Delhi High Court
Chandraswami And K.N. Aggarwal vs Central Bureau Of Investigation ... on 23 December, 1999
Equivalent citations: 2000IIAD(DELHI)473, 84(2000)DLT389, 2000(53)DRJ824
ORDER Anil Dev Singh, J.
1. This order will dispose of three Criminal Revision Petitions being Criminal Revision No. 283/97, Criminal Revision No. 385/97 and Criminal Revision No. 341/97.
2. Criminal Revision No. 283/97 has been filed by Shri Chandraswami @ Nemi Chand Jain and Shri K.N. Aggarwal @ Mamaji and is directed against the order dated June 4, 1997 passed by the learned Special Judge, C.B.I., Delhi, whereby he has come to the conclusion that a prima facie case justifying framing of charges under section 120-B read with Sections 195, 469 and 471 of the Indian Penal Code is disclosed against both the petitioners and has consequently framed charges against them. Criminal Revision No. 385/97 has been filed by the Central Bureau of Investigation and is directed against that part of the above said order of the learned Special Judge whereby he has discharged respondents Shri K.K. Tewari and Shri P.V. Narsimha Rao on the ground that no case for framing of charge against them has been made out as the evidence collected by the investigating agency is insufficient. Criminal Revision No. 341/97 has also been filed by the People's Union for Civil Liberties (Delhi) (for short 'PUCL') against the discharge of Shri K.K.Tewari and Shri P.V. Narsimha Rao by the Special Judge, C.B.I.
3. The prosecution case is that during the period 1988 to October 1989 S/Shri Chandraswami @ Nemi Chand Jain, Kailash Nath Aggarwal @ Mamaji, P.V. Narsimha Rao, K.K. Tewari, A.P. Nanday and George D. McLean and other public servants/private persons entered into a criminal conspiracy for committing illegal acts of forgery and creating false evidence of the opening of an account by Shri Ajeya Singh with the First Trust Corporation Limited (FTCL) at St. Kitts, Carabian Island, showing Shri Vishwanath Pratap Singh as a beneficiary thereof, with a view to harming the reputa-
tion of and causing injury to Shri Vishwanath Pratap Singh and his son Shri Ajeya Singh and exposing them to hazard of criminal prosecution. As per the allegation of the investigating agency, the following steps seems to have been taken by the conspirators in a systematic manner.
First step- Procuring old passport papers of Shri Ajeya Singh and Shri Abhay Singh for copying their signatures for the purpose of forging documents:
4. Towards the end of November or beginning of December 1988, Shri K.K.Tewari, who was at that time Minister of State for External Affairs, asked Shri Shashank, Joint Secretary, Consular, Passports and Visas (for short 'CPV') Ministry of External Affairs, Government of India, to collect passport particulars of son or sons of Shri Vishwanath Pratap Singh (leader of the opposition at that time), who had remained as the Finance Minister, Government of India, from December 31, 1984 to January 24, 1987 and the defense Minister from January 25, 1987 to April 12, 1987 in the Ministry headed by Shri Rajiv Gandhi. Shri Tewari instructed the Joint Secretary CPV to issue instructions over telephone to the concerned for securing the passport particulars of the aforesaid persons. He also indicated to the Joint Secretary CPV that the requisite information should be available from New Delhi. U.S.A. and U.K. He desired the Joint Secretary CPV to do this work personally without putting anything in writing with regard thereto. On receiving the instructions from Shri K.K Tewari, the Joint Secretary CPV telephoned Shri B.K. Gupta, Regional Passport Officer, Delhi, Shri K. Ramaswamy, Passport Officer, Lucknow, Shri R.P. Joshi, Minister Coordination, High Commission of India of London, and Shri S.L. Misra, Minister (Consular Affairs), Embassy of India, Washington, for securing the passport particulars of the sons of Shri Vishwanath Pratap Singh, namely, Shri Ajeya Singh and Shri Abhay Singh. On December 5, 1988, the Passport Officer, Lucknow, sent file No. F.11/7253 relating to the passport of Shri Abhay Singh son of Shri Vishwanath Pratap Singh, to the Joint Secretary, CPV. On seeing the communication of the Passport Officer, Lucknow, on December 23, 1988 Shri K.K. Tewari directed the Joint Secretary CPV to retain the file. Insofar as the response of the Regional Passport Officer, Delhi, is concerned he gave negative report about the passport particulars of Shri Ajeya Singh and Shri Abhay Singh to the Joint Secretary CPV.
5. In the, meantime, on December 21, 1988 a significant development took place. Shri Abhay Singh applied for passport services inasmuch as he wanted addition of two visa sheets to his passport and change of his status from "students" to "medical doctor". The Passport Officer, Delhi, brought this development to the notice of the Joint Secretary CPV. On December 23,1988 the Joint Secretary CPV attached a small slip of paper of the passport papers of Shri Abhay Singh which reads as follows:
"PPT attached. May pend till clearance is received from MOS(K)'s office. I have briefed MOS(K)."
6. It will be necessary to again revert to December 21, 1988 as another event, which requires mentioning, took place. Shri R.P. Joshi, Minister Coordination, High Commission of India at London, on that date informed the Joint Secretary CPV on telephone that the old passport particulars and papers of Shri Ajeya Singh were available in the High Commission. The information received from the Indian High Commission, London, pertaining to the availability of old passport particulars and papers of Shri Ajeya Singh and the one received from the Regional Passport Officer, New Delhi, regarding the aforesaid application of Shri Abhay Singh was reported to Shri K.K. Tewari by Shri Shashank. As regards the application of Shri Abhay Singh, Shashank was told by the Shri Tewari not to service the passport till he gave the clearance. In so far as the passport particulars of Shri Ajeya Singh were concerned he instructed the Joint Secretary CPV to obtain the copies of all available papers in respect of Shri Ajeya Singh from India High Commission at London. Pursuant to the instructions of Shri K.K. Tewari, Shri Shashank, Joint Secretary CPV, asked Shri R.P. Joshi, Minister Coordination, High Commission of India at London for making available the following papers :-
"(1) Photocopy of papers contained in file No. C4027/524/77.
