Delhi District Court
Gauri Shankar Sangma Being Aggrieved By ... vs Cbi Page No. 1 Of 14 on 12 October, 2021
IN THE COURT OF SPECIAL JUDGE (PC ACT), CBI01,
ROUSE AVENUE DISTRICT COURT, NEW DELHI
Crl. Appeal No. : 14/2020
CNR No. : DLCT110003702020
Central Bureau of Investigation (CBI)
Versus
Gauri Shankar Sangama
S/o. Late Shri Dinesh Chandra Sangama
R/o. 81, Proper Hawakhana,
Village Tuar, Meghalaya.
JUDGMENT
1. Gauri Shankar Sangma being aggrieved by the judgment and order dated 03.11.2020 preferred the instant appeal, assailing the judgment on various counts, which is hereby disposed of through this judgment.
2. Before adverting into the details of the pleas taken, the indispensable facts against the backdrop of which the case initially arose paving the way for the instant appeal, briefly, are that the appellant Gauri Shankar Sangma is a resident of Tura in West Garo Hills in Meghalaya, an area which ,incidentally, was hot bed of disruptive and secessionist activities for a long time. However, the appellant, as informed by him, took the prestigious examination conducted by Union Public Service Commission and got selected as a Section Officer in 1983 and became Under Secretary in the year 1985. He was one of the youngest Under Secretaries in the service Gauri Shankar Sangma Vs. CBI Page No. 1 of 14 of Government of India at the relevant time i.e. in the year 198687. Curiously, certain acts and omissions allegedly done by the appellant in his capacity as Under Secretary, landed him into this case.
3. Verily, a source information was developed by CBI which resulted into the registration of the case to the effect that the appellant herein had placed an order for supply of furniture with M/s. Shellex enterprise and created a file purporting to be a genuine file whereas no such requirement was ever there by the Navodaya Vidhyalaya Samiti in its various schools/regional centers of NVS spread all over the country for which the procurement was sought to be made. The appellant was not the competent authority to place the orders even otherwise inasmuch as it was the District Magistrate of the concerned district in which the Navodaya Vidhyalaya was situated happens to be the person competent to place orders for supplies required by the school. The appellant herein, it is alleged, gave an impression to the victims Satish Kumar Gupta and Raja Bose that they have been awarded the contract of supply of furniture to the Navodaya Vidhyalayas ,and at Hyderabad and Chandigarh, it is required immediately, whereas rest of the areas were to be catered later, to the tune of rupees 154 lacs.
4. CBI investigated the matter and seized documents including the file on which the purported supply order was being dealt with. It was found to be a nonexistent issue and it was also revealed during the investigation that the appellant was the person who created this file all by his own forging the signatures of other officials in the chain and issued certain letters of M/s. Shellex Enterprises i.e. Satish Kumar Gupta and Raja Bose including one showing that a Gauri Shankar Sangma Vs. CBI Page No. 2 of 14 Committee for Inspection has been constituted, road permit was also issued by him under his signatures specifying that the furniture transported was Government supply. The entire effort, it is alleged, was to show that things were genuinely moving in the Education Department and under the garb of that, it is alleged, that the appellant wanted to unduly enrich himself. Ultimately, a charge sheet was filed against the appellant under section 420 read with section 511 IPC, section 468 IPC and section 471 IPC. After filing of the charge sheet, copies of the charge sheet were provided to the appellant herein in compliance of section 207 Cr.P.C. and based upon the allegations coming on record in the charge sheet, documents etc., a prima facie case under sections 420 read with 511 IPC, 471 IPC read with 468 IPC was found against the appellant herein and accordingly charges were framed on 24.06.2002. To the charges so framed, appellant pleaded not guilty and claimed trial.
5. In order to prove its case, prosecution has examined 13 witnesses arrayed in the list of witnesses and on conclusion of the evidence, statements of the appellant herein under section 313 Cr.P.C. was recorded, in which the evidence coming on record was put to him and his version and response were reduced into writing. Appellant had claimed himself to be innocent and asserted that he has been falsely implicated in the present case. As no defence evidence was opted to be led by the appellant, therefore after the final arguments, the Ld. Trial Court vide impugned judgment and order dated 03.11.2020 held the appellant guilty qua the offences punishable under sections 420 read with 511 IPC, 471 IPC read with 468 IPC and sentenced the appellant for a period of one year vide order dated 03.11.2020.
