report. As such it stands CBI Vs. Vinay Kumar Pandey & Anr. Page No.329 of 361 established that the TA Form Ex.PW4/E was filled up by A2, more so once it has come on record that A2 was the PA/PS of A1.
331. It is also the case of the CBI that the cheque for Rs.2,50,000/- dated 9.11.2012 which was used to withdraw money from the account of the A1 bore the name and signatures of A2 at the back. The same was also sent to CFSL for examination and the questioned writing and signatures were Q7 and Q8. However, in that respect, it was stated in the CFSL report Ex.PW46/B that the same were compared with the specimen English writings marked S-9 to S-24 attributed to Arvind Tiwari and after comparison, it had been felt necessary to have a few more sheets of specimen English writings containing similar comparable material as that of the questioned ones of the alleged person for thorough scientific examination and to arrive at any opinion. Thus, it was in respect of the questioned writing and signatures on the cheque that the report had remained inconclusive.
332. CBI had tried to collect further documents in respect of the admitted signatures of A2 and the witnesses in this respect were also examined and PW54 Shri Manoj Kumar Ojha, Chief Manager, SBI Pratapgarh Branch was shown D-158 which is certified copy of specimen signatures of Shri Arvind Kumar given at the time of opening the account bearing No.30933155826. He stated that the same was certified by him and is Ex.PW54/A. The certificate under Section 65B of the Evidence Act is Ex.PW54/B. He proved D-150 which is letter dated 15.02.2021 written by him to Superintendent Police CBI AC-VIII and is Ex.PW54/C. Vide the said letter, he had attached CBI Vs. Vinay Kumar Pandey & Anr. Page No.330 of 361 the account statement and given information regarding the Account Opening Form. Certified copy of the Account Statement for the period 23.10.2009 to 01.11.2019 is Ex.PW54/D (colly). The said account was opened in 2009. He stated that he had received D-152 which is letter dated 12.04.2021 written to him by SP CBI AC-III and copy of the same is Mark PW54/1. He stated that D-153 which is E-mail dated 25.06.2021 was received by him and the same is Mark PW54/2. He stated that D-154 which is letter dated 30.07.2021 written by SP CBI AC-III was received by him and the same is Mark PW54/3. He stated that D-155 which is E-mail dated 30.07.2021 written by him to Insp. Attar Pal CBI is Mark PW54/4. He stated that D-144 which is letter dated 26.10.2020 written by SP CBI AC-III was received by him and copy of the same is Mark PW54/5. He stated that D- 146 which is E-mail dated 28.10.2020 written by IO Mohan Kumar was received by him and copy of the same is Mark PW54/6. He stated that D-147 which is E-mail dated 17.11.2020 written by IO Mohan Kumar was received by him and is Mark PW54/7. He stated that D-148 which is E-mail dated 02.02.2021 written by Insp. Attar Pal was received by him and copy of the same is Mark PW54/8. He stated that D-149 which is letter dated 08.02.2021 written by SP CBI AC-III was received by him and copy of the same which contains receiving of accountant Nisha is Ex.PW54/E. Thus, PW54 had deposed about the correspondence between him and the officials of CBI vide which the CBI had sought documents in respect of account No.30933155826 maintained in his branch in the name of Shri Arvind Kumar @ Arvind Tiwari and he had proved the certified copy of specimen signatures of Shri Arvind Kumar given at the CBI Vs. Vinay Kumar Pandey & Anr. Page No.331 of 361 time of opening the account bearing No.30933155826 as Ex.PW54/A and the account statement and information given regarding the Account Opening Form and he stated that the said account was opened in 2009.
333. During cross-examination by Ld. Counsel for A2, PW54 stated that he did not provide the account opening form in response to Ex.PW54/E. He admitted that the original of the account opening form of account No.30933155826 was not traceable and volunteered the scanned copy of account opening form was not available but of the specimen signatures and photo was available. Thus, PW54 had admitted that the original of the account opening form of account No.30933155826 was not available. PW54 had not produced any document which could show the name of the father and address of Arvind Tiwari and volunteered that the same was available in the system. He had not handed over any document to CBI showing the name of father and address of Arvind Tiwari. He denied the suggestion that no such document was handed over to CBI as it would have shown that the record in respect of Arvind Tiwari which was sought was not the same Arvind Tiwari as the one whose account was there in their bank. As such, PW54 had volunteered that the name of the father and address of Arvind Tiwari were available in the system but he had not handed over any document to CBI showing the same. The account statement Ex.PW54/D (colly) mentions the address of Arvind Kumar Tiwari of Pratapgarh but it is the contention of A2 that he had never lived there and no evidence has been produced by CBI to show that the said address belonged to A2.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.332 of 361
334. PW54 further stated that no action was taken against him for not providing the document as per D-154 i.e. Mark PW54/3. He stated that it was not possible to match the photograph in Ex.PW54/A with any person present in the Court that day. Again said, that person may be present in the Court. He stated that the scanning of Ex.PW54/A would have been done in 2009 itself but he could not tell the exact date. He had stated that the scanning was done in 2009 on the basis that when the account was opened the scanning was done though the date of scanning was not reflected in Ex.PW54/A. PW54 stated that in 2009, he was posted in Jagatpur Branch, Distt. Varanasi. He admitted that at the time of scanning of Ex.PW54/A, he was neither present in the Pratapgarh branch nor scanning was done in his presence and volunteered the same was done as per the system of the bank. Thus, PW54 initially stated that it was not possible to match the photograph in Ex.PW54/A with any person present in the Court that day though he again said, that person may be present in the Court, as such PW54 could not say with certainty that the person in the photograph was present in the Court. Even on a perusal of Ex.PW54/A, it is not possible to say from the photo if it was of A2 or not.