(2) Photocopy of page 201 of the Passport Register relating to the year 1977. (Item 3656 on this shows that the validity of the passport was extended upto 7.10.77).
(3) Photocopy of page 179 of the Passport Register of the year 1978. (Item 567 on this shows that the validity of the passport was further extended to a full validity upto 7.7.1981)."
7. Thereupon Shri R.P. Joshi despatched the aforesaid passport papers of Ajeya Singh from the High Commission of India at London and the same were received in the office of the Joint Secretary CPV on January 3, 1989. These papers were shown to the Joint Secretary CPV who while making the papers to the Director (PV) made the following endorsement on January 9, 1989 :-
"Pl. retain for time being. 9.1.89 Sd/- Shashank Director (PV)."
On January 17, 1989 the Director (PV) Shri O.P. Gupta marked the letters received from Shri R.P. Joshi from London and Shri K. Ramaswamy, Passport Officer, Lucknow, along with their enclosures to the Joint Secretary (PV). In regard to the communication of Passport Officer, Lucknow, the Joint Secretary noted as under :-
"Pl. retain a photocopy of the application of this letter in our record. The file may then be returned to RPO, Lucknow."
8. Besides, with regard to the letter of Shri R.P. Joshi concerning passport papers of Shri Ajeya Singh, the Joint Secretary CPV recorded a unsigned note dated January 17, 1989 which was marked to the Secretary (E&ER) Shri P.L. Sinai. This note was left with the Secretary of Shri K.K.Tewari for showing the same to him for instructions. On April 15, 1989 the unsigned note along with passport 'papers of Shri Ajeya Singh were sent to the Joint Secretary CPV by Shri I.P. Khosla, who had by then taken over from Shri P.L. Sinai, with the following endorsement :-
"Spoken to the Secretary (E). For the time being these papers may be retained in the personal capacity of JS (CPV)."
9. Thereafter the Joint Secretary CPV recorded the following observations on April 18, 1989 :
"Other papers are retained in PV-I section under Secy. (E)'s earlier orders. These papers may also be carefully retained there."
It also needs to the noted that the old passport of Shri Vishwanath Pratap Singh was with the Ministry of External Affairs as he was issued a diplomatic passport in lieu thereof.
10. According to the prosecution, passport papers of the sons of Shri Vishwanath Pratap Singh were called and retained in the Ministry of External Affairs for considerable time at the direction of Shri K.K. Tewari with a view to get hold of the genuine and real signatures in order to simulate them for forging documents for purposes of creating false evidence relating to opening of an account by Shri Ajeya Singh at F.T.C.L., St. Kitts.
Second step - Fabrication of documents for the purposes of showing that Shri Ajeya Singh opened an account at F.T.C.L. with Shri Vishwanath Pratap Singh as the beneficiary by imitating their signatures thereon:
11. The prosecution story is that old passport papers were collected by the conspirators with a view to copying the signatures of Shri Ajeya Singh and Shri Vishwanath Pratap Singh for forging their signatures for creating photo copies of 'Safekeeping Agreement - Long Form' and 'Numbered Account Agreement' and some other papers to show that on September 16, 1986 an account, being Account No. 29479, was opened by Shri Ajeya Singh with Shri Vishwanath Pratap Singh as the beneficiary in the First Trust Corporation Ltd. (FTCL), a banking company operating in St. Kitts, having been incorporated on November 25, 1985 and having started its business on December 12, 1985, Six deposits totalling US dollars 21 million were shown to have been made in the aforesaid account from September 16, 1986 to March 26,1987. Even interest was shown to have been added in this account from time to time and various withdrawals therefrom were also reflected. The last such withdrawal amounting to US dollars 2,003,945.24 was shown to have taken place on February 13, 1988 when the balance in this account became nil and the account automatically stood closed. During this time, Mr. George D. McLean was the Executive Director of the F.T.C.L. and the bank was being managed by him. As per the prosecution, no deposits were made by Ajeya Singh nor any account was actually opened by him with the FTCL.
