Delhi District Court
Chandra Dev Mahto vs Central Bureau Of Investigation on 16 August, 2014
IN THE COURT OF SANJAY GARG : ADDITIONAL SESSIONS JUDGE - 01
(EAST) :KARKARDOOMA COURTS : DELHI
Crl. Appeal No. 51/13
Chandra Dev Mahto
S/o. Late Sh. Jugal Prasad Mahto,
R/o. Quarter No. 821, Sector 5,
R.K. Puram, New Delhi.
..... Appellant
Versus
Central Bureau of Investigation
(SCR1), CGO Complex, Lodhi Road,
New Delhi. ..... Respondent
ORDER
1. Vide this appeal accused has challenged the judgment dated 21.02.13 vide which he was held guilty for the offence punishable u/s. 420 and 471 read with section 465 IPC and order on sentence dated 27.2.13 vide which he was sentences u/s. 420 IPC RI for 3 years and to pay fine of Rs. 10,000/ in default SI for 3 months and for the offence punishable u/s. 471 read with section 465 IPC RI for 2 years and to pay fine of Rs.10,000/ in default SI for 3 months.
2. The facts of the case succinctly enumerated by Ld. Trial Court in para 1 of the impugned judgment are as follows : "One Sh. Chandeshwar Prasad filed a Criminal Writ Petition No. 5976 in 2003 in the Hon'ble High Court of Delhi wherein vide order dt. 12.01.2005, the Central Bureau of Investigation (CBI) was directed to verify the caste certificates of the persons who have secured employment on the basis of Scheduled Tribe (ST) Certificates during the year 1995 to 2000. In compliance, a preliminary verification was conducted by Sh. Kanshi Ram Sharma, Inspector, CBI in respect of Sh. Chander Dev Prasad Mehto, accused herein, who was working as LDC in the Crl. Appeal No. 51/13 page 1 of page 11 Directorate of Estates, Ministry of Urban Development, Nirman Bhawan, New Delhi which revealed that accused got appointment as Peon as ST candidate against ST vacancy vide order no. A12026/1/83Admn. B dt. 06.04.1083 in Directorate of Estates, Govt. of India on the basis of caste certificate purportedly issued by District Magistrate, Siwan dt. 17.04.80 mentioning ST category as Kharia through accused did not belong to the ST Category. It was revealed that the accused had obtained aforesaid employment by producing a fake ST certificate dt. 17.04.80, purportedly issued from the office of District Magistrate, Siwan Bihar wherein he is shown to belong to "Kharia" community which comes under Scheduled Tribes whereas he belongs to "Nonia" caste which comes under Most Backward castes. Accordingly, Inspector Kanshi Ram Sharma made a complaint dt. 06.06.2005 addressed to SP CBI SCR1, New Delhi. The present case was registered against the accused and the investigation was carried out."
3. Charge was given to accused u/s. 420 and 471 read with section 465 IPC. To prove its case prosecution has examined 23 witnesses. In his statement u/s. 313 CrPC accused denied entire evidence and has taken the defence of false implication. Accused has led defence evidence and has examined five witnesses.
4. Heard arguments of Ms. Manita Verma, Ld. counsel for the appellant and Sh. Suresh Kumar, Ld. PP for CBI/respondent. The Ld. counsel for the appellant also filed detailed written submissions. Perused the case file.
5. Ld. counsel for the appellant Ms. Manita Verma has contended that accused was offered appointment after due verification and having found the same to be correct. He was offered appointment letter and accordingly he has joined service. It is stated that he has put 25 years of Crl. Appeal No. 51/13 page 2 of page 11 service and all his documents were duly verified by his employer. It is stated that no Caste Issuance Register from District Magistrate Office has been produced for the relevant point of time. It is also stated that Government Publication IIIrd Edition, of Backward Class Commission, which is a public document clearly mentions that "Kharia" is also known as "Nonia" and in another words they are synonymous. It is urged that prosecution has failed to prove the procedure for issuance of caste certificate as none of the witness could give details of any Govt. circular which laid down the procedure. It is further stated that merely on identification of signatures on certificate Ex.PW8/A and declaring the same to be forged cannot be disbelieved. It is submitted that the Trial Court failed to consider that accused was just 1516 years of age at the relevant point of time and could not doubt genuineness of caste certificate given to him by his father. It is stated that one of the essential ingredients of offence u/s. 420 IPC is mens rea but prosecution has failed to prove it against the accused. It is further stated that prosecution has also failed to prove fraudulent or dishonest inducement so as to make the person deceived to deliver any property. It is urged that prosecution has also failed to prove allegations of forgery against the accused.
