Delhi District Court
Central Bureau Of vs . (1) Farhat Abbas, on 22 December, 2011
1
IN THE COURT OF SH. DINESH KUMAR SHARMA
SPECIAL JUDGE (PC ACT), CBI, SAKET COURTS, NEW DELHI
CC No. 20/11
Unique Case ID No. 02401R0227452001
Central Bureau of Vs. (1) Farhat Abbas,
Investigation S/o Sh. SerajulHaque,
R/o Vill. Kesopur,
PO Bhagwanpur, PS Thawe
Distt. Gopalganj, Bihar.
(2) YP Gupta,
S/o Late Sh. Nathuni Gupta,
R/o RZ 55A, Gali No.2,
Main Sagarpur, Delhi.
(3) Munish Kumar,
S/o Late Sh. Narender Kumar
R/o Bikram Sadan,
Thawe Road, Gopalganj, Bihar.
(4) Mukesh Bharadwaj,
S/o Sh. Raghuveer Sharan Bharadwaj
R/o 72, Bannu Enclave,
Pritampura, Delhi.
(5) Vinod Kumar,
S/o Sh. Laxmi Narayan Sharma
R/o RZ F238, Raj Nagar - II,
CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 1 of 71
2
Palam Colony, New Delhi.
(6) Bahadur Singh Ahuja,
S/o Late Sh. Hardyal Singh
R/o 30/8, Ashok Nagar
New Delhi18.
RC No. : 87(A)/95
u/Ss : u/Ss.120B r/w 419/420/511 IPC & 467/468/471 IPC
and u/S.13(2) r/w S.13(1)(d) of PC Act
and u/S.25 & 27 of the Indian Telegraph Act
Date of Committal : 18.09.1998
Received by transfer on : 28.09.2011
Arguments Concluded on : 04.12.2011
Date of Decision : 15.12.2011
Appearances:
Sh. Mukesh Maroria, Ld. Sr. PP (since transferred) and Sh. VK Ojha, Ld. PP
for CBI.
Sh. RS Rai, Ld. Counsel for A1 Farhat Abbas.
Sh. Surender Singh, Ld. Counsel for A2 YP Gupta,
Sh. Bhupender Singh alongwith Sh. Sandeep Massy, Ld. Counsels for A3
Munish Kumar, and
Sh. Rajesh Kumar Sharma, Ld. Counsel for A4 Mukesh Bharadwaj, A5
Vinod Kumar and A6 BS Ahuja.
JUDGMENT
Factual Matrix CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 2 of 71 3 1.0 RC No.87(A)/95DAI was lodged u/S.120B IPC r/w S.420 IPC r/w S.13(2) r/w S.13(1)(d) of PC Act and S.25 of Indian Telegraph Act on 06.10.95 on a complaint made by Sh. B.L. Hakhu, Vigilance Officer, MTNL against Sh. Dilip Kumar (regular Mazdoor), Sh. Vinod Kumar (regular Mazdoor), Sh. S.N. Tiwari, Sh. R.N. Tiwari, Sh. Shyam Kumar, M/s. Rajat Consultant C/o Star Business Centre, Sh. Manohar Lal P1 office of SDOIII and Sh. S.L. Bajaj SDE, OCS, Rajouri Garden, regarding misuse of telephone numbers 5428182 and 5428384. Complainant stated that both the above said telephone numbers were installed in the ground floor of A4, Tagore Garden on 15.07.95 and 19.07.95 on transfer from B92/E Jyoti Colony and E128, Dilshad Garden, respectively, in the name of Sh. B.N. Tiwari and Sh. R.N. Tiwari. Since the billing of both these telephone numbers upto 31.08.95 came to Rs.14,58,954/ and Rs.12,63,310/, the bonafide of the subscriber were taken up for verification. During verification proceedings, Sh. Shyam Kumar of Kumar and Company, who had facilitated the transfer of above said number and the MTNL employee Dilip Kumar (not chargesheeted), (regular Mazdoor), Vinod Kumar (regular Mazdoor), Manohar Lal P1 officer (not chargesheeted) and Sh. S.L. Bajaj, SDE were inquired into. Sh. Dilip Kumar admitted that he had purchased through Manohar Lal P1 officer said two telephone connections and also arranged a jumper book from the office of DE (OD) I Rajouri Garden by CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 3 of 71 4 taking out the same without his consent. He arranged drop wire and remained available at the time of verification of bonafide subscriber and during a visit of MTNL staff for fault correction of telephone number 5428384. Sh. Vinod Kumar (RM) (A5) had also approached Manohar Lal P1 for the installation of one telephone number 5419222 in the name of Sh. D.N. Tiwari on the ground floor of same premises at A4 Tagore Garden in the month of June 94 after having been approached by above said Shyam Kumar. Sh. B.N. Tiwari had requested for shifting of telephone number 5419222 to Vijay Krishnan Enterprises Head Office, F46, Rajouri Garden, New Delhi.
1.1 It was also a case of illegal sale of telephone through one M/s. Rajat Consultant. Sh. Manohar Lal and Sh. S.L. Bajaj facilitated early installation of provision of ISD facility on both the telephone connections without observing necessary formalities and proper verification of the subscribers. When the bills of both the telephone numbers were sent to subscriber it was found that both the premises, where telephones were installed, are locked. Sh. B.L. Hakhu complainant alleged that a similar fault had also taken place at BF22, Janak Puri, New Delhi and the same persons seem to be involved in that case also. On this complaint, Ex.PW1/A, FIR No.RC No.87(A)/95DLI, Ex.PW35/A was lodged. It is pertinent to mention CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 4 of 71 5 her e that another complaint dated 24.07.95, Ex.PW1/B regarding wrongful installation of telephone number 5535671 and 5536326 on 16.03.95 and 24.03.95, respectively, at B5/22, Janak Puri, New Delhi was also made, after being transferred by original allottee Sh. Om Prakash Gauba and Sh. Ved Prakash, respectively. The bills of these telephone numbers were also staggering high. The bill of telephone number 5535671 was Rs.22,22,991/ and bill of telephone number 5536326 was Rs.23,45,882/. During investigation, it was found that premises BF22, Janak Puri was rented out to one Alam Ansari vide rent agreement, Ex.PW13/B and premises number A4, ground floor, Tagore Garden was rented out to one Mukesh since March 1995. It was found that said Mukesh had left the house without informing the landlady. During search proceedings conducted on 07.10.95, two live drop wires each of one separate telephone number were found. On checking, these were found to be of 5428384 and 5428182. The STD and ISD were also found to be working.
During investigation it transpired that A1 Farhat Abbas and A2 YP Gupta occupied the part of H.No. BF22, Janak Puri as tenant in the fake name of Alam Ansari and Akhtar Ansari. A5 Vinod Kumar and A4 Mukesh Bhardwaj telephone operators, Rajouri Garden Exchange with the active connivance of A6 Bahadur Singh Ahuja (private person) arranged and installed two telephone numbers bearing 5535671 and 5536323 at CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 5 of 71 6 BF22, Janak Puri, New Delhi. These telephone numbers were originally allotted in the name of Sh. Om Prakash Gauba and Sh. Ved Prakash. The ISD and STD on these telephone numbers were obtained on the basis of forged documents prepared by A2 Y. P. Gupta and A6 Bahadur Singh Ahuja and before the telephone bill for the period 16.03.95 to 15.06.95 for an amount of Rs.23.45 lakhs and Rs.22.22 lakhs was served, accused persons abandoned H.No.BF22, Janak Puri, Delhi. It is pertinent to mention here that these telephone numbers were disconnected on 20.07.95 on account of non payment of bill.
1.2 Allegedly A3 Munish Kumar, A1 Farhat Abbas and A2 YP Gupta took the premises on rent at A4 Tagore Garden, New Delhi on false identity in the month of April 1995. A1 Farhat Abbas, A2 YP Gupta and A4 Mukesh Bhardwaj approached Sh. Shyam Kumar (Column No.2), who was dealing in sale and purchase of telephone connections. Accused persons impersonated themselves as Tiwaris and requested Sh. Shyam Kumar to arrange two telephones at A4, Tagore Garden, New Delhi. A4 Mukesh Bhardwaj and A5 Vinod Kumar entered into conspiracy with other accused persons knowing fully well that these telephones are going to be misused, impressed upon Shyam Kumar about the genuineness of A2 YP Gupta and A3 Manish Kumar as R.N. Tiwari and S.N. Tiwari, respectively. In May CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 6 of 71 7 1995, a telephone No.2290867 in the name of Sh. A.K. Sharma got installed in the name of Sh. B.N. Tiwari at the above said premises with changed number 5419222. Allegedly, the application form was filled up by A2 YP Gupta and subsequently telephone number 5419222 was shifted out. 1.3 In the month of July, another two telephones bearing No. 5428182 and 5428384 were installed at A4 Tagore Garden, New Delhi on 15.07.95 and 19.0795 as third party transfer case in the name of Sh. S.N. Tiwari and Sh. R.N. Tiwari, respectively. The ISD on the above said two telephone numbers was opened on the basis of forged documents prepared by A1 Farhat Abbas and A2 YP Gupta, respectively. These telephones were installed by the concerned telephone officials on the identification of A4 Mukesh Bhardwaj and A5 Vinod Kumar. These accused persons identified A3 Manish Kumar, A2 YP Gupta and A1 Farhat Abbas as B.N. Tiwari, S.N. Tiwari and R.N. Tiwari, respectively.
1.4 In the month of September 1995, after the bills in the sum of Rs. 14.58 lakhs and Rs.12.63 lakhs were raised against telephone number 5428182 and 5428384, respectively, accused persons took on rent another premises No. 29/39 West Patel Nagar, New Delhi on 09.08.95. A1 Farhat Abbas impersonated himself as Ajay Kumar and executed the rent agreement CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 7 of 71 8 deed. A1 Farhat Abbas also managed to get two telephone numbers 5765955 and 5765956 installed at 29/39, West Patel Nagar in the month of September 1995 in the name of Chiranji Lal and Ajay Kumar. However, since the ISD facility on these telephone numbers could not be obtained, it could not be misused. The questioned documents and specimen signatures Q1 to Q46 and S1 to S225 were sent to CFSL vide letter dated 02.09.97, Ex.PW32/A. GEQD submitted his detailed report No. CFSL97/D488/816 dated 26.02.98 Ex.PW32/B, wherein a positive handwriting opinion of rent agreement and applications for ISD facility commercial of concerned telephone was given.