Gauri Shankar Sangma Vs. CBI Page No. 3 of 146. While assailing the judgment, it is contended on behalf of the appellant, apart from usual pleas that it is based on conjectures and surmises that evidence has not been duly appreciated and the Trial Court has erred in not appreciating the fact etc. It is asserted that there was no motive with the appellant, no benefit accrued to the appellant and that the appellant has not shown any favour to anyone. No loss was caused to anyone either to the Department or to the so called victims, one of whom Satish Kumar Gupta could not be examined by the prosecution who happened to be a very vital witness. The handwriting and signatures of the appellant were obtained under duress by the CBI officials that too without there being any independent witness to it. The opinion of the handwriting expert alone cannot be a reason to hold the appellant guilty, which has been done in the instant case as none of the independent witnesses has supported the cause of the prosecution as none has stated that the alleged fictitious file was created by the appellant in their presence or that he wrote the note sheet or signed on the said file either in his own capacity or for someone else, in their presence. File was not recovered from his possession or control. The investigation has been shoddy and incomplete as none of the coworkers of the appellant have been examined. The appellant was working in dual capacity at two different offices, so the CBI should have collected the documents from other department too where he was working to ascertain the handwriting and signatures of the appellant. With these contentions, it is submitted that the Ld. Trial Court has arrived at a conclusion which is not supported by the record and therefore the appellant, who has faced the trial since 1995 onwards and also faced his dismissal from the service, a divorce and a serious accident, should have been at least considered for a lighter sentence, if at all the Ld. Trial Court Gauri Shankar Sangma Vs. CBI Page No. 4 of 14 found him guilty.
7. Arguments have been advanced by Ld. Counsel for the appellant and Ld. Public Prosecutor for CBI. I have considered the same in conjunction with the Ld. Trial Court record consisting documents, evidence etc.
8. The substantial evidence and allegations against the appellant/accused are that of forging the documents/creating a file without there being any substance which the file represents and the correspondence/related documents to feed the noting(s) on the file so as to give a kind of credence to the file noting(s). What has come on record is that no such exercise for procuring the furniture or food items was ever initiated either by the Ministry of Education or by Navodaya Vidhyalaya Samiti and in any case appellant was not the person competent to do it. In such circumstances, why the appellant indulged in creating a fictitious file and giving an impression of credibility to the process and the procedure to the two Government/contractors/ suppliers namely Satish Kumar Gupta (since deceased) and Raja Bose. The motive does not appear anywhere on record, however, an inference can be drawn that a kind of favour was being given by the appellant to the suppliers with some interest and that interest could be anything. However, there is no evidence nor for that matter any utterance or even a whisper from one of the suppliers ,who alone could be examined that anything was promised by appellant or was demanded by the appellant or was promised or given by any of the suppliers. This would have been detrimental to the cause of the supplier also, therefore it seems that he kept quiet otherwise there appears no reason why a fake supply Gauri Shankar Sangma Vs. CBI Page No. 5 of 14 file would be created when none is going to be benefited and nothing would actually be achieved by anyone allegedly involved. The supplier would supply goods and receive payment in lieu of that from Government. Apparently, the appellant would not gain anything and if that is so then why would he do something as serious as creating a fictitious, forged and fabricated file? The answer is not forthcoming and various possibilities, surmises and conjectures remain in the realm of possibility and does not come out of an unfounded hypothesis.