6. Per contra Sh. Suresh Kumar, Ld. PP for CBI/respondent submitted that there is sufficient evidence on record to establish that accused on the basis of forged caste certificate changed his caste to be Scheduled Tribe in employment exchange records. It is stated that accused has got the employment claiming himself to be ST. It is stated that various witnesses examined have proved that accused belongs to Nonia caste, caste certificate relied upon by him is forged and fabricated. It is submitted that accused is the beneficiary of this forged caste certificate and is liable to be punished for the offences for which he is convicted.
7. The case of the prosecution is that accused belongs to "Nonia" caste which is OBC as per the Gazette notification of Govt. of India but he Crl. Appeal No. 51/13 page 3 of page 11 forged caste certificate Ex.PW8/A showing him to be of ST "Kharia" caste. Prosecution has led evidence on three counts to establish its case :
(i) Record of employment exchange where accused submitted application claiming him to be from ST.
(ii) Service record of the accused showing him as ST.
(iii) Evidence from the office of DM, Siwan, Bihar to prove that no such certificate i.e. Ex.PW8/A was issued from there and accused is "Nonia" by caste, which falls in OBC.
8. PW6 Santosh Mehra produced register X63 of Employment Exchange, Kirby Place. As per her on 17.9.81 accused was registered as general candidate and on 19.7.82 there was addition to the effect that category of accused is ST/NV (i.e. Scheduled Tribe not verified). She has also produced addition/alteration register in which the subsequent entries, if disclosed by candidates, after date of registration, are entered. PW4 Sh. Om Prakash, Employment Officer and PW21 Lok Man, LDC from the Employment Exchange, Office of Delhi Govt. have supported PW6 in this regard. All these witnesses were crossexamined by accused but nothing has come on record to discredit their testimonies.
9. PW2 Shri Krishan Dev Prasad, Asstt. Director (Establishment) from Ministry of Urban Development has produced the personal file of accused i.e. Ex.PW2/1 and Ex.PW2/2. As per him letter of appointment was issued to accused by Mrs. Veena Brahma (PW5) for the post of Peon on 6.4.83 and same was accepted by accused vide his letter Ex.PW2/5. Accused has filed a caste certificate Ex.PW2/8 purportedly issued by Office of DM, Siwan on 17.4.80 showing his caste as "Kharia" (ST). He also produced service book of accused as Ex.PW2/13 containing biodata submitted by accused showing him as ST candidate. As per him in 1993 accused was appointed as LDC under 5% seniority quota. He further stated that as per record nine vacancies for the post of Peon existed in the year 1982, out of which only one vacancy was to be filled from ST category. Against this ST vacancy Crl. Appeal No. 51/13 page 4 of page 11 accused was appointed in the year 1982. PW5 Smt. Veena Brahma was working as Deputy Director Estates in Estates Directorate, Nirman Bhawan, New Delhi between 1981 to May'1985. She produced Roaster Register/Direct Recruitment Register, as per which accused was appointed as ST candidate. As per her the name of accused was sent by Employment Exchange as ST candidate for the post of Peon. Before appointment accused furnished the ST certificate dated 17.4.80 purportedly issued from the office of DM, Siwan. PW18 Sh. Umesh Pandey had worked as Section Officer in the Ministry of Urban Development , Nirman Bhawan, New Delhi, he produced file Ex.PW18/A pertaining to promotion of educationally qualified group 'D' employees as LDC (CSCS) against 5% seniority quota. He deposed that as per office order dated 6.7.97 Ex.PW18/B accused was promoted against 5% seniority quota. PW19 R.C. Durga, Director National Commission for Scheduled Tribes Govt. of India produced "The Constitution (Scheduled Tribes) order,1950" as Ex.PW19/A and Ex.PW19/B. PW7 Mrs. G.S. Chitra, Section Officer while working as Directorate of Estate, Ministry of Urban Development as Asstt. Director (Administration) had handed over service book, personal file etc. of accused to IO PW23 Inspector Chanda Rani. All these witnesses were crossexamined on behalf of accused but nothing has come on record to discredit the Govt. record produced by these witnesses.
10. From the evidence discussed above, it stands established that accused was initially registered with employment exchange (not showing him ST) and thereafter on his application his caste was changed to ST. On that basis he was given employment in 1983 as a Peon in the Directorate of Estates, Ministry of Urban Development and he accepted the offer and started working there as Peon.
