Delhi District Court
Prosecutor For Cbi Has Relied Upon A ... vs . on 31 August, 2012
IN THE COURT OF SH. R.P.PANDEY
SPECIAL JUDGE 01 (PC ACT) CBI : ROHINI : DELHI
CBI CASE No. : 01/09
CENTRAL BUREAU OF INVESTIGATION
Vs.
1. Sh.Ravindra Kumar Bhatt (since dead)
s/o Sh.G.B.Lal Bhatt
the then Currency Chest
Incharge/Manager,
Bank of Baroda, Parliament Street Branch
New Delhi
r/o 151, Engineers Enclave,
Pitampura, Delhi34
2. Sh.Satish Chaudhary
s/o Sh.Ashanand Chaudhary
the then Head Cashier
attached to Currency Chest
at Bank of Baroda, Parliament Street Branch
New Delhi
r/o H.No.377/14, Ganaur Road, Ganuar
Distt.Sonipat, Haryana
3. Sh.Mahavir Singh
s/o Late Prem Chand
the then Cash Clerk,
CBI CASE NO.01/09
CBI VS RAVINDRA KUMAR BHATT Page No.1 of 54
Bank of Baroda, Parliament Street Branch
New Delhi
r/o Pocket A1, Flat No.3A,
Mayur Vihar, PhaseIII
Delhi96
4. Ajay Kumar Singla (since dead)
s/o Late Lakhi Ram,
r/o M154 & 155, Raghubir Nagar,
New Delhi27
5. Sh.Sunil Kumar Singla
s/o Sh.Ajay Kumar Singla
R/o M154155 Raghubir Nagar
New Delhi27
6. Sh.Manoj Kumar Garg,
son of Sh.Janeshwar Prasad Garg,
r/o RZDIIA, Dabri Extn. Palam Colony, New Delhi
Date of Registration of FIR : 20.03.2003
Date of Framing of Charge : 28.03.2006
FIR No. : RC.SI 8/2003/E/0002/SIUVIII/CBI/N.D.
Under Section : 120 B IPC R/W 420,467,468,471 &
477A IPC and Section 13 (2) r/w
13 (1) (d) of P.C. Act 1988
CBI CASE NO.01/09
CBI VS RAVINDRA KUMAR BHATT Page No.2 of 54
Arguments
concluded on : 25.08.2012
Date of Order : 31.08.2012
CASE ID No. : 02404R0999272003
JUDGMENT
1. The case of prosecution in a nutshell is that Accused No.1/R.K.Bhatt, the then Manager, Currency Chest, Bank of Baroda, Parliament Street, New Delhi, during the period from January, 2002 to August, 2002 entered into a criminal conspiracy with accused No.2/Satish Chaudhary, head cashier, Currency Chest, Bank of Baroda, Parliament Street Branch, New Delhi, accused No.3/Mahavir Singh, Cashier, Currency Chest, Bank of Baroda, Parliament Steet Branch, New Delhi, accused No.4/Ajay Singhla, accused No. 5/Sunil Singhla and accused No.6/Manoj Kumar and in furtherance of said criminal conspiracy accused R.K.Bhatt, Satish Chaudhary and Mahavir Singh, the public servants, abused their official positions as public servants, dishonestly and fraudulently filled up various DN.1 forms mentioning CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.3 of 54 fictitious names and addresses of various persons for exchange of deliberately cut/mutilated notes for exchanging from the currency chest of Parliament Street branch of Bank of Baroda, which is managed by Reserve Bank of India and forged the said forms for the purpose of cheating and thereafter the said forms were entered in the DN.2 register and the currency valuing Rs.2,55,35,000/- was exchanged from the currency chest of the branch, which could not be exchanged as per Note Refund Rules of RBI and thereby pecuniary advantage was caused to A.4 to A.6 (the private persons) without any public interest. This was a loss caused to Bank of Baroda, Parliament Street, New Delhi because a team of RBI officers rejected the adjudicating orders of these notes and debited an amount of Rs.2,55,35,000/- to Bank of Baroda, Parliament Street Branch, New Delhi. The sanction for prosecution of accused public servants under section 19 of P.C.Act, 1988 was obtained by CBI and filed alongwith charge sheet.
2. On being satisfied prima facie, about the material relied upon by the prosecution, the charge against all accused persons were directed to be framed vide order dated 25.03.06 and thereby formal charge against all accused persons u/s CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.4 of 54 120-B/420/467/468/471/477-A IPC and additionally u/s 13(2) r/w Section 13 (1)(d) of PC Act 1988 against accused No. 1 to Accused No.3 were framed on 28.03.06, to which they pleaded not guilty and claimed trial.
3. Accused No. 1/R.K.Bhatt, who was working as Manager/Custodian of the currency chest of Bank of Baroda , Parliament Street Branch, New Delhi and accused No.4 Ajay Kumar Singla, a private accused person, died during the pendency of trial and as such the proceedings against them abated and the trial continued and concluded only against remaining accused persons, viz. Satish Chaudhary (A.2) and Mahavir Singh (A.3) (public servants) and Sunil Kumar Singla (A.5) and Manoj Kumar Garg (A.6) (private persons).
4. The prosecution examined 24 witnesses to prove the charge and closed PE. The incriminating material was put to accused persons u/s 313 of Cr.PC but they did not lead any evidence in their defence.
5. I have heard Sh.I.D.Vaid, the Ld. Special Public Prosecutor for CBI, Sh.K.K.Sharma, , the Ld. Counsel for accused No.2/Satish Chaudhary, Sh.Bharat Bhushan, the Ld. CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.5 of 54 Counsel for accused No.3/Mahavir Singh & accused No. 6/Manoj Kumar Garg and Sh.P.N.Verma, the Ld. Counsel for accused No.5 Sunil Kumar Singla and perused records of the case carefully alongwith written synopsis/arguments filed by the parties.
6. Before proceeding to appreciate the evidence on record in respect of role of each accused person individually, it is necessary to first advert to some issues which transpire from the records of the case and affect the substratum of the prosecution case.
7. The charge sheet filed by CBI as well as the Report of RBI Officers' team Ex.PW.7/A would show that during the period 03.01.02 to 30.08.02 the currency chest of Bank of Baroda, Parliament Street Branch, New Delhi had exchanged/adjudicated total 80,666 soiled/mutilated currency notes valuing Rs.2,66,26,000/-. Out of these, a total of 73,212 pieces, mostly of higher denomination aggregating to Rs. 2,55,35,000/-, were exchanged for full value which were found to be deliberately cut/tampered with. Thus, it is clear that there was no objection from RBI regarding exchange of 7,454 CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.6 of 54 (80,666-73,212) soiled notes aggregating to Rs.10,91,000 (2,66,26,000 - 2,55,35,000).