9. Since the credible evidence is that of forgery in the file Ex.PW1/A, wherein the appellant has purportedly signed or rather forged the noting(s) and signatures of Y.N. Chaturvedi and Gulshan Kapur. It was thus for him to explain, but the appellant has no explanation credible enough what to talk about evidence in support of the appellant. Therefore, in these circumstances, the opinion of the handwriting expert, the comparison of handwriting and signatures becomes very vital. On this aspect, Ld. Counsel for the appellant has contended that the report of the handwriting expert Ex.PW11/A cannot be considered by the Court for the simple reason that the specimen handwriting of the appellant was obtained by the Investigating Officer Sh. P.C. Sharma, Deputy Superintendent under duress without there being any independent witness and the entire exercise was contrary to the law. In this context, Ld. Counsel for the appellant has asserted that the Investigating Officer did not sought any order/permission from a competent Court to obtain the specimen handwriting and signatures which he was obliged to under section 311A Cr.P.C. and for that matter under section 4 and 5 of the Identification of the Prisoners Act. Ld. Public Prosecutor on behalf of Gauri Shankar Sangma Vs. CBI Page No. 6 of 14 the CBI, on the other hand, has come up with the contention that the appellant had voluntarily gave his specimen handwriting and signatures in February 1995 at Tura, Meghalaya. It is pointed out by the Ld. Public Prosecutor for CBI that the mother of the appellant was present at the time when the specimen were obtained by the Investigating Officer that too at the house of the appellant at Tura in West Garo Hills, Meghalaya. The mother of the appellant had declined to be a witness to the proceedings on the plea that she would become a witness and thus would be obliged to travel to Delhi to depose, which she did not want too and same was the position with the taxi driver, in whose taxi the Investigating Officer had gone to the house of the appellant. Therefore, it is submitted that the obtaining of the specimen handwriting and signatures cannot be faulted with.
10. Ld. Counsel for the appellant has placed reliance on the judgment in Raj Kumar Vs. State in Crl. M.A. 14076/2012 in Crl. A. 582/2012 and Rabindra Kumar Pal @ Dara Singh Vs. Republic of India in Criminal Appeal No. 1366 of 2005 to strengthen his arguments. However, the judgments are not attracted to the facts of the present case inasmuch as the Investigating Officer was not obliged to obtain permission which was a condition stipulated under section 4 and 5 of the Identification of the Prisoners Act inasmuch as the specimen handwriting and signatures do not fit into the definition of 'measurements' for which section 4 and 5 are relevant. As such, the argument is unfounded and has no concern and connection with the instant case. Reference can be made to State of Bombay Vs. Kathi Kalu (1962) 3SCR 10, T. Subbaih Vs. S.K.D. Ramaswami Nadar AIR 1970 Madras 1985 and State of U.P. Vs. Ram Babu Gauri Shankar Sangma Vs. CBI Page No. 7 of 14 Mishra (1980) 2 SCC 343.
11. Section 73 of the Evidence Act, which has been referred by the Ld. Counsel for the appellant to have not been complied with, which, in fact, was not to be complied with as the case was not in Court when the specimens were obtained and this section would come into play only when a case was/is before the Court, after having crossed the stage of investigation and the charge sheet being there in the Court. Section 311A Cr.P.C. came into statute books in the year 2006 whereas the specimen were obtained in the instant case in 1995 after the registration of the FIR, but certainly before 2006 i.e. February, 1995. Thus, it is apparent that it has no application on the facts of this case.
12. It has come on record that the Investigating Officer had visited the house of the appellant at Tura in West Garo Hills, Meghalaya inasmuch as the appellant was not available in Delhi since August, 1988 or so as has come on record from the official documents and stated by Investigating Officer too, that appellant was absconding from his duties. He was, as reported by the officials of the Education Department, also to be absconding, his father had allegedly sent a letter informing the department of the appellant that the appellant had met with an accident and was not in a position to travel and same sort of information was sent by the appellant too. He did not come back to Delhi, he was never arrested in this case, therefore to facilitate the investigation, the Investigating Officer traveled to Meghalaya. Incidentally the issue is of the year 198788 and case was registered in the year 1994, to be precise on 30.09.1994. It is also pertinent to mention here that during those Gauri Shankar Sangma Vs. CBI Page No. 8 of 14 days, insurgency was there in Meghalaya and the Garo Hills were also part of the insurgents" movement. In such circumstances, was it possible for a CBI official to force the appellant, a local man, to furnish his signatures and specimen handwriting under some kind of duress. Apparently it was not possible. Even if some kind of threat was extended, then the appellant should have taken up this issue at some point of time which he did not except during the evidence it has been suggested by the Counsel for the appellant to the Investigating Officer. The appellant was an Under Secretary, his father was an Additional Sessions Judge, so any highhandedness could have been reported, if at all something was there. Apparently, it is an after thought and has no substance in it.