11. PW8 Sh. Somesh Bahadur Mathur is from Bihar State Beverages Corporation Ltd. and he remained posted as Executive Magistrate in District Siwan holding the charge of District Welfare Officer in the 2005. He has elaborated the procedure for issuance of SC/ST certificate. As per Crl. Appeal No. 51/13 page 5 of page 11 him for issuance of SC/ST certificate a candidate is required to submit application with the office of BDO who will conduct verification and on that basis issue SC/ST certificate. If certificate is required from SDM, the applicant submits the application to the concerned SDM alongwith copy of caste certificate issued from BDO. If the certificate is required from the office of DM then the applicant has to apply alongwith the copy of caste certificate issued by concerned SDM. No certificate is issued by DM without taking caste certificate duly issued by concerned SDM. As per him the caste certificate Ex.PW8/A which IO PW23 has seized on 24.6.05 being produced by accused vide memo Ex.PW23/A, prima facie looks not genuine. As per him he had verified the certificate Ex.PW8/A, it was found not showing any dispatch number. As per him whenever any caste certificate issued, particularly SC/ST certificate, from the office of DM, dispatch number/ issue number is necessarily mentioned on it. As per him a report was sought from concerned BDO which revealed that accused was not recorded in the register namely "Khatian" as "Kharia" but he was recorded as "Nonia", which was not included in the list of Scheduled Tribe. He exhibited Govt. order dated 10.11.78 as Ex.PW8/B issued by the Department of Personnel and Administrative Reform, as per which caste "Nonia" is scheduled as most backward caste and hence "Nonia" caste cannot be taken as ST. PW9 Sh. Ashutosh Kumar Verma is also officer of Bihar Administrative Service, in the 2005 he was posted as BDOcum C.O at Basant Pur Block Distt. Siwan covering Village Nagoli i.e. village to which accused belongs. He has also elaborated the procedure as mentioned by PW8 for issuance of caste certificate. As per him during his posting in Basant Pur Circle Office the then DM Siwan conducted inquiry regarding caste certificate of accused and has reported that caste certificate Ex.PW8/A bears forged signatures of the then DM Sh. Ram Bhajan Singh.
12. PW10 Sh. Chandrika Singh is another Bihar Govt. Official examined by CBI. He remained posted in Basant Put Anchal having area of Crl. Appeal No. 51/13 page 6 of page 11 81 villages including village Nagoli of accused, as a Circle Inspector. As per him in Village Nagoli persons of "Kharia" caste do not reside. He had handed over certain documents in this regard to IO PW23 duly attested by Anil Prasad (PW13). As per PW13 he was elected as Mukhia of the Panchayat, Basantpur having Village Nagoli under its jurisdiction. As per him as per "Khatian" accused is "Nonia" by caste. PW12 Mohd. Rahimullah is another important witness produced by CBI, as between 1977 to 1980 he was posted as Clerk with the office of DM Siwan. As per him that during that period he was frequently observing the writing and signatures of the then DM Sh. Ram Bhajan Singh. He categorically stated that signatures of Sh. Ram Bhajan Singh appearing on Ex.PW8/A are forged and there is no stamp/seal of Sh. Ram Bhajan Singh on it. PW17 Sh. Mirza Arif Raza was posted as Executive Magistrate in Siwan District and he had handed over three letters to IO vide seizure memo Ex.PW17/A bearing signatures of Sh. Ram Bhajan Singh the then DM Siwan.
13. PW16 Sh. Guru Dev Singh from the office of Controller of Publication produced extraordinary gazette part1, Section1 as Ex.PW16/A attested by the Asstt. Controller Business, Govt. of India, Department of Publication. In this gazette caste included in OBC category from Bihar State is also shown and as per this record "Nonia" caste is shown as OBC in Bihar State.
14. PW23 Inspector Chanda Rani is the IO, she has seized the original Schedule Tribe certificate produced by the accused on 24.6.05. She has also seized various documents from employment exchange and from the office of DM Siwan from where this Schedule Tribe certificate is purported to have been issued. The admitted signatures of Sh. Ram Bhajan Singh who was DM of Siwan when Ex.PW8/A was issued was sent with the questioned signatures on Ex.PW8/A to Govt. Examiner of Questioned Documents of Directorate of Forensic, Ministry of Home Affairs. Ex.PW20/D is the report given by Asstt. Govt. Examiner mentioning that it is not possible Crl. Appeal No. 51/13 page 7 of page 11 to express any opinion on these documents. However, from the other evidence led by CBI, discussed in above paras, it stands established that Schedule Tribe certificate i.e. Ex.PW8/A relied upon by accused in getting employment is a forged document.
15. Accused has led defence evidence and has examined five witnesses. In para 23 of impugned judgment the Ld. Trial Court has dealt with these defence witnesses. Para 23 of the impugned judgment is as follows : "In his defence, accused got examined Sh. Bihari Mehto (DW1), Sh. Amar Nath (DW2), Sh. Sukhdev Dubey (DW3), Sh. Binda Ram (DW4) and Sh. Dhira Thakur (DW5). A perusal of their testimony shows that Sh. Bihari Mehto (DW1) admitted that survey Khatiyan Ex.PW14/A relates to Khakan Nonia and title of Khakan Nonia is also 'Nonia'. As per his opinion, the genealogy Ex.PW9/F was also correct. He never possessed any certificate of Kharia and strangely deposed that the caste certificate of Kharia is given in the name of Nonia caste. He again reiterated that whenever a caste certificate is required, it is issued in the name of Nonia caste and not in the name of Kharia caste. Similarly, Sh. Amar Nath (DW2) stated that Kharia is sub caste of 'Nonia' but he could not produce any document in support of his contentions. Sh. Sukhdev Dubey (DW3) admitted in his cross examination that in village Nagauli there are 56 families of Nonia caste and out of these 56 families, the family of the accused is one of them. Then, both Sh. Binda Ram (DW4) & Sh. Dhira Thakur (DW5) stated that the accused belongs to KhariaNonia caste but no other corroborative evidence could be produced by them in support of their contentions.
