Delhi District Court
Central Bureau Of Investigation vs . on 24 December, 2014
IN THE COURT OF SH. R.P.PANDEY: SPL. JUDGE 01
(PC ACT) CBI (N/W): ROHINI COURTS: DELHI
CBI Case No. : 05/12
CENTRAL BUREAU OF INVESTIGATION
Vs.
1. Bibianus Toppo (A.1)
s/o late Joseph Toppo
r/o 14G, Sector4, DIZ Area, Raja Bazaar,
Gole Market , New Delhi.
2. Harbhajan Yadav (A.2)
s/o late Sultan Singh Yadav
r/o H.No.949/1, Gali No.4, Ashok Vihar,
Gurgaon, Haryana.
3. Ram Chander (A.3)
s/o Sh.Maman Ram
R/oJ624, Sardar Colony, Sector16
Rohini, Delhi85
4. Anil Dhawan s/o Sh.Madan Lal Dhawan (A4)
R/oH.No.254, DDA Flats, Ist Floor
New Ranjit Nagar, New Delhi8
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12
Page No.1 of 162
5. Amarvir Kaur (A.5) (PO)
w/o Sh.Balraj Singh
r/o Village Boja, PS Dhuman,
Tehsil Batala, District Gurdaspur,
Punjab
6.Rajesh Kumar Sharma (A6)
s/o Sh.Roshan Lal Sharma,
r/o Ward No.14, Chulkana Road,
Samalkha, Panipat
7.Smt.Shweta Dhawan (A7) (Discharged)
......Accused
Date of Registration of FIR : 27.08.2004
FIR No. : RC.05(A)/2004/SCUV/CBI/SCRII/New Delhi
Under Section : 120 B r/w Sec.420/468/471 IPC
Section 13 (2) r/w 13 (1) (d) of P.C. Act 1988 and Section 12 (1)
(b) of Passport Act, 1967
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12
Page No.2 of 162
Date of Filing Charge : 27.09.07
Sheet
Arguments Concluded on : 16.12.14
Date of Judgment : 23.12.14
CASE ID No. : 02404R0651272007
Appearances: Ms.Shashi Vishwakarma and Mr.N. P.
Srivastava, Public Prosecutors for CBI.
Mr. R.Ramachandran, Advocate for A1.
Dr.Anil Gupta, Advocate for A2.
Mr.Sukhwinder Singh, Adv. for A3 & 6
Mr.Ashwani Verma and Mr.Lalit Yadav,
Advocates for A 4.
J U D G M E N T
1.1 The case against accused persons as per the charge sheet filed by CBI, is that in pursuance of a criminal conspiracy amongst Bibianus Toppo (A.1), Harbhajan Yadav (A.
2), Ram Chander (A.3) all officials of Regional Passport Office (RPO), New Delhi and Anil Dhawan (A.4), Amarvir Kaur (A.5) CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.3 of 162 and Rajesh Kumar Sharma (A.6) private persons, one additional passport booklet No.E7988478 dated 05.03.04 was issued in the name of Geeta Devi Kapoor from Regional Passport Office, New Delhi with an object to cheat the Regional Passport Office, New Delhi fraudulently and dishonestly 1.2 The investigation disclosed that accused Amarvir Kaur (A.5 P.O.) r/o Gurdaspur had approached Sh.Jaswinder Singh r/o Kapurthala for going abroad. Sh.Jaswinder Singh in turn gave the matter to accused Rajesh Sharma (A.6) r/o Samalkha, Haryana.
1.3 Smt.Shweta Dhawan w/o accused Anil Dhawan (A.4) filled the passport application form in the fictitious name of CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.4 of 162 Geeta Devi Kapoor w/o Rajender Kumar Kapoor shown to be r/o 87C, Gali No.4, Krishna Nagar, Safdarjung Enclave, New Delhi. This passport application was received in RPO, New Delhi on 04.03.04. Alongwith the passport application form, photocopy of the original passport No.B5081385 dated 20.12.2000 with a request letter for issue of an additional passport booklet on tatkal basis on the letter head of Ashmita Bag Emporium, Pahar Ganj, New Delhi is also enclosed.
1.4 Accused Harbhajan Yadav (A.2)Dealing Clerk, RPO, New Delhi had put the relevant stamps on the passport application form but he did not write the passport number in the column made on the rubber stamp and he also did not sign the same in token of having cancelled the previous passport.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.5 of 162 1.5 Thereafter, on the request letter, accused Bibianus Toppo (A.1) Suptd., initialed and gave 05.03.04 as the passport delivery date. The HIT was cleared by accused Ram Chander (A.3), LDC on 05.03.04, despite the fact that he could see on his computer that the signature and photograph did not tally with the photograph and signature as available in the original passport issued in the name of Geeta Devi Kapoor. He also knew that two additional passport booklets have also been issued earlier to two different women.
1.6 On page no.4 of the passport file No.T003439 dated 04.03.04, accused Harbhajan Yadav (A.2) noted 'May issue additional booklet valid upto 19.12.2010 ECR observed old CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.6 of 162 passport cancelled and returned' and marked it to accused Bibianus Toppo (A.1). He had written this noting on 04.03.04 itself as he was sure of getting it cleared from the HIT Section whereas HIT was cleared by accused Ram Chander (A.3) on 05.03.04. Accused Bibianus Toppo (A.1) granted the passport on 05.03.04 without ensuring whether the old passport is cancelled or not.
1.7 Accordingly, an additional passport booklet No.E7988478 was issued on 05.03.04. This passport booklet was received by accused Anil Dhawan (A.4) on 05.03.04 itself who had signed as "Geeta Devi" in the passport file on page No. 3 and also in the Passport Delivery Register for the period 15.09.03 to 31.03.04 in token of having received the passport CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.7 of 162 booklet No.E7988478.
1.8 Investigation further disclosed that the airticket in the name of Smt.Geeta Devi Kapoor was booked by M/s World Link Travels, New Delhi. Accused Rajesh Kumar Sharma (A.6) had himself gone to M/s World Link Travels, New Delhi alongwith accused Amarvir Kaur for booking an air ticket in the name of Geeta Devi Kapoor. Accused Amarvir Kaur (A.5) went abroad on 21.05.04 in the fictitious name of Geeta Devi Kapoor on the basis of additional passport booklet No.E7988478 dated 05.03.04 from IGI Airport, New Delhi by Flight No.HY 422 (Uzbekistan Airlines) on DelhiTashkentParisTashkentDelhi route. 1.9 Accused Rajesh Kumar Sharma (A.6) had also CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.8 of 162 travelled alongwith accused Amarvir Kaur (A.5) by same flight and route to safely drop her abroad. It has also been disclosed during investigation that accused Amarvir Kaur was already issued a passport No.E2175436 dated 18.10.02 from Passport Office, Jalandhar in her own name.
1.10 On the basis of these facts and circumstances it is alleged that accused persons have entered into criminal conspiracy, the object of which was to get the additional passport booklet issued fraudulently from RPO, New Delhi and accused officials of RPO New Delhi had abused their official position as public servants and conspired with accused Anil Dhawan (A.4), Amarvir Kaur (PO) and Rajesh Kumar Sharma (A.6).
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.9 of 162 2.1 Charge sheet was filed by CBI u/s 120B r/w Section 420/468/471 IPC and Section 13(2) r/w Section 13 (1) (d) of PC Act, 1988 and Section 12 (1)(b) of Passport Act, 1967, besides for substantive offences thereunder. On directions of the court a supplementary charge sheet was filed against accused/Amarvir Kaur on 02.06.08 which was separately registered as CC No.48/08 (new number is 29/09). After following due process the court declared her proclaimed offender vide order dated 20.12.08. Subsequently, vide order dated 14.01.10 standing warrants were issued against Amarvir Kaur and the file was consigned to the record room.
2.2 Sanction u/s 19 of P.C. Act, 1988 in respect of all public servants named above and sanction u/s 15 of Passport CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.10 of 162 Act, 1967 for prosecution of all accused persons were obtained and filed alongwith the charge sheet. The court took cognizance, accused were summoned and compliance of provisions of Section 207 Cr.PC was made.
2.3 After hearing the accused persons/their ld. counsels, the court framed charge against A1 to A.4 and A.6 u/s 120B r/w Section 420/468/471 IPC, Section 13(2) r/w Section 13 (1)(d) PC Act, 1988 and 12 (1)(b) of Passport Act, 1967 besides framing charge for substantive offences against all of them u/s 12(1)(b) of P. C. Act. Additionally the charge for substantive offence u/s 13(2) r/w 13(1)(d) PC Act against A1 to A3 ; u/s 420, 468 and 471 IPC against A4 and u/s 420 and 471 IPC against A6 were also framed.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.11 of 162 3.0 To prove the case, the prosecution has examined 20 witnesses. As the evidence recorded in this case is extensive hence I proceed to first recapitulate the relevant evidence very briefly.
3.1.1 PW1/Sh.Surinder Parsad Kothari was working as Superintendent (Administration), Regional Passport Office (RPO), New Delhi who has deposed about the procedure for issuance of fresh passport and additional passport booklets. The procedure for the purpose of this case relates to issuance of additional passport booklet. Sh.Kothari has deposed that additional passport booklet can be issued under the circumstances where the pages of the passport are full or there CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.12 of 162 is change of name of the passport holder or for other reasons as described by him.
3.1.2 He deposed that for obtaining additional passport booklet the applicant will come to the 'additional passport booklet counter' where he submits his application alongwith his existing passport in original and will annex photo copy of the first and last two pages of the existing passport alongwith application form; the counter clerk will scrutinize the application form and check the particulars of the passport holder from the computer available on the counter and if he satisfied then he will put three types of stamps on the application form; if the additional passport booklet is required urgently the applicant will move the request letter on which counter clerk will put Tatkal CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.13 of 162 fee stamp; the counter clerk will also affix a stamp 'passport cancelled and returned to the applicant' on the second page of the application; applicant will put his signature on the stamp in token of receiving the original cancelled passport from the counter; for issue of additional passport booklet no police verification is required except in the cases where there is change in address of passport holder; after scrutinizing the counter clerk hands over the application to the applicant for going to Passport Issuing Authority (PIA) for taking approval for promise date. 3.1.3 Sh.S P Kothari has then deposed that when applicant will reach in the office of PIA he (PIA) will check the application form as well as existing cancelled passport and if any of the aforestated stamps have not been affixed he will direct the CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.14 of 162 applicant to get it done from the counter and thereafter PIA will give a promise date and sign on the request letter and thereafter he will hand over the request letter to the applicant for depositing the requisite fee already mentioned on the request letter by the counter clerk; the original passport bearing cancellation stamp is thereafter returned to the applicant by the PIA and then the applicant will submit all the documents including cancelled passport on the fee counter and will deposit the fee on the fee counter; from fee counter the application form will go to tagging section where the same is put in file cover and file number is assigned on the file; from there the file will go to scanning section where photograph and signature of the applicant available in application form will be scanned; then file go to detail entry section and thereafter to HIT Section; then the file will again go to CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.15 of 162 additional passport booklet counter where after scrutinizing the file counter clerk will forward the file to the Passport Issuing Authority after writing a note regarding issue of additional booklet in the space provided for official use on page 3 or 4 of the application form and then the PIA will grant the passport. He deposed that in case of promise date, the additional booklet is delivered at the delivery counter to the applicant or to his authority holder but in other cases the additional passport booklet was to be sent through speed post to the applicant. Sh.Kothari has specifically deposed that at the time of filing of application form for issue of additional passport booklet, the applicant has to mention the number of existing passport i.e. whether it is original or it is any of the additional booklet and he has to annex the photo copy thereof. He has clarified by CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.16 of 162 illustration that when applicant comes for issuance of fifth additional passport booklet then he has to mention the number (i.e. fifth) as well as annex the photo copy of the fourth additional booklet (i.e. immediately preceding booklet). 3.1.4 He was shown the additional passport booklet file No.T3439/04(D.7) in the name of Geeta Devi Kapoor as maintained at RPO, Delhi. Therein he identified signatures of accused Bibianus Toppo (A.1) at point A as PIA for giving promise date as 05.03.04 on page no.8 of the file which is request letter. He also identified the signatures of Sh.Toppo at points A & B on page no.4 of the application where at point A he has passed the grand order under his signatures and at point B he has signed in token of signing the additional passport booklet.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.17 of 162 The file bearing No.T3439/04 has been marked as Ex.PW.1/A. 3.1.5 On Court question he clarified that undertaking stamp on the request letter is signed by applicant in presence of counter clerk and if applicant has not signed before counter clerk he would sign it before RPO. He deposed that at page no.4 of the file 'May issue additional booklet valid upto 19.12.2010 ECR observed old passport cancelled and returned sd/ 04.03.04' has been written by the person who was assistant to accused Bibianus Toppo (A.1) and that accused Harbhajan Yadav (A.2) was assistant to Bibianus Toppo (A.1). During his cross examination he confirmed that the note at point X on Ex.PW.1/A (D.7) (internal page is Ex.PW.2/A.2) was written by dealing assistant/counter clerk Harbhajan Yadav. He deposed that the CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.18 of 162 said remarks could be written of him when he worked as counter clerk or at the stage when he was doing duty in the post lunch session. PW.1/Sh.S. P. Kothari was thereafter recalled on application u/s 311 Cr.PC and he had proved specimen signature/handwriting of accused Anil Dhawan from S.18 to S.34 Ex.PW.2/B.18 to B.34 obtained by CBI in his presence and in presence of his colleague I.M.Sabharwal.
3.2.1 PW.2 Dr.B.A.Vaid, Government Examiner of Questioned Documents (GEQD), Shimla has given opinion on handwritings. He deposed that the documents of this case were received in his Laboratory vide letters of CBI and after receiving the questioned documents and specimen/admitted handwritings the same were examined by him and Sh.Mohinder Singh CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.19 of 162 independently.