Third step - Deliberate leaking of the information to a newspaper called Arab Times for the purposes of sullying the image of Shri Vishwanath Pratap Singh:-
12. In late 1988 Shri H.C. Nahata, who was known to Shri Chandraswami, visited the later at his New Delhi Ashram and heard him talking over the phone with Satish Sharma. From one sided conversation he understood that something was cooking up against Shri Vishwanath Pratap Singh at St. Kitts. Thereafter, in mid 1989 Shri Chandraswami called Shri Arif Mohd. Khan at his residence and showed him a document regarding existence of a bank account of Shri Ajeya Singh in FTCL. He also showed him signatures on the document and told him that they were of Shri V.P. Singh as beneficiary of the said account. About the same time, Shri Chandraswami told Shri Raj Babbar, a film actor turned politician, that Shri V.P. Singh will be exposed shortly and the mask of his honesty would be taken off. In August 1989 Shri Chandraswami and Shri K.N. Aggarwal were staying at Olympic Tower Apartment, New York, as guests of Shri Adnan Khashoggi, an arms dealer, where they met Larry J. Kolb, son-in-law of their host. Through Larry J. Kolb a news item was engineered and published in 'Arab Times', Kuwait, dated August 20, 1989 to the effect that Shri V.P. Singh, Janta Dal Leader, deposited millions of US dollars at St. Kitts in a secret bank account number 29479 in the name of his son Shri Ajeya Singh during his tenure as Finance Minister in Rajiv Gandhi's government. The moment this news item was flashed it was picked up by the newspapers in India and the story was repeated on August 22, 1989 in the Indian Express, Hindustan Times, and Statesman. On August 24, 1989, the Telegraph, Calcutta, published a statement of deposits and withdrawals made in the said account. However, on August 25, 1989 the Indian Express published a report which was attributed to Mr. Lynn Hudson belonging to a news magazine, namely, 'India Abroad'. According to 'India Abroad' no such account was opened as per the version of Mr. T.V. Byron, Director and Solicitor of the FTCL, with whom Mr. Lynn Hudson allegedly talked over telephone. On August 26, 1989 'The Telegraph' and 'The Hindustan Times' published a copy of alleged 'Numbered Account Agreement' describing Shri Ajeya Singh as the account holder and Shri V.P. Singh as the beneficiary.
13. As a consequence of the newspaper reports, the reputation of Shri Vishwanath Pratap Singh was adversely affected at a time when the general elections were likely to be held in November 1989 and he was emerging as a strong opposition leader. Both Shri Vishwanath Pratap Singh and Ajeya Singh denied the existence of any account to St. Kitts.
Fourth step - Initiation of proceedings against Shri Ajeya Singh under FERA and enquiry :-
14. After the newspapers reports, the Enforcement Directorate swung into action and issued a directive under section 33(2) of FERA to Shri Ajeya Singh on September 13, 1989 for furnishing information with reference to the aforesaid account, etc. On September 15, 1989, the Enforcement Directorate issued a reminder to Shri Ajeya Singh for the said purpose. Shri Ajeya Singh was required to furnish the information by September 18, 1989. Pursuant to the directive Shri Ajeya Singh submitted a reply denying maintenance of any such account. He also submitted a photo copy of his passport issued to him on June 3, 1989 to show that he had not visited St. Kitts at all. Not satisfied, the Enforcement Directorate sought further information from Shri Ajeya Singh with regard to the bank accounts by its letter dated September 28, 1989.
15. In response to the notice, Shri Ajeya Singh submitted a further reply on October 8, 1989. Despite the reply, the Enforcement Directorate issued a further directive to him under section 33(2) of the FERA on October 16, 1989 requiring him to furnish complete information within seven days. Complying with the directive he sent his reply on October 23, 1989, but thereafter no further reply was sought by the Enforcement Directorate and the matter remained under its consideration.
16. Meanwhile, on September 26, 1989 Shri Nanday, Deputy Director Enforcement, was deputed to make enquiry and for this purpose he was asked to visit USA and St. Kitts even though Shri Nanday was not dealing with the matter and earlier Shri S.P.S. Pundir and Shri S.S. Raghvan, Special Directors in the Enforcement Directorate, New Delhi, were allegedly asked to visit U.S.A. and St. Kitts, and for this purpose their passports were also got prepared. Nanday was personally briefed about the assignment by Shri K.L. Verma, Director of Enforcement. He was also asked to meet Shri R.K.Dhawan, the then Officer on Special Duty in Prime Minister's Office. Pursuant to the direction Shri Nanday is said to have met Shri R.K. Dhawan at his residence. Mr. R.K. Dhawan is reported to have told Shri Nanday that he should go to St. Kitts and perform his duty assigned to him. He further told him that all arrangements in this regard had been made.
Fifth step - Arrangements for Shri Nanday's stay at USA and visit to St. Kitts and back to USA made and handled by Shri Chandraswami :-
17. On September 30, 1989, Shri Nanday left New Delhi for U.S.A. It is significant that before his departure, Shri Chandraswami and Shri K.N. Aggarwal had already left for New York, USA, on September 22, 1989. Shri Nanday reached Miami, U.S.A., where he was received at the airport by one Devketu, a disciple of Shri Chandraswami. He was lodged in Miami Airport Marriott Hotel by Shri Devketu. On October 1, 1989, Shri Chandraswami and Shri K.N. Aggarwal also arrived at Miami from New York by a private plane. They also stayed in Miami Airport Marriott Hotel where rooms had been booked by Shri Devketu. It was at this place that Shri Nanday met Shri Chandraswami and Shri K.N. Aggarwal on October 1, 1989. The arrangement for the departure of Shri Nanday to St. Kitts was made by Shri Chandraswami through Mr. Larry J. Kolb. Larry J. Kolb chartered a plane for this purpose. On October 2, 1989, Shri Nanday along with Shri K.N. Aggarwal, Shri Devketu and Mr. Larry J. Kolb flew to St. Kitts in the chartered plane. At St. Kitts, Shri Nanday was able to collect only two letters, one from Mr. T.V. Byron, the nominee director and solicitor of F.T.C.L., and the other from Ms. N. Salvesan, the then Secretary/Executive Assistant to Mr. George D. Mclean. It is pertinent to mention that the bank had closed its business in the year 1988 and the aforesaid Mr. Mclean, Executive Director of F.T.C.L., had left St. Kitts in that year itself. Obviously, he was not available in St. Kitts at the time of the visit of Nanday. No bank documents except the aforesaid two letters were collected by Mr. Nanday. On receiving the aforesaid letters, Shri Nanday along with other members of the party returned to Miami on the evening of October 2, 1989, Next day, viz., October 3, 1989, Shri Nanday along with Shri Devketu left New York for Stanford Connecticut where they stayed at Stanford Motor Inn. On October 3, 1989, Shri Chandraswami and Shri K.N. Aggarwal went bank to New York and stayed at the apartment of Adan Khshogi at Olympic Tower.
