Delhi District Court
Cbi vs . Manish Sharma Etc. (Charge Sheet No. 1) on 19 July, 2016
Criminal Revision No.28/15
Ashok Kaushik
Versus
CBI CC no.4/1
RC No. 2172012 A0003/ACU-VI
CBI Vs. Manish Sharma etc. (charge sheet no. 1)
19.07.2016
Pre: Ld. Counsel for the revisionist.
Ms. Shampa Tikait, Spl. PP for CBI.
Due to heavy rush of work no time left.
Now, case be fixed for order on 29.07.2016.
(Raj Kapoor)
ASJ-03/PHC/NDD/19.07.2016
29.07.2016
Pre: Ld. Counsel for the revisionist.
Ms. Shampa Tikait, Spl. PP for CBI.
File perused, vide separate detailed order placed along side in
the file, the revision petition is dismissed. Accordingly, the revision
petition stands disposed of. Parties are directed to appear before ld.
Trial Court on 23.08.2016. Trial Court record, if any, be sent back with a
copy of the order. Revision petition/ proceedings be consigned to record
room.
(RAJ KAPOOR)
ADDITIONAL SESSIONS JUDGE-03
PATIALA HOUSE COURTS NEW DELHI
29.07.2016
1
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS
JUDGE - 03 : PATIALA HOUSE COURTS:
NEW DELHI
Criminal Revision No.28 /15
Ashok Kaushik
s/o Ramesh Chand Kaushik
r/o Village Memoodpur
PO Ristal PS Loni,
Distt. Ghaziabad, UP.
.......Revisionist
Versus
CBI
CC no.4/1
RC No. 2172012 A0003/ACU-VI
CBI Vs. Manish Sharma etc. (charge sheet no. 1)
........Respondent
29.07.2016
ORDER:
1. This revision petition is directed against the order dated 06.01.2015 passed by Ld. ACMM-II, PHC, New Delhi (hereafter referred as impugned order) whereby ld. Trial Court ordered to frame charge against the revisionists for the offences u/s 120-B/ 419/ 420/ 384/ 511/ 170 IPC against revisionist Ashok Raj Arora and for the offences u/s 120-B/ 419/ 420/ 384/ 511 IPC against other co-accused Ashok Kauhik in above noted case and accordingly charge was framed vide impugned order dated 06.01.2015.
2. Briefly facts of the case as per prosecution story are that revisionists along with one Parveen Kaushik (since deceased) and Manish Sharma entered into a criminal conspiracy to obtain illegal gratifications from complainant Akhilesh Chauhan. It is alleged that Akhilesh Chauhan, a Property Dealer running a company namely M/s 2 Aarvans Infrastructure Pvt. Ltd. had certain dispute with one Sh. Satish and a complaint against him was filed by Mr. Satish before the National Commission for Schedule Caste (NCSC), Delhi. In connection with the complaint Akhilesh Chauhan discussed the matter with one Neeraj Mishra who suggested to Akhilesh Chauhan that Ashok Kaushik (accused/ applicant) could help him in getting the matter settled. Akhilesh Chauhan accordingly met Ashok Kaushik who is working as Media Coordinator, All India Congress Committee who further introduced complainant Akhilesh Chauhan to one Jagjeet Singh PS to Chairman NCSC. The matter was discussed and Mr. Jagjeet told Akhilesh Chauhan that the case against him is liable to be dismissed as the allegations of Satish seemed without substance. Thereafter Ashok Kaushik requested Akhilesh Chauhan to lend him certain loan but Akhilesh Chauhan avoided the same on one pretext or the other. Ashok Kaushik in order to settle scores with Akhilesh Chauhan discussed the matter with his brother Parveen (since deceased) who in turn told him that they would see Akhilesh Chauhan with the help of CBI as he was having contacts there. Accordingly, Ashok Kaushik came in contact with Manish Sharma and gave him the details of NCSC case against Akhilesh Chauhan. Manish Sharma contacted Ashok Raj Arora (Senior Scientific Officer, CFSL) who called upon complainant Akhilesh Chauhan impersonating himself as Additional Deputy Director, CBI and threatened Akhilesh Chauhan to contact/ meet him claiming that the NCSC matter has come to him for further enquiry failing which he shall arrest him/FIR shall be registered 3 against him. On the basis of source information preliminary inquiry was registered and the mobile phones of the above persons along with one Shiv Charan (Department of Revenue, Ministry of Finance) were put under surveillance. The recorded telephonic conversations reveals the conspiracy as was hatched by Ashok Kaushik and other accused persons to extort money from Akhilesh Chauhan. During the course of investigation specimen voice samples of accused persons were obtained and they were sent to CFSL along with the recorded conversations and the report as received from CFSL has confirmed the voice of accused persons.