8. The alleged deliberately cut and mutilated currency notes neither bear the token number to show as to which particular DN.1 form they pertain to, nor the specific series/ currency note numbers are mentioned on the DN.1 forms to relate a particular DN.1 form with particular currency notes which were tendered with the same for exchange. During his cross-examination PW.7 S.P.Ahuja, who happened to be the member of RBI Team, which had highlighted the illegality/irregularity in exchange of currency notes, admitted that he cannot connect the mutilated or soiled notes with alleged DN.1 forms. IO of the case PW.24 A.K.Singh also admits in his cross examination that it is not possible to connect any mutilated or soiled notes with the specific DN.1 forms. Thus, under such circumstances it cannot be said as to whether a particular DN.1 form, out of impugned 115 DN.1 forms, pertains either to the group of 7,454 exchanged soiled notes duly approved by RBI or to the group of remaining 73,212 currency notes opined by RBI to be deliberately cut and mutilated and hence not exchangeable.
CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.7 of 549. It is also an issue as to whether the opinion of the RBI team that those 73,212 currency notes of aggregate value of Rs.2,55,35,000/- were deliberately cut and mutilated, is binding on the court and whether the prosecution was not required to establish that each and every such note was deliberately cut and mutilated. In my view, in a criminal prosecution, it was the burden on the prosecution to establish that each of those particular currency notes were deliberately cut and mutilated making them unfit for exchange. The report of RBI Team cannot be termed as opinion of experts u/s 45 of Evidence Act, the contents of which can be admitted in evidence by virtue of provisions of Section 293 of Cr.PC. In this respect I am being guided by the judgment of Hon'ble Supreme Court in C.Chenga Reddy Vs. State of A.P.AIR 1996 S.C.3390 wherein it was categorically laid down that when a witness is not an expert within the meaning of Section 45 of Evidence Act, his report given to I.O. is inadmissible in evidence as it is hit by bar of Section 162 Cr.PC.
10. Assuming that the report of RBI Team is taken as opinion of experts, even then the expert's opinion cannot be accepted straightway as a conclusive proof of evidence against the accused, more particularly when it does not CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.8 of 54 contain even a grab of material indicating on what scientific tests the opinion was arrived at. It is settled position of law that before evidence of expert can be safely accepted and relied upon to base the order of conviction, the court should have an opportunity of its own to independently assess and appreciate the same on the basis of scientific tests, etc. But if the Court surrenders to any bare opinion of expert that can amount to abdication of judicial function. There is nothing in the report of RBI team which could help the court to form its independent opinion about each currency note that the same have been deliberately cut and mutilated making them non- exchangeable.
11. Besides, the prosecution was also required to establish as to how the removed features of those notes were used to make up another note. The prosecution has not established or even pointed out towards any note as to how that note could be termed as deliberately cut and mutilated one or a made up note by taking out features of different notes. For lack of adequate and convincing evidence the court is unable to conclude that the 73,212 currency notes termed by RBI team as deliberately cut and mutilated notes, were in fact deliberately cut and mutilated and thus unfit for exchange.
CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.9 of 5412. There is one more issue that the note exchange facility was not meant for professional money changers and that the soiled currency notes were only to be tendered at the counter of the Parliament Street branch of Bank of Baroda and not directly at the Currency Chest. Out of 80,666 notes exchanged at Currency Chest, 7,454 notes worth Rs. 10,91,000/- were found acceptable by RBI. Thus, the fact that the soiled currency notes were exchanged by the Currency Chest directly, was not a material irregularity which could be said to have caused any illegality resulting into loss to Bank of Baroda, if the notes were otherwise of exchangeable quality.
13. PW.4 K.K.Gupta has deposed that he remained posted as the Currency Chest Manager at Parliament Street branch of Bank of Baroda from 1983 to 1993 and again from September, 1994 to August, 2001. In August, 2001, charge of Currency Chest was taken over by R.K.Bhatt (A.1) from him. He said that Currency Chest Manager is also called as Custodian of the Chest who was empowered by Reserve Bank of India to adjudicate mutilated notes on behalf of RBI. As per his statement " The custodian of Currency Chest was empowered by RBI to adjudicate mutilated notes on behalf of CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.10 of 54 RBI. There was separate counter in the bank for exchanging the mutilated notes of the customers. The customer used to fill in DN.1 form mentioning the details and thereafter the DN.1 form and mutilated notes used to reach the custodian through a bank clerk/cashier. Custodian used to examine the genuineness/value of the notes. If the mutilated notes were found in order, the custodian used to put a stamp " pay" on the mutilated notes. Thereafter, the custodian used to retain the DN.1 form and the mutilated notes with stamp of pay affixed on them were returned to the clerk/cashier, who used to give new notes to the customer in lieu of mutilated notes. The clerk/cashier used to keep the mutilated notes with him and when their count was 100 he used to convert them into a wad and used to handover the same to the custodian of Currency Chest who used to provide good quality notes to the cashier/clerk in lieu of the wad of mutilated notes. At this stage, the custodian of Currency Chest used to make an entry in DN.2 register'.
14. He was shown DN.2 register (Ex.PW.2/23) in which the entries of mutilated notes were made and used to be signed by custodian. He identified entries in his handwriting on page nos. 95 and 96 of the said register, which were made CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.11 of 54 by him during his tenure. It has also come in his evidence that the intimation of such exchange of soiled notes is submitted to the RBI on weekly basis signed by both custodians.
15. Sh.R.C.Angurala, who remained posted in same Currency Chest as Joint Custodian during the period from April, 1998 to June,2000 was examined as PW.5. During his cross-examination on 12.12.09 he was shown monthly statement dated 15.01.01, statement for period March, 2002 to April, 2002 and statement for the period December, 2001 to January, 2002 on which he identified his signature (Ex.PW. 5/DA, PW.5/DA.1 and PW.5/DA-2 respectively). When, confronted with the same he admitted, " It is correct that they show the exact position of the mutilated notes being exchanged in the currency chest. The information was being sent through the branch to the head office. It is correct that the copies of the same used to go to GM, North Zone and Regional and Zonal heads. It is correct that it was in the knowledge of the higher authorities that the notes are being exchanged in the currency chest. It is correct that I had equal duties with the other custodians to see that all working was going properly. After ensuring that everything was correct, I CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.12 of 54 used to sign. Cash handling was not being done by me. Oral orders were being given to me in the branch. Other officers were also given oral orders" . PW.3 M.K.Seth, during his cross examination on 06.08.08, also conceded, " Pieces of soiled and mutilated notes varied from time to time, which were reflected in statement sent by me to the Chief Manager." But despite information/statements submitted to RBI and management of Bank of Baroda periodically there was never any objection to it until the RBI decided not to accept and reimburse the exchange of 73,212 currency notes, which it had found as deliberately cut and mutilated.
16. PW.1 Sh.Jagdish Bagoria has deposed that on 15.12.01 he was posted as Head Cashier in Bank of Baroda, Parliament Street. He said that he never exchanged or adjudicated any mutilated or any soiled note submitted to him through DN.1 form, since no body turned up before him for exchange of such notes. He further stated that since RBI exchange counter was located at close distance from this branch, therefore, he used to advise the customers to exchange the mutilated/defective notes at RBI exchange counter directly. During his cross-examination he admitted that he had never been on the seat of currency exchange CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.13 of 54 officer. He admitted that his branch was notified by RBI for exchange of soiled or mutilated notes by public persons and a notice is also displayed in the bank to this effect for the notice of general public. He said that he advised public to approach RBI for exchange of mutilated notes because claim of such a public person had to be adjudicated for exchange of mutilated note and he had no such power to adjudicate and no other person was also adjudicating such notes and so he used to give such an advice.