3.2.2 He marked questioned documents containing Q. 14 & Q.15 on Ex.PW.2/A, Q.16 to Q.19 on Ex.PW.2/A.1, Q.20 to Q.23 on Ex.PW.2/A.2, Q.23/1 on Ex.PW.2/A.3 and Q.24 to Q.26 on Ex.PW.2/A.4 { (in file Ex.PW.1/A) (D.7) } and Q.31 & Q.32 on Ex.PW.2/A.5 i.e. the copy of passport delivery register (the original register was shown to him from CC No.25/09 pending in the court); standard documents S.1 to S.34 which are the specimen writings of accused Anil Dhawan as Ex.PW.2/B.1 to B. 34 (original specimen available in CC No.47/08 of this court) and A.1 to A.23 which are admitted genuine writings of accused Anil Dhawan as Ex.PW.2/C.1 to C.14 (original available in CC No. 23/09 pending in the court).
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.20 of 162 3.2.3 He deposed that after careful examination of the documents he came to the conclusion that the enclosed writings stamped and marked Q.16, Q.31, Q.32 and S.1 to S.17 of this case and A.1 to A.23 have been written by one and the same person. He proved his recorded opinion No.CX27/2005 dated 29.03.05 as Ex.PW.2/D (original in CC No.27/09). The reasons for opinion has been marked as Ex.PW.2/E (original available in CC No.27/09). He also deposed that his report was sent to CBI vide a forwarding letter dated 21.04.05 which letter has been proved as Ex.PW.2/F (original letter in CC No.27/09 of this court). 3.3 PW.3 Sh.Puran Chand,LDC in RPO, New Delhi holding P No.514 has proved that he has done the CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.21 of 162 scanning in file Ex.PW.1/A. PW.4 Sh.Tara Dutt has proved that he has done detail entry in file Ex.PW.1/A and his P.number was P. 755.
3.4.1 PW5/Sh.G S Walia has deposed that he is running a travel agency in the name and style of M/s Jas Air at 7/60, South Patel Nagar, First Floor, New Delhi which is a partnership firm running since 2002. He deposed that prior to this, he was running a company under the name and style of M/s Kanu Travels Care Pvt. Ltd since 1991 in which he was one of the directors; that accused/Anil Dhawan was his employee when he was running the company M/s Kanu Travels and after closure of that company when he opened M/s Jas Air, he took him (Anil Dhawan) in employment of M/s Jas Air which is into the business CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.22 of 162 of issuing domestic as well as International Air Tickets and provide assistance in getting visa and issuance of passports. 3.4.2 He deposed that Anil Dhawan used to deliver the tickets to the clients, collect the payments and used to go to the embassies and passport office for getting visa and passports for the clients which was part of his employment; that Anil Dhawan used to make entries in the day book with regard to the payment received and then deposit in the bank; and that he also used to fill up passport forms as well as visa forms. 3.4.3 He has proved the handwritings of accused/Anil Dhawan. After seeing the passport file no.T3439/04 Ex.PW1/A (D7) he identified handwriting of accused/Anil Dhawan on CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.23 of 162 passport application registration form at point Q.16 (Ex.PW.1/A.1) and passport delivery register at point Q.31 and Q.32. The relevant page of passport delivery register was marked as Ex.PW2/A.5 (D9) (original seen from CC No.25/09 of this court).
3.4.4 He also proved the handwritings of accused/Anil Dhawan on the day book Ex.PW2/C1 to C9, passport application of Ms.Kanu Priya Gombar Ex.PW2/C10 to C.12 and Immigration Application of Ms.Padmini Malpani Ex.PW16/C13 & C14 (originally available in CC No.08/12 pending in this court). 3.5 PW.6 Sh.I.M.Sabharwal who was Superintendent in RPO, Delhi during 20032007 was shown CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.24 of 162 passport delivery register Ex.PW.5/A and thereupon he stated that he does not know who has delivered passport to the applicant in file Ex.PW.1/A. He was cross examined by Ld. PP on this aspect with permission of the court but he stood by his statement made during examinationinchief. He proved the print out of the processing sheet in respect of the same file as Ex.PW. 6/PD and said that name of the person who had dispatched the passport has not been given in it, which means that the passport might have been delivered at the delivery counter by the concerned clerk whose duty was to deliver the passport on 05.03.04.
3.6 PW.7 Sh.Brij Mohan who had worked at reception counter in RPO, Delhi with his P.No.371 was shown CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.25 of 162 passport file Ex.PW.1/A. He stated that he had issued the cash receipt Ex.PW.6/PB in passport file No.T3439/04 Ex.PW1/A. He deposed that passport was granted by accused Bibianus Toppo and he identified his signatures at points A & B on Ex.PW. 2/A.2. He also deposed that he had received the passport application which was already signed by Geeta Devi Kapoor at Q. 14 on Ex.PW.2/A and at Q.17 on Ex.PW.2/A.1 and at Q.20 & Q.21 on page no.4 of application Ex.PW.2/A and her signatures were already appended on annexures to the application i.e. at point Q. 21/1, Q.25 & Q.26. He was shown photographs of lady pasted on the application for passport in the name of Geeta Devi Kapoor on Ex.PW.2/A in file Ex.PW.1/A (D.7) and photographs of lady at point X and X.1 on the application in the name of Geeta Devi Kapoor already Ex.PW.5/A in CC No.11/12 (earlier CC No.27/09 CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.26 of 162 pending in the court). The copy of the same was marked as Ex.PW.7/A (colly.) (compared from CC No.11/12 of this court). After comparing of the photographs witness stated that photographs available in passport file of this case and Ex.PW.7/A are of two different ladies.
3.7.1 PW.8 Sh.Gurdayal Singh, LDC in Passport Office Jalandhar has proved the passport file in respect of issuance of a passport in the name of Smt.Amarvir Kaur from Passport Office Jalandhar as E.PW.8/A (D.11) in which the passport was delivered to Amarvir Kaur.
3.7.2 He also proved all the documents of the passport file of Amarvir Kaur. He was asked to compare the CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.27 of 162 documents of the lady pasted in file Ex.PW.1/A (RPO, New Delhi file) and Ex.PW.8/A (Passport office Jalandhar file). On seeing the same he stated that the photograph of Amarvir Kaur in file Ex.PW.8/A and photo of the lady in the name of Geeta Devi Kapoor in file Ex.PW.1/A (D7) are of one and the same person. 3.8.1 PW.9 Sh.Sandeep Bhasin who was running M/s World Link Travels at Karol Bagh, Delhi dealing with domestic and international air ticketing has deposed that on 19.05.04 one Rajesh Kumar came to him and asked for booking of four tickets including in the name of Geeta Devi Kapoor for DelhiTashkentParisTashkentDelhi route on Uzbekistan Airlines. He deposed that as he was a subagent and as such he approached M/s World Express, New Delhi for issuance of CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.28 of 162 tickets. He had checked all the passports of travellers and had sent his brother Shamit to M/s World Express with original passports of the travellers alongwith Rs.19,000/ which amount was received from Rajesh Kumar and the tickets were later on handed over to Rajesh Kumar after receiving the balance amount.
3.8.2 He proved bill book of his company as Ex.PW. 9/A (D.19) and in the said bill book he specifically proved bill Nos. 5062, 5063, 5064 & 5065 as Ex.PW.9/B, C, D & E respectively for receiving the amounts for purchase of tickets in the names of Subhir Singh Bhatia, Rajesh Kumar, Jagdish Mathur & Geeta Devi Kapoor for booking their air tickets for aforesaid sector.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.29 of 162 3.8.3 He was shown international purchase bill of World Express which was made in favour of M/s World Link Travellers vide invoice No.B00325 & B00326 both dated 19.05.04 vide which tickets were purchased, which invoices are marked Ex.PW.9/F & 9/G. The computerized statement of account of M/s World Express for the period from 01.01.04 to 31.10.04 has been marked as Ex.PW.9/PX in which the names of Rajesh Kumar and Geeta Devi Kapoor are reflected. He deposed that the photo copy of the cash book of his firm marked PW.9/PX.1 (D.
18) shows entry regarding receipt of Rs.90,000/ & Rs.17,000/ from Rajesh Kumar reflected at points 'A' & 'B' in mark PW.9/X.1. 3.9 PW.10 Balraj Singh is husband of Amarvir Kaur (PO) who is resident of VPO Udho Nangal, District Amritsar.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.30 of 162 He has deposed after seeing the passport file of Jalandhar Passport Office Ex.PW.8/A that the photographs affixed thereon are of his wife Amarvir Kaur. He deposed that passport from Jalandhar Passport office was obtained by his wife at the instance of his wife's sister Narender Kaur, who lives in France and his wife Amarvir Kaur had also gone with her to France in 2004 and settled there without his permission. He was also shown the passport file of RPO, Delhi Ex.PW.1/A (D7) whereupon said that although the applicant's name is mentioned as Geeta Devi Kapoor but photograph thereon is of his wife Smt.Amarvir Kaur. He was also shown a copy of passport bearing No.B5081385 in the name of Geeta Devi Kapoor placed at page no.5 of the file Ex.PW.1/A upon which he said that the said copy bears the xerox impression of photograph of his wife CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.31 of 162 Amarbir Kaur. He proved seizure memo Ex.PW.10/J vide which he had furnished the group photograph of his family to CBI and the photograph has been proved as Ex.PW.10/K in which he has pointed out that at point A, it is the photograph of his wife Amarvir Kaur. He was not cross examined by any of the accused persons.
3.10.1 PW.11 Sh.Sunil Kapoor working as Accountant in travel agency M/s World Express has deposed that he had received a Fax from M/s World Link Travels for booking tickets in the name of Geeta Devi Kapoor bearing passport No.E7988478 for sector DelhiTashkentParisTashkentDelhi and the said fax has been proved as Ex.PW.11/A. He deposed that accordingly a ticket No.2504402084926 for the said sector was purchased in CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.32 of 162 the name of Geeta Devi Kapoor which is Ex.PW.11/B. 3.10.2 He deposed that in fact there was a request for purchase of four tickets in the names of Geeta Devi Kapoor, Rajesh Kumar, Subir Singh Bhatia and Jagdish Mathur whose names are mentioned in invoice No.B00325 (D.20) already Ex.PW.9/F and Invoice No.B00326 already Ex.PW.9/G. He proved that Invoices Ex.PW.9/F & 9/G contained ticket numbers, date of travel, the travel sector and the net amount of ticket and the date of travel in respect of all four tickets was 21.05.04. 3.10.3 He has proved the cash receipt book of his company as Ex.PW.11/C (D.22); that his company had received Rs.75,000/ in cash from M/s World Link Travels vide receipt CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.33 of 162 dated 19.05.04 Ex.PW.11/D (D.67); the balance payment of Rs. 58,000/ was received vide receipt dated 26.05.04 which is Ex.PW.11/E (D.67); the ticket bearing No.2504402084924 for the same sector is Ex.PW.11/F; the computerized print out of ledger account of M/s World Link Travels from 01.04.04 to 31.10.04 as maintained in computer system of his company has been proved as Ex.PW.11/G (D.23) earlier marked as Mark PW.9/PX. He deposed that the fact that ticket was purchased in the name of Geeta Devi Kapoor and Rajesh Kumar, is mentioned at point A on Ex.PW.11/G. 3.10.4 He proved that the copy of passport No.E7988478 containing photograph of Geeta Devi Kapoor and VISA in her name was received before booking the ticket in her CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.34 of 162 name which is Ex.PW.11/H (D.15) and copy of passport No.B1540411 containing photograph of Rajesh Kumar and VISA in his name were also received before booking the ticket in his name which are respectively Ex.PW.11/J & 11/K (D.15). He deposed that after booking the aforesaid tickets the same were handed over to the office of M/s World Link Travels on whose behalf M/s World Express had booked these tickets. He was not cross examined by any of the accused persons. 3.11 PW.12 Sh.Harish Kumar Bajaj has proved specimen writings of Smt.Shweta Dhawan as Ex.PW.12/A to H, J to N & P to Z.13. PW.13 Sh.Mangboi Gangte was other witness of obtaining specimen writings of Smt.Shweta Dhawan.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.35 of 162 3.12 PW.14 Archana Andley who was posted as Sub Inspector (Foreigner branch) in FRRO, R.K.Puram, New Delhi had handed over the departure (Embarkation) card in respect of Geeta Devi Kapoor and Rajesh Kumar and Arrival (Disembarkation) Card in respect of Rajesh Kumar to IO of the case. Embarkation Card of Geeta Devi Kapoor has been proved as Ex.PW.14/B (D.12), who was holding passport No.E7988478 dated 05.03.04 and had boarded in Flight No.HY 422 for Tashkent on 21.05.04. Similarly she proved Departure Embarkation Card in respect of Rajesh Kumar (D.13) as Ex.PW. 14/C who was holding passport No.B1540411 dated 02.03.2000 and had boarded flight No.HY 422 for Paris on 21.05.04. His Disembarkation card (D.14) has been proved as Ex.PW.14/D showing his arrival at Delhi on 26.05.04 vide flight No.HY 423 CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.36 of 162 from Paris.
3.13 PW.15 Sh.S.R.Thakur is part IO who had recorded statement of Sh.Balraj Singh u/s 161 of Cr.PC and seized one post card size photograph of six persons including Amarvir Kaur.
3.14.1 PW.16 Sh.Jaswinder Singh r/o Jalandhar, (Punjab) has deposed that he knows Rajesh Kumar Sharma (accused who was correctly identified) for last about 9 years and he came into his contact through Amarjeet Singh, who is his friend and residing in Germany; he met Rajesh 89 times thereafter; whenever Amarjeet Singh used to visit India, Rajesh Sharma used to come to meet him; he knew that Rajesh Sharma CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.37 of 162 is working with some travel agency which is into the job of sending the people abroad and ticketing for that purpose. 3.14.2 He was declared hostile by prosecution and was cross examined with permission of the court wherein he stated that Sh.Rajiv Wahi/IO had recorded his statement on 17.06.05 and whatever he had stated to him, was recorded by IO. He deposed that he was told by Amarjeet Singh that Rajesh Sharma was into the job of sending people abroad and charged Rs.6 to 7 lacs for this work; that he had sent 78 persons abroad through Rajesh Sharma, who all were his relatives and acquaintances; he had given photographs and passports of those 78 persons to Rajesh Sharma for sending them abroad and paid around Rs.6 lacs for each person for sending them CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.38 of 162 abroad to a person who was associate of Rajesh Sharma. He deposed that money was paid only after the person was actually sent abroad.