335. During further cross-examination PW54 denied the suggestion that the record which he had produced did not pertain to the accused present in the Court that day. He had not met Arvind Tiwari earlier. He had not seen Arvind Tiwari sign earlier. CBI had not handed over copy of PAN card of Arvind Tiwari @ Arvind Kumar to the bank. He stated that whenever a person opened an account in the bank, original address proof was seen. A copy of the same was retained and volunteered along with the CBI Vs. Vinay Kumar Pandey & Anr. Page No.333 of 361 account opening form which was not traceable in the present case. He denied the suggestion that he had deliberately not handed over the account opening form or address proof of Arvind Tiwari whose record he had produced as the said Arvind Tiwari and accused Arvind Tiwari were different persons. He could not admit or deny the suggestion that the accused Arvind Tiwari was not a resident of Pratapgarh and volunteered as per the record available with the bank, he was the resident of Pratapgarh. Thus, as per PW54, Arvind Tiwari whose record was produced was a resident of Pratapgarh but it is seen that no address proof or document showing name of father of Arvind Tiwari has been produced by PW54 and PW54 stated that the name of the father of Arvind Kumar Tiwari was not mentioned in Ex.PW54/D (colly). PW54 was also cross-examined regarding the certificate under Section 65B Indian Evidence Act and he stated that he had not mentioned the computer number or name or the make of the printer in Ex.PW54/B. He stated that there was no need to mention that the computer/ printer from which the print of Ex.PW54/A was taken was in a proper working condition and volunteered when the computer/printer was in working condition. He denied the suggestion that Ex.PW54/B was defective. Even otherwise, nothing much turns on the same as it cannot be said to be established that the record produced by PW54 pertained to A2 and judicial notice can also be taken of the fact that the specimen signatures in Ex.PW54/A do no tally with the signatures of A2 on record in the present case.
336. PW55 was also cross-examined on the record collected by him during investigation and during cross- examination by Ld. Counsel for A2, PW55 stated that when the CBI Vs. Vinay Kumar Pandey & Anr. Page No.334 of 361 investigation was entrusted to him in 2021, he had the complete details regarding accused Arvind Tiwari namely name of his father and residential address. They did not have copy of the Aadhar Card and PAN Card of Arvind Tiwari at that time. He could not admit or deny the suggestion that the copy of the Aadhar Card of accused Arvind Tiwari was already available with CBI as the same had been filed along with the application for bail and was duly verified by CBI and volunteered he was not aware if the same was got verified by CBI. It was argued that the copy of the Aadhar Card of A2 was submitted along with the application for bail filed on behalf of A2 and was even got verified by CBI but it is seen that PW55 could not admit or deny the same. However, it cannot be disputed that the same would have been available on record. During cross-examination PW56 did not remember, if he had verified the address given by A2 in the bail bond submitted before the Court. He stated that he was the IO at the time the bail bond was submitted by A2. He did not remember if he had taken the Aadhar card of A2 or if he had verified the same. Thus, PW56 was the IO at the time the bail bond was submitted by A2 but even he did not remember if he had verified the address given by A2 in the bail bond or if he had taken the Aadhar card of A2 and verified the same.
337. During cross-examination PW55 admitted that D-150 which is Ex.PW54/D (colly) did not contain the name of the father of the accused Arvind Tiwari. He had not verified the address mentioned in Ex.PW54/D (colly) nor done any investigation in respect of the same. He could not say if the address mentioned in Ex.PW54/D (colly) was not of the accused Arvind Tiwari. He denied the suggestion that the permanent CBI Vs. Vinay Kumar Pandey & Anr. Page No.335 of 361 address of the accused Arvind Tiwari was available with CBI and the same was different from the address mentioned in Ex.PW54/D (colly) and no investigation was done in respect of the same and he was deliberately stating that the address of the accused Arvind Tiwari mentioned in Ex.PW54/D (colly) was not incorrect. Thus, PW54 stated that he had not verified the address mentioned in Ex.PW54/D (colly) which is of Pratapgarh and there is no reason forthcoming why the verification was not done and he also stated that he had not obtained any permanent address of accused Arvind Tiwari nor got the same verified from the Lok Sabha Secretariat, for which again there is no explanation. He could not say that at the time of filing the charge sheet all the details of the accused Arvind Tiwari had already been obtained from Lok Sabha Secretariat, even otherwise, at the time of filing the charge sheet the said details would have been available and it is seen that in the charge sheet, the name of the father of A2 as well as his present address and permanent address are mentioned.
338. During further cross-examination PW55 admitted that D-127 which is Ex.PW23/B contained the permanent address of accused Arvind Tiwari. He admitted that D-139 which is Ex.PW55/B contained the permanent address of accused Arvind Tiwari as also the name of the father of the accused Arvind Tiwari. A perusal of Ex.PW55/B shows that the same was written by Inspector Mohan Kumar to the Manager, Transunion CIBIL Ltd. and is dated 24.08.2020 and contains the name of father and permanent address of A2 and as such the said particulars were available with CBI at the time of correspondence with SBI, Pratapgarh Branch. PW55 also admitted that D-132 which is CBI Vs. Vinay Kumar Pandey & Anr. Page No.336 of 361 Ex.PW46/I (colly) contained the name of father and permanent address of the accused Arvind Tiwari on every page. He admitted that D-158 which is Ex.PW54/A did not contain the name of father and address of accused Arvind Tiwari. The same was the copy of the bank account opening form of accused Arvind Kumar Tiwari. He denied the suggestion that the accused Arvind Kumar Tiwari mentioned in Ex.PW54/A was different from Arvind Kumar @ Arvind Tiwari mentioned in Ex.PW46/I (colly). Though PW55 had denied the suggestion that Arvind Kumar Tiwari mentioned in Ex.PW54/A was different from Arvind Kumar @ Arvind Tiwari mentioned in Ex.PW46/I (colly), it is seen that the prosecution has not been able to establish that the two were the same person.