17. From testimony of PW.1 Jagdish Bagoria it is not clear that whether he was posted in Parliament Street Branch during the relevant period i.e. 03.01.02 to 30.08.02 during which the currency notes in question were exchanged. It is clear from his statement that there was no Officer of the branch who was authorized to adjudicate the mutilated/soiled currency notes. So it appears that the branch management was not performing its duty of adjudication and exchange of soiled and mutilated currency notes.
18. On the other hand it has already come in evidence of PW.4 that the custodian of Currency Chest was authorized by RBI and was doing the work of adjudication of CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.14 of 54 soiled and mutilated currency notes. The staff working at Currency Chest was also provided by Parliament Street Branch of Bank of Baroda, so it appears that the tacit arrangement was that the work of exchange of soiled/mutilated currency notes was wholly left to the Manager/custodian sitting in Currency Chest who found it convenient to abuse his position. It is very much possible that such an arrangement was also the part of oral orders given to the officers by the Branch Management as it is apparent from testimony of PW.3 M.K.Seth and PW.5 R.C.Angurala that the work was being assigned to staff by the branch management by giving oral orders to them.
19. No evidence has surfaced to conclude that any of the private accused persons was a money changer. The evidence of any link between accused public servants and the private accused persons such as phone call details or recovery of any incriminating material during search of their premises or any oral evidence of any witness having seen them meeting each other, has not been brought out on the record to help the court to reasonably foresee possibility of a conspiracy between private accused persons and public servants. Even IO of the case, who was examined as PW.24, CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.15 of 54 has stated in his cross examination that he had not examined any witness in respect of allegation that accused Sunil Kumar Singla had any contact with or ever met co-accused Mahavir or any co-accused. The only witness arrayed by CBI in this respect was Sh. Manish Garg (PW.18) who turned hostile and did not at all support the case of prosecution. The Ld. Defence counsel for accused Sunil Kumar Singla (A.5) has relied upon Judgment cited as 2002(2) JCC page 766 and 2004(1) JCC page 588 (SC) to submit that there should be some physical manifestation of agreement to prove conspiracy. He also relied up on AIR 1999 SC 1086 to submit that there should be some material showing connection in between the alleged conspiracy and the accused.
20. With these observations, now I proceed to deal with evidence brought on record against each accused, except accused Ravindra Kumar Bhatt (A.1) and Ajay Kumar Singla (A.4) who have since expired and consequently proceedings qua them have abated.
Accused Satish Chaudhary (A.2)
21. In the complaint dated 03.02.03 lodged by CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.16 of 54 Sh.B.K.Sinha (PW.20), the then AGM of Bank of Baroda, Parliament Street Branch with CBI (Ex.PW.20/B (D.1) ) which forms the basis of registration of FIR in this case, it was alleged that the operations of Currency Chest were carried out by Sh.R.K.Bhatt (accused since dead), the then Currency Chest In-charge and Satish Chaudhary (A.2) the then Head Cashier, unauthorisedly and with some ulterior motive and that Sh.R.K.Bhatt was delivering the defective/mutilated currency notes after passing the " Pay Order" and Satish Chaudhry was effecting the payment in lieu thereof immediately.
22. In the FIR (Ex.PW.24/A), it was alleged that 'R.K.Bhatt (accused since dead), the then Currency Chest In- charge of the Branch, unauthorizedly and in violation of RBI rules and without the knowledge of the Branch Manager, acted as " Prescribed Officer" and performed the function of adjudication of defective/mutilated currency notes directly in the Chest during January to August, 2002" . In the charge sheet it was stated that ' the currency chest Officer was not empowered to act as prescribed officer. However, in pursuance of the said criminal conspiracy accused R.K.Bhatt and Satish Chaudhary dishonestly and in violation of RBI rules and without the knowledge of Branch Manager acted as CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.17 of 54 prescribed officer and performed the function of adjudication of defective/mutilated currency notes during January to August, 2002'.
23. It has been submitted by Ld. Defence counsel for accused Satish Chaudhary that the charge sheet has been wrongly and illegally prepared to include the name of Satish Chaudhary as the 'prescribed officer' which is contrary to contents of FIR and also the fact of the case. He has submitted that an attempt was made in the charge sheet to show that Satish Chaudhary was an Officer of the bank which is wrong and totally contrary to the facts. PW.4 K.K.Gupta has stated that he was Manager/Custodian Currency Chest of Bank of Baroda , Parliament Street Branch from 1983 to 1993 and again from September, 1994 to August, 2001 from whom R.K.Bhatt (A.1) had taken over charge in August, 2001. He stated that Satish Chaudhary (A.2) was head cashier of Currency Chest. During his cross examination he admitted that Head Cashier's post is of clerical cadre and no keys of Currency Chest were held by the head cashier. Thus, it is clear that accused Satish Chaudhary was working in clerical cadre and was not handed over any keys of the currency chest at any point of time.
CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.18 of 5424. The imputations against accused Satish Chaudhary are mainly based on the allegation that it was he who had filled certain figures on DN.1 forms on different dates including the dates on which he was on leave. The attendance register of the officers of Parliament Street Branch of Bank of Baroda of the relevant period are Ex.PW.2/B.1 and B.2 and of clerical staff Ex.PW.2/C which have been exhibited by PW.2 C.P.Bindlish who remained posted as Sr.Manager (Administration) at Parliament Street Branch during July, 2002 to June, 2005. When the DN.1 forms, allegedly bearing the handwriting of accused Satish Chaudhary (A.2), were sent to CFSL, the Government Examiner of Questioned Documents (GEQD) did not give any opinion thereon. The Ld. Defence counsel has submitted that when the GEQD has failed to express its opinion even after providing sample writing by accused Satish Chuadhry, it clinches the issue and the prosecution be now estopped from claiming that there is other oral evidence also to the effect that the figures on some DN.1 forms were written by accused Satish Chaudhary.
25. Sh.I.D.Vaid, the Ld. Special Public Prosecutor for CBI has vehemently argued that even if GEQD has failed to CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.19 of 54 express any opinion regarding alleged writing of accused Satish Chaudhary, there are other witnesses as well to this fact whose evidence is relevant and admissible by virtue of Section 47 of Evidence Act. He has submitted that PW.2 C.P.Bindlish has duly proved the handwriting of accused Satish Chaudhary in DN.1 forms which is admissible u/s 47 of Evidence Act as he was familiar with the handwriting and signatures of Satish Chaudhary. On the other hand Sh.K.K.Sharma, the Ld. Defence counsel for accused Satish Chaudhary has submitted that when even the handwriting expert has failed to express any opinion on the questioned handwriting on DN.1 forms and DN.2 register as alleged to be that of Satish Chaudhary, after its comparison with his specimen writings, it should be taken as conclusive of the fact that no one else would be in position to say as to whether the questioned writings on the DN.1 forms was the handwriting of Satish Chaudhary.
26. Mr.Sharma has also taken the court through the entire deposition of PW.2 Sh.C.P.Bindlish, including his cross examination to elicit the credibility of his deposition so far as it relates to identification of handwritings on DN.1 forms and DN. 2 register.
CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.20 of 5427. Section 47 of the Indian Evidence Act lays down, " When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. Explanation- A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him" . Thus, as per Section 47 a witness could be said to be acquainted with the handwriting of Satish Chaudhary, if he had seen him writing or used to receive the documents purported to be written by him in ordinary course of business.
28. In his examination in chief Sh.C.P.Bindlish (PW.2), then working as Sr.Manager (Admn.) in Bank of Baroda, Parliament Street Branch , has deposed on 12.10.08 that CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.21 of 54 R.K.Bhatt was Currency Chest Incharge and Satish Chaudhary was Head Cashier of Currency Chest of the said bank. He said that he had seen Satish Chaudhary writing and signing the documents as such he was acquainted with his writing and signature in DN.2 register. He said, " I have seen DN.2 register of Currency Chest, Bank of Baroda. I cannot say as to who had filled DN.1 form" thereafter his further examination-in-chief was deferred.
29. On next date i.e.03.04.07 he proved attendance register in respect of officers of Bank of Baroda as Ex.PW.2/B. 1 and Ex.PW.2/B.2 and attendance register of clerical staff of the bank as Ex.PW.2/C. Ex.PW.2/B.1 and B.2 are in respect of attendance of R.K.Bhatt and Ex.PW.2/C is in respect of attendance of Satish Chaudhary during the relevant period of their posting in Currency Chest of the said bank. He deposed that since R.K.Bhatt and Satish Chaudhary had worked with him, therefore, he had seen them writing and signing the documents and as such acquainted with their writing and signatures. He was shown DN.2 forms bearing Sr.Nos. 7 to 13 (Ex.PW.2/D.1 to PW.2/D.7) wherein he identified that the writings thereon at the questioned portions are written by Satish Chaudhary.
CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.22 of 5430. Similarly, he had also identified writings of Satish Chaudhary on questioned portion on DN.1 forms bearing Sr.Nos.20,27,59,60,61,73,84 to 91 and 18 (Ex.PW.2/D.8 to D.
22). He was also shown DN.2 register (Ex.PW.2/D.23) in which the details of notes exchanged through DN forms had been entered into. He identified that the entry dated 28.03.02 pertaining to DN.1 form Ex.PW.2/D.22 has been made by Satish Chaudhary appearing at portion 'A' in Ex.PW.2/D.23 authenticated by R.K.Bhatt by making his initial at point 'D'. Similarly he has deposed that DN.2 forms bearing serial nos. 29,33,67 and 113 (Ex.PW.2/D.24 to D.26 respectively) bear handwriting of Satish Chaudhary at the questioned portion and entry in respect of the same has also been made by him in DN.2 register Ex.PW.2/D.23.
31. During his cross examination on 17.05.07 PW.2 C.P.Bindlish admitted that none of these documents were prepared in his presence or bears his initials. When he was asked as to whether he had ever visited Currency Chest, he replied that he visited Currency Chest several times but then said " I did not go inside the Currency Chest. I just went upto the guard and came back. It is correct that there are no entries CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.23 of 54 of my having visited the Currency Chest because I did not go there. I never visited the Currency Chest" . In his cross examination by Ld. Counsel for accused Satish Chaudhary PW.2 C.P.Bindlish deposed that he had not seen Satish Chaudhary filling up or preparing these documents but he had based his judgment on his knowledge as he had seen Satish Chaudhary signing and writing. Satish Chaudhary was posted in Currency Chest where PW.2 C.P.Bindlish never visited, so the possibility of him seeing Satish Chaudhary writing and signing a document is ruled out.
32. Now, the next question is whether Sh.Bindlish was acquainted with the handwriting of Satish Chaudhary by virtue of receiving the documents purported to be written by Satish Chaudhary in ordinary course of business or documents written by Satish Chaudhary used to be habitually submitted to him. The prosecution could not prove the fact that the documents purporting to be written by Satish Chaudhary were either habitually submitted to him (Mr.Bindlish) or received by him in ordinary course of business to make the court believe that he could prove the handwriting of accused Satish Chaudhary to the satisfaction of the Court. Moreover the case of prosecution, as per examination-in-chief of Sh.Bindlish, is CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.24 of 54 that he had seen Satish Chaudhary writing and signing in his presence and therefore, would be able to identify his handwriting. But it has come in his evidence that Satish Chaudhary was posted and working in Currency Chest and he (Sh.Bindlish) never visited Currency Chest, therefore, there was no occasion for him to see Satish Chaudhary writing on documents in ordinary course of business. The perusal of testimony of PW.2 Sh.C.P.Bindlish, then working as Sr.Manager (Admn.) in Parliament Street branch of Bank of Baroda, in its entirety, casts a shadow of doubt about credit- worthiness of his statement for the following reasons-
(i) He deposed that he had seen Satish Chaudhary writing and signing as such he was acquainted with his signatures, but he could not point out any document which was written by Satish Chaudhary in his presence.
(ii) He stated during his cross-examination on 17.05.07 that 'he had visited Currency Chest several times' and soon thereafter when he was shown that there is no entry in the visitor's register kept at Currency Chest, he admitted that 'he never visited the Currency Chest'.
CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.25 of 54(iii)He deposed during his cross examination on 17.07.07 that 'there are two custodians posted in the Currency Chest of Bank of Baroda. One of the custodians was Satish Chaudhary Head Cashier who was also holding keys. One of the keys which was with Satish Chaudhary will find mentioned in the bank's key register'. On next date i.e. 09.08.07 the key register (Ex.PW.2/D.121 ) was produced and he was further examined and after seeing the same, he said , 'name of Satish Chaudhary does not find mentioned in this register as custodian'. He further said in his cross-examination, 'both the custodian and joint custodian are officers in the bank' and admitted that 'Satish Chaudhary belongs to the clerical cadre'.
33. It is a common knowledge for any bank officer that an employee working in clerical cadre is not the key holder or custodian of the Currency Chest or the strongroom, where hundreds of crores of rupees are kept , then why PW.2 working as Senior Manager, looking after administration of the branch, could not know that Satish Chaudhary, being in clerical cadre, could not be the custodian or key holder of the Currency Chest. This shows that he was too enthusiastic to depose against Satish Chaudhary rather than deposing what was CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.26 of 54 truthful and correct to the best of his knowledge.
34. PW.3 Sh.M.K.Seth is another witness who was examined by prosecution to prove handwriting of accused Satish Chaudhary. He deposed that during the month of June, 2002 he was posted as Joint Custodian in the Currency Chest of Bank of Baroda in place of Sh.R.C.Angurala and at that time Sh.R.K.Bhatt was posted as Manager in Currency Chest and accused Satish Chaudhary was posted as Cashier. He deposed that though he was posted as Joint Custodian in the Currency Chest, however, he did not work as Joint Custodian and mostly his services were utilized in the bank on various seats in the event of absence of Officers of those desks. He has then deposed that he was simply keeping the duplicate key of Currency Chest for opening and closing the Currency Chest. He stated that since he had worked with S/Sh.R.K.Bhatt & Satish Chaudhary he had seen them writing and signing the documents and as such acquainted with their handwriting and could identify their signatures.