13. In any case, even if it is presumed that the evidence was collected illegally, still the evidence has come and cannot be ignored or thrown out simply because some allegations are there. The admissibility is another issue to be examined under the Evidence Act. Reference in this context may be made to the judgments in DRI V Deepak Mahajan & Anr. AIR 1994 SC 1775: Pooran Mal V The Director of Inspection (Investigation), New Delhi (1974) 1 SCC
345. The allegations by the appellant are unfounded and not even supported by the circumstances, leave alone any positive evidence.
14. The testimony of PW5 Mr. G.C. Raut, who used to maintain the personal files of appellant, stands shattered, who has been examined by the CBI qua admitted handwriting and signatures, asserted the Ld. Counsel for appellant. The witness has since stated that he has not seen the appellant writing or signing before him, in his crossexamination. Thus, he can't be treated as a person acquainted Gauri Shankar Sangma Vs. CBI Page No. 9 of 14 with the signatures and handwriting of appellant, thus no admitted signatures are there.
15. However the explanation to Section 47 Evidence Act clarifies the position as to who should be considered to be acquainted by the handwriting of another person, and that is the one who has seen that other person writing and signing, but it also explains and thus includes a person who receives a document purported to be written by that other person in ordinary course of business or usually received by the former in due course.
16. The explanation thus enables PW5 G.C. Raut to be a person acquainted with handwriting and signatures of appellant which he has proved as PW1/HI to PW1/H10 which consists of leave application, LTC application, pay fixation increments etc. He has identified the signatures, handwriting of appellant in various documents. As such the issue of admitted signatures stands clarified and the contention of the Ld. Counsel for appellant stands demolished in the process in this context. The contention that the specimen signatures and handwriting and the opinion of the expert cannot be looked into is brushed aside.
17. Apart from expert opinion Ex.PW11/A, a plain look of the file Ex.PW1/A containing those 2 relevant pages of note sheet and the noting(s) which are Ex.PW1/A1, having the signatures of appellant Ex.PW4/A, the noting(s) purportedly written by Y.N. Chaturvedi and Ex.PW1/A2 reflecting the approval by Y.N. Chaturvedi are there which can be seen. All these noting(s) on these 2 pages of the file Ex.PW1/A connects the appellant and it can be Gauri Shankar Sangma Vs. CBI Page No. 10 of 14 inferred from a bare look that the hand written noting(s) are written by the same person and are in the same handwriting, which has been proved to be of the appellant. This binds the appellant in a very tight corner and the burden shifts on him to show the circumstances under which these noting(s) were written and this file was prepared by him as the correspondence in the said file from and on behalf of the Department of Education bears the signatures of the appellant and none else. He could not come clean on this count and for that matter he was shown this file in this Court and was asked to see and comment as to whether the handwritings are the same or not as a common man to which he also said, gingerly, that it appears to be the same.
18. Thus, in the absence of any apparent motive, which the prosecution could have shown, the appellant could have stepped in to clarify inasmuch as the noting(s) are in his handwritings, then he is supposed to explain it. He has not been able to do so.
19. It is correct that file was not recovered from his possession and for that matter, the evidence is to the effect that it was recovered from the vigilance section of Education Department of Ministry of Education. The documents reveal that the matter was brought to the notice of Pay & Accounts Officer to Under Secretary upto the Secretary of the Department by the supplier(s) since they did not receive the payment, through letter dated 07.06.1988. The FIR came into existence on 30.06.1994. The intervening period seems to have been in a way wasted by the Education Department in correspondence with the CVC and in other departmental measures without reporting the matter to the police. It is interesting and Gauri Shankar Sangma Vs. CBI Page No. 11 of 14 pertinent to note here that despite all these things, the CBI has registered the case on the basis of a source information and seemingly there is no complainant.