339. PW55 further stated that in D-127, the name of the PA was mentioned as Arvind Kumar but as mentioned earlier, in D- 127, the signatures were in the name of Arvind Tiwari. In D-132, the name of the accused whose specimen signatures were obtained was mentioned as Arvind Kumar @ Arvind Tiwari and in D-139, the name was mentioned as Arvind Tiwari @ Arvind Kumar Tiwari. He denied the suggestion that despite the name of the accused being available as Arvind Kumar in D-127, the details in respect of Arvind Tiwari @ Arvind Kumar Tiwari were sought from the bank vide Ex.PW55/B and volunteered the details were sought in respect of Arvind Kumar @ Arvind Tiwari. He could not say that despite the address of the accused Arvind Tiwari being available as Village Purainiya, Post Bangain, Distt. Gonda in Ex.PW23/B and in Ex.PW46/I (colly), no verification was got done of the address of the accused Arvind Tiwari and volunteered the previous IO may have done the verification. CBI Vs. Vinay Kumar Pandey & Anr. Page No.337 of 361 However, it is seen that there is nothing on record to show that the verification was got done of the permanent address of A2. PW55 stated that at the time of filing the supplementary charge sheet, he noticed that the address of the accused Arvind Tiwari was different in Ex.PW46/I and Ex.PW54/D (colly). He did not mention about the difference in address in the supplementary charge sheet. He denied the suggestion that in order to mislead the Court, he deliberately did not bring the difference in the address of the accused Arvind Tiwari in the documents to the notice of the court. He stated that there was no reason for not bringing the same to the notice of the court. As such, PW55 had become aware of the difference in address of Arvind Tiwari in Ex.PW46/I and in Ex.PW54/D (colly) but the same was not brought to the notice of the Court.
340. The Ld. Counsel for A2 had shown PW55 D-157 and it is seen that in the said document, the bank i.e. SBI, Sansadiya South, New Delhi had stated that there was no account of Arvind Tiwari @ Arvind Kumar (PAN-AJPPT4942A) with their branch though the account No.30933155826 was opened in the name of Shri Arvind Kumar Tiwari with Kutchery Road, Pratapgarh Branch on 23.10.2009 but it is also seen that there is nothing to establish that the said PAN number was of A2. PW55 admitted that the PAN number of a person could be obtained from the Income Tax Return. He was shown D-156 which is Mark PW55/1 and he stated that he had not verified the PAN number of accused Arvind Tiwari mentioned in Mark PW55/1 from the Income Tax Department. He denied the suggestion that the PAN number mentioned in Mark PW55/1 and Mark PW55/2 were not of the accused Arvind Tiwari. The previous IO had already traced CBI Vs. Vinay Kumar Pandey & Anr. Page No.338 of 361 the said PAN number of the accused Arvind Tiwari and on that basis, he had stated the same to be the PAN number of the accused Arvind Tiwari. He stated that there was no specific document handed over by the previous IO which stated that the same was the PAN number of the accused Arvind Tiwari and volunteered the same was reflected in the previous correspondence. He denied the suggestion that without any verification or documentation, he had wrongly drawn the conclusion that the PAN number mentioned in the document (Mark PW55/1) was of the accused Arvind Tiwari. He denied the suggestion that while filing the supplementary charge sheet he deliberately did not carry out any verification from the Income Tax Department nor sought any details from them or that without any documentation or any logic, he had wrongly and unprofessionally drawn the conclusion that Arvind Kumar and Arvind Tiwari @ Arvind Kumar Tiwari were one and the same person or that he had not carried out fair investigation while filing the supplementary charge sheet. However, nothing has been brought on record to show that the said PAN number was of A2. During cross-examination PW56 stated that he had obtained the PAN Card number of A2 during further investigation and volunteered from a source. He did not verify the said PAN number of A2. He was not aware that PAN Card number was to be verified from the Income Tax Authority. He admitted that he had not verified the PAN number mentioned in Mark PW56/5 but he denied the suggestion that the PAN Number mentioned therein was not of A2. Since he had obtained the said PAN number from a reliable source so he could say that the said PAN number was of A2. Thus, PW56 had also not verified the so-called PAN CBI Vs. Vinay Kumar Pandey & Anr. Page No.339 of 361 number of A2 but stated that the same belonged to A2.
341. During further cross-examination PW55 stated that there was no difference between Arvind Kumar Tiwari and Arvind Kumar @ Arvind Tiwari which came to notice during the course of investigation. He had not filed any document with the supplementary charge sheet to show that Arvind Kumar Tiwari and Arvind Kumar @ Arvind Tiwari are one and the same person. However, it cannot be said that the documents in the name of any Arvind Kumar or Arvind Tiwari or Arvind Kumar Tiwari would belong to A2. PW55 also stated that he had not verified the school or birth certificate of the accused Arvind Tiwari. During cross-examination by Ld. Counsel for A2, PW56 stated that during investigation, it came out that the details regarding name, father's name and address of Shri Arvind Tiwari which they had submitted were correct. He was shown the two addresses of A2 and he stated that both the addresses were correct. He did not file the third charge-sheet, so he could not comment on the address of A2 stated therein. He did not remember if he had inquired about the bank account details of A2 from Lok Sabha Secretariat. He did not remember from where he had obtained the present and permanent addresses of A2 mentioned in the charge-sheet. Thus, PW56 did not remember from where he had obtained the present and permanent address of A2 mentioned in the charge sheet.