35. He identified that on DN.2 register of Currency Chest Ex.PW.2/D.23 the entries dated 03.01.02 onwards at page Nos. 97 to 100 were made by Satish Chaudhary and CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.27 of 54 authenticated by Sh.R.K.Bhatt. He identified the handwriting to be that of Satish Chaudhary and signatures of Sh.R.K.Bhatt thereon. He deposed that DN.1 forms, which are Ex.PW.2/D. 30 to D.35, Ex.PW.2/D.1 to D.7, Ex.PW.2/D.36 to D.39, Ex.PW. 2/D.40 to D.119 and PW.2/D.8 to D.21 and Ex.PW.2/D.27 have been filled up by Satish Chaudhary-Cashier.
36. During his cross examination he deposed that he never took charge as Joint Custodian of Currency Chest from Sh.Angurala and no document was prepared when he had taken over the charge from him. He deposed that only on oral instructions he had taken over charge from Sh.Angurala and his posting as Joint Custodian was only on oral instructions. He clarified that sudden transfer orders of Sh.Angurala were received, he locked the chest and handed over the keys to the Accountant and thereafter he was asked to take over the charge as temporary incharge. He also stated that he remained there for a short period.
37. He deposed that he used to open and close the currency chest daily in the capacity as Joint Custodian and during his tenure of 12-15 working days, the number of mutilated notes used to increase as well as decrease in the CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.28 of 54 chest. He stated that after opening the currency chest, he used to hand over the keys to Ravinder Kumar Bhatt (A.1 since expired) in pursuance to the general practice. He admitted that this practice was contrary to the rules and stated that he had objected about this practice to the Officers whose name he could not recollect and stated that his senior officers had given instructions to hand over the keys to Sh.R.K.Bhatt after opening the chest.
38. He also admitted that he was proceeded departmentally in connection with the present matter. He stated that he was charge-sheeted as well as punished regarding the alleged transactions and he did not challenge the action of the bank before Hon'ble High Court. He admitted that orders were never given to him in writing to take over the charge of Currency Chest and that he took over the charge of Joint Custodian on oral orders and used to leave the activities of Currency Chest on R.K.Bhatt and when in the evening he used to settle the account then he (PW.3) used to sign the Currency Chest (register).
39. During his cross examination by Ld. Counsel for Satish Chaudhary (A.2), he deposed that when Satish CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.29 of 54 Chaudhary was closing the cash balance book, he used to see his handwriting and signatures so as to be acquainted with them. He stated that there is a book by which the cash is closed in the currency chest and to the best of his memory the cash balance book does contain the writing of accused Satish Chaudhary. He , however, admitted that Satish Chaudhary had never worked with him prior to they being together in the currency chest. He also admitted that he had not seen accused Satish Chaudhary writing entries in DN.2 register Ex.PW.2/D.23 and he had not seen accused Satish Chaudhary making entries in DN.1 forms i.e. Ex.PW.2/D.30 to D.35, Ex.PW.2/D.1 to D.7, Ex.PW.2/D.36 to D.39, Ex.PW.2/D. 40 to D.119 and PW.2/D.8 to D.21 and Ex.PW.2/D.27. He, however, voluntarily stated that 'sometimes R.K.Bhatt and some times Satish Chaudhary used to make entries, write and sign the cash balance book' and that he will be able to identify the handwriting of accused Satish Chaudhary in cash balance book if produced before him.
40. Thereafter on next date, the cash balance book for the period 01.06.01 to 10.09.02 and 11.09.02 to 31.12.03 was produced before the court by the bank and he (PW.3) was shown the relevant entries for the period i.e. 03.01.02 to CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.30 of 54 28.09.02 Ex.PW.3/D.122 (colly.) whereupon he stated that he did not find any writing or signature of accused Satish Chaudhary thereon. He also deposed that he cannot produce any document bearing signatures of accused Satish Chaudhary which was written and signed by him in his presence. However, he denied the suggestion that he was not conversant with the handwriting and signatures of accused Satish Chaudhary or that he had not seen him writing and signing in his presence. Thus, from testimony of PW M.K.Seth it is clear that he has failed to satisfy the court that he had ever seen accused Satish Chaudhary writing and signing. It is also admitted that he only worked with accused Satish Chaudhary in Currency Chest and that too, as his testimony itself shows, he was simply holding the key of the Joint Custodian of Currency Chest and after opening the currency chest in the morning used to hand over the key to R.K.Bhatt and used to come again for closing the currency chest in the evening and that his services were mostly utilized on the desks of the Officers in the branch who used to remain on leave. It is admitted by PW M.K.Seth that he was charge sheeted and punished by his employer bank for lapses committed by him. It also creates a doubt in my mind as to whether he was under
some kind of pressure to put blame on others to save himself CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.31 of 54 and thus depose as per the choice of the complainant bank or the investigating agency.
41. PW.5 R.C.Angurala has deposed that he was Joint Custodian of the Currency Chest from the period April, 1998 to June, 2000 when during that period Sh.K.K.Gupta and Sh.R.K.Bhatt were custodians of the Currency Chest and Sh.Satish Chaudhary was posted as Head Cashier of category-E. He also deposed that he was familiar with handwriting and signatures of S/Sh.R.K.Bhatt & Satish Chaudhary and had seen them writing and signing and can identify their handwriting and signatures. It could be imagined that since Satish Chaudhary had worked with PW R.C.Angurala, he was expected to identify handwriting and signatures of Satish Chaudhary but during his deposition when questioned writings on DN.1 forms were shown to him, he said that those 'appear' to be in the handwriting of accused Satish Chaudhary. Thus, it is seen that he has failed to correctly identify the handwriting of Satish Chaudhary and his opinion that the writing 'appears' to be that of accused Satish Chaudhary, does not help the court in any manner.
42. PW.4 Sh.K.K.Gupta, from whom the charge of CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.32 of 54 Currency Chest was taken over by Sh.R.K.Bhatt in August, 2001, has deposed that Satish Chaudhary had worked as Head Cashier in the Currency Chest for the period 6-7 months during his tenure and Sh.R.C.Angurala had worked as Joint Custodian during his period. He could be the witness who could be said to be competent to identify the handwriting of accused Satish Chaudhary. But the alleged handwritings of accused Satish Chaudhary on DN.1 forms and DN.2 register were not put to him for identification.
43. Under the circumstances discussed above as also keeping in view the fact that even GEQD has not been able to express any opinion although sufficient specimen writings were made available to him , the court reaches to the conclusion that the prosecution has failed to prove that the alleged writings on DN.1 forms and DN.2 register have been made by accused Satish Chaudhary. There is no other evidence brought by the prosecution against accused Satish Chaudhary. Hence, I hold that prosecution has failed to prove charge against accused Satish Chaudhary beyond a reasonable doubt, thus entitling him to acquittal.CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.33 of 54
Whether the sample of handwriting obtained by CBI from A.3/Mahavir Singh and A.5/Sunil Singla are admissible in evidence:-
44. Before proceeding further to appreciate evidence brought on record by CBI qua accused Mahavir and Sunil, it is necessary to advert to the question whether the sample of their handwritings obtained by CBI, during investigation of the case, is admissible in evidence as it has been emphatically argued by their Ld. Counsels that the same are not admissible in evidence and in that eventuality the opinion of GEQD about their alleged handwritings on questioned documents is irrelevant. The arguments on this issue have been addressed by the counsel for accused Sunil Kumar Singla (A.5) which have been adopted by counsel for accused Mahavir Singh.