16. After perusal of defence evidence led by accused, I find no reason to disagree with these findings of the Ld. Trial Court.
Crl. Appeal No. 51/13 page 8 of page 11
17. The main contention raised by Ld. counsel for the appellant is that Govt. Publication of Backward Class Commission which is a public document clearly mentions that "Kharia" is also known as "Nonia". I agree with the findings returned by Ld. M.M. on this issue in para 24 of the impugned judgment, which is as follows : "As far as the claim of the accused that he belongs to Kharia caste which is a sub caste of Nonia caste, recognized Scheduled Tribe in the state of Bihar is concerned, it appears that the accused is not even aware about the basic difference between the terms 'Caste' & 'Tribe'. He is claiming to belong to Khaira caste, a sub caste of Nonia caste and further states that the same is a Scheduled Tribe in the state of Bihar. It does not appeal to common sense as to how a particular caste can be recognized as a Tribe in the Scheduled of the Constitution. The term 'Caste' & 'Tribe' have different connotations and cannot be used in substitution with each other. Further, in Marri Chandra Shekhar Rao v. D. Seth G.S. Medical College 2 (1990) 2 SCC 130, the Hon'ble Supreme Court declared that subject to the law made by the parliament under sub section 2 of Article 342, the tribes or tribal communities or parts of or groups within the tribes or tribal communities specified by the President by public notification shall be final for the purpose of the constitution. Article 342 of the constitution gives power to the President to specify the tribe with respect to any State or Union Territory after constitution with the Governor where it is a state by a public notification, the tribes, etc. which shall be deemed to be Scheduled Tribes in relation to that State or Union Territory as the case may be. Therefore, the claim of the accused hat KhariaNonia is also recognized Scheduled Tribe in the state of Bihar is wholly devoid of merit since no such Presidential notification to this effect could be brought on record Crl. Appeal No. 51/13 page 9 of page 11 by the accused."
18. The other contention raised on behalf of appellant is that he was handed over the Scheduled Tribe certificate by his father and he had no reason to doubt this certificate. The evidence discussed above proves beyond doubt that the Scheduled Tribe certificate is forged document and accused had used it in getting employment and subsequent promotion in the same department. From where accused got this forged certificate, u/s. 106 of Indian Evidence Act, this fact is only in the knowledge of accused and burden of proving the same was upon him. But accused has failed to lead any evidence to establish that how and from where he got issued this certificate. The act of accused by getting employment as Peon on the basis of forged caste/ST certificate is an act of deception on his employer.
19. In view of the aforesaid reasons, I find no substance in various grounds of appeal raised by accused. This appeal, against the impugned judgment holding accused guilty u/s. 420, 471 read with section 465 IPC, is dismissed.
20. The Ld. counsel for the accused has further urged that he has put in more than 30 years of service and he deserves benefit of section 360 CrPC or for considering his case u/s. 3 or 4 of Probation of Offenders Act. Accused has illegally taken employment by forging caste certificate, for which he was not entitled. Reservation for ST candidates in Govt. jobs is a beneficial provision for the upliftment of certain sections of the society. The Ld. Trial Court has discussed the relevant provisions of the constitution and judgments of the Apex Court on similar issues. The Apex Court in Regional Manager Vs. Madhulika Guruprasad in Civil Appeal No. 4636 of 2008 has observed that if a person takes an undue advantage of beneficial provision of constitution by obtaining the benefit of reservation, he not only play a fraud on the society but in effect and substance he also played fraud on the constitution.
Crl. Appeal No. 51/13 page 10 of page 11
21. In view of the various facts and circumstances, I find no reason to interfere with the quantum of sentence awarded by Ld. Trial Court.
22. Copy of the order is given dasti to the appellant/accused. He is directed to surrender before Ld. Trial Court on 21.8.14 to under go the sentence awarded.
Trial Court Record be sent back alongwith the copy of this order.
Appeal file be consigned to record room.
Announced in the open Court ( SANJAY GARG )
on 16.08.14 Addl. Sessions Judge01 (East)
Karkardooma Courts, Delhi
Crl. Appeal No. 51/13 page 11 of page 11