3. The material upon which the CBI is relying on consist of the recorded telephonic conversations along with the report of the CFSL regarding the voice samples and the voice in the recorded conversations and the identification of voice of Ashok Raj Arora by his colleagues/ friends, statement u/s 164 Cr.P.C. of complainant Akhilesh Chauhan as well statements of Ms. Nasreen Khan, Mohd. Zuber, Mohd. Mohsin Khan, Gufran Khan in particular. This is sufficient material to frame charges against the accused persons as at this stage the court is not to hold a mini trial and weigh the proposed evidence of the prosecution.
4. Ld. Trial Court after perusal of the case file and material available on record passed the impugned order dated 06.01.2015 observing that:-
"..................... ..................... .................... .................. ............... ....... ... For the purpose of criminal liability it is sufficient if the attempt had gone so far that the crime 4 would have been completed but for extraneous interventions which frustrated its consummation. (State Vs. Mohd. Yakub AIR 1980 SC 1111 and Om Parkash Tilak Chand AIR 1959 PUN 134). In Mohd. Yakub's case (supra) the Hon'ble Apex Court further held that a narrow interpretation of the word "attempt" therefore in these penal provisions which will impair their efficacy as instrument for combating this baneful activity has to be eschewed.
"Where a person does an act, the natural consequence of which is criminal, but such
consequence is prevented by extraneous causes, he is nevertheless to be taken to have intended that the natural consequence of his act should result, that is to say, he is to be considered as having intended to commit the crime which would have resulted had he had been prevented from completing his act"
In the case at hand in view of the transcripts of the recorded conversations especially of 24.02.2011 between Manish Arora and Ashok Raj Arora wherein they are talking about the SC/ST case and that the said person has a capacity to pay 5 to 10 paise coupled with other transcripts dated 28.02.2012, 05.03.2012 etc. prima facie establishes a conspiracy to cheat/ extort money from the complainant. In furtherance of the conspiracy calls were made to Akhilesh Chauhan (complainant) regarding use of unlawful means by him to settle the SC/ST case and that complaint qua the same is pending with him and that unless he meets him (Ashok Raj Arora) a case will be registered against the complainant. More calls were made but, Akihlesh Chauhan (complainant) who by then had gathered knowledge/ information that the caller was a dubious person, stopped entertaining the calls. Hence prima facie accused Ashok Raj Arora had made all possible attempts within his means to cheat/extort money from Akhilesh Chauhan in furtherance of the conspiracy hatched by him with the other accused persons and it was only due to extraneous reasons that his attempt could not succeed. But for this purpose/intention i.e. to cheat/extort money where was the occasion/reason for Ashok Raj Arora to call the complainant. As far as the demand of money/delivery of any property is concerned that stage of conspiracy hatched by the accused persons could not be reached as the complainant realized the truth that the caller was a dubious person. Nonetheless they had taken all possible steps in that direction which prima facie was the object/purpose of their conspiracy as is evident from the transcripts of the recorded conversations highlighted in the charge sheet. As far as the submissions regarding non filing of certificate u/s 65 B of the Evidence Act regarding the voice samples that issue need not be dwelled upon this stage. It is a matter of trial and may be considered at the conclusion of trial. Moreover the CBI is relying not only on the CFSL report regarding the voice samples but also on the testimony of 5 colleagues of Ashok Raj Arora who are conversant with his voice.