45. It has been submitted by Sh.P.N.Verma, Ld. Defence counsel for accused Sunil Kumar Singla that the handwriting expert's opinion confirming handwriting of accused Sunil Singhla on Ex.PW.2/D.32 (Q.141, Q.243, Q.255 to Q.260, Q.321, Q.428 to Q.430, Q.435, Q.437, Q.449, Q.451) is not admissible in evidence as the specimen handwriting of accused Sunil Singhla was obtained by CBI when he was in custody and no permission of the court was obtained to take CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.34 of 54 such specimen handwriting. He has heavily relied upon a Judgment cited as Mohd.Yunus Vs. State 2010(2) JCC 1319 (DB) decided on 05.04.10 wherein Division Bench of Hon'ble Delhi High Court had observed as under:-
" 60. In the decision dated 05.03.09 disposing of Crl.Appeal No.682/2008 'Santosh @ Bhure Vs.State' and Crl.Appeal No.316/2008 'Neeraj Vs. State' noting the decision of the Constitution Bench of the Supreme Court in Kathi Kalu Oghad's case as also the decision of Supreme Court reported as (1980) 2 SCR 1067 State of U.P. Vs.Rambabu Mishra and (1994) 3 SCR 1061 Sukhwinder Singh and Ors. Vs. State of Punjab ; a Division Bench of this Court, of which, one of us, namely Pradeep Nandrajog, J.was a member, held as under:-
" 18. Unfortunately, for the prosecution, the charge against Neeraj has to fail for the simple reason Neeraj 's specimen handwriting was obtained by the police when he was in their custody.
No permission was taken from the Court concerned to obtain his specimen handwriting" .
46. On the other hand, Sh.I.D.Vaid, Ld. Special Public CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.35 of 54 Prosecutor for CBI has relied upon a Judgment of Division Bench of Hon'ble Delhi High Court cited as Jaipal Vs. State 2011 Crl.LJ 4444 (DHC) (decided on 05.07.11) wherein Hon'ble High Court has laid down, " Section 311 A (of Cr.PC) allows the Court to order an accused to give his handwriting during enquiry or investigation. These powers were not available with the Court before Section 311-A was brought to the statute book in the year 2006. An addition of Section 311- A merely empowered the Court to order an accused to give his handwriting/signatures for the purpose of investigation of his questioned handwriting/signatures which power was not available to the Court as according to Section 73 (of Evidence Act), the Court can order for comparison of signatures/handwriting etc. of any person whose signatures/handwriting is in dispute before the Court. In this circumstances, it cannot be said that obtaining Appellant Jaipal's handwriting during investigation was illegal" (para 45).
He has also relied upon Judgment of Full Bench of Hon'ble Delhi High Court cited as Bhupinder Singh Vs. State 2011 LE (Del)973 decided on 30.09.11. He has submitted that full bench of Hon'ble Delhi High Court has set at rest the controversy as to the admissibility of the handwriting expert's opinion which is based on the specimen handwriting of CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.36 of 54 accused obtained from him during the course of investigation without seeking any permission or direction of court. Sh.Vaid has submitted that now after the decision of full bench of Hon'ble High Court in Bhupinder Singh's case (supra) there is no scope for agitating that the CBI has erred in taking the specimen signatures/handwriting of accused during investigation, without permission/directions of the court.
47. It has then been submitted by Ld. Defence Counsel that the question for adjudication before the Full Bench of Hon'ble Delhi High Court in Bhupinder Singh's case was, " Whether the sample finger print given by accused during investigation u/s 4 of Identification of Prisoners Act 1920 without prior permission of the Magistrate u/s 5 of the Act will be admissible or not" . And thus it has been agitated by the Ld. Defence counsel that question was only with reference to the obtaining sample finger prints and not the handwriting/signatures of the accused. However, on carefully going through the Judgment of Full Bench of Hon'ble Delhi High Court in Bhupinder Singh's case (supra) it appeared that the same is not limited to the question of taking finger impression of the accused but it also dealt with taking of handwriting and signatures of the accused as is apparent from CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.37 of 54 the following observations of the Hon'ble Court:-
" 8. On an x-ray of Section 4 of the Act, it is perceptible that if it is required by a police Officer, a person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards, allow his measurement to be taken in the prescribed manner. The term " prescribed" means prescribed by the rules made under the Act. Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken if he is satisfied that it is expedient for the purpose of an investigation or proceeding under the Code of Criminal Procedure. In Harpal Singh (Crl.Appeal No.362/08 decided on 25.05.10), the Division Bench has held as follows:-
" 18. Unfortunately, for the prosecution, the charge against Neeraj has to fail for the simple reason Neeraj 's specimen handwriting was obtained by the police when he was in their custody. No permission was taken from the Court concerned to obtain his specimen handwriting" .
9. In Satyawan (Crl.Appeal No.34/01 decided on 09.07.09), another Division CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.38 of 54 Bench has held thus:
" 27. We ignore the part of the report of the handwriting expert wherein he has opined that the specimen writings S.1 to S.8 of Satish matched the writing on the ransom note Ex.PW. 3/A, for the reason, the investigating officer took the specimen writing in violation of the provisions of the Identification of Prisoners Act, 1920 and also contrary to the law that specimen writing for purposes of expert opinion can be directed to be taken under orders of the Court where the trial is pending as held authoritatively in various judicial pronouncements being : AIR 1980 SC 791 State of U.P. Vs. Rambabu Mishra and 1994 (5) SCC 152 Sukhwinder Singh & Ors. Vs. State of Punjab."
10. It is true that the specimen finger print impressions of the appellants were taken by the IO directly and not through the Magistrate as provided in Section 5 of the Identification of Prisoners Act. But, that, to my mind was not necessary because Section 4 of Identification of Prisoners Act specifically provides that any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so, required by a police CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.39 of 54 officer, allow his measurement to be taken in the prescribed manner. In view of the independent powers conferred upon a police officer under Section 4 of the Act, it was not obligatory for him to approach the Magistrate under Section 5 of the Act. He would have approached the Magistrate, had the appellants refused to give Specimen Finger Print Impressions to him. Therefore, no illegality attaches to the specimen finger print impressions taken by the Investigating Officer. The Court needs to appreciate that the very nature and characterstic of material such as finger prints renders it intrinsically and inherently impossible for anyone to fabricate them. If there is an attempt to fabricate finger prints, that can certainly be exposed by the accused by offering to allow his finger prints to be taken so that the same could be compared through the process of the court.
None of the appellants has come forward to the court with a request to take his finger print impressions in the court and get them compared with the chance finger prints lifted by PW.1 from Car No.DL 2C A 4116 on 21st December, 2000" .