3.14.3 He admitted that he had sent Sh.Avtar Singh, Sh.Malkit Singh and Sh.Rajwinder Singh through Rajesh Sharma but denied that there was a lady by name of Amarvir Kaur who was sent by him through Rajesh Sharma. He denied that he had forwarded the money after taking the same from Smt.Amarvir Kaur to Rajesh Sharma after deducting his share of Rs.25,000/ On this he was confronted with his statement made to IO u/s 161 of Cr.PC Ex.PW.16/PX where it was so recorded. 3.14.4 He further admitted that he had given a CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.39 of 162 photograph to IO of the case Inspector Rajiv Wahi alongwith 910 photographs of other persons. He identified his signatures at point A on the photograph of the lady which is Ex.PW.16/A (D.8). He said that he does not know who was that lady. When court question was put to him in this respect he stated that due to passage of time he had forgotten such facts. After comparison of photograph Ex.PW.16/A (D.8) with the photographs affixed on Ex.PW.2/A and A.1 (D.7) and the photograph in file Ex.PW.8/A (D.11) which is of Jalandhar Passport office in respect of Amarvir Kaur, he said that the same are the photographs of same lady. (The court also observed that all these photographs are of the same lady which are apparent from the bare perusal of the same). He also deposed that photograph Ex.PW.10/K (D.25) is also of the same lady whose photograph is Ex.PW.16/A. CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.40 of 162 3.14.5 During his cross examined by ld. Counsel for accused Rajesh Sharma (A.6) he denied the suggestion that his statement was not recorded by IO or that IO has taken his signatures on the photograph already carried by him or that those photographs were not provided by him to CBI. He also denied the suggestion that he never paid any money to Rajesh Sharma for sending anybody. He also denied suggestion that he never met Rajesh Sharma or that he never worked with any travel agency.
3.15.1 PW.17 Sh.Ajay Gautam who was earlier posted as Scientist Grade C in RPO, Delhi has deposed that HIT checking with photograph and signature started in July, 2002 on CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.41 of 162 one PC only and since April, 2004 all the computers have facility to check HIT with photograph and signature. 3.15.2 He proved computerized processing reports bearing his signatures as Ex.PW.17/A, PW.17/B, PW.17/C and Ex.PW.6/PD in respect of passports issued in the name of Geeta Devi Kapoor in file of original passport file and three files of additional passport booklets. He also proved the certificate u/s 65B of Indian Evidence Act (D.5) as Ex.PW.17/D. Photo copy of one page of Log register of RPO, Delhi containing information regarding implementation of new modules and checks in RPO, Delhi has been marked by him as Mark PW.17/E and he deposed that as per entries in the register, Passport Index Retrieval System (PIRS) was introduced in RPO, Delhi on 12.08.02 on one CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.42 of 162 PC (The original register available in another passport case pending in this court). The production memo vide which he had handed over these documents has been proved as Ex.PW.17/F (D.30).
3.15.3 During cross examination by accused No.3 Ram Chander he denied the suggestion that at the relevant period no computer system was available with HIT section to check the photograph and signatures of original passport holder in respect of application for additional passport booklet. He deposed that login ID and password is known to only the official to whom it is given.
3.16 PW.18 Sh.R.Swaminathan, Ambassador of CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.43 of 162 India, Austria (Vienna) who was earlier posted as Joint Secretary, Ministry of External Affairs, New Delhi, has proved the sanction order for prosecution of accused public servants as Ex.PW.18/A vide which sanction for their prosecution was granted u/s 19 (1)
(c) of PC Act, 1988. PW19/ Sh.Rajiv Wahi is IO of the case who has proved the entire investigation of the case as done by him. PW20 Sh.R.R.Dash, Ambassador of India in Jordan, who was earlier posted as Joint Secretary to Govt. of India, has proved the sanction for prosecution of accused persons u/s 15 of Passports Act, 1967 as Ex.PW.20/A. 4.1 The entire evidence was put to accused persons u/s 313 Cr.PC which has been denied by them. Accused/Bibianus Toppo (A1) has stated that he has not CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.44 of 162 committed any offence and allegations of conspiracy made against him are false and incorrect.
4.2 Accused/Harbhajan Yadav (A2), besides denying incriminating material, said that during relevant period counter clerk was not having the facility in the computer to see the photograph, signature and old references of the applicant; he was not having any instrument or machine to detect the correctness of enclosed of previous passport; that during relevant period, he used to work as counter clerk in morning session and had to work as dealing assistant in post lunch session; and that the work load was too much and services were required to be rendered within a short time period.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.45 of 162 4.3 Accused/Ram Chander (A3) besides denying entire incriminating material against him, has stated that he has been falsely implicated by CBI and witnesses were interested and planted by CBI for strengthening their false case. 4.4 Accused/Anil Dhawan (A4) has denied incriminating evidence put to him and stated that he has been falsely implicated by CBI to save witness/Gurinder Singh Walia from whose possession incriminating documents i.e. foreign currency, blank letter heads and passport of his partner's daughter were recovered by CBI, who was promised by CBI officials that he would be let off if he deposed as per wishes of CBI; that he was called by CBI and made accused by leaving Gurinder Singh Walia as per promise made by CBI; and that he CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.46 of 162 was just a poor employee of Gurinder Singh Walia and has been made a scapegoat by him.
4.5 Accused Rajesh Kumar Sharma (A.6) has pleaded his innocence as also his ignorance to entire incriminating material put to him.
4.6 The accused persons did not led any defence evidence despite opportunity granted except for accused Bibianus Toppo (A.1) who examined Ahlmad of the Court as DW. 1 to prove certain circulars obtained by his counsel through RTI application and appeal as Ex.DW.1/A and B. 4.7 I have heard ld.Public Prosecutor for CBI and CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.47 of 162 ld.counsels for the accused persons and perused the records carefully including the written arguments filed on behalf of accused/Bibianus Toppo (A1) and Rajesh Kumar Sharma (A6). 5.0 SANCTION FOR PROSECUTION OF ACCUSED 5.1 The sanction for prosecution of accused public servants u/s 19 of P.C. Act and sanction for prosecution of all accused persons u/s 15 of Passports Act, 1967 were placed on record with charge sheet filed by the CBI. The sanction for prosecution of public servants u/s 19 of P.C.Act has been proved as Ex.PW.18/A by examining Sh.R. Swaminathan (PW18) and sanction for prosecution of all accused persons u/s 15 of Passports Act has been proved as Ex.PW.20/A by examining Sh.R R Dash (PW20).
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.48 of 162 5.2 It has been submitted by ld.Counsel for accused Bibianus Toppo (A.1) that sanction for prosecution of accused Bibianus Toppo (A.1) who worked with RPO, New Delhi as Passport Issuing Authority (PIA) is not proper and hence his prosecution in this case is void abinitio; that sanctioning authority did not apply its mind and hence sanction for prosecution is unlawful due to non application of mind by the sanctioning authority; that only an officer of the rank of Additional Secretary of Ministry of External Affairs, was empowered to pass a sanction order u/s 19 of PC Act in respect of accused Bibianus Toppo (A.1) who was an officer of the rank of Supdt. in Regional Passport Office hence PW.18 Sh.R.Swaminathan, being Joint Secretary, was not authorized to grant sanction for prosecution of CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.49 of 162 accused Bibianus Toppo (A.1).
5.3 When Sh.R.Swaminathan (PW18) was examined, he clarified that authority for sanction of prosecution u/s 19 of P.C.Act in respect of Bibianus Toppo, the then Suptd., was vested with Additional Secretary (Administration & CPV) to whom the entire file including the statements of witnesses, investigation report and copies of documents were forwarded for his perusal and necessary action and on receipt of his approval on the file, he (PW18) had signed the sanction order Ex.PW. 18/A. 5.4 Accused Bibianus Toppo (A1) was given full opportunity to cross examine PW18. If at all he had any doubt CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.50 of 162 regarding nonexistence of any such sanction on the file by Addl.Secretary, who was competent to grant sanction for his prosecution, he could call for the records from the Ministry of External Affairs to show to the contrary, which he preferred not to call. Sanction order Ex.PW.18/A is an exhaustive order which itself speaks as to what documents were seen by sanctioning authority and under what circumstances the sanction for prosecution of accused public servants was accorded. The same is well reasoned order which reflects that the sanction has been granted by the authority competent to pass such an order after due application of his mind.
5.5 The sanction order u/s 15 of Passport Act, 1967 has been proved by Sh.R.R.Dash as Ex.PW.20/A and in respect CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.51 of 162 of this sanction order he was competent authority. The sanction for prosecution u/s 15 of Passport Act speaks of the reason for grant of sanction that passport booklets, in the name of Ms.Geeta Devi Kapoor having photographs of different persons with similar personal particulars in order to facilitate other persons to travel abroad on forged travel documents, were obtained by accused persons knowingly in conspiracy with officials of RPO, Delhi. There is no infirmity or illegality in this order also which is a reasoned order based on the documents produced before competent authority. I accordingly hold that the sanction for prosecution of accused persons u/s 19 of PC Act and u/s 15 of Passport Act, has been duly accorded by competent authority.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.52 of 162 6.0 Now I proceed to discuss and examine the role of accused persons in the light of evidence available against each of them.
ROLE OF ACCUSED NO.1 BIBIANUS TOPPO 6.1 The Ld. Public Prosecutor has submitted that in total four passports had been issued by RPO, New Delhi in name of Smt.Geeta Devi Kapoor, the original of which was issued on 20.12.2000 in passport file No.DLHB 041059/00 in respect of which the computer generated processing sheet has been proved as Ex.PW.17/A (D.4). The chargesheet in respect of that passport was filed, which case bearing CC No.26/10 had been decided by the Court of Sh.Amar Nath, the then ld. Spl.Judge, CBI on 17.08.10 convicting two accused persons. In that case it CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.53 of 162 was found that one accused Sharda Devi (PO in that case) had got issued passport No.B5081385 with her photograph affixed thereon in assumed identity in the name of Geeta Devi Kapoor, a nonexistent person and went abroad.
6.2 Again, enclosing a purported copy of passport No.B5081385 an additional passport booklet was got issued in passport file No.DLHT007726/02 with photograph of another lady in name of Geeta Devi Kapoor. The charge sheet in respect of that incident was filed and case bearing CC No.47/08 which has also been decided on 29.09.12 thereby acquitting all accused persons. The computer generated worksheet in respect of that booklet is Ex.PW.17/B. CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.54 of 162 6.3 Again, a purported copy of same passport number B5081385 was used for obtaining an additional passport booklet for second time in passport file No.DLHT001794/04 with photograph of another lady in name of Geeta Devi Kapoor. The charge sheet in respect of that passport file was filed bearing CC No.11/12, which has been recently decided by the court on 16.12.14 and thereby convicting three accused persons. The computer generated worksheet in respect of which is Ex.PW. 17/C. The copy of the file No.DLHT 001794/04 is Ex.PW.7/A (original in CC No.11/12 available in the court). 6.4 In the same series, the instant case is with respect to passport file No.DLHT 003439/04 Ex.PW.1/A (D.7) with its computer print out of work sheet Ex.PW.6/PD (D.4). In CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.55 of 162 this case also the purported photocopy of same original passport No.B5081385 has been used for getting issued passport booklet No.E7988478 in the name of Geeta Devi Kapoor with photograph of yet another lady, namely, Ms.Amarvir Kaur (PO) who went abroad. In this way this is the case of issuance of additional passport booklet for third time. 6.5 As per the procedure followed in RPO, Delhi while applying for additional passport booklet for the first time, the self attested copy of original passport is to be enclosed with the application, but the same cannot be used for issuance of a second additional passport booklet for which the self attested copy of the first additional passport booklet is required. This fact has come in unchallenged testimony of PW.1 Sh.S.P.Kothari.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.56 of 162 Besides, while issuing additional passport booklet, this fact is mentioned on it that it is first, second or third additional booklet. These are not disputed facts.
6.6 It is also clear from testimony of Sh.S.P.Kothari that while accepting the application for additional passport booklet alongwith a self attested photocopy of previous passport booklet, the counter clerk used to cancel the previous passport booklet and return the same to the applicant after comparing the same with the copy annexed to the application. Hence if at all the additional passport booklet was issued on the basis of original passport booklet in CC No.47/08, its original must have been returned after cancelling the same and hence it was not possible for any one to utilize the same for the purpose of CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.57 of 162 issuance of passport booklet in case bearing CC No.11/12 and then again for issuance of additional passport booklet for third time in this case, unless the officials of passport office dealing with it, were colluding with applicant or her agent. 6.7 It has been submitted by ld.Public Prosecutor for CBI that accused Bibianus Toppo was posted as Suptd. in the office of RPO, New Delhi and was Passport Issuing Authority (PIA) and it was he who had forged the passports by signing as PIA whereby a passport booklet vide passport application in the file Ex.PW.1/A (D.7) was issued in the name of Ms.Geeta Devi Kapoor with photograph of accused Amarvir Kaur (PO) and with same personal particulars on the basis of which the original passport No.B5081385, on which photograph of another lady CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.58 of 162 was affixed ,was issued.