Regarding section 170 IPC it is not disputed that Ashok Raj Arora was not holding the post of Additional Deputy Director, CBI. He was merely a Senior Scientific Officer, CFSL. This is sufficient for the purpose for section 170 IPC. As far as two charge sheets are concerned, section 219 and 220 Cr.P.C. takes care of the same and find no illegality or much least any irregularity. Furthermore the cases are segregated for the purpose of trial.
Accordingly, charges have been framed separately against the accused persons to which they have pleaded not guilty and claimed trial. "
Feeling aggrieved with the impugned order dt. 06.01.2015 and charge ld. counsel for the revisionist filed this revision petition.
5. Arguments were heard. During the course of arguments Ld. Counsel for the revisionist Ashok Kaushik submitted that as per the alleged story of prosecution, it is admitted fact by the prosecution that the alleged telephone is note belongs to the revisionist/ Petitioner from which the alleged communications had been communicated and the voice of the revisionist/Petitioner is totally different from the actual caller and the authenticity of the agency from where the spectrograph test was conducted is also doubtful. Ld. Counsel for the revisionist submitted that no one had identified the voice of the revisionist. It is also submitted that there is no provision in the Code of Criminal Procedure that two charge sheets could be filed simultaneously in one FIR and section 219/ 200 of Cr.P.C. talks about only the provisions of supplementary charge sheets, therefore, the investigation carried out by the Respondent is illegal and void-ab-initio as there is no provision in the law. The Ld. Trial Court had failed to appreciate the contentions of the 6 revisionist and outrightly on the basis of assumption framed the charge against the accused persons vide order dated 06.01.2015. As per the statement of Complainant Sh. Akhilesh Chauhan, the revisionist had requested the Complainant that he requires a loan of Rs.5 lacs for the purpose of marriage of his sister and as a security, he will mortgage his property to the Complainant but the Complainant refused to do so, hence, it is clear that the revisionist /Petitioner has not committed any offence as alleged under section 384/420/511 of IPC and the said sections are not attracted to the present case. The present charge sheet had been filed by the Respondent only for the offence of attempt i.e. section 511 IPC but it is clear case of discharge as mentioned above that there is no attempt of cheating or extortion of money by the revisionist through it was the only bonafide need and requirement of the revisionist i.e. the marriage of his sister.
6. Ld. counsel for the revisionist again submitted that there is no recovery of any and from the revisionist in the alleged investigation by the Respondent. Till date alleged telephone has not been seized by the Respondent. The statements of the Respondent are ambiguous as in the charge sheet itself, the Respondent has alleged in para No.17.3 that "Investigation has been established that Sh. Ashok Kaushik requested Sh. Akhilesh Chauhan to lend him a loan of Rs.10 lacs against mortgaging a plot. Sh. Akhilesh Chauhan proposed that he could lend him a loan of Rs.5 lacs for a period of six months without mortgaging the plot. However, no money was given to Sh. Ashok Kaushik". In the statement of the Complainant it has been alleged that "I received a call from Sh. Ashok Kaushik, who told me that marriage of his sister has 7 been fixed for 29.02.2012 for which he is in need of some money. He requested me to lend him a sum of Rs.5 lacs. He also proposed to mortgage some land against the said loan". Hence, it is clear that the prosecution has utterly failed to put their case before this Hon'ble Court and has malafidely and intentionally implicated the revisionist/Petitioner in the present case. The statement recorded the prosecution is contradictory to the finding of the prosecution but it is crystal clear from both the statements that the revisionist had not tried to threaten, cheat and extort the Complainant and has not breached any trust of the Complainant.
7. Ld. counsel for the revisionist again submitted that Ld. Trial Court has failed to appreciate that there is no prima facie offence has been committed and Ld. Trial Court before framing the charge must have to consider the broad probability of the case as well as the total effect of the evidence and the documents produced before the court and must have to see the evidence on record before framing of charge. The revisionist replied upon the judgment passed by our own Apex Court reported as AIR 1979 (SC) 366 titled as Union of India Vs. Prafulla Kumar & Another wherein it has been held that :-
"The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise suspicion against the accused, he will be fully within his right to discharge the accused.