After investigation, chargesheet was filed against accused A1 Farhat Abbas, A2 YP Gupta, A3 Manish Kumar, A4 Mukesh Bhardwaj, A5 Vinod Kumar and A6 Bahadur Singh. Sh. Dilip Kumar, Sh. Shyam Kumar, Sh. Manohar Lal and Sh. S.L. Bajaj were placed in column no.2.
Consequent upon filing of chargesheet on 18.10.98, Ld. Spl. Judge took cognizance on 06.10.98 u/Ss.120B r/w S.419/420, 420/511, 467/468/471 IPC as well as S.13(2) r/w S.13(1)(d) of the PC Act. CHARGE 2.0 Being a prima facie case charge u/Ss.120B r/w 419/420 and 511 IPC & u/Ss.467/468/471 IPC and u/S.13(2) r/w S.13(1)(d) of PC Act and u/S. 25 & 27 of the Indian Telegraph Act was framed against all the accused CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 8 of 71 9 persons. A1 Farhat Abbas was charged for the offence u/Ss.419/420, 420/511, 468/471 IPC and u/S.25 of Indian Telegraph Act. A2 YP Gupta was charged for the offence u/Ss.419/420/468/471 IPC and u/S.25 of Indian Telegraph Act. A3 Munish Kumar was charged for the offence u/Ss.419/420 and u/S.25 of Indian Telegraph Act. A4 Mukesh Bhardwaj was charged for the offence u/Ss.419/420 IPC and u/S.13(2) r/w S.13(1)(d) of PC Act and u/Ss.25 & 27 of Indian Telegraphs Act. A5 Vinod Kumar was charged for the offence u/S.420 IPC & u/S.13(2) r/w S.13(1)(d) of PC Act and u/Ss.25 and 27 of Indian Telegraph Act. A6 Bahadur Singh was charged for the offence u/Ss.467/471 IPC.
PROSECUTION EVIDENCE 3.0 Prosecution has examined 36 witnesses in support of its case. 3.1 PW1 BK Hakhu retired Vigilance Officer was the complainant. He proved the complaint dated 06.10.95 Ex.PW1/A, on the basis of which RC No. 87/95/ACB/CBI was lodged, regarding misuse of telephone No. 5428182, 5428384 in the fake name at A4, Tagore Garden. Two other complaints dated 24/7/95 Ex.PW1/B and complaint dated 13/10/95 Ex.PW1/C were also proved on record. The complaint dated 24/7/95 (Ex.PW1/B) was regarding illegal transfer of telephone Nos. 5535671 and CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 9 of 71 10 5536326 at BF22, 2nd Floor, Janakpuri. Complaint dated 13/10/95 (Ex.PW1/C) was almost a reminder to the earlier complaint dated 24/7/95 regarding telephone Nos. 5535671 and 5536326.
3.2 PW2 Sh. Virender Singh, PW5 AK Sanan, PW6 DN Rai, PW7 ML Kochchar, PW8 BS Dagar, PW9 RS Yadav were primarily the members of the raiding party of the raid conducted on 7/10/95. All these witnesses were witness to the raid conducted at A4, Tagore Garden. During the raid, two live drop wires were found hanging at A4, Tagore Garden and on being checked , those wires were found to be of telephone No. 5428384 and 5428182. The witnesses proved the search observation cum seizure memo Ex.PW2/A. Perusal of this search memo indicates that STD and ISD was found active on both of the above said telephones. The telephone nos. 5428182 and 5428384 were placed under observation by PW15 Sh. GS Joshal vide observation memo Ex.PW2/B. The print out of the testing memo were proved as Ex.PW6/A and Ex.PW6/B. The malicious and sabala printouts were proved as Ex.PW15/A and Ex.PW15/B. 3.3 PW3 Surinder Singh, owner / landlord of A4, Tagore Garden deposed that he rented out the ground floor of the premise to DP Singh of Patna about 810 years ago, who resided in the said house for 45 months CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 10 of 71 11 alongwith his parents. The witness identified Munish Kumar as the person who took the premises on rent as DP Singh. In the cross examination, PW3 Surinder Singh stated that no rent note was executed and A3 Munish Kumar himself told his name as DP Singh. PW3 Surinder Singh correctly identified accused Munish Kumar during the course of cross examination. 3.4 PW4 AK Kalia proved the sanction order Ex.PW4/A granted against A4 Vinod Kumar and A5 Mukesh Bharadwaj. PW10 APS Sachdeva proved letter Ex.PW10/A and Ex.PW10/B. Both of these letters were in respect of misuse of telephone Nos. 5428182 and 5428384 as well as telephone Nos. 5419222 at A4 Tagore Garden, New Delhi. The witness was also shown files Ex.PW10/C1 to C6 which he had handed over to the CBI. The files Ex.PW10/C1 to C6 are the commercial files of telephone Nos. 5428384 (Ex.PW10/C1), 5428182 (Ex.PW10/C2), 5536326 (Ex.PW10/C3), 5535671 (Ex.PW10/C4), 5536326 (Ex.PW10/C5) and 5535671 (Ex.PW10/C6).
PW11 Sh. Om Prakash stated that his wife is the owner of H. No. 29/39, West Patel Nagar and this house was let out by him to one Ajay Kumar. The witness identified Farhat Abbas (A1), to be the person who had accompanied said Ajay Kumar. However, the witness was not able to identify the person who took the premises on rent as Ajay Kumar. PW11 Om Prakash CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 11 of 71 12 identified the signature of his wife at point A on rent agreement Ex.PW11/A. However, he was not able to identify that who else had signed on the rent agreement Ex.PW11/A. The witness was declared hostile and during cross examination by Ld. PP, PW11 stated that the tenant occupied the premises hardly for 1 ½ month, however, accused No. 1 was frequently visiting the house. The witness stated that A1 can be the same person who gave his name as Ajay Kumar.
3.5 PW12 Sunil Kumar was also a witness to the rent agreement Ex.PW11/A. PW13 Uday Kumar, an independent witness, employee of FCI had joined the raid proceedings conducted on 8/10/95 at the office of A2 YP Gupta. PW13 Uday Kumar proved the search cum seizure memo Ex.PW13/A. He also stated that photocopy of lease agreement of BF22, Janakpuri Ex.PW13/B was seized during search on which he put his initial at point A. Similarly, the witness proved two other documents Ex.PW13/B1 and Ex.PW13/B2 on which also he put his initials at point A. It is pertinent to mention here that these three documents were not mentioned in the search cum seizure memo Ex.PW13/A. The witness had also joined the proceedings of the raid conducted at first floor E 454, Gadda Colony, West Zakir Nagar in occupation of A1 Farhat Abbas. The search cum seizure memo was proved as Ex.PW13/C. A1 Farhabt Abbas led the police party to CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 12 of 71 13 H. No. 29/39, West Patel Nagar, which he had allegedly taken on rent alongwith his coaccused persons for running STD/ISD racket as well as he led the police party to Mehta Property Dealer through whom he had taken the premises on rent. The pointing out memo were proved as Ex.PW13/D and Ex.PW13/D1. The seizure memo of the rent agreement Ex.PW11/A of H. No. 29/39 West Patel Nagar has been proved as Ex.PW13/E. The witness was not able to identify accused YP Gupta on which he was declared hostile. He was cross examined by Ld. PP. Even during cross examination by Ld. PP, the witness was not able to identify A2 YP Gupta.
3.6 PW14 Bharat Singh is the owner of H.No. BF22, Janakpuri. He stated that pursuant to the advertisement, two persons namely Akhtar Ansari or Ansar approached him for taking the premises on rent. The witness identified his signatures at point A on Ex.PW13/B. The witness stated that two persons came to reside in the premises rented out. PW14 Bharat Singh stated that some CBI people came to him and he identified one of the person when confronted to him. However, the witness was not able to identify that person in the Court. He only stated that one of the arrested person had disclosed his name as Gupta.
3.7 PW16 Harish Thukral was the broker through whom H.No. CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 13 of 71 14 29/39 West Patel Nagar was let out. He stated that Sh. Ajay Kumar signed in his presence at point A on Ex.PW11/A. However, the witness stated that Ajay Kumar is not present in the Court. Even despite being declared hostile by CBI, the witness failed to identify accused. PW17 Sukhwant Singh was dropped by CBI.
3.8 PW18 and PW19 namely Kuldeep and Raj Kumar were also the brokers in the deal of tenancy of A4, Tagore Garden. Both stated that YP Gupta was one of those persons who had approached them for the tenancy of the house. Both were declared hostile by the CBI. However, the witnesses failed to identify the remaining two accused persons who had come alongwith YP Gupta for taking the premises on rent.
PW20 Ved Prakash was the original allottee of telephone No. 5536326. He proved his application as Ex.PW20/A. The witness stated that he sold his telephone connection to M/s Ahuja & Co., whose proprietor was A6 BS Ahuja. The witness identified his signature on Ex.PW20/B Annexure A. He stated that the telephone was STD/ISD barred at the time when he applied. The witness stated that the application for providing STD / ISD control facility Ex.PW20/C does not bear his signatures at point A. It is pertinent to mention here that on this form (Ex.PW20/C) as per handwriting report, BS Ahuja had signed as P.Kumar at point Q1. In the cross CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 14 of 71 15 examination, the witness stated that the form Ex.PW20/B (Annexure A) was blank at the time when he signed the same. It also came in his cross examination that he had signed four other papers while signing the application form when the phone was sold by him.
3.9 PW21 Om Prakash Gauba is the original allottee of telephone No. 5535671. PW21 Om Prakash Gauba identified his signature at point A on Ex.PW21/A (Annexure A). The witness stated that he had sold his telephone to Subhash Dhingra (PW23) and he does not know where the phone was installed. PW21 Om Prakash Gauba stated that he never applied for STD facility. The witness stated that his purported signature at Q5 and Q7 on application form for providing DY STD / ISD facility Ex.PW21/B and Ex.PW21/C are not his signatures.