6.8 She has submitted that the duty of accused Bibianus Toppo as PIA was to cross check the entire facts mentioned in the application in file Ex.PW.1/A (D.7) firstly when the applicant had approached him for taking promise date on handwritten application Ex.PW.2/A.4 (internal page no.8 of the file Ex.PW.1/A) on which accused Bibianus Toppo (A.1) had given promise date of 05.03.04 by signing at point A with date as 04.03.04 and secondly when he granted and signed the passport booklet on 05.03.04. She has also drawn attention of the court to the fact that PW.1 S.P.Kothari has identified accused Bibianus Toppo and other public servants who had dealt with the matter of issuance of passport booklet in file Ex.PW.1/A. She CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.59 of 162 has submitted that the act of accused Bibianus Toppo was intentional act in issuing additional passport booklet in file Ex.PW.1/A with different photograph of the lady who was not Geeta Devi Kapoor but was accused Amarvir Kaur (PO). 6.9 The facts proved on record, which are relevant for the purpose of ascertaining the involvement of accused Bibianus Toppo (A.1) are that he, being Superintendent posted in RPO Delhi, was Passport Issuing Authority (PIA). The application for issuance of additional passport booklet was made on 04.03.04 which was checked at the counter by counter clerk Harbhajan Yadav (A.2) and the previous passport was purportedly seen, cancelled and returned by him to applicant, who then reached the PIA (Bibianus Toppo) for taking promise CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.60 of 162 date.
6.10 The duty of PIA at the stage of promise order is to see the application, enclosures and ensuring that the cancelled passport has been returned back to the applicant. The PIA in this case had passed promise order on 04.03.04 for dispatch of passport on 05.03.04 which is clear from point X4 on application Ex.PW.2/A.4 (page no.8 of D.7). 6.11 In this respect the ld. Counsel for accused Bibianus Toppo (A.1) has submitted that accused is entitled to a parity with his colleague Ms.Asia who had passed a similar promise order in passport file Ex.PW.7/A in which copy of same passport was used for issuance of additional passport booklet for CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.61 of 162 second time, in case bearing CC No.11/12, which has been recently decided by the court and in that case Ms.Asia was not an accused and no departmental action was initiated against her for such a lapse.
6.12 He has submitted that this kind of lapse was very much possible as PIA had to depend upon counter clerk (A.
2) for such checking and he only saw whether the file was prima facie in order, because due to heavy work load it was not possible for PIA to minutely go through the file unless something glaring was noted by him. I find some force in his submissions as in this case there is nothing to suggest that accused Amarbir Kaur (PO) had not appeared before PIA at the time of depositing the application form and secondly, if a mistake on the part of CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.62 of 162 Ms.Asia was possible under similar circumstances, it was equally expected from Bibianus Toppo (A.1) and the benefit thereof has to be given to him. Thus to this extent there was no involvement of Bibianus Toppo (A.1).
6.13 The space for official use in file Ex.PW.1/A (D.7) at page 4 (separately marked Ex.PW.2/A2) indicates at point 'X' that the counter clerk (A.2) had on 04.03.04 itself recommended 'may issue booklet valid upto 19.12.2010 ECR observed old PPT C & R'. The grant order has been passed by Bibianus Toppo (A.
1) on 05.03.04 and passport booklet was signed on same day which is shown at point A and B respectively on Ex.PW2/A2 {internal page no.4 of file Ex.PW.1/A (D.7) } CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.63 of 162 6.14 Ex.PW.6/PD (D.4), which is print out of the computer worksheet, shows that the HIT in file Ex.PW1/A was cleared by Ram Chander (A.3) on 05.03.04 and B.Toppo (A.1) has granted passport and signed it on 05.03.04. 6.15 It has come in evidence of Sh.S.P.Kothari (PW.
1) and other officials of RPO, New Delhi that previous passport file did not use to accompany the application and during those days the facility to see the photographs and signatures of previous passport holders/applicants was not available on the computer provided to PIA and that there was huge work pressure on PIAs which might have deterred PIAs to call for the previous passport file of the applicant unless anything adverse was reported by dealing Assistant (A.2) or HIT checking official (A.3), CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.64 of 162 which is admittedly not there on the file. Hence arguments of ld.counsel for Bibianus Toppo that PIA (A.1) was led to believe that everything was in order, finds favour. 6.16 Thus, the evidence on record as discussed above, does not lead to an inference that Bibianus Toppo (A.1) had intentionally passed grant order/signed passport booklet in file Ex.PW.1/A (D.7) in which the photograph of Ms. Amarvir Kaur (PO) was affixed in name of Ms.Geeta Devi Kapoor. He accordingly deserves benefit of doubt and consequent acquittal. 7.0 ROLE OF ACCUSED No.2 - HARBHAJAN YADAV 7.1 The ld.Public Prosecutor has submitted that Harbhajan Yadav (A2) has dealt with all the three files in which CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.65 of 162 the additional passport booklets were issued by RPO, New Delhi in the name of Geeta Devi Kapoor by utilizing a forged copy of passport no.B5081385 issued on 20.12.2000 by every time changing the photographs and signatures of different ladies. She has submitted that the file Ex.PW1/A (D7) through which additional passport booklet with photograph and signature of Amarvir Kaur (PO) bearing no.E7988478 dated 05.03.04 has been got issued was the third additional passport booklet. She has contended that accused/Harbhajan Yadav has played a vital role in issuance of the passport booklet in the name of Ms.Geeta Devi Kapoor, on which photograph and signatures are of a different person. She has submitted that without active role played by Harbhajan Yadav (A2), it was not possible for accused/Anil Dhawan (A4) to get issued a passport booklet on CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.66 of 162 which the photograph of Amarvir Kaur (PO) was affixed. 7.2 On the other hand, ld.counsel for accused/Harbhajan Yadav (A2) has submitted that accused is innocent and that he was misled by the applicant because he had no facility on his computer to see the photograph and signature of the original passport holders and that there was no instrument provided to counter clerk (A2) to check the genuineness of the passport produced before him for cancellation and return. I shall appreciate these arguments in the light of facts and documents proved on record. 7.3 As per the facts proved on record, which are not disputed, accused/Harbhajan Yadav (A2) while working as LDC CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.67 of 162 in RPO, New Delhi, had processed the file for issuance of additional passport booklet Ex.PW1/A (D.7). He was working as counter clerk cum dealing assistant and as such had dealt with the file in RPO and had recommended for issuance of additional passport booklet.
7.4 As emerged from evidence of Sh.S.P.Kothari (PW.1), the process followed by Passport office for applying additional passport booklet was that while applying for first additional passport booklet, the applicant was required to submit the original passport, issued to him/her, at the counter which was required to be cancelled and returned to him/her by retaining an attested photocopy thereof with the application. He clarified by illustration that if the applicant had applied for fifth additional CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.68 of 162 passport booklet, he/she was required to annex attested photocopy of the fourth additional passport booklet with his/her application and the original thereof was required to be cancelled and returned to him/her by the counter clerk at the counter after verifying the photocopy thereof as enclosed with the application. 7.5 As already discussed, while deliberating the role of Bibianus Toppo (A.1), the original passport and three additional passport booklets were got issued from RPO, New Delhi in name of Geeta Devi Kapoor whereas none of them were Geeta Devi Kapoor. All the three additional passport booklets have been got issued by annexing purportedly self attested photocopy of the same original passport booklet no.B5081385 issued on 20.12.2000 by replacing the photographs and CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.69 of 162 signatures with the photographs and signatures of different ladies each time, for whom the additional booklet was applied. The lady Sharda Kapoor who had got issued the original passport in name of Geeta Devi Kapoor, with her photograph affixed thereon, had travelled abroad and did not return back (she having been declared PO in CC No.26/10, already decided). It transpired that the accused were aware of this fact and therefore, they used the photocopy of the same passport by replacing the photographs for getting issued additional passport booklets again and again, which was accepted by Harbhajan Yadav (A.2) without requiring production of original thereof for cancellation and return at the counter.
7.6 PW1/S P Kothari has been examined by CBI, CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.70 of 162 who worked with RPO, New Delhi for considerably long time with accused/Bibianus Toppo (A1) and Harbhajan Yadav (A2) and accordingly was able to prove that it was accused/Harbhajan Yadav (A2) who was assistant of Bibianus Toppo (A1) then working as PIA, who had put up the file to PIA. This is not a disputed fact. When this evidence was put to him u/s 313 Cr.PC vide question no.18, he did not deny the fact but said that the file is scanned copy, which is not the correct position. In fact the file Ex.PW1/A (D7) is original file and not scanned one. 7.7 Sh.S P Kothari while describing the procedure for issue of additional passport booklet, has deposed that additional passport booklet can be issued on the basis of old existing passport with the same particulars for various reasons CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.71 of 162 such as exhausting of pages of existing passport booklet; for issuance of additional passport booklet the applicant is required to furnish a self attested copy of existing passport where the particulars of the applicant are entered; he has to fill up the passport application along with application for miscellaneous services and has to paste two photographs on each of them and the applicant is required to pay a nominal fee of Rs.500/ for each additional passport booklet; for issue of first additional passport booklet, he is required to submit photocopy of original existing th passport and not of the original passport e.g. for issuance of 5 th additional passport booklet, self attested photocopy of 4 additional passport booklet is required to be submitted with the application form.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.72 of 162 7.8 This was the case of issuance of additional passport booklet for third time and, therefore, as per the procedure applicant was required to enclose a self attested copy nd of 2 additional passport booklet no.E7710164 issued in file no.T1794/04 (Ex.PW7/A). But file Ex.PW1/A (D7) and Ex.PW7/A show that while applying for additional passport booklets in both these files the applicant attached photocopy of original passport bearing no.B5081385 dated 20.12.2000, which was already cancelled and returned at the time of issuance of first additional passport which was issued on 18.10.02 as seen from the work done report Ex.PW17/B (D4). Once, it was cancelled and returned, it was not available for use again and again.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.73 of 162 7.9 The ld.counsel for accused/Harbhajan Yadav (A2) has contended that writing of old passport number and signature of counter clerk at point Q17 on Ex.PW2/A1 (in file Ex.PW1/A) was not necessary. For this purpose he has relied upon statement of Sh.Kohatri made during his crossexamination by ld.counsel for A1/Bibianus Toppo, where he has clarified that it is enough if the counter clerk takes the signature of the applicant after cancelling and returning the old passport and that filling up the number of the cancelled passport and putting up the initial by the counter clerk in the space provided in the stamp was not in practice at the relevant time. From testimony of PW1/S P Kothari, it appears that am unwritten practice had developed in RPO New Delhi that the counter clerk did not use to write the passport number of the cancelled old passport in the space CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.74 of 162 provided on application for miscellaneous services as at point Q. 17 in Ex.PW2/A1 and the number of the old, cancelled and returned passport used to be mentioned only at the back side as appearing at Q.19 of this form, where space is provided for the same. However, Sh.Kothari admitted that if there is a positive report of counter clerk/dealing assistant and no adverse remark of HIT Section then the PIA in routine manner would pass the order regarding grant of passport.
7.10 Sh.Kothari has clarified that once the applicant has collected back the file from the counter clerk, the counter clerk has no control over the applicant and his/her file. It appears that by giving such a suggestion, the ld.counsel for accused/Harbhajan Yadav (A2) has tried to create a defence for CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.75 of 162 him (A2) that the photograph affixed on the file could have been replaced subsequently once the file is collected by the applicant from the counter clerk for the purpose of taking promise date and for deposit of fee but this defence is against the available material on record. The photograph of the applicant at point X1 on Ex.PW2/A1 (in file Ex.PW1/A) is bearing the stamp of the passport office showing that half stamp is on her photograph and half portion is on the form itself meaning thereby that the photograph has not been replaced subsequently. 7.11 It is significant to note that copy of the previous passport no.B5081385, Ex.PW2/A3 annexed with the passport application in file Ex.PW1/A (D7) shows that there is an impression of stamp on the same which reads "extended by the CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.76 of 162 issue of a fresh booklet" which means the passport bearing no. 5081385 was already utilized for issuance for an additional passport booklet and hence if Harbhajan Yadav was not colluding with accused/Anil Dhawan and Amarbir Kaur (PO) he would have certainly understood that the copy of passport booklet which is annexed with application form, is the copy of a original cancelled passport, on which fresh passport booklet was already issued. 7.12 Although the prosecution has sought to prove that it was Harbhajan Yadav (A2), who had delivered the prepared passport booklet to accused/Anil Dhawan (A4) by obtaining his receiving and signature on the file at point Q.16 (Ex.PW2/A1) and passport delivery register at points Q.31 and Q.32 (Ex.PW2/A5=PW5/A) but none of the CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.77 of 162 witness could say that the said prepared passport was delivered to Anil Dhawan (A4) by accused/Harbhajan Yadav (A2) by obtaining his signatures at points Q.16 and Q.32, which have been proved by handwriting expert (PW2) and Sh.G S Walia (PW5) to have been written by accused/Anil Dhawan (A4). However since accused/Harbhajan Yadav (A2) was instrumental in manipulating the acceptance of passport application at the counter, as observed above, therefore, most probably it was he who had delivered the passport in question to accused/Anil Dhawan (A4) by obtaining his signatures and writing at points Q. 16, Q.31 and Q.32 but there is lack of a clinching evidence to conclude that it was done by accused/Harbhajan Yadav and none else.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.78 of 162 7.13 It is clear from processing sheet Ex.PW6/PD (D4) that whereas HIT was checked by Ram Chander (A3) in file Ex.PW1/A on 05.03.04, the recommendation for issuance of passport booklet was made by accused/Harbhajan Yadav (A2) a day before i.e. on 04.03.04 as is clear from his noting at point 'X' on Ex.PW2/A2 (in file Ex.PW1/A) vide which he has recommended for issuance of additional passport booklet valid upto 19.12.2010. This leads to the inference that he was sure of getting HIT clearance of the file through Ram Chander (A3) who was working in HIT Section and had thereafter cleared the file in HIT by using his log in ID and password. Thus, on the one hand Harbhajan Yadav (A2) was colluding with Anil Dhawan (A4) and Amarvir Kaur (PO), on the other he was in league with his colleague Ram Chander (A3) for getting issued the additional CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.79 of 162 passport booklet in the name of Geeta Devi Kapoor with photograph of Amarvir Kaur (PO).