342. PW56 admitted that when Mark PW56/2, Mark PW56/5 and Mark PW56/3 and Ex.PW55/B were issued, he was in possession of all the details of A2 i.e. his name, father's name and date of birth, PAN number and permanent address. He CBI Vs. Vinay Kumar Pandey & Anr. Page No.340 of 361 admitted that investigation was carried out as per the CBI Manual. He denied the suggestion that it was nowhere mentioned in the CBI Manual that without verifying a source, the same could be taken as correct. He admitted that verification of documents given by the source was an integral part of fair investigation. He denied the suggestion that he was deposing falsely at the instance of CBI or that he was deliberately not disclosing the true facts and giving evasive replies or that he had not done fair investigation in the present case. Thus, it is seen that verification of the documents in respect of A2 was not carried out either by PW55 or by PW56. A2 in his statement under Section 313 Cr.P.C. had stated that PW55 without doing any homework had written letter and mails to various branches of SBI to collect his admitted signatures. By the time investigation was entrusted to him he had his admitted signatures in the bail bond filed before the Court. His admitted signatures were in the various applications especially for regular bail and cancellation of non-bailable warrant and that inspite of having various admitted signatures filed before the Court, the IO was writing letters and mails to various branches just to get signatures of someone having his name just to mislead the Court. He stated that PW55 did not file any document or witness who was really connected with him. Infact he filed the documents and witnesses pertaining to some other Arvind.
343. A2 had also produced witnesses in his defence and DW2 Shri Rajeev Ranjan Roy, Senior Manager cum Branch Head, Indian Bank, Arya Nagar Branch, District Gonda, UP produced the certified copy of the account opening form of account bearing No.7008610871 in the name of Arvind Kumar, CBI Vs. Vinay Kumar Pandey & Anr. Page No.341 of 361 S/o Shri Gyanendra, R/o Purainia Bangai, Gonda, U.P. which is Ex.DW2/A. He stated that there was no transaction in the said account. The said account was opened on 06.04.2021. During cross-examination by the Ld. SPP for CBI DW2 stated that the account was not opened by him but by the then Manager. The photograph of the account holder is at point B. He had also brought the original of the bank account opening form which was seen and returned. He stated that the person whose photograph was there in Ex.DW2/A at point B was present in the Court. He denied the suggestion that the said account was opened as an afterthought only to build up the defence in the present case or that Ex.DW2/A had not been sealed properly as per the Banker's Book Evidence Act. It is thus seen that A2 had produced DW2 in his defence to show that his bank account was in Indian Bank, Arya Nagar Branch, District Gonda, UP bearing No.7008610871 in the name of Arvind Kumar, S/o Shri Gyanendra, R/o Purainia Bangai, Gonda, U.P. and not as per the record produced by CBI. However, the evidence of the said witness does not help the case of A2 as it is clear that the account was opened only on 06.04.2021, that is much after the case was registered and even after the charge sheet had been filed and charge had been framed against the accused persons in the present case. Clearly, the said account was opened as an after-thought to build up the defence by A2 and there was even no transaction in the said account which shows that the same was perhaps a sham account opened for the purpose of the present case.
344. DW3 Shri Nikhil Chauhan, Dy. Manager, SBI, Parliament House Annexe proved the certified copy of the account opening form of account bearing No.32207674446 in the CBI Vs. Vinay Kumar Pandey & Anr. Page No.342 of 361 name of Arvind Kumar, S/o Shri Gyanendra, R/o H.No.63, Purainia Bangai, Gonda, U.P. as Ex.DW3/A. He stated that the said account was opened on 25.02.2012. During cross- examination by Ld. SPP for CBI DW3 stated that the account was not opened by him but was opened in Green Park Branch in 2012 and then transferred to Parliament House Annexe. The photograph of the account holder was at point B. He had not brought the original of the bank account opening form. He stated that the person whose photograph was there in Ex.DW3/A at point B was present in the Court. He stated that the signatures at point C were in the name of Arvind Tiwari. He could not say if Arvind Kumar and Arvind Tiwari were one and the same person and volunteered the signatures may not have relation with the name mentioned in the account. He admitted that the account holder could either put his full name as his signatures or any symbol as the signatures. He admitted that Ex.DW3/A had been printed from the computer. He admitted that he had not brought any certificate under Section 65B of Indian Evidence Act and under Banker's Book of Evidence Act in support of Ex.DW3/A. He denied the suggestion that Ex.DW3/A has not been sealed properly as per the Banker's Book Evidence Act. Thus, DW3 could not say if Arvind Kumar and Arvind Tiwari were one and the same person but it is pertinent that he volunteered that the signatures may not have relation with the name mentioned in the account. He admitted that the account holder could either put his full name as his signatures or any symbol as the signatures. As such, nothing much turns on the case sought to be put up by A2 that Arvind Kumar and Arvind Tiwari were not one and the same person. It is also seen that no certificate under Section 65B CBI Vs. Vinay Kumar Pandey & Anr. Page No.343 of 361 Indian Evidence Act or under Banker's Book of Evidence Act was produced in support of Ex.PW3/A. Moreover, if A2 had an account in one bank, it does not mean that he could not have an account in any other bank. However, in the instant case, the prosecution has not been able to establish that the bank account, details of which were produced by PW54 belonged to A2 or not.