Sixth step - Collection of fabricated material by Shri Nanday from Mr. McLean and its consular attestation :-
18. Despite the fact that Shri Nanday had not collected any bank documents from St. Kitts except the aforesaid two letters, Shri Chandraswami on October 3, 1989 rang up Shri P.V. Narsimha Rao and told him that certain documents as collected by Shri Nanday required attestation from the Consulate General of India. On the morning of October 4, 1989 Shri Narsimha Rao summoned Shri R.K. Rai, Consul General of India at New York, to his hotel room and asked him to personally attest the documents brought by Shri Nanday. He instructed Shri R.K. Rai not to disclose this to the Indian Ambassador to the United States, Dr. Karan Singh. On October 4, 1989 Shri Narsimha Rao enquired from Shri Prakash Shah, the then Additional Secretary, Ministry of External Affairs, who also happened to be at New York, as to the particulars of the Indian Mission which was accredited to St. Kitts. Shri Shah informed Shri Narsimha Rao that the mission at St. Kitts was under the jurisdiction of the High Commissioner of India at Port of Spain. Trinidad, Shri Shah was then directed to tell Shri Shiv Kumar, the High Commissioner at Port of Spain, that certain documents would be transmitted by the Indian Consulate Office, New York, to the Indian High Commission at Trinidad, requiring urgent action.
19. On October 4, 1989, Mr. George D. Mclean, who was residing in Canada, handed over the following documents to Shri Nanday at New York :-
1. Photo copy of the numbered account agreement bearing No. 29479 in the name of Shri Ajeya Singh with Shri Vishwanath Pratap Singh as the beneficiary.
2. Photo copy of the safe keeping agreement in the name of Shri Ajeya Singh with Shri Vishwanath Pratap Singh as the beneficiary with a FAX marking showing that the same was faxed from Bank of S. Palam Beach on December 8, 1988.
3. Photo copies of deposits and withdrawal forms.
4. Statement of account No. 29479 in original along with photo copies thereof showing account to have been closed on February 13, 1988 as the entire amount was allegedly withdrawn therefrom.
20. These documents which were allegedly signed by Mr. George D. Mclean were produced by Shri Nanday, before Shri R.K. Rai, the then Consul General of India at New York. As per the instructions of Shri Narsimha Rao the same were attested by Shri R.K. Rai.
21. On October 5, 1989, Mr. George D. Mclean handed over his typed statement to Mr. Nanday. He also handed over photo copies of passport sheets of Shri Ajeya Singh and Shri Vishwanath Pratap Singh. The aforesaid documents were signed by Mr. George D. Mclean. They were produced by Shri Nanday on October 5, 1989 before Shri Deepak Sengupta, the then Deputy Consular General of India, New York. The signatures of Mr. George D. Mclean on these documents were attested by Shri Deepak Sengupta. The passport papers were meant to establish the identity of the account holder and the beneficiary, but it was found during investigation that the signatures of Shri Vishwanath Pratap Singh on the numbered account agreement and safe keeping agreement were in Hindi and his signature on the passport was in English. This being so, the comparison of the signatures on the agreements and the passport for the purposes of fixing the identify of the beneficiary was not possible. It was also found that the comparison between the signatures of Shri Ajeya Singh on the said agreements and on his passport was again not possible due to the fact that the signature on the passport differed from the signatures on the agreements. During investigation it became manifest that the zeroxed sheets of the passport papers of Shri Vishwanath Pratap Singh were the ones which were in the custody of the Ministry of External Affairs since 1983.
22. On October 6, 1989, Shri Nanday again visited the Consul General of India at New York with the statement of Mr. Tonks, an erstwhile director of F.T.C.L. The said statement was authenticated by Shri Sengupta, Deputy Consul General.
23. On October 6, 1989 itself, Shri K.N. Aggarwal called up Shri Shiv Kumar, the then High Commissioner of India, Port of Spain, on telephone and introduced himself as family friend of Shri Narsimha Rao. He was urged by Shri Aggarwal to proceed to St. Kitts for requesting the Prime Minister of that country to institute investigation in the matter. On October 12, 1989, Shri K.N. Aggarwal again called up the High Commission of India, Port of Spain, and talked to Shri S.C. Gupta, Second Secretary. He opened the conversation by saying that he was ringing from the room of the External Affairs Minister from Delhi. He dictated him a letter to be sent to the Prime Minister of St. Kitts immediately in connection with the aforesaid matter.
Seventh Phase- Return of Shri Nanday to Delhi and placing of documents before the Parliament:-
24. On October 7, 1989, Shri A.P. Nanday returned to Delhi and submitted a report on October 9, 1989 to the Enforcement Directorate with regard to his visit to the U.S.A. and St. Kitts. On the basis of the documents brought by Shri Nanday, Shri Eduardo Faleiro, the then Minister of State for Finance, made a statement in the Rajya Sabha on October 11, 1989 to the effect that Shri Ajeya Singh had a numbered account at First Trust Corporation Limited, St. Kitts. Similar statement was made before the Lok Sabha on October 13, 1989.
25. According to the prosecution, the aforesaid statement of account and photo copies of the numbered account agreement, safe keeping agreement and pay-in and withdrawal slips, which were got attested from the Consular General of India at New York, are forged documents, and the conspiracy lies not only in manufacturing them but also having them publicised for exposing Shri Ajeya Singh to prosecution under FERA and for damaging the reputation of Shri Vishwanath Pratap Singh.