7.14 It is significant to note that while the Passport Issuing Authority (PIA) in file no.DLHT7726/02 as shown in Ex.PW17/B (D4) was Om Prakash, in files no.1794/04 (Ex.PW7/A) and no.3439/04 (Ex.PW1/A), the PIA was Bibianus Toppo (A1) as is clear from Ex.PW17/C and Ex.PW6/PD. Thus, whereas PIAs were different, the counter clerk/dealing assistant for all these files was accused/Harbhajan Yadav (A2) and HIT checking official was Ram Chander (A3), in which additional passport booklets have been issued in the name of Geeta Devi Kapoor with same personal particulars but different photographs and signatures. This fact becomes relevant for CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.80 of 162 determining the complicity of accused/Harbhajan Yadav (A2) and Ram Chander (A3) under Section 15 of Evidence Act. 7.15 Thus, I find that accused/Harbhajan Yadav (A2) was a common and most crucial link for issuance of additional passport booklet. Whereas any participation on the part of accused/Bibianus Toppo (A1) is doubtful, there is no doubt regarding the role of accused/Harbhajan Yadav (A2), who had played vital role in issuance of additional passport booklet in the name of Ms.Geeta Devi Kapoor with photograph of Amarvir Kaur (PO).
7.16 In view of my above findings, I hold that prosecution has successfully proved its case against CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.81 of 162 accused/Harbhajan Yadav (A2) beyond any reasonable doubt. 8.0 ROLE OF ACCUSED No.3 RAM CHANDER 8.1 It is alleged against accused Ram Chander that while working as LDC in HIT Section of RPO, New Delhi during the relevant period, he had cleared passport file No.T3439/04 on 05.03.04 {Ex.PW.1/A (D7)} in the name of Ms.Geeta Devi Kapoor in HIT Section without pointing out about the issue of earlier additional passports in the same name but with different photographs and signatures.
8.2 In the HIT Section there is facility in the computer system that the signatures and photographs of the CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.82 of 162 earlier passport holder could be seen clearly and in case of any dissimilarity it was required to be pointed out by the official working in HIT Section. Accused Ram Chander, who was working in HIT Section during the relevant period, had not carried out this exercise which was intentional and thereby additional passport booklet was issued in favour of fictitious person with different photograph and signature than of the original allottee of the passport, who herself was an impostor, namely, Ms.Sharda Kapoor (PO in CC No.26/10 already decided). 8.3 It has been submitted by ld.Public Prosecutor that the role of accused/Ram Chander (A3) was very crucial as he had cleared the HIT in all the three passport files in which the additional passport booklets have been fraudulently got issued in CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.83 of 162 the name of Ms.Geeta Devi Kapoor, a non existing person with different photographs and signatures of the persons every time. She has submitted that had Ram Chander (A3) not cleared HIT, the passport booklet could not have been issued in file Ex.PW1/A (D7).
8.4 She has contended that clearance of HIT in each of the three files for issuance of additional passport booklets in the name of Geeta Devi Kapoor, by accused Ram Chander shows that he cleared HIT being in conspiracy with accused/Harbhajan Yadav (A2) and Anil Dhawan (A4) who are involved with him in all these three passport files. She has thus submitted that the act of clearance of HIT by accused/Ram Chander (A3) was intentional and not negligent or accidental, by CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.84 of 162 virtue of provisions of Section 15 of Evidence Act. 8.5 On the other hand, ld.defence counsel has submitted that guilt of accused/Ram Chander has been sought to be proved on electronic evidence only, without due compliance of provisions of Section 65B of Evidence Act; that the onus to discharge his burden placed on accused is much diluted than it is on prosecution; that possibly some other official working in RPO, Delhi might have used the log in ID and password of Ram Chander (A3) to clear the HIT in the file; that there is no whisper of his meeting of mind with other accused persons to fasten guilt of a criminal conspiracy on him; and that there is not even an iota of evidence that A3 gained anything in the alleged act of clearing HIT in file Ex.PW1/A. CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.85 of 162 8.6 We will appreciate contentions of ld.defence counsel in view of evidence on record.
8.7 So far as the contention of accused that some other employee of RPO, Delhi might have cleared the HIT using his log in ID and password, he has not taken this defence or suggested anything of the sort to the prosecution witnesses who were officials of RPO, Delhi. He himself did not examine any defence witness in this respect or proved any document to base his contention. Hence such an afterthought contention can not give rise to a valid defence.
8.8 The contention of ld.defence counsel that the CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.86 of 162 duty of discharging onus of proof when shifted on accused, is not as rigorous as on the prosecution, has no meaning because accused has not brought any evidence in his defence either by way of putting anything to the prosecution witnesses or examining his own witness in defence to discharge onus shifted on him. Once the prosecution had proved that HIT was cleared with his log in ID and password, the burden had shifted on him to show that somebody else would have cleared HIT of the file using his log in ID and password, which he failed to demonstrate. 8.9 Relying upon judgments of Apex Court in Subhash Parbat Sonvane Vs. State of Gujarat, 2002 Cri LJ 2787, the ld.defence counsel for accused/Ram Chander (A3) has submitted that for proving an offence u/s 13(1) of PC Act, CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.87 of 162 some pecuniary advantage to accused, due to his misconduct, must be shown. In fact the issuance of fraudulent passport in the name of a fictitious person causes loss of reputation to the Government and wrongful gain to the person who obtains such passport on which he/she is capable to travel abroad. Therefore, such a conduct of accused public servant, due to which a passport has been issued to a person, who is otherwise not entitled to it, falls within the definition of 'criminal misconduct' u/s 13(1)(d) of PC Act, 1988.
8.10 He has also relied upon judgment of Hon'ble Delhi High Court in S.Ram Yadav Vs. CBI, 2014(1) JCC 343, wherein it was held that negligence can not amount to criminal misconduct. In this respect, I am in agreement with the CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.88 of 162 submissions of ld.Public Prosecutor that once it is proved that it was Ram Chander (A3) who had cleared HIT in all the three files for issuance of additional passport booklets as is shown in Ex.PW17/B, Ex.PW17/C and Ex.PW6/PD (D4), the inference u/s 15 of Evidence Act can be drawn that his act of clearing HIT in the file Ex.PW1/A (D7) was intentional and not accidental. Thus, I find that the clearance of HIT by accused/Ram Chander is not mere negligence but an intentional act and hence ratio of S.Ram Yadav's case (supra) does not protect his action. 8.11 Ld.counsel for accused Ram Chander has submitted that there is no circular of the Ministry of External Affairs/Passport department to the effect as to which work was to be done first while issuing additional passport booklet and CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.89 of 162 therefore, it cannot be said that issuance of additional passport booklet was based on a prerequisite of clearance of passport file by the HIT Section. We will see this argument in the light of evidence available on record.
8.12 PW1/Sh.S. P. Kothari who worked as Superintendent and also as PIA in RPO, New Delhi while describing the procedure for issuance of additional passport booklets, has clearly stated that after the counter clerk checks the application and annexures and puts necessary stamps on application including cancellation and return of old passport booklet, the appellant takes it to PIA who gives promise date, whereafter applicant deposits the fee and the application. After other processes are done and HIT is cleared, the file reaches to CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.90 of 162 counter clerk who puts up the file to PIA for grant of passport. 8.13 During crossexamination by ld.counsel for A2, Sh.Kothari has clarified that file bearing Ex.PW1/A (D7) is complete, so far as the work of counter clerk is concerned, as there was nothing left to be done on the part of the counter clerk. He admitted it as correct that on above said exhibit, there was no remark from HIT Section, therefore, the dealing assistant has rightly written, "may issue additional passport booklet." This has not been agitated by accused when he had crossexamined Sh.Kothari, thereafter. Thus, from this testimony, it transpires that both accused/Harbhajan Yadav (A2) who was dealing assistant and accused/Ram Chander (A3) who was HIT checking official, were clear in their mind about their respective CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.91 of 162 roles that the noting of dealing assistant recommending issuance of passport booklet had to be made after HIT clearance. 8.14 There is no adverse remark of accused/Ram Chander on "space for official use" in file ExPW1/A despite the fact that two additional passport booklets were already issued in the name of applicant Geeta Devi Kapoor as is apparent from Ex.PW17/B and Ex.PW17/C. 8.15 Sh.Ajay Gautam has been examined as PW.17. He has deposed that while posted in RPO, New Delhi, he was responsible for operational support and maintenance of passport server; the scanning of the photographs and signatures of the passport applications started in RPO, Delhi in May, 2000; HIT CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.92 of 162 Checking system for seeing the signatures and photographs alongwith details of previous applicant and old details of the passports already issued, was started on the computer system of RPO, Delhi in August, 2002; in August, 2002, one computer (PC) was provided to HIT Section for HIT checking of Tatkal cases and in April, 2004 all PCs in HIT Section were provided with the facility of seeing the photographs and signatures and other details of the old passport holders and the applicants. 8.16 Sh.Gautam has clarified that HIT check means that all the applications registered in a particular day go to check on the basis of applicant's name, father's name and date of birth. The soundex programme itself checks all the records available in the computer server at RPO, Delhi regarding issuance/apply of CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.93 of 162 earlier passport/additional passport. If any matching entry is not found in the computer then the computer would mark it as clear. He made it clear that the suspected application can not be processed further without marking as cleared by HIT Section. 8.17 We have seen that despite issuance of two previous passport booklets as seen in Ex.PW17/B and Ex.PW17/C, Ram Chander (A3) had cleared the HIT. He did not mention that two previous booklets with photographs and signatures of some other persons, being first and second additional passports were issued in file no.DLHT7726/02 as is shown in Ex.PW17/B and file no.DLHT3439/04 as is shown in Ex.PW17/C. The HIT in these two files was cleared by accused/Ram Chander (A3) by using his login ID and CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.94 of 162 password. He clarified that the official performing the HIT check is able to view the photographs, signatures and all details of the applicant of previous application/passport if issued to the applicant.
8.18 Sh.Gautam has also proved the computerized processing reports of the files, vide which the original passport and three additional passport booklets were issued, as Ex.PW17/A, Ex.PW17/B, ExPW17/C and Ex.PW6/PD (D4). A certificate u/s 65B of Evidence Act has been proved by him as Ex.PW17/D (D5). He proved a photocopy of one page of the Log Register of RPO, Delhi as Mark PW17/E (D6) containing the information regarding implementation of new modules and checks in RPO Delhi (original register available as Ex.PW3/C in CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.95 of 162 CC No.74/08 of this court) and deposed that as per entries in the register, PIRS (Passport Index Retrieval System) was introduced in RPO, Delhi on 12.08.02 on one PC.
8.19 He denied a suggestion that during relevant period no computer was available with HIT Section to check the photograph and signatures of original passport holder in respect of application for additional passport booklets. Except the bald suggestion nothing was elicited by accused to the effect that no such facility was provided to HIT Section during relevant time. When the incriminating material was put to him, he did not explain the reasons for clearing HIT despite the fact that two additional passport booklets were already issued to the same applicant with photographs and signatures of different persons.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.96 of 162 8.20 It has also been contended by ld.defence counsel that Sh.Ajay Gautam (PW17) from NIC, who has issued certificate u/s 65B of Evidence Act was not authorized to issue such a certificate. He has also submitted that the certificate Ex.PW17/D (D5) was not issued in confirmity with provisions of Section 65B.
8.21 When Sh.Ajay Gautam was examined in the court, he deposed that he was posted as Scientist Grade 'C' in RPO, Delhi and was responsible for operational support and maintenance of passport server. He deposed that NIC will provide the information to Superintendent (Admn.), RPO Delhi regarding the file dealt in various sections by different officials CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.97 of 162 along with their P.Number and name in respect of various passports issued in the name of different persons. He specifically deposed that in RPO Delhi, he was authority competent to generate this information on behalf of NIC; that the processing report was generated by him on the instructions of Superintendent (Admn.) RPO, Delhi and the same was handed over to him which was forwarded to CBI.
8.22 The certificate Ex.PW17/D speaks that the data is computer generated and the printouts thereof have been provided, which have been certified as true and actual reproduction of the data maintained in RPO Delhi, as electronic record, in ordinary course of business, which was not tampered with and the computer system was properly working during CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.98 of 162 relevant period. No question was put to the witness during his crossexamination about his competency to issue such a certificate and nothing has been demonstrated to suggest that the reproduction of data was incorrect in any manner. 8.23 From testimony of PW1 and PW17 it is clear that it was accused/Ram Chander who had cleared HIT of the file in question despite the fact that the photograph and signature of the applicant was changed and he did not point out that two additional passport booklets were already issued and in this way he helped accused/Amarvir Kaur (since PO) in obtaining a passport booklet in the name of Smt.Geeta Devi Kapoor with her photograph affixed thereon to enable her to travel abroad.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.99 of 162 8.24 It has been proved beyond reasonable doubt that clearing of HIT by accused Ram Chander in respect of file Ex.PW.1/A (D7) for issuance of additional passport booklets in the name of Ms.Geeta Devi Kapoor with same personal particulars for the third time, was done by him. Due to this reason, additional passport booklet for third time with different photograph and signature was got issued in the name of Geeta Devi Kapoor. This establishes that accused Ram Chander abused his official position with ulterior motive due to which additional passport booklet, being a valuable thing, was fraudulently got issued in the name of Geeta Devi Kapoor with photograph of Amarvir Kaur (PO). It was obviously done by him in pursuance of conspiracy and furtherance of goal set by Harbhajan Yadav,who was in league with accused Anil CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.100 of 162 Dhawan(A4) (also see discussion in para 7 and 9). His malafide and ulterior motive is apparent. He is accordingly found guilty of the offcences charged against him.