48. After discussing the law laid down by Hon'ble Supreme Court, the Full Bench of Hon'ble Delhi High Court reached to the following conclusions:-
CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.40 of 54" 18.If the aforesaid decision is appositely understood, it would mean that Section 73 of the Evidence Act does not enable the Magistrate to give directions to the accused to give a specimen signature when the case is still under investigation. It is because Section 73 of the Evidence Act, 1872 fundamentally contemplates pendency of some proceedings before the Court. That apart, as has been held by their Lordships, signatures and writings are excluded from the range of Section 5 of the 1920 Act. Thus, it is clear as crystal that the decision rendered in Ram Babu Misra (supra) is not a precedent on Section 5 of the 1920 Act. More so, their Lordships have rested the conclusion by interpreting Section 73 of the Finance Act. In State Vs. M.Krishna Mohan & Anr., (2007) 14 SCC 667, the Apex Court has opined that the specimen fingerprints and handwritings can be taken from an accused.
19.In this context, we may also refer to the concept of investigation as defined in Section 2(h) of the Cr.PC which clearly stipulates that investigation includes all the proceedings under the Code for collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorized by the Magistrate in this behalf. In Directorate of Enforcement Vs. Deepak Mahajan & Anr., AIR 1994 SC 1775, it has been opined that the term " investigation" as defined in CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.41 of 54 Cr.PC has an inclusive definition. In fact, investigation includes all efforts of a police officer for collection of evidence , namely, proceeding to the spot, ascertaining facts and circumstances, discovery and arrest of the suspected offender, collection of evidence relating to commission of offence which may consist of examination of various persons including the accused and taking of their statements in writing and the search of places or seizure of things which are considered essential for investigation and to be produced at the trial. It is worth noting that in Pooran Mal Vs. The Director of Inspection (Investigation) , New Delhi (1974) I SCC 345, it has been held that evidence obtained on an illegal search cannot be excluded. In State of Karnataka Vs. Yarappa Reddy, AIR 2000 SC 185, it has also been held that criminal justice should not be allowed to become casualty for the wrongs committed by the investigating officers.
20. In Inspector of Police & Ors. Vs. N.M.T.Joy Immaculate, (2004) 5 SCC 729, it has been clearly laid down that the admissibility of evidence or a piece of evidence has to be judged having regard to the provisions of the Evidence Act. In State (NCT of Delhi) Vs.Navjot Sandhu, (2005) II SCC 600, their Lordships opined that even if evidence is illegally obtained, it is admissible.
21. We may hasten to add that we have CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.42 of 54 referred to the aforesaid authorities only for the purpose that the concept of investigation has a different connotation and how the material collected during investigation is to be appreciated remains within the domain of the trial Court. In the case at hand, on the basis of the authorities we have referred to hereinabove, it is clearly discernible that there is a difference in the language employed in Sections 4 and 5 of the 1920 Act. That has been explained by their Lordships in Shankaria (supra), Mohd.Aman (Supra), Devendra (supra) and M.Krishna Mohan (supra).
22. Thus understood, in our considered opinion, the view expressed in the decisions in Harpal Singh (supra) and Sayawan (supra) is not the correct view. Therefore, the decisions rendered therein are hereby overruled. The view expressed in the case of Sunil Kumar (supra) by the learned Single Judge lays down in correct perspective.
23. The reference is answered accordingly.
49. Thus, it created an impression that the ratio of law as propounded by Division Bench of Hon'ble Delhi High Court in Mohd. Yunus's case (supra), (as the same observation of Neeraj Vs. State was also contained in case of Harpal Singh's case specifically overruled by Full Bench) CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.43 of 54 impliedly stands overruled by the Full Bench of Hon'ble Delhi High Court in Bhupinder Singh's case(supra)
50. Thus, the position of law, as it emerged from reading of judgments of Division Bench in Jaipal's case (supra) and Full bench in Bhupinder Singh's case (supra) both of year 2011, was that the permission or direction from the Magistrate is not required for obtaining specimen finger prints, signatures or handwriting of an accused or suspect during the investigation, unless he refuses or declines to give the same to the investigating agency, which position remains the same even after enactment of provisions of section 311 A Cr.PC (which came into operation w.e.f. 23.06.06) and the only effect of incorporation of Section 311-A Cr.PC is that now it enables the Magistrate to direct any person, including an accused, to give specimen signatures or handwriting, which power was earlier not available to the Magistrate and the investigating agency would have been helpless in case the suspect/accused refused to voluntarily provide his specimen writing/signature for carrying out a fair investigation.
51. Mr.Verma has submitted that the ratio of law CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.44 of 54 propounded by Full Bench of Hon'ble High Court in Bhupinder Singh Vs. State (Supra) was limited only to obtaining finger prints of accused during investigation and therefore, the same should not be read as laying down any law relating to legality of obtaining handwriting and signatures of accused during investigation. He has relied upon a recent rulling of Full Bench of Hon'ble High Court of Delhi cited as Sapan Haldar Vs. State 191 (2012) DLT 225 (FB) (decided on 25.05.2012) wherein taking note of judgment of Full Bench in Bhupinder Singh's case (supra) the Hon'ble High Court proceeded to answer the reference. The observations of Hon'ble High Court in para 2 of this Judgment in Sapan Haldar's case (supra) shows that the Full Bench is well aware of the implications of the Judgment of Bhupinder Singh's case, as obiter dicta, so far as it relates to handwriting and signatures obtained from an accused. Para 2 of Judgment in Sapan Haldar's case reads as under:-
" Deciding a reference made to it, vide opinion dated September, 30, 2011 in Crl.Appeal No.1005/2008, 'Bhupinder Singh Vs. State', on the question : " Whether the sample finger prints given by the accused during investigation under Section 4 of the Identification of Prisoners Act, 1920 without prior permission of the Magistrate, CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.45 of 54 under Section 5 of the Act will be admissible or not?" a Full Bench of this Court overruled the view taken by Division Benches holding against the admissibility of such evidence but proceeded to decide the reference, as would be evident from a reading of paragraph 18 of the opinion dated September,30, 2011, as if the question referred to the Full bench embraced even a handwriting or a signature obtained from a person accused of an offence whilst in police custody" .
52. After discussing the entire gamut of law on the issue the Hon'ble High Court laid down as under:-
" 25 With respect to specimen handwritings obtained from an accused by the investigating officer, in the decisions reported as II (1994) CCR 531 (SC) = (1994) 5 SCC 152, Sukhwinder Singh & Ors. Vs. State of Punjab and VI (2003) SLT 137 = IV (2003) CCR 178 (SC0=AIR 2003 SC 4377, State of Haryana Vs. Jagbir Singh & Anr., the Supreme Court categorically held that said evidence was totally inadmissible in evidence.
26. ------
27. Thus, with respect to a handwriting obtained from a person accused of having committed an offence or from any person CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.46 of 54 during investigation, the law is entirely different vis-a-vis finger print impressions and a handwriting. With respect to handwriting neither can the investigating officer obtain a sample writing nor can even a Magistrate so direct. The Identification of Prisoners Act, 1920 is applicable only to measurements which include finger print impressions.
53. The Full Bench of Hon'ble High Court thus concluded:-
31.We answer the reference as follows:
(i) Handwriting and signatures are not measurements as defined under Clause (a) of Section 2 of the Identification of Prisoners Act, 1920.