26. On September 26, 1996, Charge-sheet was filed basically against four persons, namely, Shri Chandraswami, Shri K.N. Aggarwal, Shri P.V. Narsimha Rao and Shri K.K. Tewari under Section 120B I.P.C. read with Sections 195, 469 and 471 IPC, though FIR dated May 25, 1990 had been egistered against six persons, namely, Shri K.L. Verma, Director, Directorate of Enforcement, New Delhi, Shri A.P. Nanday, Deputy Director, Directorate of Enforcement (since dead), Shri Chandraswami, Shri K.N. Aggarwal, Mr. Larry J. Kolb and Mr. George D. Mclean, Managing Director, FTCL, a resident of Canada (since dead). In the charge-sheet besides the names of the aforesaid four persons which were listed in column 1 thereof, the names of Shri K.L. Verma, the then Director, Directorate of Enforcement, Govt. of India, Mr. Larry Kolb, a US National, Shri A.P. Nanday, the then Deputy Director, Directorate of Enforcement (since dead) and Mr. George D. McLean, a Canadian National (since dead) were placed in column 2. The trial Court by its order dated June 4, 1997 came to the conclusion that the evidence collected by the investigating agency raises only a slight suspicion regarding the role of Shri K.K. Tewari and Shri P.V. Narsimha Rao in the alleged episode and the suspicion was not strong enough to justify framing of charges against them. It also found that the circumstantial evidence collected by the prosecution against them was not sufficient to sustain the charge and there was no likelihood of their conviction. Accordingly, they were discharged. As regards the accused Shri Chandraswami and Shri K.N. Aggarwal are concerned, the trial court came to the conclusion that a prima facie case to justify framing of charges under sections 120B read with Sections 195, 469 and 471 I.P.C. was disclosed against them. Accordingly, the trial court framed the charges against them.
27. As against the order of the trial court dated June 4, 1997 the subject revision petitions were filed. They are :-
1. Criminal Revision No. 283/97 filed by Shri Chandraswami and Shri K.N. Aggarwal against the framing of charges against them.
2. Criminal Revision No. 385/97 filed by the State (CBI) challenging the discharge of Shri K.K. Tewari and Shri P.V. Narsimha Rao.
3. Criminal Revision No. 341/97 by the People's Union of Civil Liberties challenging the discharge of Shri K.K. Tewari and Shri P.V. Narsimha Rao.
28. In Criminal Revision No. 385/97, pursuant to the application of the C.B.I. being Crl. Misc. No. 4983/97 the proceedings before the trial court were stayed on October 15, 1997.
29. The crux of the prosecution case is that a conspiracy was hatched to forge and publish documents to show that Shri Ajeya Singh had opened an account bearing No. 29479 in the FTCL located at St. Kitts, a Caribbean Island in which a sum of US dollars 21 million was deposited during the period September 16, 1986 and March 26, 1987 and the beneficiary of this account was Shri Vishwanath Pratap Singh. This was done to besmirch the reputation of Shri Vishwanath Pratap Singh who was emerging as a strong opposition contender for the post of Prime Minister in the elections and to expose both Shri Ajeya Singh and Shri Vishwanath Pratap Singh to criminal prosecution under various penal statutes.
30. The first question to be considered is whether Shri Ajeya Singh had opened any account in the F.T.C.L. at St. Kitts. The trial court came to the conclusion that the material collected by the investigating agency prima facie shows that there is a strong possibility that no such account was opened by Shri Ajeya Singh in the F.T.C.L. at St. Kitts. This opinion has been assailed by the learned counsel for the revisionists in Criminal Revision No. 283/97 and respondents in Criminal Revision No. 385/97, but I do not find any force in the challenge. Copies of safe keeping agreement and the numbered account agreement in the name of Shri Ajeya Singh with Shri Vishwanath Pratap Singh as beneficiary which were handed over by George D. McLean to Shri A.P. Nanday on October 4, 1989 and produced before PW-15 Shri Rajinder Kumar Rai, the then Consul General of India at New York, for consular attestation, were examined by the Central Forensic Science Laboratory, Central Bureau of Investigation, New Delhi. The report of Shri T.R. Nehra, Senior Scientific Officer, dated April 18, 1996 suggests that the zeroxed copied signatures' appearing on the zeroxed copies of the safe keeping agreement long form and numbered account agreement are forged signatures and not that of Shri Ajeya Singh and Shri Vishwanath Pratap Singh.
31. The accounts of F.T.C.L. were audited by Simonds and Associates, Chartered Accountants, for the period ending December 1986. However, despite the fact that substantial part of the money was alleged to have been deposited during the year 1986 itself in the account, the report of the firm of Chartered Accountants does not reflect this position. Surely, in case of deposit of such a huge amount in the F.T.C.L. the Chartered Accountants would have discovered the same and would have pointed out in the audit report/financial statements.