PW22 BR Sharma is basically the witness of record. The witness proved the documents regarding the change of address of telephone No. 5536326 of Ved Prakash. He proved the signature of SP Ahuja for change of address on Ex.PW22/A. PW22 BR Sharma had issued the jumper letter Ex.PW22/C for installation of telephone No. 5536326 at BF22, Janakpuri against OB Ex.PW22/A. Similarly, an OB Ex.PW22/D (STD barred) of telephone No. 5535671 was issued on 26/3/91 and on this also the address was changed by SS Nanda. The witness identified the signature of CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 15 of 71 16 Sh. SS Nanda and thereafter, he issued jumper letter Ex.PW22/E. The witness stated that he had directed the staff to install the telephone without STD facility.
3.10 PW23 Subhash Dhingra, PW24 Manohar Lal, PW25 Mukesh Jain and PW27 Dalip Khurana were the material witnesses. It is pertinent to mention here that PW27 Dalip Khurana, PW24 Manohar Lal and other two persons Shyam Kumar and SL Bajaj were initially named in FIR and placed in Col. No. 2 in the chargesheet. The perusal of the testimony of these witnesses have actually taken the case of the CBI to the back foot.
PW23 Subhash Dhingra admitted to have played the role in the sale of telephone No. 5535671. He introduced A5 Vinod Kumar, lineman to PW21 OP Gauba. The witness stated that OP Gauba sold the telephone to Vinod Kumar for a sum of Rs. 5,000/ or Rs.5,500/ and he also admitted to have handed over the amount of sale of telephone connection to Om Prakash Gauba which was given to him by A5 Vinod Kumar.
PW24 Manohar Lal, Phone Inspector stated that he issued jumper letter dated 15/7/95 regarding telephone No. 5428384 installed at A4, Tagore Garden in the name of RC Tiwari at the asking of A5 Vinod Kumar. PW24 Manohar Lal stated that he issued jumper letter Ex.PW24/A on the basis of Annexure C (Ex.PW24/D) which was brought to him by lineman CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 16 of 71 17 Sher Singh and RS Shukla. PW24 had also issued jumper letter Ex.PW24/C (pertaining to telephone No. 5428182) on the basis of Annexure C Ex.PW24/D. He was declared hostile and during cross examination by the Ld. PP, he stated that A5 Vinod Kumar came to him alongwith OB in the name of BN Tiwari, A4, Tagore Garden. During the cross examination by Ld. PP, PW24 Manohar Lal stated that he did not know any person by the name of Shyam Kumar. He stated that main accused Vinod Kumar and Dalip Khurana compelled him to issue the jumper letter for installing telephone connection at the earliest.
PW25 Mukesh Jain admitted his role in the illegal transfer of sale and purchase of many telephone connections. It is interesting to note that this witness was also declared hostile by the prosecution. During the cross examination by prosecution, PW25 Mukesh Jain admitted that he had requested Sh. Ram Sharan Dhingra working as the Assistant Telephone Operator (PW30) to help Anil Kumar for transferring his telephone. He also admitted to have stood witness to the paper executed between the parties. He also admitted his signatures on undertaking Ex.PW25/A executed between Anil Kumar and BN Tiwari. It means that this witness knew BN Tiwari also. However, why his role was not probed into may be a question for the senior officers of CBI to ponder over. During cross examination, PW25 Mukesh Jain admitted that he also got transferred telephone No.2274188 of E128 CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 17 of 71 18 Dilshad Garden and telephone No. 2297488 of B92/B, Jyoti Colony, in the name of RN Tiwari and SN Tiwari respectively at A4 Tagore Garden and he also stood witness for the transfer of these telephones. He also got transferred telephone No. 2278302 in the name of Bihari Dass into the name of Shyam Kumar at 29/39, West Patel Nagar and stood witness to the transfer of this telephone. PW25 Mukesh Jain gave explanation that he stood witness in good faith. During the cross examination on behalf of accused A2 YP Gupta, the witness stated that he do not know BN Tiwari, SN Tiwari or Tiwari brothers. It is strange that without knowing him, he had put his signatures on such documents.
3.11 PW26 Subhash Chand Sharma had joined the raid proceedings on 10/10/95, while conducting the raid at the premises of A5 Mukesh Bharadwaj. The search cum seizure memo has been proved as Ex.PW26/A and the documents recovered from his house has been proved as Ex.PW26/B. It is pertinent to mention here that this document Ex.PW26/B is a demand note dated 27/6/95 in the name of SN Tiwari, A4 Tagore Garden in the sum of Rs. 3,279/.
3.12 PW27 Dalip Khurana is again an interesting witness. He made a statement on oath to have handed over jumper letter book at the request of CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 18 of 71 19 PW24 Manohar Lal who took out two jumper letter from the book and asked him i.e. PW27 Dalip to fill up the same. PW27 Dalip Khurana stated that he filled the same and thereafter, OB numbers were given by PW24 Manohar Lal from his diary. The witness identified his writing on jumper letter Ex.PW24/A and Ex.PW24/C. He also identified handwriting of PW24 Manohar Lal. This witness was also declared hostile by the prosecution.
PW28 Suresh Kumar was stated to have been working with A6 BS Ahuja. He did not support the case of the prosecution and was declared hostile. During his cross examination by the prosecution nothing material came out. PW30 Ram Sharan Dhingra was also an MTNL employee. His testimony is speaking loud and clear that PW25 Mukesh Jain had approached him in May 1995 alongwith Shyam Kumar and requested him to help for transfer of telephone No. 2290867 in the name of BN Tiwari. PW30 stated that two other cases were also put by him at the instance of Mukesh Jain and Shyam Kumar and he had done the work on the good faith at the instance of Mukesh Jain being a colleague.
3.13 The prosecution had examined PW29 Inspt. Asha Badola, PW31 Sh. Azad Singh, PW33 Inspt. AK Singh, PW35 Inspt. AK Kapoor (IO) and PW36 Inspt. VM Mittal as their witnesses.
PW29 Inspt. Asha Badola was part of the raid proceedings CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 19 of 71 20 conducted on 8/10/95 at the premises of A1 Farhat Abbas and A2 YP Gupta. PW31 Azad Singh had remained with the IO during search proceedings conducted on 7/10/95 at A4 Tagore Garden alongwith independent witnesses Virender Singh (PW2), AK Sanan (PW5), ML Kochchar (PW7) and RS Yadav (PW9). PW33 Inspt. AK Singh had only filed the chargesheet after receiving the CFSL report. PW36 Inspt. VM Mittal was also part of the search proceedings conducted on 7/10/95. PW35 AK Kapoor (IO) had conducted the investigation. He formally proved the case of the prosecution. PW35 stated that on 7/10/95 on the questioning of MTNL employees, name of Shyam Kumar of Kumar & Company came up as suspect. On being interrogated, Sh. Shyam Kumar produced a register Ex.PW35/C and from there the name of BN Tiwari and RN Tiwari came out. Shyam Kumar stated that one of the accused persons arrested was actually YP Gupta and from this clue was found and investigation reached to A2 YP Gupta. From YP Gupta they reached A1 Farhat Abbas and this is how, the investigation officer stated that role of the remaining accused persons came to the light. 3.14 PW32 SL Mukhi handwriting expert proved his report as Ex.PW32/B. If we peruse his report, the detailed analysis can be summed up as follows:
CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 20 of 71 21
S.No. Document Content Handwriting
report
1. Q1. Application form for providing STD/ISD Matched with
Control facility purportedly being specimen
attested by P. Kumar handwriting of A6
BS Ahuja (S93 to
S107)
2. Q2 to Q7 Application form for providing STD/ISD Matched with
facility to telephone No. 5535671 specimen
purportedly being signed by OP Gauba handwriting S1 to and attested by P. Kumar and RK S30 of Ms. Saroj Bhasin. Chawla. (employee of BS Ahuja. Not examined being not traceable)
3. Q9 Jumper letter dated 15/7/95 in the name Matched with of RN Tiwari relating to telephone No. specimen 5428384 (Ex.PW24/A) handwriting of PW27 Dalip Kumar (S108 to S127)
4. Q10 Annexure 'C' Ex.PW24/B purportedly No opinion.
being signed by RN Tiwari.
5. Q11 Application form for providing DY No opinion.
STD/ISD facility to telephone No. 5428384 purportedly signed by RN Tiwari.
6. Q12 Signature attestation by PS Pahuja (Q12) Matched with Director, Small Industries Service specimen Institure, on application form for handwriting of A2 providing STD/ISD facility. YP Gupta (S128 to S142) CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 21 of 71 22
7. Q13 Handwriting on jumper book dated No opinion.
15/7/95 Ex.PW24/C issued in the name of SN Tiwari by PW24 Manohar Lal in respect of A4 Tagore Garden.
8. Q14 Annexure 'C' in the name of SN Tiwari No opinion.
Ex.PW24/D.
9. Q15 Application form for providing STD/ISD No opinion.
Control facility of telephone No. 5428182 purportedly signed by SN Tiwari and attested by PS Pahuja, Director, Small Industries Service Institute.
10. Q16 Signature attestation of PS Pahuja on Matched with application form for providing STD/ISD specimen facility on telephone No. 5428182. handwriting of A2 YP Gupta (S128 to S142)
11. Q17 Application form for providing STD/ISD No opinion Control facility of telephone No. 5428182 purportedly signed by SN Tiwari and attested by PS Pahuja, Director, Small Industries Service Institute.
12. Q18, Q19 Handwriting of Chiranji Lal Sharma No opinion.
13. Q20 Witness of MK Jain on undertaking of Matched with Chiranji Lal Sharma (Ex.PW25/B) specimen handwriting of PW25 Mukesh Jain.
14. Q21 Annexure 'C' alongwith jumper letter No opinion.
dated 14/9/95 in the name of Ajay Kumar (29/39 West Patel Nagar) CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 22 of 71 23
15. Q22 Application for transfer of telephone No opinion.
connection purportedly signed by one Ajay Kumar.
16. Q23, Q24 Undertaking of Ajay Kumar No opinion.
17. Q25 Consent cum declaration of Lekhraj No opinion.
Taneja
18. Q26, Q27 Handwriting in the register Das Deluxe Matched with & Q28 register at page No. 4, 9 & 17. specimen handwriting of Shyam Kumar (S33 to S38 and S44 to S67)
19. Q29, Q30 Purportedly signature attestation form of No opinion.
BN Tiwari by PS Pahuja, Director, Small Industries Service Institute.