345. As such, it is seen that no fresh admitted signatures of A2 were available from the Bank for purpose of comparison and it appears that the documents on which the admitted signatures of A2 were there were not considered by CBI for the purpose of comparison. In these circumstances, there is no conclusive report from CFSL regarding the signatures on Ex.PW23/C being of A2 but it cannot be disputed that he was working as PS of A1. There is also no conclusive report of CFSL regarding the handwriting and signatures on the cheque Ex.PW2/G being of A2. It was also the contention of the Ld. Counsel for A2 that there was nothing to show that A2 had benefitted from the forged TA bill and it was argued that no witness had corroborated that Rs.9 Lakhs or so had come to the account of A1 and in lieu of the same, the cheque for Rs.2,50,000/- was issued. During cross-examination by Ld. Counsel for A2, PW56 stated that during investigation, no document was produced which would show that A2 had benefited from the forged TA bill and volunteered the TA bill had been filled by A2 in his own handwriting and he was the associate of A1. He denied the suggestion that he had not carried out professional investigation in the present case or that he did not try to find out as to what benefit A2 got from the TA bill or regarding the bank account of A2. As such, it is seen that no document was produced which would show that A2 had CBI Vs. Vinay Kumar Pandey & Anr. Page No.344 of 361 benefitted from the forged TA bill.
346. At the same time, as regards the cheque for Rs.2,50,000/- Ex.PW2/G, A1 in his statement under Section 313 Cr.P.C. had stated that being PS, the amount of Rs.2,50,000/- was withdrawn by A2 and the same was done in routine for miscellaneous expenses. He also stated that the PS was authorized to withdraw cash against cheques. A2 during his statement under Section 313 Cr.P.C. had stated that in the present case he had not received any cheque on behalf of A1 though he also admitted that he had received a sum of Rs.2,50,000/- through cheque of A1 and the same was for day to day expenses as the people from constituency of A1 used to frequently visit the residence of A1 and he had taken some of the responsibilities of A1 and in discharge of the same, a sum of Rs.2,50,000/- was given to him through cheque of A1. PW2 had proved the Statement of Account pertaining to account No.30780472914 in the name of Shri Vinay Kumar Pandey w.e.f. 01.01.2012 to 31.12.2013 (D-14) as Ex.PW2/D. He was shown entry dated 09.11.2012 at point C and he stated that it showed debit of amount of Rs.2,50,000/- vide cheque No.975871 paid to Shri Arvind by cash. He stated that as regards D-32 which is cheque No.975871 for an amount of Rs.2,50,000/- dated 09.11.2012 of account No.30780472914 in the name of Shri Vinay Kumar Pandey, the said amount was paid by cash to Shri Arvind whose signatures were there on the back of the cheque and the cheque is Ex.PW2/G. Thus, the entry in statement of account of A1 Ex.PW2/D showed a debit of amount of Rs.2,50,000/- paid to Shri Arvind and PW2 had also stated that the said amount was paid by cash to Shri Arvind whose signatures were there on the CBI Vs. Vinay Kumar Pandey & Anr. Page No.345 of 361 back of the cheque.
347. During cross-examination by Ld. Counsel for A2, PW2 stated that no register was maintained regarding to whom cash was paid. It was systemised i.e. computerized. No record was maintained separately regarding the persons to whom cash payment was made. The account statement of the account from which the amount was withdrawn reflected the name of the person to whom cash was paid and there was no separate record of the same. He stated that they verified the identity of the person who came to encash the cheque of another person from any identity proof and obtained the signatures of the said person on the back of the cheque. They did not maintain or keep the identity documents of the said person. They verified the identity of the person who came to encash the cheque of another person from a document bearing the signatures of the said person such as PAN card. He had not checked the PAN card in respect of entry at point C in Ex.PW2/B as the payment was made by the cashier. A question was put to PW2 if he could provide the details of Arvind mentioned at serial No.4 in Ex.PW2/F which was disallowed in view of what had been stated by the witness. He admitted that Arvind was a common name. As such, there was no identity document or any other document which could show that the Arvind whose name was mentioned on the back of the cheque Ex.PW2/G was A2. Thus, there is no documentary evidence to conclusively show that A2 had withdrawn the said amount. However, both A1 and A2 had stated about the said amount being withdrawn by A2.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.346 of 361
348. The Ld. Counsel for A1 had argued that that the circumstance used for conspiracy was that cheque for Rs.2,50,000/- bearing the name of A2 at the back which was a self cheque was withdrawn by A2 but CBI was legally estopped from taking into consideration the said circumstance as the conspiracy as per the case of CBI was to submit a TA form and take money; the money was deposited in the account and once the money was deposited in the account, the purpose of the conspiracy was achieved and it was for CBI to show any act prior to that or any circumstance or act during the period of conspiracy which showed that there was conspiracy. It was also submitted that withdrawing of money was not an illegal act and reliance was placed on the judgment in State through Superintendent of Police, CBI/SIT v. Nalini and Ors. (supra) in which it was held that any act after conspiracy was over could not be considered and it was submitted that as such, CBI had to show circumstances before the money reached the account of A1. The Ld. Counsel had submitted that as per the settled law, once the object of conspiracy had been achieved any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy and reliance in this regard was placed on the judgments in Indra Dalal v. State of Haryana (supra); Santoshanand Avdoot v. State (supra) and State through Superintendent of Police, CBI/SIT v. Nalini and Ors. (supra). In Indra Dalal v. State of Haryana (supra) it was observed as under:
"25. Likewise, in Firozuddin Basheeruddin and Ors. v. State of Kerala MANU/SC/0471/2001 :
(2001) 7 SCC 596, this Court discussed the law of conspiracy exhaustively and following passages therefrom would be sufficient to elucidate the legal CBI Vs. Vinay Kumar Pandey & Anr. Page No.347 of 361 position enshrined in Sections 120-A and 120-B of the Indian Penal Code :
"25. Conspiracy is not only a substantive crime, it also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a casual agent to each act. Under this view, which of the conspirators committed the substantive offence would be less significant in determining the defendant's liability than the fact that the crime was performed as a part of a larger division of labour to which the accused had also contributed his efforts.