32. Statement of Mr. T.V. Byron, one of the Directors of the F.T.C.L. and a practicing solicitor, was recorded during the investigation on February 19, 1991 pursuant to the letter rogatory issued by the Chief Metropolitan Magistrate, Delhi, dated October 6, 1990. From a reading of the statement of Mr. Byron it appears that he was of the view that there was no account of Shri Ajeya Singh with the F.T.C.L. Mr. Byron for holding this view drew support from the audit report which did not reflect the deposit of such a huge amount and he noted that George D McLean was not present in St. Kitts on some of the dates when the account was operated. He also pointed out that on some of the dates when the account is said to have been operated were holidays, i.e., January 1, 1987, January 18, 1987, February 8, 1987, January 1, 1988, January 17, 1988 and February 4, 1988. The statement, to the extent it is relevant to the above aspect of the matter, is as follows :-
"I UNDERSTAND THAT MR. G.D. McLEAN SAYS HE USED TO HANDLE ACCOUNTS INDEPENDENTLY-I DO NOT HAVE KNOWLEDGE OF SUCH ACCOUNTS, THOUGH I DO BELIEVE THAT SOME INDIANS MAY HAVE HAD ACCOUNTS AT F.T.C.L. UNDER A SPECIAL INVESTMENT PROGRAMME FOR INDIANS. I DO NOT UNDERSTAND HOW MR. AJAY SINGH'S ALLEGED ACCOUNT COULD BE OPERATED BY McLEAN AS ON SOME OF THE DATES INDICATED FOR OPERATION, HE (McLEAN) WAS NOT PRESENT AT ST. KITTS AND OTHER DAYS WERE PUBLIC HOLIDAYS. I DO FEEL THAT THERE WERE MORE AUTHORISED PERSON TO TALK ABOUT ANY F.T.C.L. ACCOUNT AFTER HE HAD LEFT F.T.C.L. ANY NEWS RELEASED TO THE PRESS ABOUT ANY F.T.C.L. ACCOUNT THEREFORE SHOULD HAVE BEEN VERIFIED PROPERLY FROM ST. KITTS, WHERE THE RECORDS OUGHT TO HAVE BEEN.
NOW TAKING INTO CONSIDERATION THE AUDIT FINANCIAL STATEMENT FOR THE THIRTEEN MONTHS ENDING DECEMBER 1986. I DO FEEL IF THERE WAS ANY SUCH HUGE ACCOUNT, G.D. McLEAN WOULD HAVE MENTIONED THIS TO ME AS A FELLOW DIRECTOR AND THE SAME COULD HAVE BEEN REFLECTED IN AUDIT BY SIMMONDS AND ASSOCIATES, CHARTERED ACCOUNTANTS. I AM AWARE THAT MR. G.D. McLEAN MAY STATE THAT THIS ACCOUNT, THAT IS, THE ALLEGED ACCOUNT NO. 29479 WAS SECRET, IN THAT CASE I FEEL IT WOULD NOT BE IN CONFORMITY WITH THE SPIRIT OF AUDIT PRACTICE OR OF THE COMPANIES ACT OF ST. KITTS."
33. Mr. T.V. Byron being a solicitor and director of F.T.C.L. would be conversant with the banking and audit ractices and the provisions of the company law applicable in the territory of St. Kitts. This being so, he certainly was competent to express an opinion to the effect that in case such a huge amount was deposited it would have been eflected in the audit. He has also brought out in his statement that in case there was deposit of such a huge amount Mr. George D McLean would have mentioned this to him. This implies that since the account was not reflected in the audit and moreover Mr. G.D. McLean did not mention about the said deposit, to him, there could be no likelihood of existence of the so called account of Shri Ajeya Singh.
34. Mr. George D McLean had also handed over pay-in-forms and withdrawal slips relating to the account in question to Shri A.P. Nanday on October 4, 1989 at New York. It appears that these documents are also fabricated ones. This will be evident for the reasons which are not far to seek. According to the material on record including the aforesaid statement of Mr. T.V. Byron recorded during investigation, Mr. George D McLean left St. Kitts in the year 1988 without notice to the F.T.C.L. The F.T.C.L. stopped functioning by the end of the year 1988. Furniture and record of the F.T.C.L. including the safe containing record of the F.T.C.L. were assigned to Mr. Byron to cover part of his fee. The safe was kept in the office of Mr. Byron who claimed in his statement that he was not familiar with the combination of its lock. According to Mr. T.V. Byron, Mr. George D McLean did not come to the expectations and he left St. Kitts leaving behind unpaid bills. In this regard, he stated as follows :-
"I EARLIER HAD THE IDEA THAT MR. G.D. McLEAN WAS A COMPETENT FINANCIER AS HE ASSURED ME HE WOULD GET GOOD BUSINESS FOR F.T.C.L. BUT THIS DID NOT HAPPEN. IN AUGUST 1986 WHEN I WAS IN CANADA (TORONTO) ON MY WAY TO EXPO 86 VANCOUVER, HE MET ME AND TOOK ME TO THE VERY BIG LAW FIRM OF WEIR 7 FOULDS, WHERE WE WERE INTRODUCED TO ONE DONOVAN BLAKEMAN, WHO HE SAID WOULD GIVE F.T.C.L. BIG BUSINESS AS A DIRECTOR, BUT I LATER LEARNT THAT HE WAS A VERY DUBIOUS MAN CONNECTED WITH DRUG LAUNDERING.
I AM TO NOTE THAT IN SPITE OF PROMISES HELD BY G.D. McLEAN, F.T.C.L. DID NOT COME UP TO EXPECTATIONS. G.D. McLEAN ST. KITTS IN 1988 WITHOUT NOTICE THAT HE WOULD NOT COME BACK, LEAVING BEHIND UNPAID RENT AND TELEPHONE BILLS.
THE OTHER PERSONS WHO THEN TRIED TO RUN F.T.C.L. COULD NOT DO MUCH BETTER EITHER AND F.T.C.L. STOPPED FUNCTIONING IN 1988 END."