20. Q31, Q32 Transfer application form purportedly No opinion.
being signed by BN Tiwari of telephone No. 5419222
21. Q33 Signature of MK Jain on undertaking of Matched with BN Tiwari in respect of transfer of specimen telephone from Anil Kumar Sharma. handwriting of PW25 Mukesh Jain.
22. Q34 Signature of BN Tiwari on undertaking Not matched.
Ex.PW25/A
23. Q35 Handwriting on backside of undertaking No opinion.
Ex.PW25/A.
24. Q36 to Q43 Signature on lease agreement of H. No. No opinion.
BF22 Janakpuri, Ex.PW13/B
25. Q44, Q45, Purported signature of Ajay Kumar on Matched with Q46 rent agreement Ex.PW11/A of H. No. specimen CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 23 of 71 24 29/39 West Patel Nagar. handwriting of A1 Farhat Abbas (S194 to 205) 3.15 PW34 Sh. Vinod Kumar Sharma, the then Ld. MM had recorded the statement of Shyam Kumar u/S 164 Cr.PC and proved the same as Ex.PW34/A and Ex.PW34/B. STATEMENT OF ACCUSED PERSONS u/S 313 Cr.PC.
4.0 In their statement u/S 313 Cr.PC, accused persons denied all the allegations and submitted that they have been implicated falsely. Accused persons almost sang the same song that they were innocent and were implicated falsely.
Accused Farhat Abbas stated that he was kept in illegal detention. He had come from Bihar to meet his brother Ashraf Abbas and from there he was picked up by CBI. Accused YP Gupta either feigned ignorance or denied the evidence and stated that his signatures were obtained on blank papers by the police. A2 YP Gupta stated that he had Security & Placement agency and had provided one peon to Shyam Kumar (since died). Shyam Kumar and said peon were taken away by CBI and thereafter, he was called in the office and implicated falsely. A3 Munish Kumar also denied all the allegations and stated that he was got identified by PW3 Surinder CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 24 of 71 25 Singh by CBI. He stated that he was made to sign on certain blank papers. He had come to Delhi only for seeking a job and was implicated falsely. A4 Mukesh Bharadwaj also stated that he was implicated falsely. Accused stated that he was merely an operator in the MTNL and had no power or authority to help anybody in procurement of telephone connection. Accused stated that infact, the CBI officials wanted to pick him up illegally and since he resisted this attempt, IO implicated him falsely. A5 Vinod Kumar stated he had been implicated falsely at the instance of PW24 Manohar Lal. A6 BS Ahuja also denied all the allegations and stated that initially CBI wanted him to become a witness on the arrest and seizure memo but subsequently he was implicated falsely at the instance of Shyam Kumar. DEFENCE EVIDENCE 4.1 A5 Vinod Kumar examined himself as DW1 on oath and stated that he has been implicated falsely at the instance of PW24 Manohar Lal. A4 Mukesh Bharadwaj examined DW2 Vimal Wadhawan in defence who deposed on oath that CBI officials wanted to detain A4 Mukesh Bharadwaj illegally and since this illegal attempt was resisted, the CBI officials implicated him falsely.
CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 25 of 71 26 ARGUMENTS ON BEHALF OF CBI 5.0 Sh. VK Ojha, Ld. PP for CBI has argued vehemently that the CBI has successfully proved its case against the accused persons beyond reasonable doubt. The synopsis and memo of arguments was filed. In 1 support of his contention, Ld. PP has cited Krishna Mochi Vs. State of 2 Bihar, 2002 CriLJ 2645, Radha Mohan Singh Vs. State of UP, 2006 3 4 CriLJ 1121, Sucha Singh Vs. State of Punjab, 2003 CriLJ 3876, L 5 Choraria Vs. State of Maharashtra, 1968 CriLJ 1124, Ronny @ Ronald 6 James Alwaris etc. Vs. State of Maharashtra 1998 Crl. L J 1638, Murari 7 Lal Vs. State of M. P. AIR 1980 SC 531 and State of Bombay Vs. Kathi Kalu 1961(2) Crl. L J 856.
Sh. Mukesh Maroria, Ld. Sr. PP for CBI (since transferred) has submitted that the MTNL employees, who have been examined as a witness by the CBI were initially treated as accused persons on the basis of FIR, however, during the course of investigation, it transpired that there was no material against them and therefore, the accused persons shown in Col. No.2 were not sent up for trial and CBI produced and examined these persons as witnesses. Ld. Sr. PP has refuted all the averments of Sh. Surinder Singh, Ld. Counsel for accused YP Gupta and has submitted that CBI has enough material to prove its charge against the accused A2 YP Gupta.
Sh. Mukesh Maroria, Ld. Sr. PP for CBI has submitted that CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 26 of 71 27 PW11 Om Prakash in his testimony has also indicated that Farhat Abbas may be the person who impersonated himself as Ajay Kumar and he was not able to recognize him with firmness on account of lapse of time. However, PW16 Harish Thukral has specifically stated that one Ajay Kumar had signed on rent agreement, Ex.PW11/A and as per GEQD report, Ex.PW30/B, the signatures on Ex.PW11/A at Q44 to Q46 are of Farhat Abbas. ARGUMENTS ON BEHALF OF ACCUSED FARHAT ABBAS 5.1 Sh. R.S. Rai, Ld. Counsel for accused Farhat Abbas besides submitting written arguments, has invited the attention of this court that as per testimony of PW13 Uday Kumar, raid was conducted on 09.10.95 whereas, case of the CBI and as per the testimony of PW35 Insp. AK Kapoor raid was conducted on 08.10.95 and on the same day, the entire proceedings were conducted. Sh. RS Rai has taken this court through the testimony of PW11 Sh. Om Prakash and PW16 Harish @ Sonu. It has been pointed out that PW11 Om Prakash gave a very weak kind of statement indicating the possibility that Sh. Farhat Abbas may be the person, who impersonated himself as Ajay Kumar whereas PW16 Harish @ Sonu in his testimony categorically stated that he had identified one Ajay who had signed on the rent agreement and that Ajay Kumar is not present in the court that day. Ld. Counsel submitted that if testimony of PW11 and PW16 is read together, it is CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 27 of 71 28 crystal clear that Farhat Abbas has never impersonated himself as Ajay Kumar and Ajay Kumar was altogether a different person who was never produced before the court. Ld. Defence counsel further argued that PW19 Raj Kumar, who was Property Dealer, had also not identified Farhat Abbas as the person who had taken the premises A4, Tagore Garden, New Delhi on rent from his client. Sh. Rai, Ld. Counsel also argued that CBI has relied upon the testimony of PW27 Dalip Khurana to prove the fact that in fact one of the Tiwari was actually Gupta. However, PW27 Dalip Khurana in his statement made before the court specifically denied the suggestion put in his cross examination by CBI itself that the real name of one of the Tiwari was Farhat Abbas. He had stated that he came to know about the name of Farhat Abbas only after receiving of summons from the court.
Ld. Counsel submitted that FSL report also cannot be read as it is not a good piece of evidence. Ld. Counsel has emphatically argued that IO with ulterior motive kept his client Farhat Abbas in illegal detention for 3 days and falsely implicated him only to screen the real culprits. Ld. Counsel further submitted that CBI has failed to prove its case against his client and therefore, his client is entitled to be acquitted. ARGUMENTS ON BEHALF OF A2 YP GUPTA 5.2 Sh. Surinder Singh, Ld. Counsel for accused A2 YP Gupta CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 28 of 71 29 has primarily argued on the premises that CBI has let off the actual culprits and falsely implicated his client. The procedure laid down by the Cr.PC has not been followed and investigation was conducted even before the registration of the FIR. The signature of the accused were taken on the blank papers under force and coercion. Accused was shown in the CBI office to the witnesses. The dock identification of the accused for the first time in the Court does not carry any evidentiary value. Ld. Counsel has submitted that CBI has not led any evidence regarding the loss of public exchequer, nor is there any evidence regarding international calls. The witnesses have made contradictory statement. The independent witnesses from FCI are stock witnesses as they admittedly have been appearing for CBI in other cases. Sh. Surinder Singh, Ld. Counsel submitted that infact actual culprits were Manohar Lal, Dalip Kumar, Shyam Lal, SL Bajaj, Sibte Hassan and Mukesh Jain who were earlier shown as accused in the chargesheet, but lateron they were produced as witnesses by the CBI. Ld. Counsel pointed out that there is no evidence as to the payment of illegal gratification to any of the MTNL employee attributed against his client. It has been submitted that CBI has miserably failed to prove its case against his client A2 YP Gupta and therefore, his client is entitled to be acquitted. ARGUMENTS ON BEHALF OF A3 MUNISH KUMAR 5.3 Sh. Bhupender Singh alongwith Sh. Sandeep Massy, Ld. CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 29 of 71 30 Counsels for accused A3 Munish Kumar has raised his argument on the fact that CBI has filed chargesheet against his client Munish Kumar A3 primarily alleging therein that A3 Munish Kumar had taken the premises A4, Tagore Garden, New Delhi on rent and the telephone Nos. 5428182 and 5428384 were misused in that premises. However, Ld. Counsel submitted that CBI has failed to place any material on record to connect his client A3 Munish Kumar with above said two telephone connections. There is not even an iota of evidence on record to suggest that accused had applied for installation of these telephone nos at A4 Tagore Garden nor there is any evidence to establish that his client A3 Munish Kumar was living at A4 Tagore Garden, New Delhi. Sh. Bhupender Singh, Ld. Counsel further proceeded to argue that CBI was very well aware of the entire case even before 6/10/95 when the present RC No. 87(A)/95 was lodged as is clear from the complaint dated 24/7/95 (Ex.PW1/B). It has been submitted that infact the complaint dated 24/7/95, proved as Ex.PW1/B is the FIR as per Sec. 154 Cr.PC and this subsequent statement of 6/10/95 is merely a statement u/S 161 Cr.PC which could not have been converted into an FIR. Sh.Bhupender Singh, Ld. Counsel also argued that as per bail order dated 20/10/95 passed by Hon'ble Mr. Justice V B Gupta, the then Ld. Spl. Judge, accused persons Mukesh Bharadwaj, Dalip Kumar, Vinod Kumar, Manohar Lal, Sibte Hassan, YP Gupta and Farhat Abbas were released on bail which CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 30 of 71 31 shows that actually accused Dalip Kumar, Manohar Lal, Sherif Hassan were also culprits in the present case, but CBI with ulterior motive lateron let off these persons and falsely implicated the innocent persons. Ld. Counsel pointed out that the only witness who has made an attempt to connect his client with the case is PW3 Surinder Singh. Sh. Surinder Singh is the owner of H. No. A4 Tagore Garden Extn. New Delhi. The case of CBI is that Munish Kumar had taken this premises on rent. It has been impressed upon that when raid was conducted, Smt. Satwant Kaur w/o Surinder Singh and her brother in law Manmohan Singh were present there and the house was opened with the key supplied by Smt. Satwant Kaur. Ld. Counsel submitted that though Smt. Satwant Kaur and Manmohan Singh were witnesses to the seizure memo, but they have not been cited as a witness by the CBI for the reasons best known to them. Ld. Counsel assailed the testimony of PW3 Surinder Singh on the ground that he has made a false and frivolous statement. Statement of PW3 is total contrary to the case of CBI as it is nowhere the case of CBI that A3 Munish Kumar had taken the premises A4 Tagore Garden under disguise as DP Singh. Ld. Counsel further argued that even for the sake of argument, if testimony of PW3 is accepted to the extent that Munish Kumar took the premises A4 Tagore Garden on rent, there is no material on record to establish that the telephone Nos. 5428182 and 5428384 were misused at this premises. There is no evidence that the remaining co CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 31 of 71 32 accused persons used to visit this premises or number of other persons used to visit this premises for making international calls. Ld. Defence counsel further submitted that as per the case of CBI, a raid was conducted at A4 Tagore Garden on 7/10/95 and telephone Nos. 5428182 and 5428384 were put under observation vide seizure memo Ex.PW2/A on 7/10/95 itself as communicated by a separate observation memo Ex.PW2/B also. However, as per Ex.PW15/B, telephone No. 5428182 was put under observation at 4:13pm on 6/10/95 and it continued up to 3:16pm on 7/10/95. Similar is the case regarding telephone No. 5428384. Ld. Counsel further invited the attention of this Court that as per ExPW15/B, the last reading of 7/10/95 at 3:07pm was 1518404 where as, as per bill (D27) for the period 1/9/95 to 10/10/95 of telephone No. 5428182, the reading was noted as 1518437. Sh. Bhupender Singh, Ld. Counsel submitted that as per search cum seizure memo Ex.PW2/A, after conducting the search, the premises was handed over to Smt. Satwant Kaur alongwith the remaining items and therefore, how this telephone No. 5428182 continued to be used at A4, Tagore Garden, New Delhi. It has further been pointed out that as per case of CBI, accused persons fled away from A4 Tagore Garden, New Delhi around 4 months prior to registration of FIR. FIR was registered on 6/10/95. Therefore, the bill for the period 16.07.95 to 31.08.95 for the sum of Rs.13,87,968.70 of telephone No. 5428182 installed at A4 Tagore Garden, New Delhi is CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 32 of 71 33 speaking in volume against the case of CBI.