20. It is true that none of the witnesses says anything material on the aspect of cheating and forgery etc. by the appellant. However, the silence or direct oral evidence is not easy to come by except from the suppliers but the only one of the two has been examined. Even his unassailed testimony does not say that the appellant was given or promised some consideration/benefit, favour in any manner or he was expecting some favours. The question crops up, then whey the appellant created a web of false and fabricated documents, what for? Suppliers would have supplied the goods to NVS and would have got paid for those supplies. What the appellant stands to gain? Was he such an immature person not to understand his acts, omission and consequences? This question keeps haunting especially when nothing indicating something negative has come in the testimony of Raja Bose.
21. But the documents seemingly stand on the face of appellant which are forged, fabricated and created without there being any basis. The appellant has no explanation, cogent enough to clarify this aspect and that makes the whole thing to boil down to the handwriting expert's opinion and related testimonies as that is the only evidence coupled with the statement of Raja Bose. But the file in question Ex.PW1/A was not recovered from the possession of appellant or from his room or almirah or drawer, rather from vigilance section. There is no evidence as to how it reached there. There is evidence that the issue of absence of appellant and letter dated Gauri Shankar Sangma Vs. CBI Page No. 12 of 14 27.06.1988 sent by victim Ex.PW9/D created sort of ripples of some foul play in the ministry but the Ministry kept sleeping over the matter for years and could not take a decision and matter kept hanging fire between various official procedure etc. till out of blue the CBI registered a case strangely on source information. Notwithstanding the fact that Education Department slept over the issue, CBI registered a case of its own, file in question was not recovered actually from the possession or constructive possession/custody of appellant, no financial loss was caused to the Education Department or to some extent to the suppliers, the existence of a forged and fabricated file and corresponding documents, to give the developments an air of credibility, stare at the face of the appellant to which he has no explanation, as to how come almost all of them bear his signatures and the file Ex.PW1/A has almost all noting(s) in his handwriting, even those which were seemingly written by other officer(s).
22. In view of the fact that the fictitious file, notes, correspondences were created by the appellant without there being any justification or basis, which prompted Shellex Enterprises to invest money in furnitures for the purported supply to NVS, albeit could not be finally supplied, did cause some loss if the furniture were made, transported and stored in some hired godown at Chandigarh and Hyderabad. As such, the judgment of the Ld. Trial Court cannot be faulted with and the same is upheld.
23. On the aspect of sentence awarded to the appellant it is informed that he has already suffered a lot as not only he has been removed from service, suffered a divorce due to his absence from Gauri Shankar Sangma Vs. CBI Page No. 13 of 14 duty from Delhi due to a serious accident but has faced trial since 1995. His entire life, it is stated, has become a tragedy. He is now 67 years of age and not in a good physical and financial condition. Having considered all these factors and the case in its entirety where the victim has not alleged that any favour or benefit was either demand or given to appellant and all the incidental and attending circumstances, the sentence awarded to the appellant stands modified.
24. He is extended the benefit of probation and released on probation of good conduct for a period of 2 years on executing a bond in a sum of Rs.25,000/ before the Ld. Trial Court. He shall deposit a sum of Rs.50,000/ as cost proceedings, which shall be recovered as fine, if he fails to deposit the same. The fine of Rs.10,000/, which has already deposited with Ld. Trial Court, shall be adjusted.
25. Appeal stands disposed off accordingly. Copy be provided to the appellant and another one be transmitted to the Ld. Trial Court alongwith trial Court record.
26. Appeal file, after requisite formalities, be consigned to Record Room. VIMAL Digitally signed by VIMAL KUMAR YADAV Announced in the open Court on KUMAR Date:
2021.11.08 12th day of October, 2021 YADAV 14:07:24 +0530 (VIMAL KUMAR YADAV) Special Judge (PC Act) CBI01 RACC/Delhi/12.10.2021 Gauri Shankar Sangma Vs. CBI Page No. 14 of 14