35. In view of the manner in which Mr. George D McLean left F.T.C.L. and st. Kitts it is unlikely that he could have gone back to St. Kitts for collecting the papers pertaining to the alleged account of Shri Ajeya Singh. Besides, if he had gone to St. Kitts for collecting the aforesaid papers, Mr. T.V. Byron would have said so in his statement as the record of the F.T.C.L. was lying with him. Thus, it ex facie appears that Mr. George D McLean did not have access to the record of the F.T.C.L. after he left St. Kitts in 1988. Copies of deposit forms which were given by Mr. George D McLean to Shri Nanday relating to the so called account number 29479 are photo copies of the customer's copy. It is highly improbable that Mr. George D McLean would be having customer's copies of deposit forms in the event of the account being genuine as the customer's copies will be with the customer and not with the bank. It is important to note that except for the two purported signatures of Shri Ajeya Singh and Shri Vishwanath Pratap Singh on the safe keeping agreement and numbered account agreement, nothing else on the forms is alleged to be in their hand writing. A close look at the forms show that even for the name and address of the person opening the account there is no specified place. The same is, true for the beneficiary. It is improbable that any bank worth the name will use such forms. It is significant to note that when a beneficiary is appointed there is usually a statement of the person appointing the beneficiary. There is no statement of Shri Ajeya Singh on the form appointing Shri Vishwanath Pratap Singh as the beneficiary of the account. Even the eneficiary has not signed as having accepted the appointment. Besides, the purported signatures of Shri Ajeya Singh and Shri Vishwanath Pratap Singh have not been attested by any account holder or a person known to the bank. Ordinarily the purported ignatures of Shri Ajeya Singh should have been at the end of the safe keeping agreement only. However, his signature also appears between clauses (4) and (5) of the agreement. Similarly, no place in the printed agreement has been assigned for the signatures of the beneficiary. At the end of the first page of the agreement purported signatures of the beneficiary appear against the hand written words "Final Beneficiary". Again at the second page of the agreement the purported signatures of the beneficiary appear at the end of the page against the hand written word "Beneficiary". There is another interesting feature pertaining to the alleged account in question. Money in such accounts is kept for the purpose of concealing the same and not for the purpose of taking out frequently. The alleged statement of account shows that the money was being frequently taken out by the holder of the account. Since the Investigating agency was not able to acquire the record of the bank from St. Kitts even though a letter rogatory was sent, one has to depend upon the circumstantial evidence which prima facie negates the theory of existence of account of Shri Ajeya Singh with the F.T.C.L. Therefore, in this view of the matter I do not find any infirmity in the prima facie opinion of the trial court that the so called account in the name of Shri Ajeya Singh with the F.T.C.L. in St. Kitts did not exist and the documents were fabricated to show its existence.
36. The next question for determination is whether the impugned order of the trial court needs to be interfered with in revision. It is well settled that the High Court will exercise its power of revision to prevent illegality or miscarriage of justice. It will also exercise its revisional jurisdiction where the trial court fails to exercise jurisdiction vested in it, or exceeds its jurisdiction, or proceeds in the matter on the basis of misconception or misreading of the evidence. In order to determine whether the impugned order passed by the trial court suffers from any defect, it will be necessary to refer to the material collected by the investigating agency qua each of the accused persons. While doing so it will also be necessary to keep in view the submissions of learned counsel for the parties.
37. Shri K.K. Tewari : Mr. P.R. Vakil, learned senior counsel for the C.B.I., claimed, what he called, political rivalry as the basis of conspiracy against Shri Vishwanath Pratap Singh. According to him, Shri Vishwanath Pratap Singh, who was the Finance Minister from December 31, 1984 to January 24, 1987 and later defense Minister from January 25, 1987 to April 12, 1987, in the Cabinet of Shri Rajiv Gandhi, left the ruling Congress on the basic principle centering around corruption. His detractors were apprehensive that he would convince the people of his views at the time of the forthcoming elections. They thought of doing something which would not only shock the people but depict him as being anti national and corrupt. In order to dislodge him from his political superemacy mud slinging to smear his reputation was thought of. To defame him it was not sufficient to malign his son as it would not have affected Shri Vishwanath Pratap Singh to the extent the detractors wanted his reputation to be affected. Therefore, with a view to discredit him a conspiracy was hatched during the period November 1988 to October 1989. The conspirators decided to forge documents to show that Shri Ajeya Singh had a foreign account in F.T.C.L., St. Kitts, Caribbean Island, of which Shri Vishwanath Pratap Singh was the beneficiary. In order to contrive an account of Shri Ajeya Singh with beneficiary as Shri Vishwanath Pratap Singh, style of signing of the aforesaid persons had to be immitated. For this the conspirators wanted their signatures. The learned senior counsel further pointed out that Shri K.K. Tewari, in order to accomplish the mission to procure the signatures, asked the Joint Secretary (CPV), Shri Shashank, to secure the passport papers of the sons of Shri Vishwanath Pratap Singh but without putting anything in writing.
38. According to Shri P.R. Vakil, this was an unusual, unexpected and extraordinary conduct of the Minister and his guilt lies in asking Shri Shashank to do his bidding secretly without putting anything in writing. Learned senior counsel submitted that the entire course of conduct of Shri Tewari was of a guilty person. He also pointed out that the passport papers of Shri Ajeya Singh summoned from High Commission of India at London at the instance of Shri K.K. Tewari were kept in the Ministry of External Affairs for three months. Shri Vakil raised questions to the effect that if Shri K.K. Tewari was not in league with the conspirators why he got interested in the passport papers of the sons of Shri Vishwanath Pratap Singh and why the passport papers of Shri Ajeya Singh were kept in the Ministry for such a long time. According to him, since the passport papers of Shri Ajeya Singh contained his signatures, they were used as model for copying the same for the purposes of fabricating the photocopies of the aforesaid agreements, etc. He canvassed that presumption against Shri Tewari could be raised under section 114 of the Evidence Act.