Ld. Counsel has concluded his arguments by saying that Section 25 and 27 of Indian Telegraphs Act for which accused has been charged, does not apply to him at all as he was not employee of any department. It has further been submitted that there is no credible material on the record to prove the charges against his client.
ARGUMENTS ON BEHALF OF ACCUSED MUKESH BHARDWAJ, VINOD KUMAR AND BS AHUJA.
5.4 Sh. Rajesh Kumar Sharma, Ld. Counsel has initiated his arguments by saying that CBI has miserably failed to prove its case against the accused. In respect of accused Mukesh Bhardwaj, Ld. Counsel has pointed out that CBI has examined two witnesses i.e. PW26 Subhash Chand Sharma and PW35 AK Kapoor. PW26 Subhash Chand Sharma was a witness to the search and seizure memo, Ex.PW26/A, is stated to be a stock witness of CBI. During the cross examination on behalf of accused No.1, he admitted that he might have been witness in other 15 cases of CBI. Ld. Counsel further submitted that in fact, no document was recovered during the house search of the accused and Ex.PW26/B, which in any case is not related to the case in any manner, was falsely planted to connect the accused. It has further been pointed out that PW26 in his testimony has stated that CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 33 of 71 34 house of the accused was on ground floor, whereas, PW35 AK Kapoor has stated that house of the accused was situated on the first floor.
Ld. Counsel has taken this court to the testimony of PW35 AK Kapoor to buttress his point that there are contradictions in the testimony of PW26 and PW35. It has been submitted that if both the testimonies are read together, it is apparent that in fact, no such raid was conducted and the document Ex.PW26/B has been falsely planted.
It is pertinent to mention here that Ex.PW26/B is demand note issued to one S.N. Tiwari, A4 Tagore Garden, New Delhi, dated 27.06.95 in the sum of Rs.3,279/. Sh. Rajesh Kumar Sharma, Ld. Counsel further argued that accused Mukesh Bhardwaj was falsely implicated on account of some altercation, which took place between Insp. R.S. Tokas and his client at St. Stephen's Hospital. There Insp. Tokas allegedly wanted to pick up accused Mukesh Bhardwaj without any authority and since this illegal act was protested by accused and DW1 Vimal Wadhawan, CBI implicated the accused falsely out of their personal revenge for not being able to take him away forcibly. Testimony of DW1 has also been read out to distinguish the case of the accused.
ARGUMENTS ON BEHALF OF ACCUSED NO. 5 VINOD KUMAR.
5.5 Sh. Rajesh Malhotra, Ld. Counsel of A5 argued that in fact in CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 34 of 71 35 respect of accused Vinod Kumar, CBI has examined PW23 Subhash Dhingra, PW24 Manohar Lal and PW27 Dalip Khurana. Ld. Counsel argued that in fact they were the real culprits who have been screened by CBI and his client has falsely been implicated. It has also been pointed out that PW24 Manohar Lal & PW27 Dalip Khurana were initially arrested by CBI but later on they were let off for unknown reasons. Ld. Defence counsel emphasized his point by reading out the testimony of PW23 Subhash Dhingra. He stated that PW23 Subhash Dhingra is totally an unreliable witness. His testimony would show that even he was not able to identify the accused properly. Sh. Malhotra argued that in fact it was his wife who was running a PCO and therefore, the chances of he being involved in such like cases is manifold.
PW21 Om Prakash Gauba has specifically stated that he had sold his telephone connection to PW23 Subhash Dhingra.
It is pertinent to mention here that CBI based its case upon the fact that PW21 O.P. Gauba sold his telephone connection to Vinod Kumar through PW23 Subhash, which was later on misused by the many accused persons and therefore, he was part of the conspiracy. The plea of the defence is that in fact the telephone was sold by Sh. O.P. Gauba to this witness and accused Vinod Kumar was falsely involved only to take this accused out of the scene.
CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 35 of 71 36
In respect of PW24 Manohar Lal, Sh. Rajesh Kumar Sharma, Ld. Defence counsel on behalf of accused A5 Vinod Kumar submitted that in fact this person was the king pin and entire story revolves around him. Ld. Defence counsel read over the testimony of this witness to emphasize his point that in fact this was the person who had issued the jumper letter pertaining to letter No.5428384 in the name of R.K. Tiwari, Ex.PW24/A. However, he falsely took a stand that his signatures were taken on this jumper letter under force by accused Vinod Kumar and PW27 Dalip. Ld. Counsel submitted that PW24 Manohar Lal was quite senior to Vinod Kumar and it is highly improbable that a regular mazdoor can pressurize an officer of the level of Inspector to put his signatures on any document. This witness was declared hostile also and therefore, this witness is highly improbable. Further, testimony of PW27 Dalip was read by Sh. Rajesh Malhotra, Ld. Counsel to take the point home that infact none of the accused persons were involved and the kingpin of the entire sequence was Manohar Lal who has been let off by the CBI. It has been submitted that perusal of testimony of PW27 Dalip would indicates that jumper letter on the basis of which telephone connections were installed at A4 Tagore Garden, was issued by Manohar Lal only. He took this book from Dalip Kumar by misrepresenting and made Dalip to fill up the same. Ld. Counsel submitted that entire testimony of PW27 Dalip does not reveal the role of any of the accused CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 36 of 71 37 persons facing the trial.
ARGUMENTS ON BEHALF OF ACCUSED BS AHUJA.
5.6 Relating to the argument on behalf of A6 BS Ahuja, Ld. Counsel argued that there are three relevant witnesses PW14 Bharat Singh, PW22, BR Sharma and Pw28 Suresh Kumar. Role of A6 BS Ahuja as per CBI is that he had got installed telephone connections at BF22, Janakpuri. It has been argued that as per testimony of PW14 Bharat Singh, BS Ahuja had no connection whatsoever with the renting of this premises. It has further been submitted that as per the case of the prosecution, the premises where the telephones were installed at BF22, Janakpuri was on second floor and therefore, it is highly improbable that on second floor the telephone would be misused in such a manner and to such an extent. It is pertinent to mention here that as per CBI accused BS Ahuja had forged the document regarding which there is a positive report of GEQD regarding the installation of telephone at BF22 Janakpuri.
In this respect, Ld. Defence counsel has submitted that as per the cross examination of PW20 Ved Prakash who allegedly had sold his telephone connection to accused BS Ahuja proprietor M/s Ahuja & Co., has admitted during the cross examination that he might have signed four other papers while signing the application form when the phone was sold by him. CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 37 of 71 38 Ld. Defence counsel has argued that no forgery was committed by BS Ahuja and infact STD ISD were installed by Ved Prakash himself. It was further argued that PW Saroj cited by the CBI has been withheld from the court and therefore, an adverse inference be drawn against the CBI. PW28 Suresh Kumar has also not supported the case of the CBI and was also declared hostile. Even during the cross examination by the CBI no material has come against accused BS Ahuja. Ld. Defence counsel concluded his arguments by saying that initially his client was called as a witness and then was lateron implicated as an accused.