9.0 ROLE OF ACCUSED No.4/ANIL DHAWAN 9.1 It is alleged against accused Anil Dhawan that the passport application for obtaining additional passport booklet for third time in the name of Geeta Devi Kapoor was got written by him from his wife Smt.Shweta Dhawan (since discharged). He received delivery of that additional passport booklet by acknowledging the receiving and signing as 'Geeta Devi' on application form in the file and also at passport delivery register as 'Geeta Devi.' CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.101 of 162 9.2 The ld.defence counsel for Anil Dhawan (A4) has raised an objection that all the cases of issuance of passports in which accused/Anil Dhawan has been implicated by CBI form a single offence, for which he can not be punished again and again. He has submitted that Article 20(2) of the Constitution of India and Section 300 Cr.PC mandate that a person once convicted or acquittal, not to be tried again for same offence. The moot question, therefore, is whether fraudulent issuance of different passports with photographs of different persons in order to enable them to travel abroad, which were got issued at different times, can be called 'same offence.' In my opinion by no stretch of imagination all such incidents can be termed as same offence even if some of the accused may be common in some of these cases.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.102 of 162 9.3 The passport file for issuance of additional passport booklet for third time is Ex.PW.1/A (D.7). The opinion of handwriting expert (GEQD) has been proved as Ex.PW.2/D (D29) which is supported by 'reasons for opinion' Ex.PW.2/E. As per opinion of handwriting expert (PW2) which is corroborated by oral testimony of Sh.G S Walia (PW5) who is fully conversant with handwriting of Anil Dhawan (A4) being his employer for a long time, the handwriting at point Q.16 on passport application Ex.PW2/A.1 in file Ex.PW1/A (D7) whereby receipt of prepared passport booklet has been acknowledged by signing as 'Geeta Devi' with date as 05.03.04 on the application, is of Anil Dhawan (A4). Similarly, on passport delivery register in respect of delivery of passport CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.103 of 162 No.E7988478 in the name of Geeta Devi on 05.03.04, Ex.PW2/A5 (D9)=Ex.PW5/A, both the GEQD (PW2) as well as Sh.G S Walia (PW5) have confirmed that the name of the applicant at point Q.31 and signature as 'Geeta Devi' at point Q. 32 have been written by accused Anil Dhawan (A4). 9.4 Although, no evidence is available to confirm who had filed up the application form for additional passport booklet and signed as 'Geeta Devi' at various places in file Ex.PW1/A, but once it has been proved by prosecution that it was accused/Anil Dhawan who had received the passport by signing as 'Geeta Devi' and it is also proved that the lady whose photographs are affixed in file Ex.PW1/A (D.7), the burden shifted on accused/Anil Dhawan to prove that he had done so in CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.104 of 162 good faith or under a lawful authority, which he failed to discharge. In this way the circumstances speak that it was Anil Dhawan (A4) who took Amarvir Kaur (PO) to RPO, Delhi and impersonating her as Geeta Devi Kapoor got deposited her passport application and after the passport was prepared he took delivery thereof and handed it over to Amarvir Kaur (PO) or Rajesh Kumar Sharma (A6) on the basis of which VISA and air tickets were obtained by Rajesh Kumar Sharma on which Amarvir Kaur had travelled abroad (see also discussion in para 10 and 11).
9.5 Ld.counsel for accused Anil Dhawan has argued that accused Anil Dhawan has been falsely implicated by CBI in this case as there is no whisper of any monetory gain to CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.105 of 162 accused Anil Dhawan. We have already seen how the passport booklet has been got issued by accused/Anil Dhawan in the name of Geeta Devi by using photograph of Amarvir Kaur (PO) so as to enable her to travel abroad and she has in fact been successful in flying to a foreign country and did not return back to India. The passport is a valuable thing entitling one to travel abroad and hence there was no requirement of proving any other pecuniary advantage obtained by accused/Anil Dhawan in cheating the Regional Passport Office when it has been clearly proved that he had fraudulently induced RPO, Delhi for issuance and delivery of passport booklet for which neither he nor his co accused/Amarvir Kaur (PO) were legally entitled. 9.6 He has also submitted that CBI could not CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.106 of 162 establish any link of accused Anil Dhawan with other accused persons and none of the witnesses of CBI, who were working in the office of RPO, New Delhi, during the relevant time, could say that they had seen accused Anil Dhawan visiting passport office for meeting accused public servants.
9.7 It is well known that the conspiracy is generally hatched in secret, so direct evidence may seldom surface. As is clear from the evidence discussed herein, accused Anil Dhawan had colluded with accused/Harbhajan Yadav (A2) and Ram Chander (A3) in issuance of additional passport booklet, hence finding some employee of RPO Delhi to vouch visit of Anil Dhawan to RPO, Delhi and meeting the public servants would not be possible. If he had not met public servants in RPO, how CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.107 of 162 his writing and signature as 'Geeta Devi' would have come on file and passport delivery register. Accused/Harbhajan Yadav (A2), being counter clerk comes in contact of the applicant as per the procedure. He himself was in league with accused/Anil Dhawan, so it was not possible to find any other employee of the passport office to prove that accused/Anil Dhawan used to visit RPO, Delhi. This was otherwise not required when the prosecution case is safely entrenched in documentary evidence discussed above.
9.8 He has also contended that PW.5 Sh.G.S.Walia cannot be relied upon as he has disclosed before the court that his statement u/s 161 of Cr.PC was recorded by Mr.R.K.Aggarwal, DSP of CBI and not by IO of this case. During CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.108 of 162 his crossexamination, PW.5 Sh.G.S.Walia did not say that any part of the statement made by him u/s 161 of Cr.PC was incorrect or was not stated by him to CBI during investigation. 9.9 It is well settled position of law that lacuna on the part of IO in conducting investigation can not be said to have prejudiced the trial unless otherwise manifest from the record. When accused has not demonstrated that anything in the statement of the witnessSh.Walia u/s 161 Cr.PC was incorrectly recorded by CBI, it does not prejudice trial, even if witness says that his statement was recorded by Sh.R K Aggarwal, DSP, CBI and not by Sh.Rajiv Wahi, IO of this case. Nothing has been demonstrated by defence to the effect that there was any material contradiction between statement made u/s 161 Cr.PC CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.109 of 162 and deposition before the court. His statement u/s 161 Cr.PC was not confronted to the witness during his crossexamination. Now at this stage the deposition of the witness made before the court has to be appreciated on face of it, whether or not the statement u/s 161 Cr.PC was made by Sh.Walia to Sh.Rajiv Wahi, IO of the case. There is complete coherence in deposition of Sh.Walia (PW5), which inspires confidence of the court. 9.10 Ld. defence counsel has strenuously argued that the specimen handwriting and signatures were obtained from accused without permission of the court, hence the same can not be admitted in evidence and accordingly the opinion of GEQD based on the same in respect of questioned documents, can not be relied upon. In this respect, he has relied upon the CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.110 of 162 judgment of the Full Bench of Hon'ble Delhi High Court delivered in Sapan Haldar Vs. State, 191 (2012) DLT 225 (FB), wherein the Hon'ble Delhi High Court had laid down that an investigating officer, can not obtain handwriting sample or signature sample from a person accused of having committed an offence, which power was not available even to the courts prior to insertion of Section 311 A of Cr.PC and thus, in those cases where the IO has obtained such samples without permission from the Magistrate, the same are held to be inadmissible in evidence. 9.11 On the other hand, ld.Public Prosecutor has relied upon a judgment of Hon'ble Supreme Court in Ravinder Kumar Pal @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436 and a judgment of Hon'ble Supreme Court in Umesh CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.111 of 162 Kumar Vs. State of Andhra Pradesh, 2013 IX AD (SC) 581. Ld.Public Prosecutor has drawn attention of the court towards para no.27 of the judgment of Hon'ble Supreme Court in Umesh Kumar's case (supra), which is as under:
27.It is settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More so, the court must conclude that it is genuine and free from tampering or mutilation. This court repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India as acquiring the evidence by such methods was not the procedure established by law (Vide:Yusufalli Esmail CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.112 of 162 Nagree Vs. The State of Maharashtra, AIR 1968 SC 147; Magraj Patodia Vs. R K Birla & Ors., 1970 (2) SCC 888; R M Malkani Vs. State of Maharashtra, AIR 1973 SC 157;
Pooran Mal Vs. Director of Inspection, Income Tax, New Delhi & Ors, AIR 1974 SC 348 and State (NCT of Delhi) Vs. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC
600).
9.12 In this case I find that the opinion of GEQD is not only based on comparison with specimen handwritings of accused Anil Dhawan obtained by CBI during investigation of the case without permission of the court, but the same is also based on day book of Jas Air and passport/visa applications which were already written by him (A4). The writings of Anil Dhawan (A4) on those documents have been proved by PW.5 Sh.G.S.Walia, as accused Anil Dhawan was his employee, who used to write CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.113 of 162 entries in the book and fill the passport and VISA applications during course of his employment with firm of Sh.G.S.Walia. 9.13 Thus, the GEQD opinion in this case is not based only on specimen writings of accused/Anil Dhawan obtained by IO from him during investigation of the case, which may be inadmissible in evidence in view of judgment of Hon'ble High Court in Sapan Halder's case (supra).
9.14 Not only this, the writings and signatures on the documents in the name of Geeta Devi relied upon by CBI at Q. 16, Q.31 and Q.32, as discussed above, have also been identified by Sh.G.S.Walia to be in the hand of accused Anil Dhawan which is corroborating the GEQD opinion.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.114 of 162 9.15 Ld.counsel, relying upon search list Ex.PW5/DA, has submitted that the testimony of Sh.G.S.Walia cannot be relied upon as he is interested witness, who has got accused Anil Dhawan falsely implicated in this case in order to save himself as some incriminating documents like blank letter heads and foreign currencies were seized when his premises was raided by CBI during investigation. From testimony of Sh.G.S.Walia, I find that wherever he has been able to clearly identify the handwritings of accused Anil Dhawan, he has deposed so and not otherwise. This shows his fairness and impartiality. Thus I do not find any reason for discrediting the testimony of Sh.G.S.Walia in this case, as it is truthful and inspires confidence of the court.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.115 of 162 9.16 Thus, it is quite clear from the testimony of PW. 5 Sh.G.S.Walia and PW.2 Sh.B.A.Vaidhandwriting expert (Govt. Examiner of Questioned Documents) and the other circumstances discussed above that it was accused who had used forged copy of original passport in the name of Ms.Geeta Devi Kapoor, with impression of replaced photograph of Amarvir Kaur (PO), enclosing the same with application for third additional passport booklet, affixed the photographs of Amarvir Kaur (PO) thereon and took delivery of passport booklet by signing in the name of Geeta Devi in collusion with Amarvir Kaur (PO) on one hand and accused/Harbhajan Yadav (A2) on the other, who in turn had roped in accused Ram Chander (A3), who cleared the file in HIT. In this way the prosecution has proved the CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.116 of 162 charge as framed against accused/Anil Dhawan (A4) beyond any reasonable doubt.
10.0 ROLE OF ACCUSED No.5/AMARVIR KAUR (PO) 10.1 It has been proved by PW8/Gurdayal Singh by proving the passport file of accused/Amarvir Kaur as maintained in Passport Office Jalandhar, Punjab that a passport was issued in her name from RPO Jalandhar, Punjab on 13.09.02 bearing no.E2175436 after proper police verification. He was also made to compare the photographs of applicant in file Ex.PW8/A with photographs in file Ex.PW1/A of RPO, New Delhi. He said that photographs in the name of Geeta Devi Kapoor affixed in file Ex.PW1/A are of the same lady which are affixed in the passport file of accused/Amarvir Kaur, Ex.PW8/A. CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.117 of 162 10.2 Similarly, PW10/Balraj Singh, who is husband of Amarvir Kaur has also proved the photographs of Amarvir Kaur in file Ex.PW8/A used for issuance of passport from Jalandhar Passport Office in her name. He testified that his wife Amarvir Kaur (PO) had got issued passport from Jalandhar Passport Office at the instance of her sister who lives in France and Amarvir Kaur has also gone to France in 2004 and settled there.
10.3 On being shown the file of RPO, Delhi Ex.PW1/A (D7), he said that although the applicant's name is mentioned as Geeta Devi Kapoor but photograph thereon is of CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.118 of 162 his wife Smt.Amarvir Kaur. He also proved that xerox impression of photograph on a photocopy of passport no.B5081385 at page no.5 of file Ex.PW1/A, which has been used for getting issued passport booklet in file Ex.PW1/A, is of his wife/Amarvir Kaur. He proved handing over of a group photo of his family to CBI and pointed that it contains photo of Amarvir Kaur at point 'A', which photograph is Ex.PW10/K handed over to CBI by him vide memo Ex.PW10/J. 10.4 As discussed, while deliberating the role of accused/Rajesh Kumar Sharma (A6), Amarvir Kaur (PO) instead of traveling abroad on her own passport issued from Passport Office, Jalandhar, traveled abroad on passport no.E7988478, a CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.119 of 162 copy of which is Ex.PW11/H (D15), issued in file Ex.PW1/A (D7) on a fake identity in the name of Geeta Devi Kapoor, with her photograph affixed thereon. She was declared proclaimed offender/absconder and hence no finding can be recorded as to her guilt in her absence.
11.0 ROLE OF ACCUSED No.6/RAJESH SHARMA 11.1 Ld.Public Prosecutor has submitted that accused/Rajesh Sharma (A6) has played a vital role in arranging issuance of additional passport booklet in the name of Geeta Devi Kapoor with photograph and signature of accused/Amarvir Kaur (PO) affixed thereon, from RPO New Delhi and thereafter he purchased air tickets to enable Amarvir Kaur to travel abroad.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.120 of 162 Not only this, he also himself travelled abroad with Amarvir Kaur in the same flight in order to drop her abroad. 11.2 On the other hand ld.counsel for accused/Rajesh Sharma has submitted that there is absolutely no evidence on record that accused/Rajesh Sharma had played any role whatsoever in this matter. As regards booking of the tickets in the name of Geeta Devi Kapoor and himself, he has submitted that there is no evidence that accused/Rajesh Sharma (A6) has either booked the ticket or obtained delivery of the tickets as it has emerged from evidence of PW9/Sandeep Bhasin and PW11/Sunil Kapoor.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.121 of 162 11.3 He has drawn attention of the court to the answer of accused/Rajesh Kumar Sharma to question no.41 in his statement u/s 313 Cr.PC wherein it was put to accused/Rajesh Sharma that as per deposition of PW9/Sandeep Bhasin on 15.05.04, Rajesh Kumar had come to him and asked for four tickets including one in the name of Geeta Devi Kapoor for DelhiTashkentParisTashkentDelhi from Uzbekistan Airlines. He had denied the same.