26. The Court also noted the earlier judgment in the case of State v. Nalini MANU/SC/0945/1999 :
(1999) 5 SCC 253 wherein the principles governing the law of conspiracy had been summarized. Those principles are reproduced in para 32 of the judgment. For our purposes, principle No.2 is reproduced as under:
"2. Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder."
The law in this regard is well-settled but even if the withdrawal of the amount of Rs.2,50,000/- may itself not be taken as a part of conspiracy, it becomes relevant that the amount was withdrawn soon after the claim was reimbursed in the account of A1 and further as noted above, within a short span, almost the entire amount was withdrawn which also belies the contention CBI Vs. Vinay Kumar Pandey & Anr. Page No.348 of 361 that A1 was not aware of the deposit of the cheque in his account towards reimbursement of TA claim.
349. Further, that would not take away from the fact that A2 had in conspiracy with A1 filled the TA form Ex.PW4/E for A1 to claim reimbursement in respect of a journey which was not performed and thereby caused loss to the exchequer, since it has come on record that A2 was working as PS of A1 and the handwriting on Ex.PW4/E had been opined to match that of A2.
350. From the evidence that has come on record, it stands established that Travelling Allowance claim form Ex.PW4/E was submitted which was in the handwriting of A2 (as proved by PW46) and bore the signatures of A1 (proved by PW46 and also evident from a perusal of the disputed signatures and the admitted and specimen signatures) for claiming reimbursement for the journey from 01.11.2012 to 03.11.2012 purportedly performed by A1 along with his companions. It was the contention of the accused persons that the case of the prosecution was based on the TA form being accompanied by forged and fabricated tickets and boarding passes. During cross-examination by Ld. Counsel for A2, PW56 stated that the TA bill which was submitted in the present case was found to be false and fabricated in the present case. No forged document was available at the time of investigation. Though no forged document was available but the TA bill was found to be false as it was established during investigation that the accused Vinay Kumar Pandey alongwith his 6 companions had not travelled as claimed in the TA bill. He asked for the forged documents annexed with the TA bill but the same were not available. As such no forged document was CBI Vs. Vinay Kumar Pandey & Anr. Page No.349 of 361 available even as per the testimony of the IO PW56 and it is the case of the prosecution itself that the tickets and the boarding passes that were annexed with the TA form had been weeded out. Further, there is no evidence regarding who got the PNR and the tickets generated and from whom and when and who forwarded the same to whom. However, the details of the tickets are available in the TA register of A1 Ex.PW5/C as per which the E- tickets in question were bearing No.0982066418881 to 0982066418887 (though there was typographical error in respect of one ticket number which was mentioned).
351. It has further come on record that the boarding passes were generated by PW48 and thereafter the check-in history was deleted by PW44 though there is no specific evidence as to on whose instructions it was done or to show to whom the boarding passes were handed over or to show the presence of A1 or A2 at the airport. However, the witnesses from MSA branch had stated about the TA form being proper i.e. it was accompanied by tickets and boarding passes and as such it was processed by the MSA branch of Lok Sabha Secretariat. Thus, there is no evidence to show that the TA claim was raised on the basis of fake and forged e-tickets and boarding passes as according to the witnesses, the TA form was accompanied by tickets and boarding passes and details of the tickets were also mentioned in the TA register while PW44 and PW48 had stated about generation of boarding passes, though it is also the case that no journey was performed on the basis of the alleged tickets and boarding passes. Even otherwise, no charge for the offence of forgery or use of forged documents was framed in the present case.
CBI Vs. Vinay Kumar Pandey & Anr. Page No.350 of 361
352. The TA form which was submitted was processed by the MSA branch of Lok Sabha Secretariat, on the basis of the same a bill was prepared and the same was processed and ultimately an amount of Rs.9,71,384/- was deposited in the account of A1 by way of cheque. Thereafter, an amount of Rs.2,50,000/- was withdrawn by way of cheque by A2 (as stated by A1 and A2). It was argued on behalf of the accused persons that as it was not proved that the TA form was accompanied by forged and fabricated e-tickets and boarding passes, the charge against the accused persons goes. However, it is also the case of the prosecution that the reimbursement was claimed without performing the actual journey and thereby wrongful loss to the exchequer of Government of India to the tune of Rs.9,71,384/- had been caused by A1 by misusing his official position in conspiracy with A2. The prosecution had led evidence to establish that A1 and his companions had not performed the journey in respect of which the TA was claimed, apart from the fact that A1 had also stated that he had travelled to Port Blair only once and that too on a different date from the one in respect of which the claim was raised. As such, it stands established that the TA claim was made in respect of a journey which was never performed and thereby the offence of cheating would be attracted in the present case. The Ld. Counsel for A1 had argued that as regards the question of loss to the ex-chequer, the same should have come from someone who was not from CBI and even for inducement, someone should have come forward and said that he was induced. Rather the witnesses had stated that they had checked and found everything in order and what they did was to CBI Vs. Vinay Kumar Pandey & Anr. Page No.351 of 361 the best of their intention and there was nothing wrong in clearing the bills and no witness had alleged inducement so Section 420 IPC was not made out. It was argued that CBI had the prerogative to investigate but the allegation of cheating must come from another agency.
353. Section 420 IPC may be referred to which reads as under:
"420. Cheating and dishonestly inducing delivery of property.- Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Cheating is defined in Section 415 IPC and Section 415 IPC, in so far as is material, reads as under:
"415. Cheating.- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission caused or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation. - A dishonest concealment of facts is a deception within the meaning of this section."