Ld. Counsels for the accused persons have cited State of MP Vs. Ramesh & Anr., 2011 (3) BBCJ in Crl. Appeal No. 1289 of 2005, Amin & Anr. Vs. The State, AIR 1958 Allahabad 293 and State of Bombay Vs. Kathi Kalu Oghad, AIR 1961 SC 1808, in support of their contention. 6.0 I have heard the Ld. PP for CBI and Ld. Counsels for the accused persons and perused the record carefully. 7.0 MTNL filed its first complaint on 24/7/95 Ex.PW1/B regarding misuse of telephone No. 5535671 and 3336326 installed at BF22, Janakpuri. It was alleged that on telephone No. 5535671 there was bill of Rs. 22,22,991/ for the period 16/3/95 to 15/6/95 and on telephone No. 5536326 CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 38 of 71 39 there was bill of Rs. 23,44,882/ for the period 24/3/95 to 15/6/95. CBI did not take any action on this complaint and the second complaint was filed on 6/10/95 regarding misuse of telephone Nos. 5428182 and 5428384 installed at A4 Tagore Garden, Delhi. On this telephone number, there was bill of Rs. 12,63,380/ (5428384) for the period 20/7/95 to 21/8/95 and bill of Rs. 14,58,954/ (5428182) for the period 16/7/95 to 31/8/95. In this complaint, the complainant remained to be the same i.e. PW1 BL Hakhu. The complainant gave the name of certain MTNL employees Dalip Khurana (PW27), Vinod Kumar (A5), Manohar Lal (PW24) and Sh. SL Bajaj. The CBI woke up from its deep sleep and proceeded to register an FIR on 6/10/95 u/Ss 13(2) r/w 13(1)(d) of PC Act, 120B IPC r/w 420 IPC r/w 13(2) r/w 13(1)
(d) of PC Act and Sec. 25 of Indian Telegraph Act against 08 persons including Dalip Kumar, Vinod Kumar, SN Tiwari, RN Tiwari, Sham Kumar, Rajat Consultant, Manohar Lal and SL Bajaj. The sum total of the investigation is that on 7/10/95 a raid was conducted at A4, Tagore Garden where two live drop wires were found and after checking through exchange they were found to be related to telephone No. 5428384 and 5428182 and were having active STD/ISD. This premises was stated to have been let out to one Munish Kumar. Then the raid was conducted at the office of YP Gupta from where photocopy of rent agreement of BF22, Janakpuri was recovered and thereafter, raid was conducted at the place of A1 Farhat Abbas and from CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 39 of 71 40 there they came to know that there was an attempt to misuse telephone number at 29/39 West Patel Nagar. During investigation, the role of the remaining accused persons i.e. A3 Munish , who took A4 Tagore Garden on rent and A4 Mukesh Bharadwaj and A5 Vinod Kumar, who both are MTNL employees and allegedly, facilitated the installation of telephones for their misuse and A6 BS Ahuja who had also facilitated installation of telephone for their misuse. CBI filed the chargesheet primarily on the ground that the accused persons caused huge loss to the exchequer by misusing the telephones installed at A4 Tagore Garden and BF22 Janakpuri and these telephone connections were installed at these premises with the connivance of certain public persons and MTNL officials. CBI made an attempt to prove its case upon the chain of circumstances relying on the premises that accused persons entered into conspiracy whereby A1 to A3 impersonated themselves as Tiwaris, took various premises on rent and A4 & A5 facilitated the installation of telephones. Similarly, A6 also played an indirect role in fulfilling the criminal conspiracy hatched by the accused persons. CBI had a task of completing the chain of circumstances. They were required to bridge all the gaps and fill the holes so as to make a complete road for completing the journey of the case from the chargesheet to the conviction. The law regarding circumstantial evidence is very well settled. In cause celebre, the Apex Court in Sharad Birdichand Sarda V. State of Maharashtra, AIR CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 40 of 71 41 1984 SC 1622, the Hon'ble Supreme Court held that in the case based upon circumstantial evidence, following conditions must be fulfilled before a case against an accused can be said to be fully established: namely, (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established ;
(2) The facts so established should be consistent only with the hypothesis of the guilty of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
7.1 With these principles in the background, the endeavour of this Court was to find out that whether prosecution on the basis of investigation conducted by the IO has been able to complete the chain of circumstances. This Court is unable to resist itself from commenting on the role of IO in this case, at the outset. It is very difficult to understand that what led the CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 41 of 71 42 investigation officer to place certain persons in Col. No. 2 against whom there was so much of the material apparently bulging out of the record. The Court is constrained to note that some of the persons who have been examined as a witness seems to have played a prominent role in giving the criminal conspiracy a shape, but it is too late in a day to transpose these persons as an accused. Much of the water has flown under the bridges. The case is of 1994. We are already in 2011 and therefore, this Court do not deem it practical to lead itself towards that direction. It has also been held time and again by the superior courts that power u/S 319 Cr.PC is to be exercised sparingly in the exceptional circumstances. The role of the IO and particularly, in such kind of cases where huge loss of exchequer has been caused to the Government was very important. It is sacred duty of the IO to reach to the truth. There is no denying that in such like cases it is very difficult to find out the direct evidence, but then such are the challenges before the investigating agency and they are supposed to be extra careful and cautious while dealing with the cases. CBI is the premier investigating agency of the country and the citizens of this country looks upon them for the fair and quality investigation.
7.2 The Court would be failing in its duty if it does not comment on the glaring misdemeanour on the part of the investigation officer. The duty CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 42 of 71 43 of the Court is to act as a final arbiter and to be symbol of truth and justice. Justice cannot be divorced from truth and the first duty of the court is to do its best to reach to the truth. The Court was astonished to find that in a case which was based upon the fact that accused persons have caused huge exchequer loss to the nation by misusing telephone numbers, the investigating agency did not cite even a witness to prove the telephone bills. CBI did not place any material on record regarding the quantum of loss nor did it take any call details or even the telephone Nos. on which the calls were made from these telephones. It is disappointing to note that the CBI did not lead any evidence to show the modus operandi of the accused i.e., how these telephones were misused. Whether the persons were going at the said premises for making calls or the accused persons were providing conference facility or the calls made from these telephones were not metered. These were such vital piece of investigation that this would have taken the case to the logical end. But, Alas! CBI did not collect any evidence regarding this. The Court was also surprised to note that in the first complaint dated 24/7/95, a specific complaint was made regarding misuse of telephone at BF22 Janakpuri, where already huge bills in the sum of Rs. 45 lakhs have been raised for the period 24/3/95 to 15/6/95, but the CBI did not take any action in this regard. MTNL also took more than one month in making this complaint to the CBI. The public officials must understand that this is the CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 43 of 71 44 money belonging to the hard earned income of the citizens of this Country and this money has actually been plundered by certain mischievous elements with the help of some evils in the system. It is also interesting to note that telephones at A4 Tagore Garden were misused from the period 16/7/95 to 31/8/95 , therefore, the accused persons were moving in a very systematic manner that they stopped the misuse at BF22 Janakpuri on 15/6/95 and thereafter, they started misuse at A4 Tagore Garden on 20/7/95. Therefore, had the timely complaint been made and action been taken there could have been possibility of stopping this misuse and catching the actual culprits. There is so much blemish on the IO and the quality of the investigation conducted in this case, that less said is better.
7.3 It has come in the testimony of prosecution witnesses that at the time of raid at A4 Tagore Garden, two persons namely Satwant Kaur and Manmohan Singh were found but they were not made witness for the reasons best known to the IO. It is also pertinent to mention here that no witness was examined as to the movement of persons in the premises. This was a case based on criminal conspiracy. The criminal conspiracy has been defined u/S 120A IPC:
"120A - Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done, CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 44 of 71 45
1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
It is a settled proposition that it is difficult to find out the direct evidence in the case of conspiracy because normally the conspiracy is hatched in the dark and executed in utter secrecy but there has to be some cogent and credible evidence on record to attribute the conspiracy to the accused persons.
It is a settled proposition that conspiracy cannot be assumed from a set of unconnected facts or from a set of conduct exhibited by different accused persons at different places and time without reasonable link. Suspicion, however strong, cannot take the place of legal proof. The accused persons cannot be held liable for the conspiracy on the mere presumption and assumption. There has to be legal evidence to the effect that accused persons hatched the conspiracy. The conspiracy can be inferred by necessary implications but such inference can only be drawn on the parameters in the manner of proved facts. Whatever be the incriminating CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 45 of 71 46 circumstances, it must be clearly established by reliable evidence and they must form the full chain whereby a conclusion about the guilt of the accused can be safely drawn.
In Chaman Lal v. State of Punjab , AIR 2009 SC 2972, it has been inter alia held as under :
"7. It would be appropriate to deal with the question of conspiracy. Section 120B IPC is the provision which provides for punishment for criminal conspiracy. Definition of "criminal conspiracy" given in Section 120A reads as follows:
"120A. When two or more persons agree to do, or cause to, be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof."
The elements of a criminal conspiracy have been stated to be:
(a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 46 of 71 47 of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which coconspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. (See American Jurisprudence, Vol. II, Sec. 23, p. 559.) For an offence punishable under Section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or caused to be done an illegal act; the agreement may be proved by necessary implication. The offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means.
8. No doubt in the case of conspiracy there cannot be any direct evidence. The ingredients of the offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 47 of 71 48 agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.
9. In Halsbury's Laws of England (vide 4th Edn., Vol. 11, p. 44, para 58), the English law as to conspiracy has been stated thus:
"58. Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the court.
10. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other."
CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 48 of 71 49 Perusal of the above judgment indicates that prosecution in order to succeed was bound to place on record some cogent and creditworthy material to prove that there was meeting of mind for an unlawful purpose. 7.4 As I have discussed above, the prosecution has sought to prove its case upon the circumstances. Unfortunately, there is no direct evidence on the record which could connect the accused person with each other. Even if the case of prosecution is taken as a whole, the sum total of the evidence which has come on the record is that A1 Farhat Abbas impersonated himself as Ajay Kumar and took premises 29/39 West Patel Nagar on rent through a rent agreement. On this rent agreement the signature of A1 Farhat Abbas were found to be similar to that of signature of Ajay Kumar on Ex.PW11/A. A2 YP Gupta was identified to be one of the person who had taken premises No. A4, Tagore Garden on rent alongwith two other persons and he had also put his signatures at point Q12 as PS Pahuja on application form for providing DY STD ISD facility on telephone No. 5428384. Besides, this the photocopy of rent agreement of BF22, Janakpuri was also allegedly recovered during search at his premises. However, it is pertinent to mention here that there is no seizure memo on record of this rent agreement and the original of this rent agreement has also not been placed on record by the prosecution though the owner of this house Bharat Singh (PW14) has been CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 49 of 71 50 examined by the prosecution.