11.4 He has specifically emphasized on cross examination of PW9 in which he had stated that Rajesh Kumar, who had come to book tickets and collect the same was not amongst the persons present in the court on that date, whereas CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.122 of 162 accused/Rajesh Kumar was present in the court when PW9/Sandeep Bhasin was crossexamined.
11.5 He has submitted that although the prosecution wants to rely that on 21.05.04, accused/Rajesh Kumar Sharma and Geeta Devi Kapoor had boarded on the same flight no.HY422 from IGI Airport for Tashkent and the said Geeta Devi Kapoor was in fact Amarvir Kaur but the prosecution has failed to prove any link or agreement between accused/Rajesh Kumar Sharma (A6) and Amarvir Kaur (PO). He has also submitted that prosecution has not adduced any evidence as to who had assigned this work of travelling with Amarvir Kaur to accused/Rajesh Kumar.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.123 of 162 11.6 We will see these submissions while discussing the evidence on record in respect of allegations against accused/Rajesh Kumar Sharma (A6).
11.7 To prove the work of getting issued a passport with photograph and signature of Amarvir Kaur in the name of Geeta Devi Kapoor, the prosecution has examined PW16/Jaswinder Singh, who has deposed that he knows Rajesh Sharma for last about 9 years as he used to visit their common friend Amarjit Singh, resident of Jalandhar (Punjab) whenever Amarjit Singh used to visit India from Germany; he came to know that Rajesh Kumar Sharma was working with some travel agency CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.124 of 162 who was into the job of sending people abroad legally and ticketing for that purpose.
11.8 PW16 was declared hostile by the prosecution and during crossexamination by ld.Public Prosecutor, he deposed that from Amarjit Singh, he had come to know that accused/Rajesh Sharma (A6) was into the job of sending people abroad and used to charge Rs.6 to 7 lacs for this work; that he (witness) had sent 78 people abroad through Sh.Rajesh Sharma who all were of his relatives or acquaintances; he had given photographs and passports of those 78 persons to accused/Rajesh Sharma (A6) for sending them abroad and paid around Rs.6 lacs for each person for this purpose, to a person CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.125 of 162 who was associate of accused/Rajesh Sharma (A6) whose name he could not recollect; that he had sent Sh.Avtar Singh, Sh.Malkit Singh and Sh.Rajwinder Singh through Sh.Rajesh Sharma (A5) but no lady in the name of Amarvir Kaur, was sent through him.
11.9 He denied suggestion that Amarvir Kaur wife of Sh.Balraj Singh was sent abroad through accused/Rajesh Sharma. One of the photograph of lady Amarvir Kaur which was handed over by him to IO of the case/Sh.Rajiv Wahi has been proved as Ex.PW16/A (D8). He however denied that the photograph, Ex.PW16/A (D8) is of Amarvir Kaur and he is deposing falsely that he does not know that lady.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.126 of 162 11.10 During crossexamination he had stated on a court question that due to the passage of time he had forgotten the facts as he had given 89 photographs in 23 days after collecting the same and he had signed the same on back side in the last. He was asked to compare the photograph Ex.PW16/A with photograph affixed on Ex.PW2/A, Ex.PW2/A1 (D7) and in the file Ex.PW8/A (D11) and a photo in a group photograph Ex.PW10/K (D25) and thereafter he deposed that all of them are of the same lady. The court also made its own observation that all the photographs are of the same lady. 11.11 During his crossexamination by counsel for CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.127 of 162 accused/Rajesh Sharma, he denied suggestion that his statement was not recorded by IO of the case or that IO had taken his signatures on the photographs already carried by him and not provided by witness to IO. He also denied suggestion that he had never paid any money to Rajesh Kumar Sharma for sending anybody.
11.12 In this way, we find that PW16 has proved that accused/Rajesh Kumar Sharma was into the business of sending people abroad and getting issued tickets for this purpose and that he (PW16) had also sent 78 people abroad through Rajesh Sharma (A6) but he could not prove the fact that as to whether the passport booklet in the name of Geeta Devi Kapoor with CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.128 of 162 photograph and signature of Amarvir Kaur was got issued from RPO New Delhi through accused/Rajesh Sharma. In this way the court is not able to reach to a conclusion that accused/Rajesh Sharma had conspired with passport officials for getting issued a passport booklet in the name of Geeta Devi Kapoor bearing no.E7988478 dated 05.03.04 with photograph and signature of accused/Amarvir Kaur on the strength of passport no.B5081385 dated 20.12.2000 issued in the name of Geeta Devi Kapoor. 11.13 Now the next question is whether accused/Rajesh Kumar Sharma had got issued the air tickets in the name of Geeta Devi Kapoor by using the passport booklet no.E7988478 dated 05.03.04 on which the photograph and CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.129 of 162 signature of Amarvir Kaur (PO) were affixed. In this respect testimony of PW9/Sandeep Bhasin is crucial, who has deposed that he was running a travel agency by name of M/s World Link Travels whose main business was domestic and international ticketing.
11.14 He has deposed that on 19.05.04, one Rajesh Kumar came to him and asked for booking of four tickets which include the name of Geeta Devi Kapoor for DelhiTashkentParis TashkentDelhi sector on Uzbekistan Airlines; as he was sub agent, therefore, he approached M/s World Express, New Delhi for issuance of said tickets; he had checked all four passports of travellers and had sent his brother Shamit to M/s World Express CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.130 of 162 with original passports of the travellers, whose tickets were later on handed over to Rajesh Kumar after receiving the balance amount.
11.15 He also also deposed that one lady along with Rajesh Kumar had also came to collect the tickets in the evening. He proved bill book of his company as Ex.PW9/A and the bill nos.5062, 5063, 5064 and 5065 for booking the tickets in the name of Subhir Singh Bhatia, Rajesh Kumar, Jagdish Mathur and Geeta Devi Kapoor as Ex.PW9/B, C, D & E respectively for the amounts received against issuance of air tickets. The two invoices in respect of these four tickets, one for Subhir Singh Bhatia & Rajesh Kumar and another for Jagdish Mathur & Geeta CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.131 of 162 Devi Kapoor have been proved as Ex.PW9/F & G. He also marked the computerized statement of M/s World Express as Mark PW9/PX showing purchase of tickets in the name of Geeta Devi Kapoor and Rajesh Kumar. He also proved a copy of cash book of his firm as Ex.PW9/X1 regarding receipt of Rs.90,000/ and Rs.17,000/ from Rajesh Kumar in connection with purchase of aforesaid air tickets.
11.16 During his crossexamination by counsel for accused/Rajesh Kumar Sharma, he has deposed that aforesaid four tickets were got issued simultaneously on one day and cash was entered into by the accountant of his firm but he could not say as to who had deposited the cash with the cashier. He also CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.132 of 162 deposed that generally when client comes for collecting booked tickets he may or may not meet the client and generally he is not aware as to who had collected the tickets. A lot of emphasis has been given by the ld.defence counsel to a statement of this witness when he said that "Rajesh Kumar who had come to book the tickets and collect the same is not amongst the persons present in the court" although accused/Rajesh Kumar Sharma was present in the court on that day.
11.17 It is worthwhile to mention that the prosecution has not examined this witness on the aspect of identification of accused/Rajesh Kumar who had booked the four tickets and, therefore, the question of identification of said Rajesh Kumar by CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.133 of 162 PW9/Sandeep Bhasin is not material for reaching to a correct conclusion as to the person who had booked the tickets in the name of these four persons including in names of Rajesh Kumar Sharma and Geeta Devi Kapoor. Once, it has been proved by the prosecution that the four tickets including in his own name and Geeta Devi Kapoor were booked by a person named as Rajesh Kumar, the burden had shifted on him to prove that it was some other Rajesh Kumar who had booked his ticket including three others, and if so, who was that Rajesh Kumar. It is noteworthy that PW9 was examined 7 years after the booking of tickets by Rajesh Kumar and hence it is quiet obvious that he may not identify Rajesh Kumar who had booked the tickets and took delivery.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.134 of 162 11.18 Testimony of PW11/Sunil Kapoor is also material, who was accountant working with M/s World Express, New Delhi. He deposed that he received a fax from M/s World Link Travels for booking tickets in the name of Geeta Devi Kapoor which fax has been proved as Ex.PW11/A; accordingly a ticket no.2504402084926 for DelhiTashkentParisTashkent Delhi sector in the name of Geeta Devi Kapoor was purchased; the agent's coupon of said ticket has been proved by him as Ex.PW11/B; that request was in fact for purchase of four tickets in the name of Geeta Devi Kapoor, Rajesh Kumar, Subir Singh Bhatia and Jagdish Mathur, whose names are mentioned in the invoices Ex.PW9/F and Ex.PW9/G (D20) which also contain the ticket number, date of travel, sector and net amount of the tickets; the date of travel of all the four tickets was 21.05.04 and CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.135 of 162 cash receipts of M/s World Express in respect of purchase of these tickets have been proved as Ex.PW11/D & E, the receipt book in original thereof is Ex.PW11/C (D22). He proved the agent's coupon of the ticket no.2504402084924, which was purchased in the name of Rajesh Kumar for same sector, as Ex.PW11/F. 11.19 He testified that the ticket purchased in the name of Geeta Devi Kapoor and Rajesh Kumar is mentioned in Ex.PW11/G along with receiving of Rs.75,000/ and Rs.58,000/ respectively at points B & C on said statement. He deposed that copy of passport no.E7988478 containing photograph of Geeta Devi Kapoor along with VISA in her name which is Ex.PW11/H CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.136 of 162 and the copy of passport no.B1540411 containing photograph of Rajesh Kumar along with VISA in his name which are Ex.PW11/J & K (D15) were received before booking the tickets in their names.
11.20 Although, the exhibition of the photocopy of the passport no.E7988478 as Ex.PW11/H has been objected to but no question has been put to the witness during cross examination to demonstrate that the original thereof was not seen by him before retaining a photocopy of the passport and VISA of Geeta Devi Kapoor and, therefore, the objections about the same as it is photocopy only, is not sustainable. No such question was put to PW9/Sandeep Bhasin, who has deposed that he had CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.137 of 162 booked all the four tickets of travellers and had sent his brother/Shamit to M/s World Express with original passports of the travellers, in order to demonstrate that this (Ex.PW11/H) was not the copy of that original passport which was sent by PW9 through his brother to M/s World Express for getting issuance of ticket in the name of Geeta Devi Kapoor. Impression of the photograph affixed as Ex.PW11/H is that of Amarvir Kaur which has been proved in file Ex.PW1/A (D7), from which the passport no.E7988478 was got issued on 05.03.04. The same passport number is mentioned on her embarkation card, Ex.PW14/B and agent's coupon of air ticket issued to her Ex.PW11/B (D17) and other travel documents/invoice/receipt such as Ex.PW11/A. CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.138 of 162 11.21 Thus, there is no scope for any doubt that a photocopy of the passport, Ex.PW11/H can not be accepted in evidence being photocopy of the passport which was used for getting issued an air ticket in the name of Geeta Devi Kapoor from M/s World Express. Similarly, photocopy of passport of accused/Rajesh Kumar and copy of his VISA were also proved by PW11/Sunil Kapoor as Ex.PW11/J & K (D15) and no question was put to this witness for not having seen the original thereof.
11.22 Moreover, the original of the passport and VISA in the name of accused/Rajesh Kumar is already lying deposited with the court as D24 which has been compared with CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.139 of 162 Ex.PW11/J & K and thus there is no confusion that it was accused/Rajesh Kumar, who had travelled abroad in the same flight in which Geeta Devi Kapoor had travelled. Once, it is proved that one Rajesh Kumar had approached M/s World Express for getting air tickets in the name of four persons including in the name of Geeta Devi Kapoor and Rajesh Kumar by the same flight and it is established that the said passenger Rajesh Kumar was in fact A6, the burden now shifted to accused Rajesh Kumar Sharma to rebut that if it was not him. If it was not he then who else had approached M/s World Link Express for issuance of four air tickets including one in his own name and another in the name of Geeta Devi Kapoor. Both the tickets of Geeta Devi Kapoor and Rajesh Kumar were got issued on the same day for same flight and Rajesh Kumar (A6) also travelled CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.140 of 162 with Amarvir Kaur (A5) to abroad. There can not be any better evidence than this to prove that it was accused/Rajesh Kumar who was instrumental in sending accused/Amarvir Kaur (A5) to abroad on a passport which was got issued with photograph and signature of Amarvir Kaur in the name of Geeta Devi Kapoor. 11.23 It has sufficiently come in evidence of PW16/Jaswinder Singh that accused/Rajesh Sharma (A6) was in business of sending people abroad by charging Rs.6 lacs to 7 lacs, accordingly there is no place for arguments of ld.defence counsel that prosecution failed to prove as to on whose directions Rajesh Kumar Sharma (A6) had accompanied Geeta Devi Kapoor (PO) because he himself was doing this business of CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.141 of 162 sending people abroad by charging Rs.6 to 7 lacs. In fact once, it has been proved that he got booked tickets for himself and Geeta Devi Kapoor and travelled abroad with her in the same flight, now the burden shifted on him to rebut that he did not do so pursuant to a conspiracy between him and Amarvir Kaur which started with obtaining of a passport booklet in the name of Geeta Devi Kapoor with photograph of Amarvir Kaur and ended with her flying abroad with him.