Therefore, Section 4 and Section 5 of the Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigating officer, during investigation, can not obtain a handwriting sample or a signature sample from a person accused of having committed an offence.
(ii) Prior to June 23, 2006, when Act No. 25 of 2005 was notified, inter alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.47 of 54 specimen signatures or handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra). According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and/or signature for purposes of comparison.
(emphasis added)
54. Thus, now it does not leave any scope about inadmissibility of the sample writings of accused obtained by IO during investigation without an order from competent court, which power was not even available to the courts prior to coming into effect of Section 311 A Cr.PC. Admittedly, the sample handwritings of A.3/Mahavir Singh (Ex.PW.19/B.11) and Sunil Singla (Ex.PW.19/B.10) were obtained in year 2003 and that too without permission of Court, obviously as no such powers were available to the Court during that period.
55. I, therefore, hold that the sample handwritings of accused Mahavir Singh and Sunil Singla which are respectively Ex.PW.19/B.11 and PW.19/B.10 are inadmissible in evidence. Consequently the evidence of GEQD (PW.19) CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.48 of 54 and opinion of CFSL exhibited by him as Ex.PW.19/B.12 to B. 14 are not relevant and inadmissible in evidence.
56. Now, with this position in hand, I proceed further to record my findings qua remaining accused persons:-
Accused Mahavir Singh (A.3)
57. It has been submitted by Ld. Public Prosecutor accused Mahavir Singh who was posted as Cashier in the Currency Chest has handled the DN forms which are in the names of fake persons because one of the DN.1 form out of 115 DN.1 forms contain his writing at Q.111 and therefore, it can be inferred that he was involved in the alleged conspiracy. On the other hand the Ld. Defence counsel, besides agitating admissibility of sample handwriting obtained by CBI during investigation and the GEQD opinion based on the same, as already discussed (supra), has submitted that there is no evidence available on record to hold accused Mahavir guilty.
58. It has already been discussed (supra) that the specimen handwriting of accused obtained by IO during investigation (Ex.PW.19/B.11) is inadmissible in evidence and CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.49 of 54 hence the opinion of handwriting expert (Ex.PW.19/B.12 to B.
14) based on the same, has become irrelevant in view of the law as laid down by Hon'ble High Court in Sapan Haldar's case (supra). There is no other witness of prosecution who could identify the handwriting on DN.1 form at Q.111. There is no other evidence on record as against accused Mahavir Singh which require appreciation. Although there is no need to further deliberate about the role of accused Mahavir Singh, yet I would briefly deal with other aspects also as the same have been agitated by the parties in view of evidence on record.
59. It has been submitted by Ld. Defence counsel that even if it is presumed that the DN.1 form at point 'Q.111' was found filled in the handwriting of accused Mahavir, there was nothing unusual in it to suspect his role because filling of such forms by the bank staff at the request of customer or a colleague, was very common in the functioning of the bank. PW.6 Gurudas Chakraborty during his cross examination on 04.03.11 deposed that he had 'seen clerks manning the counters assisting the customer on their request in filling the forms etc'. He also stated that at times he had also seen one colleague requesting other colleague for assisting in his work'.
CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.50 of 54PW.5 R.C.Angurala while narrating the procedure for exchange of soiled notes stated in his examination in chief that the DN.1 form is filled in either by the tenderer or by the counter clerk. Thus, it was not necessary that only tenderer of soiled currency notes could fill the DN.1 form. Further more, the said DN.1 form cannot be linked with the groups of currency notes which were either passed or rejected by the RBI, as already discussed (supra).
60. There is one more aspect which requires adjudication, that is, whether the prosecution has been able to successfully establish that the names and addresses of the persons on DN.1 forms alleged to be written by Mahavir Singh (A.3) or for that matter by his other co-accused namely Ajay Kumar Singla (A.4 since dead) or his son Sunil Kumar Singla (A.5) are fake. The normal technique adopted by CBI to verify names and addresses, alleged to be fake, is that a registered post or speed post is sent to such an address on which the postman on duty makes remarks such as 'incomplete address', 'no such address', 'no such person found at the address', 'left without address' etc. Such returned envelopes are collected by CBI and IO records statements of postmen u/s 161 of Cr.PC who are examined as prosecution witnesses.
CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.51 of 5461. But in the instant case CBI has adopted a different mode for verification of names and addresses of the persons on DN.1 forms in question. CBI deputed its own staff to verify these names and addresses who all made their reports which have been got exhibited by examining police officials who are PW.11 to PW.17. In this respect I once again rely upon judgment of Hon'ble Supreme Court in C.Changa Reddy Vs. State of A.P.(AIR 1996 SC 3390) wherein it has laid down that when a witness is not an expert within the meaning of section 45 of Evidence Act, his report given to IO is inadmissible in evidence as it is hit by the bar of Section 162 Cr.PC. By no stretch of imagination the report of police officers examined as PW.11 to PW.17 can be termed as expert's report as they are not experts within the meaning of Section 45 of Evidence Act. At the best these police officers could be called as part IO as they had done the verification work on the directions of IO, hence their report was part and partial of their statement under section 161 of Cr.PC hence could not be exhibited as hit by provisions of Section 162 Cr.PC. I , therefore, hold that the verification reports exhibited by PW.11 to PW.17 are inadmissible in evidence.
CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.52 of 5462. Thus, I conclude that the prosecution has failed to prove any of the allegations against accused Mahavir Singh.
Accused Sunil Kumar Singhla (A.5)
63. The allegations against accused Sunil Kumar Singla is that he is a professional money changer and some of the DN.1 forms contain his writings on the portions Q.241, Q. 243, Q.255 to Q.260, Q.321, Q.428 to 430, Q.435, Q.437, Q. 439 and Q.441 favoring fictitious persons, thus, showing his nexus with accused public servants for getting adjudication order, on tendered deliberately cut and mutilated currency notes , in favour of fictitious persons.
64. As already discussed there is no evidence to show that accused Sunil Kumar Singla was a professional money changer and his sample handwriting given to IO during investigation alongwith opinion of GEQD based thereon and verification reports exhibited by PW.11 to PW.17 are inadmissible in evidence and there is no other evidence to connect him with accused public servants or with alleged offence, therefore, I hold that prosecution has failed to bring out offences alleged against him.
CBI CASE NO.01/09 CBI VS RAVINDRA KUMAR BHATT Page No.53 of 54Accused Manoj Kumar Garg (A.6)
65. No evidence has come against accused Manoj Kumar Garg and the Ld. Public Prosecutor for CBI has also fairly conceded that there is no evidence against him, thus accused Manoj Kumar Garg is also liable to be acquitted.
66. In view of above discussion of the facts and evidence on record, I hold that the prosecution has failed to bring home guilt of accused persons , therefore, they are acquitted of the offences charged against them. Their bail bonds are cancelled and sureties stand discharged. File be consigned to Record Room.
Announced in open (R.P.PANDEY)
Court on 31.08.12 SPL.JUDGE, CBI,
ROHINI,DELHI
CBI CASE NO.01/09
CBI VS RAVINDRA KUMAR BHATT Page No.54 of 54