In respect of A3 Munish Kumar, the only witness is that PW3 Surender Singh identified him to be person who introduced himself as DP Singh and to whom first floor Tagore Garden was let out.
Against A4 Mukesh Bharadwaj the evidence appeared against him is that the document relating to transfer of telephone No. 5428384 at A4 Tagore Garden Ex.PW26/B was seized during the search. The demand note dated 27/6/95 in the name of SN Tiwari, A4 Tagore Garden was recovered from his possession.
In respect of A5 Vinod Kumar, the evidence is that he purchased a telephone from PW21 OP Gauba as well as, as per the testimonyof PW24 Manohar Lal, he issued jumper letters of telephone Nos. 5428384 and 5428182 after being compelled by this person.
The evidence against A6 BS Ahuja is that PW20 Ved Prakash sold his telephone connection and on the application for providing STD ISD facility, BS Ahuja had put his signatures at Q1 on Ex.PW20/C. 7.5 Now, broadly, if we see its evidence, I am afraid that there is no evidence to connect one accused with the other accused persons. There is no material on the record to connect the accused persons with each other that they entered into a criminal conspiracy regarding installation of telephone CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 50 of 71 51 numbers at various premises and then misused it. It is so strange that CBI did not collect any evidence that how and in what manner these telephones were misused. Even CBI and the department was shy of telling the fact that whether any proceedings were taken for the recovery of this amount. Ld. PP has argued that it is very difficult to place direct evidence on the record and the concept of benefit of doubt cannot be stretched too far. I, fully agree with the plea of the Ld. PP. The concept of benefit of doubt cannot be stretched too wide and long. Benefit of doubt cannot be given on the mere whims and fancy of the accused persons, but at the same time the court cannot act as a mouthpiece of prosecution. The golden principle of criminal jurisprudence is that the prosecution is duty bound to prove its case against the accused beyond reasonable doubt and if any, doubt arises, the benefit of it must go to the accused persons. There is no dispute to the proposition that normal discrepancy in the evidence are to be ignored. However, the material discrepancy which corrodes the credibility of the party's case have to be taken into account. This Court has no hesitation in saying that this case illustrates that how faulty, delayed, casual and unscientific investigation affects the administration of justice which inturn shakes the public confidence in the system. The Court is under the duty to appreciate the evidence brought on record in accordance with established law without being influenced by the allegations levelled by the prosecuting agency or by the CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 51 of 71 52 incident. I consider that the quality of the evidence led by the prosecution is too weak to reach to conclusion that there was any conspiracy amongst the accused persons. In absence of any such conspiracy, the charge u/S 120B IPC cannot stand against the accused persons.
7.6 Now, once the charge u/S 120B IPC has failed, the Court is required to see that whether the accused persons can be held liable independently for their acts on the basis of evidence on record. Before proceeding further, it is pertinent to mention that there is no evidence on record to substantiate the charge u/S 25 and 27 of Indian Telegraph Act and therefore, the accused persons are entitled to be acquitted for this charge.
Now, this Court will take the case of each of the accused persons separately.
A1 Farhat Abbas:
7.7 The allegations against accused Farhat Abbas was that he alongwith other persons A2 YP Gupta and A3 Munish Kumar impersonated as Tiwari's and took BF22 Janakpuri on rent as well A4 Tagore Garden. He was also chargsheeted for having taken on lease H. No. 29/39, West Patel Nagar, Delhi. In respect of the tenancy of H. No. BF22, Janakpuri and A4 Tagore Garden, the prosecution has not been able to bring any evidence on CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 52 of 71 53 record to prove the same. The charge of criminal conspiracy has already fallen against the accused and in the absence of any evidence regarding loss of public exchequer, the charge u/S 420 IPC also falls against the accused.
However, the prosecution has been able to bring one material against the accused and that is, the report of handwriting expert Ex.PW32/B. As per this report, the signatures at point Q44, Q45 and Q46 on Ex.PW11/A i.e. rent agreement between Kamlesh Mana and Ajay Kumar regarding letting out of ground floor of 29/39 West Patel Nagar has been found to be of A1 Farhat Abbas. In the handwriting report at opinion No. V, it is specifically been held that handwriting evidence points to the writer of the signature marked S194 to S205 being the person responsible for writing the questioned signatures marked Q44 to Q46. Thus, A1 Farhat Abbas made a false document with the intent to cause damage or to separate his claim or title. A2 YP Gupta 7.8 Broadly, the allegations against YP Gupta was also that he alongwith A1 Farhat Abbas and A3 Munish Kumar took BF22 Janakpuri on rent impersonated as Alam Ansari and got installed telephone there as well as at A4 Tagore Garden and caused exchequer loss as well as cheated the department. However, as I have discussed above, the charge of the conspiracy has fallen against the accused persons. The evidence which has broadly CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 53 of 71 54 appeared against the accused is that he was one of the person who had taken A4 Tagore Garden on rent. The accused was duly identified by PW18 Kuldeep and PW19 Raj Kumar. Both the witnesses though have stood the cross examination and this evidence indicate towards the criminal intent of the accused but this evidence is self contradictory as case of the prosecution is that A4 Tagore Garden was let out to Munish Kumar as has been stated by PW3 Surinder Singh himself. However, A2 YP Gupta also have come into the clutches of the law on account of report of handwriting expert report Ex.PW32/B. As per handwriting expert report at opinion No. IV, handwriting evidence points to the writer of the specimen writings marked S128 to S142 being the person responsible for writing the questioned writings marked Q12 and Q16. As per record, S128 to S142 are the specimen handwriting of A2 YP Gupta and Q12 to Q16 are the purported signatures of PS Pahuja on the application for providing STD ISD facility on telephone No. 5428384. Q13 is the handwriting in the jumper letter Ex.PW24/C of telephone No. 5428182. Q14 is the handwriting in Annexure C of the same telephone and Q15 and Q16 are also handwriting in the application form for providing STD / ISD facility. Thus, accused YP Gupta has apparently put the forged signatures and made false document. A3 Munish Kumar 7.9 The only evidence which has appeared against A3 Minish CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 54 of 71 55 Kumar is that PW3 Surinder Singh identified him to be person to whom A4 Tagore Garden was let out. PW3 stated that Munish Kumar had introduced himself as DP Singh. It is a matter of record that no rent deed was executed regarding tenancy of this premises. Ld. PP has argued that this evidence is sufficient to convict accused Munish Kumar for the impersonation as he has been duly identified by PW3 Surinder Singh. The contention of the defence is that in absence of any test identification parade, the Court should not rely on the dock identification. Ld. PP has relied upon Ronny @ Ronald James Alwaris etc Vs. State of Maharashtra, 1998 CriLJ 1638. There is no doubt to the settled proposition that the Court can convict a person merely on dock identification, but the settled test is that the material on record should be cogent and creditworthy to substantiate the identity of the accused persons. There is no rule which debars the court from convicting the accused on the basis of dock identification. It may also be mentioned that test identification parade during investigation is only the corroborative piece of evidence, however, the basic touch stone is the quality of evidence, if it inspires the confidence of the Court regarding the identity of the accused, the dock identification may also be held to be a good piece of evidence. The only rule is the rule of caution. The court has to be cautious while accepting such piece of evidence because there is a great possibility that after lapse of sufficient period of time the witness might not have identified the accused CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 55 of 71 56 persons had he not been in the dock. Coming to the present case, the only evidence against accused A3 Munish Kumar is that PW3 Surinder Singh identified him to be the person to whom he had let out the premises. Except this, there is no other material on record to connect the accused with the offence. I am of the considered opinion that this piece of evidence is not that sufficient to convict the accused for this offence. The quality of the evidence to be relied upon should shine and glitter in such a manner that it should speak in itself. If any doubt arises on the quality of the evidence, it is unsafe to rely on the same. Hence, I tend to give benefit of doubt to A3 Munish Kumar on the basis of a solitary piece of uncorroborated evidence of PW3 Surinder Singh.
A4 Mukesh Bharadwaj and A5 Vinod Kumar.
7.10 Accused Mukesh Bharadwaj has been charged for the offence u/ss 419/420 IPC and u/S.13(2) r/w S.13(1)(d) of PC Act and u/Ss.25 & 27 of Indian Telegraphs Act. A5 Vinod Kumar was charged for the offence u/S. 420 IPC & u/S.13(2) r/w S.13(1)(d) of PC Act and u/Ss.25 and 27 of Indian Telegraph Act. The charge under PC act have also been framed against them being public servants. The court has spoken much about the quality of investigation been conducted by the IO in this case. It is disgusting to note that investigating agency let off the senior officers and chargesheeted two CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 56 of 71 57 persons of the rank of Regular Mazdoor and Operator. The evidence on the record is speaking loud and clear that senior officers like PW24 Manohar Lal and PW25 Mukesh Jain have admitted on record that they were party to the transfer of telephone which ultimately were misused and huge loss of exchequer occurred. It is unbelievable that a Regular Mazdoor would compel a phone inspector to issue a jumper letter. CBI wants this Court to believe the testimony of PW24 Manohar Lal when he says that he issued the jumper letter and OB as having been compelled by Regular Mazdoor Dalip Khurana (PW27) and Vinod Kumar (A5). When we read the evidence of PW24 Manohar Lal and PW27 Dalip Khurana, they both have given self contradictory versions. The contradictions in the testimony of these two witnesses are so glaring that the same cannot be believed in any manner. The evidence which has appeared against Mukesh Bharadwaj is that a demand note was recovered from his house during search proceedings. Again in regard to this accused, the evidence on record is too weak. I consider that there is no cogent and creditworthy evidence against A4 Mukesh Bhardwaj and A5 Vinod Kumar. The prosecution has miserably failed to prove any charge against them. Hence, A4 Mukesh Bharadwaj and A5 Vinod Kumar are acquitted against all the charges.
A6 BS Ahuja.
7.11 The allegations against accused BS Ahuja is that PW20 Ved CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 57 of 71 58 Prakash who was the original allottee of telephone No. 5536326 sold his telephone to A6 BS Ahuja and on Ex.PW20/C, accused BS Ahuja had forged the signature of P. Kumar, Private Secretary, Planning Commission, Yojana Bhawan. This was an application for providing STD ISD facility on telephone No. 5536326. The handwriting expert report Ex.PW32/B specifically stated that :
I) Handwriting evidence points to the writer of specimen writings marked S93 to S107 being the person responsible for writing the questioned writings marked Q1.