In exercising his jurisdiction under section 227 the judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of 8 the matter and weigh the evidence as if he was conducted a trial".
8. The revisionist replied upon the judgment passed by our own Apex Court reported as AIR 1982 (SC) 1043 titled as Mahabir Prasad Verma Vs. Dr. Surinder Kaur wherein it has been held that:-
"Tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape-recorded conversation is indeed no proper evidence and cannot be relied upon".
9. The revisionist replied upon the judgment passed by Hon'ble High Court of Delhi in the matter titled as Sanjeev Saxena Vs. State (NCT of Delhi) wherein the Hon'ble Court has held that:-
".....at the time of framing of the charge the probative value of material on record cannot be gone into and the material brought on record by the prosecution has to be accepted as true at that stage, however, the court must before framing a charge, apply the judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. The court cannot act merely as a post office or mouthpiece of prosecution, but has to consider the board probabilities of the case, the total effect of the evidence and the documents produced before the court. Undoubtedly, the court is not expected to make a roving and fishing inquiry into the weigh the evidence as if he was conducting a trial. However, the court does possess the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out."
On these grounds ld. Counsel for the revisionist submitted that impugned order be set aside.
10.Contrary to it, Ld. PP for CBI submitted that in the connected CC No. 3/1 revision petition filed by Co-accused Shiv Charan against the charge has already been dismissed vide order dated 10.05.2016 by the Hon'ble High Court. Ld. PP for CBI has also filed a copy of the notification vide which the Department of Personnel of CBI has been shown under the 9 Ministry of Home Affairs. On this ground ld. APP submitted that revision petition is liable to be dismissed.
11.I have given careful consideration to the submissions of ld. counsel for the revisionist and ld. Counsel for CBI as well. It is well settled proposition of law that to arrive at a prima facie view for the purpose of framing of charge is exclusive domain of ld. Trial Court yet this court has limited jurisdiction to enter into the discretionary area of ld. Trial court on the grounds of propriety and correctness. In the present case, since name of the revisionist has come on record in the statement recorded u/s 164 Cr. PC and voice has also been alleged found 'probable' in the CFSL report. I have also perused the Hon'ble High Court order dated 10.05.2016, vide which the revision petition of co- accused Shiv Charan was dismissed observing that:-
".....................In view of the given facts and circumstances, I do not find any illegality or ambiguity in the order dated 06.01.2015 passed by the Trial Court and the order dated 08.04.2015 passed by the Revisional Court upholding the order of the Trial Court so as to call for interference by this court......."
1. Further, perusal of the case file reveals that there are two charge sheets i.e. charge sheet no.1 and charge sheet no.2 in one case RC No. 2172012 A0003/ACU-VI have been filed for the offences u/s 120-B/ 419/ 420/ 384/ 511/ 170 IPC against revisionist Ashok Raj Arora and for the offences u/s 120-B/ 419/ 420/ 384/ 511 IPC against other co- accused Ashok Kaushik in charge sheet no.1 and for the offences u/s u/s 419/ 420/ 384/ 468/ 170/ 120-B IPC in charge sheet no.2. Separate two charges have been framed against each charge sheet in one case. 10 To my view charge could have been framed head-wise but the framing of separate of charge against each charge challan do not impact the element of illegality but irregularity. In light of these facts and circumstances, I do not find any merit in the contentions of ld. Counsel for the revisionist to set aside the impugned order dated 06.01.2015. Besides, Hon'ble High Court has already dismissed the revision petition of co-accused Shiv Charan, which was filed against impugned order dated 06.01.2015, vide Hon'ble High Court order dated 10.05.2016. Thus, revision petition is dismissed. Accordingly, the revision petition stands disposed of. Parties are directed to appear before ld. Trial Court on 23.08.2016. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 29.07.2016 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI 11