In the instant case, the TA form Ex.PW4/E was submitted claiming reimbursement in respect of a journey which was never performed. As such there was deception and this is made clear from the Explanation to Section 415 IPC which provides that a CBI Vs. Vinay Kumar Pandey & Anr. Page No.352 of 361 dishonest concealment of facts is a deception within the meaning of the section. In the present case, there was a dishonest concealment of the fact that the journey was never performed. Further, the concerned officials were induced to process the form as it was accompanied by the relevant documents (though the same had been weeded out but the details of the tickets were available in the TA register Ex.PW5/C) and thereafter to deposit a sum of Rs.9,71,384/- in the account of A1 and as such, the moment the amount was deposited in the account of A1, the offence of cheating was complete. Once the offence of cheating stands established, there is no gainsaying that the question of loss to the ex-chequer should have come from someone who was not from CBI and even for inducement, someone should have come forward and said that he was induced or that the allegation of cheating must have come from another agency.
354. It may be mentioned that A1 in his statement under Section 313 Cr.P.C. had stated that he was highly qualified. As MP, he had a lot of responsibilities and he was a Member of several committees. He was the convener of UP Legislature Party in Lok Sabha, Member Standing Committee of HRD, Standing Committee of Agriculture, Member of Lok Sabha Committee Paper Laid on the Table, Consultant Committee of Information Technology and Telecommunication, Executive Committee of VV Giri National Institute, Noida, Member Executive Committee of JNU, Member Hindi Salahkar Samiti, Revenue and Finance, State Convener of MSDP of Ministry of Minorities, Private Member Writ Committee of Lok Sabha. He was a Member of more than one dozen Committees at State and District Level and even Chairperson and Co-Chairperson of several committees. He CBI Vs. Vinay Kumar Pandey & Anr. Page No.353 of 361 stated that there was so much of volume of work that he did not have time to scrutinize everything and was dependent on the staff for submitting the file, getting tickets done, for the programmes which were organized, tours, meetings. Even for several personal works, he was dependent on the staff and the staff used to look after bank work and manage the other staff. He did not receive any bank statement and for expenses, he used to give the money to the staff and even for depositing in the account the money was given to the staff. He stated that it was possible that the staff or someone misused his account or as part of conspiracy to tarnish his image. He did not even have the time to take an account from the staff of the expenses incurred. Thus, A1 had tried to contend that due to huge volume of work, he was dependent on his staff and it was possible that the staff or someone misused his account to tarnish his image. However, no specific evidence has been led by A1 in that regard. Moreover, as contended by the Ld. Sr. PP for CBI, if A1 had signed some document, the TA Form in the present case, he would be answerable for the same and the same could not have been got signed without his knowledge or intention. As such, there is no gainsaying that someone might have misused the account of A1 to tarnish his image when there is clear evidence on record against A1.
355. It is also the case of the prosecution that A1 and A2 had acted in conspiracy. It was argued by the Ld. Counsel for A1 that as regards Section 120B IPC, the evidence led was of issuance of pass to A2 and the evidence was nowhere near the actual evidence led. It was contended that there has to be proximity to the circumstances and the offence alleged but request for issuance of pass was not a circumstance proximate to CBI Vs. Vinay Kumar Pandey & Anr. Page No.354 of 361 the offence and in the absence of any positive evidence of conspiracy it could not be assumed and presumed that the pass was issued in furtherance of conspiracy on the asking of A1 to A2. However, in the instant case, the evidence led as regards conspiracy was not only in relation to issuance of PA/PS pass to A2 and in fact the evidence in that regard was led only to establish that A2 was the PA/PS of A1 at the relevant time. The evidence led on record duly established that PA/PS pass was issued to A2 on the basis of request letter by A1 to Secretary, General, Lok Sabha and that A2 was the PA of A1 during the material time. It was further established that the TA form Ex.PW4/E was filled up by A2 and it bore the signatures of A1. While there was no specific evidence of the submission of the TA form by A2 in the MSA Branch, yet the fact that the form which was submitted and processed was filled up by A2 itself goes to establish conspiracy, even if the fact of withdrawal of Rs.2,50,000/- by cheque from the account of A1 by A2 is not taken into consideration.
356. The law with regard to criminal conspiracy is well- settled that since conspiracies are hatched mostly behind the closed doors, very rarely any direct evidence showing the existence of a conspiracy or meeting of minds of the conspirators is available and the existence of a criminal conspiracy has to be inferred from the facts of a particular case. It will be a question of fact in each case as to whether the acts done by the accused persons have been done or performed in furtherance of any criminal conspiracy or the objects thereof or the same are separate or individual acts of the accused persons, without sharing of any such common intent or object. Section 120A IPC CBI Vs. Vinay Kumar Pandey & Anr. Page No.355 of 361 which defines criminal conspiracy reads as under:
"S. 120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
Thus, from a plain reading of the language used in Section 120A IPC, it is evident that the offence of criminal conspiracy consists in doing, agreeing to do or causing to be done an illegal act by two or more persons or an act which is not illegal in itself by illegal means. An agreement between the accused persons to do an illegal act or a legal act by illegal means is the gist of the offence of criminal conspiracy. Once the evidence establishes the existence of a meeting of minds or an agreement between the accused persons for doing of an offence or an illegal act or a legal act by illegal means, then even the acts done individually by the accused persons have to be taken with reference to their common intent or design of the said criminal conspiracy. Such an inference regarding the prima facie existence of a criminal conspiracy can only be drawn when the facts and circumstances of a particular case reasonably point out to the same. In P.K. Narayanan v. State of Kerala (1995) 1 SCC 142, the Hon'ble Supreme Court laid down the scope of criminal conspiracy and it was observed as under:
CBI Vs. Vinay Kumar Pandey & Anr. Page No.356 of 361 "10. The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. Therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation."