Thus, the prosecution has been able to prove on record that accused BS Ahuja had made a false document.
CONCLUSION 8.0 Ld. Defence counsel would contend that since this Court is of the opinion that the quality of evidence is too deficient then it would be unsafe to convict the accused persons. It is a settled proposition that even if a major portion of evidence is found to be deficient and in case residue is sufficient to prove guilt of the accused, the duty of the Court is to separate the grain from the chaff and it would be upon the Court to convict the accused not withstanding the fact that evidence has been found to be CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 58 of 71 59 deficient to find the guilt of other accused persons. Reference can be made to Krishna Mochi Vs. State of Bihar, 2002 CriLJ 2645. It is also pertinent to mention here that falsity of particular material witness or material particular would not ruin it from the begining to end. The maxim 'falsus in uno falsus in omnibus' has no application in India and the witnesses cannot be branded as liar. All that the maxim amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves of the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called " a mandatory rule of evidence". The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead shop. (Reference can also be made to Krishna Mochi's case (supra). Ld. Defence counsel would also contend that it would be unsafe to convict the accused persons on the uncorroborated testimony of handwriting expert. This court do not agree with the submissions of Ld. Defence counsel. In Murari Lal's case (supra) it has been inter alia held as under :
"An expert is no accomplice. There is no justification for condemning his opinionevidence to the same class of evidence as that of an accomplice and insist upon corroboration."CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 59 of 71 60
8.1 Ld. Defence counsels have argued that such handwriting cannot be taken into account on account of the being hit by the judgment of Hon'ble Supreme Court in Kathi Kalu's case (supra). Recently, our own Hon'ble High court in a full bench judgment of Bhupender Singh Vs. State in Crl. Appeal No.1005/2008 decided on 30.09.2011, speaking through Hon'ble Mr. Justice Dipak Mishra, Chief Justice (as his Lordship the then was) considered the two division benches judgment of our own Hon'ble High Court, whereby the Division Benches had ignored the part of the report of the handwriting expert on the ground that the investigating officer has taken specimen handwriting in violation of the provisions of the Identification of Prisoners Act, 1920. The question referred to the full bench was that "whether the sample fingerprints given by the accused during investigation u/S.4 of the Identification of Prisoners Act 1920 without prior information of the Magistrate u/S.5 of the Act will be admissible or not". The full bench taking into account the object and other relevant provisions of the Identification of Prisoners Act as well the judgment of Hon'ble Supreme Court in State of Bombay Vs. Kathi Kalu Oghad, AIR 1961 SC 1808 and other judgments on this point, inter alia held as under :
"18. If the aforesaid decision is appositely understood, it would mean that Section 73 of the Evidence Act does n ot 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, CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 60 of 71 61 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 v. 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.P.C. 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 v. Deepak Mahajan & Anr ., AIR 1994 SC 1775 defined in Cr.P.C. 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 v. The Director of Inspection (Investigation), New Delhi, (1974) 1 SCC 345 , it has been held that evidence obtained on an illegal search cannot be excluded. In State of Karnataka v. Yarappa CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 61 of 71 62 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. v. 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) v. Navjot Sandhu , (2005) 11 SCC 600 , their Lordships opined that even if evidence is illegally obtained, it is admissible.
21. We may hasten to add that we have 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 Satyawan (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 the law in correct perspective."
For the purpose of clarity it would be advantageous to reproduce CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 62 of 71 63 the inter alia observations made in Sunil Kumar @ Sonu Vs. State of NCT of Delhi, Crl. A. No. 446 of 2005 decided on 25.03.2010, which are as under:
"26. 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 Identification of Prisoners Act. But, that, to my mind was not necessary because Section 4 of Identification 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 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 ch aracteristic 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 PW1 from Car No. DL 2C A 4116 on 21st December, 2000."CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 63 of 71 64
In view of the same, I do not find any illegality in relying upon handwriting expert report proved by the CBI. It is also worthwhile to mention here that in the cross examination of such handwriting expert, the defence has not taken any plea which could shatter the testimony of handwriting expert.
8.2 I consider that in respect of the act of the accused persons by putting false signatures on the application forms and the rent deed would certainly invite the application of Sec. 463 IPC. Sec. 463 IPC provides as under :
"463. Forgery - Whoever makes any false documents of false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person , or to support any claim or title or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
The following are the ingredients of the forgery:
(1) The document or part of the document must be false;
(2) It must have been made dishonestly or fraudulently in one of the three modes specified in Sec. 464 ; and CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 64 of 71 65 (3) It must have been made with intent;
(a) to cause damage or injury to (i) the public, or (ii) any person; or
(b) to support any claim or title; or
(c) to cause any person to part with property; or
(d) to cause any person to enter into an express or implied contract; or
(e) to commit fraud or that fraud may be committed.
Section 464 IPC defines as under:
"464. Making a false document - A person is said to make a false document or false electronic record First - Who dishonestly or fraudulently
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature."
Section 465 defines punishment for forgery:
"465. Punishment for forgery - Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 65 of 71 66
I consider that there is enough material on the record to convict A1 Farhat Abbas, A2 YP Gupta and A6 BS Ahuja for the offence u/S.465 IPC.
8.3 Before parting with I would like to mention that A1 Farhat Abbas was charged for the offence u/Ss.419/420, 420/511, 468/471 IPC and u/S.25 of Indian Telegraph Act. Similarly, accused YP Gupta have been charged u/S 468 IPC,419/420/468/471 IPC and u/S.25 of Indian Telegraph Act and accused BS Ahuja has been charged u/S 467/471 IPC. 8.4 I consider that in view of the above discussion made herein above, A1 Farhat Abbas is convicted for the offence u/S 465 IPC for making a false document. A1 Farhat Abbas is acquitted of all other remaining charges.
8.5 A2 YP Gupta is convicted for the offence u/S 465 IPC for having committed forgery and making a false document. A2 YP Gupta is acquitted of all the other remaining charges.
8.6 A3 Munish Kumar, A4 Mukesh Bhardwaj and A5 Vinod Kumar are acquitted of all the charges against them. CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 66 of 71 67 8.7 A6 BS Ahuja is convicted for the offence u/S 465 IPC for having committed forgery and making a false document. Announced in the open court (Dinesh Kumar Sharma) today on 15.12.2011 Spl. Judge(PC Act) CBI: N. Delhi CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 67 of 71 68 IN THE COURT OF SH. DINESH KUMAR SHARMA SPECIAL JUDGE (PC ACT), CBI, SAKET COURTS, NEW DELHI CC No. 20/11 Unique Case ID No. 02401R0227452001 Central Bureau of Vs. (1) Farhat Abbas, Investigation S/o Sh. SerajulHaque, R/o Vill. Kesopur, PO Bhagwanpur, PS Thawe Distt. Gopalganj, Bihar.
(2) YP Gupta, S/o Late Sh. Nathuni Gupta, R/o RZ 55A, Gali No.2, Main Sagarpur, Delhi.
(3) Bahadur Singh Ahuja, S/o Late Sh. Hardyal Singh R/o 30/8, Ashok Nagar New Delhi18.
RC No. : 87(A)/95
u/S. : 465 IPC
Judgment announced on 15.12.2011
Date of order on sentence : 22.12.2011
CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 68 of 71
69
ORDER ON SENTENCE
Present : Sh. D.K. Singh, Ld. PP for CBI
Convict A1 Farhat Abbas, A2 YP Gupta and A6 BS Ahuja are present in person Sh. R.S. Rai, Ld. Counsel for convict Farhat Abbas Sh. Surender Singh, Ld. Counsel for convict YP Gupta Sh. Rajesh Malhotra, Ld. Counsel for convict BS Ahuja Heard on the point of sentence.
1.0 Convicts have been convicted for the offence u/S.465 IPC. Section 465 IPC provides punishment for 2 years or fine or both. 2.0 Ld. Counsel for the convicts have submitted that the case is of 1995 and convicts have faced the trial for more than a decade. Accused Farhat Abbas is around 45 years of age, accused YP Gupta is of 43 years of age and accused BS Ahuja is around 57 years of age. Ld. Counsels submitted that they all are married people and running the family life. Ld. Counsels further submitted that convicts have no previous criminal antecedents and therefore, keeping in view the age of the convicts, their antecedents and circumstances of the case, benefit of probation may be extended to them. CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 69 of 71 70 2.1 Sh. D.K. Singh, Ld. PP submits that CBI leaves it to the discretion of the court as far as sentencing is concerned. 3.0 I have considered the submissions.
3.1 Chargesheet in this case was filed on 18.10.98. Convicts have already faced the trial for around 13 years. They have regularly been attending the trial. Their better part of life has already been spent in facing the trial of this case. Even there is nothing on the record to suggest that there is any previous record of criminal antecedents against the convicts.
As I have discussed above, section 465 IPC entails punishment for a period of 2 years or fine or both. The law has mandated time and again for extending the benefit of probation to the convicts. I consider that the duty of the court is that instead of sentencing the persons to custody, an opportunity should be given to them to reform themselves and become a responsible member of the society.
4.0 In the facts and circumstances, I consider that this is a fit case where convicts may be released on probation of good conduct for a period of one year. Hence, convicts Farhat Abbas, YP Gupta and Bahadur Singh Ahuja are released on probation of good conduct for a period of 01 year on CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 70 of 71 71 entering a personal bond of Rs.20,000/ each with one surety each in the like amount. Convicts are directed to keep the peace and be of good behaviour during this period and in case convicts violates any of the condition of the bond they may be called upon to receive the sentence automatically. This court has also satisfied itself that convicts have a fixed place of residence on which the court can exercise jurisdiction. 4.1 Before parting with, I consider that taking into account the entire facts and circumstances and also the fact that the CBI has also been burdened with the case for last about 13 years, convicts are directed to pay cost of the proceedings in the sum of Rs.5,000/ each, to be deposited in this court.
5.0 A copy of judgment and order on sentence be supplied to convicts free of cost.
6.0 File be consigned to Record Room.
Announced in the open court (Dinesh Kumar Sharma) today on 22.12.2011 Spl. Judge(PC Act) CBI: N. Delhi CBI Vs. Farhat Abbas & Ors. CC No. 20/11 Page 71 of 71