11.24 I accordingly hold that accused/Rajesh Kumar Sharma had knowingly used forged passport of Amarvir Kaur in the name of Geeta Devi Kapoor for getting issued air tickets in her name and travelled abroad to drop her in the foreign country.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.142 of 162 12.1 As per section 12(1) of the Passport Act, 1967, a person who contravenes the provisions of Sec.3 of the said Act or knowingly furnishes any false information or suppresses any material information with a view to obtain a passport or travel document, shall be punishable with imprisonment for a term which may extend to two years or with fine which may extent to Rs.5,000/ or with both. Sec.3 of the said Act commands that no person shall depart from, or attempt to deport from India, unless he holds in this behalf a valid passport or travel documents. 12.2 Accused/Harbhajan Yadav (A2) and Ram Chander (A3) had suppressed material informations while processing the file Ex.PW1/A (D7) due to which a forged CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.143 of 162 passport booklet was issued in the name of Geeta Devi Kapoor on which Amarvir Kaur (PO) had traveled abroad on 21.05.04. 12.3 Accused Anil Dhawan (A4) had knowingly furnished the false informations to RPO, New Delhi including the photographs of Amarvir Kaur (PO) affixed on the application in file Ex.PW1/A (D7) besides producing the copy of previous passport no.B5081385 while applying for an additional passport booklet in the name of Geeta Devi Kapoor with photograph of Amarvir Kaur (PO) and thereafter receiving delivery of the prepared passport booklet on 05.03.04 by signing as Geeta Devi. 12.4 Accused Rajesh Kumar Sharma (A6) had knowingly used the passport booklet in the name of Geeta Devi CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.144 of 162 Kapoor with photograph of Amarvir Kaur (PO) for getting issued air tickets to enable Amarvir Kaur to travel abroad. 12.5 Thus, accused Harbhajan Yadav (A2), Ram Chander (A3), Anil Dhawan (A4) and Rajesh Sharma (A6) are also liable for commission of on offence punishable u/s 12(1)(b) of Passport Act, 1967. The sanction for their prosecution under section 15 of Passport Act has been proved as Ex.PW20/A. 12.6 In view of findings recorded above, I hold as under:
i) Harbhajan Yadav (A2), Ram Chander (A3), Anil Dhawan (A4) and Rajesh Kumar Sharma (A6) guilty of offence punishable u/s 120B r/w 420, 468, 471 IPC, 13(2) r/w 13(1)
(d) of PC Act, 1988 and 12(1)(b) of Passport Act, 1967;
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.145 of 162
ii) Harbhajan Yadav (A2) and Ram Chander (A3) guilty of substantive offence punishable u/s 13(2) r/w 13(1)(d) of PC Act, 1988 and u/s 12(1)(b) of Passport Act, 1967.
iii) Accused/Anil Dhawan (A7) guilty of substantive offence punishable u/s 420 and 471 r/w 468 IPC and section 12(1)
(b) of Passport Act, 1967;
iv) Accused/Rajesh Kumar Sharma (A6) guilty of substantive offence punishable u/s 471 r/w 468 IPC and Section 12(1)
(b) of Passport Act, 1967.
12.7 They are convicted accordingly. The prosecution could not establish the guilt of accused/Bibianus Toppo (A1) and hence he is afforded benefit of doubt and consequently acquitted of the charge framed against him.
Announced in the Open (R P PANDEY)
Court on 23.12.2014 Spl.Judge (PC Act)CBI01
Rohini Court:Delhi
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12
Page No.146 of 162
IN THE COURT OF SH. R.P.PANDEY: SPL. JUDGE 01 (PC ACT) CBI (N/W): ROHINI COURTS: DELHI CBI Case No. : 05/12 CENTRAL BUREAU OF INVESTIGATION Vs.
1. Harbhajan Yadav (A.2) s/o late Sultan Singh Yadav r/o H.No.949/1, Gali No.4, Ashok Vihar, Gurgaon, Haryana.
2. Ram Chander (A.3) s/o Sh.Maman Ram R/oJ624, Sardar Colony, Sector16 Rohini, Delhi85
3. Anil Dhawan s/o Sh.Madan Lal Dhawan (A4) R/oH.No.254, DDA Flats, Ist Floor New Ranjit Nagar, New Delhi8
4. Rajesh Kumar Sharma (A6) s/o Sh.Roshan Lal Sharma, r/o Ward No.14, Chulkana Road, Samalkha, Panipat CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.147 of 162 Date of Registration of FIR : 27.08.2004 FIR No. : RC.05(A)/2004/SCUV/CBI/SCRII/New Delhi Under Section : 120 B r/w Sec.420/468/471 IPC Section 13 (2) r/w 13 (1) (d) of P.C. Act 1988 and Section 12 (1)
(b) of Passport Act, 1967 Date of Filing Charge : 27.09.07 Sheet Date of Judgment : 23.12.14 Date of hearing on sentence : 23.12.14 Date of Order on Sentence : 24.12.14 CASE ID No. : 02404R0651272007 Appearances: Ms.Shashi Vishwakarma, Ld.Public Prosecutor for CBI.
Dr.Anil Gupta, Advocate for A2.
Mr.Sukhwinder Singh, Adv. for A3 & 6 Mr.Ashwani Verma and Mr.Lalit Yadav, Advocates for A 4.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.148 of 162 ORDER ON SENTENCE:
1. Vide a judgment dated 23.12.14, accused persons have been convicted for offences punishable as under:
i) Harbhajan Yadav (A2), Ram Chander (A3), Anil Dhawan (A4) and Rajesh Kumar Sharma (A6) guilty of offence punishable u/s 120B r/w 420, 468, 471 IPC, 13(2) r/w 13(1)
(d) of PC Act, 1988 and 12(1)(b) of Passport Act, 1967;
ii) Harbhajan Yadav (A2) and Ram Chander (A3) guilty of substantive offence punishable u/s 13(2) r/w 13(1)(d) of PC Act, 1988 and u/s 12(1)(b) of Passport Act, 1967.
iii) Accused/Anil Dhawan (A7) guilty of substantive offence punishable u/s 420 and 471 r/w 468 IPC and section 12(1)
(b) of Passport Act, 1967;
iv) Accused/Rajesh Kumar Sharma (A6) guilty of substantive offence punishable u/s 471 r/w 468 IPC and Section 12(1)
(b) of Passport Act, 1967.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.149 of 162
2. The offence of cheating u/s 420 IPC is punishable with an imprisonment extendable upto 7 years and fine; the offence of forgery for the purpose of cheating u/s 468 IPC is punishable with imprisonment extendable upto 7 years and fine; the offence of using as genuine a forged document u/s 471 IPC r/w 468 IPC is punishable in the same manner as an offence u/s 468 IPC i.e. with an imprisonment extendable upto 7 years and fine; offence u/s 12(1)b) of Passports Act, 1967 is punishable with an imprisonment extendable upto two years and fine up to to Rs. 5,000/ and the offence of criminal misconduct by a public servant u/s 13(2) r/w 13(1)(d) of PC Act, 1988 is punishable with a minimum imprisonment of one year extendable upto 7 years and fine. The punishment for offence u/s 120B IPC for CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.150 of 162 commission of offences u/s 420, 468 and 471 r/w 468 IPC and 13(1)(d) r/w 13(2) of PC Act is extendable upto the maximum punishment provided for those individual offences for which conspiracy was hatched like abetment thereof.
3. I have heard Ms.Shashi Vishwakarma, Ld.Public Prosecutor for CBI and ld.counsels for convicts.
4. The ld.Public Prosecutor has argued that the convicts have cheated the RPO, New Delhi in getting issued additional passport booklet in the name of Geeta Devi Kapoor and they deserve maximum punishment prescribed by law keeping in view gravity of the offences committed by them. She CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.151 of 162 has also submitted that convicts Harbhajan Yadav (A.2), Ram Chander (A.3), Anil Dhawan (A.4) were previously convicted by this court in CC No.56/08 on 09.07.14, in CC No.74/08 on 17.11.14 and in CC No.11/12 on 09.12.14 and thus they deserve a higher punishment.
5. It has been submitted by her that convict/Harbhajan Yadav (A2) and Ram Chander (A3) abused their official position in getting issued the additional passport booklet on the basis of false and forged documents, as furnished by convict/Anil Dhawan (A4) hence they all are required to be punished severely. She also submits that accused/Rajesh Sharma (A6) has played a vital role in arranging issuance of CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.152 of 162 additional passport booklet in the name of Geeta Devi Kapoor with photograph and signature of accused/Amarvir Kaur (PO) affixed thereon, from RPO New Delhi and thereafter he purchased air tickets to enable Amarvir Kaur to travel abroad and then went abroad to drop her there.
6. Ld.counsel for convict/Harbhajan Yadav (A2) has submitted that he is having college going children and old age mother who depend on him as he is sole bread winner of the family. He has also submitted that no evidence has come on record to show that he took any illegal gratification in this case. He has also submitted that he has undergone rigors of trial for about ten years, after registration of FIR. He has, therefore, CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.153 of 162 prayed that a lenient view may be taken in awarding sentence.
7. Ld.counel for convict/Ram Chander (A3) has also prayed for leniency on the ground that he is living in hutments and his entire family is dependent on him which include his three children and he is only bread earner of his family. He has also submitted that it is not the situation here that after having been convicted in CC No.56/08, 74/08 and 11/12, he has committed this offence, hence his previous conviction is not an aggravating factor for awarding more severe punishment in this case.
8. Ld.counsel for convict/Anil Dhawan (A4) has CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.154 of 162 submitted that he is having wife, two school going children and old parents with father suffering from both kidneys' failure, undergoing dialysis thrice a week and they all are fully dependent upon him because he is the only bread earner of the family and if he is sent to jail his entire family will be ruined and thus he has also prayed for taking a lenient view while awarding sentence.
9. Ld.counsel for convict/Rajesh Kumar Sharma (A6) has submitted that he is not a previous convict, only bread earner of the family, who has not got any benefit out of the offence. He has also submitted that his father is old age and his daughter is of marriageable age and, therefore, a lenient view may be taken while sentencing the accused for the offences. On CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.155 of 162 the other hand, ld.Public Prosecutor has submitted that convict/Rajesh Kumar Sharma (A6) is main conspirator, who was into the business of sending people from Punjab to foreign countries by charging hefty amounts and had in fact initiated and concluded the entire conspiracy under which accused/Amarvir Kaur (PO) has gone abroad on a passport fraudulently got issued with her photograph and signature in the name of Geeta Devi Kapoor.
10. After considering the rival contentions and keeping in mind the mitigating and aggravating circumstances, as discussed above including the individual role played by each of them, I sentence the convicts as under: CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.156 of 162 Harbhajan Yadav (A2) is sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.5,000/ for offence committed by him u/s 13(2) r/w 13(1)(d) of PC Act, 1988 and in case of default in payment of fine to further undergo SI for three months ; RI for a period of two months with fine of Rs.2,000/ for offence committed by him u/s 12(1)(b) of Passport Act, 1967 and in case of default in payment of fine to further undergo SI for one month.
Ram Chander (A3) is sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.5,000/ for offence committed by him u/s 13(2) r/w (13(1)(d) of PC Act, 1988 and in case of default in payment of fine to further undergo CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.157 of 162 SI for three months ; RI for a period of two months with fine of Rs.2,000/ for offence committed by him u/s 12(1)(b) of Passport Act, 1967 and in case of default in payment of fine to further undergo SI for one month.
Anil Dhawan (A4) is sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.2,000/ for offence committed by him u/s 420 IPC and in case of default in payment of fine to furthter undergo SI of three months; RI for a period of 2 years with fine of Rs.2,000/ for offence committed by him u/s 471 r/w 468 IPC and in case of default in payment of fine to further undergo SI for three months; RI for a period of two months with fine of Rs.2,000/ for offence committed by him u/s 12(1)(b) of Passports Act, 1967 and in case of default in payment CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.158 of 162 of fine to further undergo SI for one month.
Rajesh Kumar Sharma (A6) is sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.2,000/ for offence committed by him u/s 471 r/w 468 IPC and in case of default in payment of fine to further undergo SI for three months; RI for a period of two months with fine of Rs.2,000/ for offence committed by him u/s 12(1)(b) of Passports Act, 1967 and in case of default in payment of fine to further undergo SI for one month. Convicts Harbhajan Yadav (A2), Ram Chander (A3), Anil Dhawan (A4) and Rajesh Kumar Sharma (A6) are sentenced to undergo rigorous imprisonment (RI) for a period of 2 years CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.159 of 162 with fine of Rs.5,000/ each for offence punishable u/s 120B r/w 420, 468, 471 IPC, 13(2) r/w 13(1)(d) of PC Act and 12(1)(b) of Passports Act, 1967 and in case of default in payment of fine to further undergo SI for three months.
11. The convicts shall be entitled to the benefit of provisions of Section 428 Cr.PC. All the sentences to run concurrently.
12. At this stage, convict/ Harbhajan Yadav (A2), Ram Chander (A3), Anil Dhawan (A4) and Rajesh Kumar Sharma (A6) have moved bail application u/s 389 (3) Cr.PC. Heard.
CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.160 of 162
13. Taking into consideration the facts & circumstances of the case the convicts, namely, convict Harbhajan Yadav (A2), Ram Chander (A3), Anil Dhawan (A4) and Rajesh Kumar Sharma (A6) are admitted to bail on their furnishing personal bond in the sum of Rs.20,000/ with one surety each in the like amount for a period of two months for enabling them to file appeal against the Judgment and order of this court.
14. A copy of this order be supplied to the convicts free of cost.
15. File be consigned to the record room. However, the records of the case be not destroyed/weeded out in routine CBI Vs. Bibianus Toppo & Ors.
CC No.05/ 12Page No.161 of 162 course as one accused Amarvir Kaur is Proclaimed Offender.
Announced in the open (R.P.PANDEY)
Court on 24.12.2014 SPECIAL JUDGE (CBI)0I
ROHINI COURTS:DELHI
CBI Vs. Bibianus Toppo & Ors.
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