Further, in Yogesh @ Sachine Jagdish Joshi v. State of Maharashtra 2008 Cr.L.J. 3872, it has been observed by the Hon'ble Supreme Court as under:
"22. More recently, in State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru , making exhaustive reference to several decisions on the point, including in State Through Superintendent of Police, CBI/SIT Vs. Nalini & Ors., Venkatarama Reddi, J. observed thus:
"Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused (per Wadhwa, J. in Nalini's case at CBI Vs. Vinay Kumar Pandey & Anr. Page No.357 of 361 page 516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible."
(Tanviben Pankajkumar case, SCC page 185, para 45). G.N. Ray, J. in Tanibeert Pankajkumar observed that this Court should not allow the suspicion to take the place of legal proof."
23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof.
Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement."
Thus, it has been held that the existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused but the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It may be mentioned that the offence of criminal conspiracy is punishable under Section 120B IPC.
357. In the instant case, it is clear that the incriminating facts and circumstances proved on record against the accused persons duly constitute a complete chain of events showing existence of a criminal conspiracy or meeting of minds between them to submit a TA form dated 05.11.2012 to claim CBI Vs. Vinay Kumar Pandey & Anr. Page No.358 of 361 reimbursement in respect of a journey of A1 and his 6 companions from Delhi to Chennai to Port Blair to Delhi, which was never performed, so as to enable A1 to lodge a false claim for reimbursement of travel expenses of the said journey from the office of Lok Sabha Secretariat and thus, to cheat the ex-chequer to the tune of Rs.9,71,384/- and cause wrongful loss to the exchequer of the Government of India of the said amount which was deposited in the account of A1 pursuant to the said claim being processed by the Lok Sabha Secretariat. There is clear, consistent and corroborative evidence, oral as well as documentary, brought on record by the prosecution to prove the incriminating circumstances constituting the criminal conspiracy between the accused persons and the only conclusion which can be drawn is of the guilt of the accused persons. Thus, the prosecution has been successful in establishing beyond reasonable doubt the existence of a criminal conspiracy between the accused persons for raising a false claim for reimbursement of travel expenses of Rs.9,71,384/- by A1 for the journey from Delhi to Chennai to Port Blair to Delhi which was never performed and thereby cheating the ex-chequer to the tune of Rs.9,71,384/-.
358. Charge was framed against A1 for the offences under Section 120B read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the PC Act and against A2 for the offences under Section 120B read with Section 420 IPC. It may be noted that charge for the offence under Section 120B IPC read with Section 13(2) read with Section 13(1)(d) of the PC Act was not framed against A2 which would also be attracted in the present case as per the allegations made in the chargesheet and CBI Vs. Vinay Kumar Pandey & Anr. Page No.359 of 361 the evidence which has come on record and in view of the law of criminal conspiracy. Under Section 216 Cr.P.C., the Court is empowered to amend or alter the charges framed at any time before pronouncement of the judgment, but as per the settled law if such an amendment of charge will prejudice the accused then it has to be avoided or the accused has to be given necessary opportunity. The present case pertains to commission of offences alleged to have been committed in the year 2012 and chargesheet in the case was filed on 24.12.2016 and thus, a period of around 6 years has passed since the date of filing of chargesheet and the matter already stands reserved for judgment after hearing the final arguments. Hence, any amendment of charges in the case at this final and belated stage would not be proper as there may also be a requirement of holding the trial de-novo or of recalling some of the witnesses. Reference on this aspect can also be made to a judgment of the Hon'ble Delhi Court in the case of Nazim Khan & Anr. v. State of Delhi, 89 (2001) DLT 279.
359. In view of the above observations and the legal discussion, it can be said that the prosecution has been successful in proving the charge for the offence under Section 120B read with Section 420 IPC against both the accused persons and also for the offence under Section 120B read with Section 13(2) read with Section 13(1)(d) of the PC Act against A1. Further, A1 was also charged for the substantive offence of cheating under Section 420 IPC and the same also stands established against him. A1 was a Member of Parliament from Lok Sabha and without doubt a public servant at the time the claim was raised and he misused his official position as a public servant to submit the fake TA claim and to claim reimbursement in respect of the CBI Vs. Vinay Kumar Pandey & Anr. Page No.360 of 361 same and thereby to cheat the office of Lok Sabha Secretariat. As such, the prosecution has also been successful in proving the charge for the offence under Section 13 (1) (d) read with Section 13 (2) of the PC Act against A1.
360. While the guilt of the accused persons has been held to be proved, it may be noted that the investigation in the present case suffered from several flaws such as regarding investigation into the role of officials of Air India and Lok Sabha Secretariat which could have been avoided and other conspirators, if any could have been sent up for trial had more diligence and care been shown by the IO and the officials of CBI.
CONCLUSION
361. In view of the above discussion, it is held that the prosecution has successfully established the guilt of the accused persons beyond reasonable doubt and A1 Vinay Kumar Pandey and A2 Arvind Kumar @ Arvind Tiwari are held guilty for the offence of criminal conspiracy punishable under Section 120B read with Section 420 IPC and they are convicted for the same. A1 Vinay Kumar Pandey is also convicted for the offence under Section 120B read with Section 13(2) read with Section 13(1)(d) of the PC Act and for the substantive offences under Section 420 IPC and under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988.
Announced In The Open Court (Geetanjli Goel)
th
On This 18 Day of January, 2023 ASJ/Spl. Judge (PC Act) (CBI)-24 (MPs/MLAs Cases), Rouse Avenue District Court New Delhi CBI Vs. Vinay Kumar Pandey & Anr. Page No.361 of 361