39. In order to examine the submissions it will be necessary to take note of the material on record. From the material on record it appears that endeavour to collect passport papers of Shri Vishwanath Pratap Singh and his sons started some time by the end of November or beginning of December 1988. According to the statement of Shri Shashank, recorded on July 2, 1990 under section 161 of the Code of Criminal Procedure, Shri K.K. Tewari joined Ministry of External Affairs as Minister of State on June 25, 1988 and continued in that position till April 22, 1989. According to him towards the end of November or beginning of December 1988 he was called by Shri K.K. Tewari and was instructed to collect the passport particulars of the sons of Shri Vishwanath Pratap Singh who was the opposition leader at that time. Shri Tewari stated to have told him that he should collect passport particulars through telephonic instructions without putting anything in writing. Pursuant thereto he passed on the instructions on telephone to Shri K. Ramaswamy, Passport Officer, Lucknow, Shri B.K. Gupta, Regional Passport Officer, Delhi, Shri R.P. Joshi, Minister Coordination, High Commission of India, London, and Shri S.L. Mishra, Consul, Consulate General of India, Washington. It is evident from his statement that on December 5, 1988, pursuant to the requirement of the Minister, the Passport Officer, Lucknow, sent the file relating to the passport of Shri Abhay Singh son of Shri Vishwanath Pratap Singh to him. On December 21, 1988, after the search started for passport papers of sons of Shri Vishwanath Pratap Singh, Shri Abhay Singh applied for passport services, namely, addition of two visa sheets and change of status from student to medical doctor. Again on December 21, 1988 Shri R.P. Joshi, Minister Coordination, High Commission of India, London, gave telephonic information to him that the old passport particulars and papers of Shri Ajeya Singh were available. As per Shri Shashank, the position was brought to the notice of Shri Tewari whereupon he instructed that the passport of Shri Abhay Singh should not be serviced for some time till he gave clearance. In so far as the papers of Shri Ajeya Singh were concerned, he gave direction to collect copies of all available papers from the Indian High Commission, London. Thereupon Shri Shashank asked Shri R.P. Joshi, Minister Coordination, High Commission of India at London on telephone to transmit the passport papers of Shri Ajeya Singh to him. On receipt of the papers on January 3, 1989 he is stated to have handed over the same to Shri P.L. Sinai, Secretary (E), for taking them to the Minister of State. According to Shri Shashank, these papers were received back by him in the month of April 1989. In regard to the application of Shri Abhay Singh for additional sheets, Shri Shashank referred to the following note of Shri Sinai, Secretary (E):-
"Discussed with EAM & MOS(K) o.r. (on return) has authorised provision of additional sheets. We may retain photostat of the passport.
Sd/-12.1.89."
40. As per the statement of Shri R.P. Joshi (PW-9), the then Minister Coordination, High Commission of India, London, recorded under section 161 Cr.P.C., the photo copies of passport papers of Shri Ajeya Singh son of Shri Vishwanath Pratap Singh were sent to Shri Shashank on December 22, 1988 on receiving his instructions.
41. Shri B.K. Gupta, Regional Passport Officer, Lucknow, in his statement under section 161 Cr.P.C., referred to the application of Shri Abhay Singh for seeking addition of two visa sheets to his passport and for carrying out necessary change therein pertaining to his status, namely, from student to medical doctor. He also alluded to the fact of having received the aforesaid instructions from Shri Shashank with regard to the passport papers of Shri Ajeya Singh and Shri Abhay Singh.
42. As per statement of Shri P.L. Sinai, former Secretary, MEA, recorded under section 161 Cr.P.C., he does not remember to have received any instructions during the year 1988-89 either from Shri K.K. Tewari or Shri P.V. Narsimha Rao for collecting the passport particulars of Shri V.P. Singh. However, in regard to the note dated January 12, 1989 (which was referred to in the statement of Shri Shashank) he was not able to recollect any discussion with MOS(K) or EAMS as mentioned in the ote.However, he admitted to have written the note and identified his signatures thereon. In regard to the note dated January 12, 1989 he stated as follows:-
"As far as I remember Shri P.V. Narasimha Rao was the EAM at that time. On his instructions I must have talked to MOS (K)-I have written OR meaning "On return". I must have awaited the return of MOS (K) and after obtaining his approval, must have given instructions for issue of additional sheets for the Passport of Shri Abhay Singh, as requested by him."
43. Thus, it appears from the material on record, especially the statement of Shri Shashank that even when there was no request for passport services either by Shri Abhay Singh or Shri Ajeya Singh, Shri K.K. Tewari instructed Shri Shashank to collect their passport particulars. A question arises as to why such an exercise was undertaken? Still another question nagging for an answer is why Shri Tewari got interested in the passport particulars of the sons of Shri Vishwanath Pratap Singh? Surely, the exercise would not have been without a purpose. In case the exercise to collect the papers was innocuous there was no reason why there should be any direction from MOS(K) for discreet enquiry without putting anything in writing. The matter relating to addition of visa sheets and request for change of profession of the passport holder was surely not a matter for the consideration of the Minister of State for External Affairs. The material on record shows his undue interest in the passport files of Shri Ajeya Singh and Shri Abhay Singh. But this fact takes us no further than that. From the act of summoning the passport papers it cannot be inferred that the purpose to secure the passport papers was to copy the signatures of Shri Ajeya Singh. In case such an inference is made it would amount to jumping to the conclusion without there being any further circumstance connecting the fact of calling of the passport papers with the conclusion drawn. The material on record does not lead to the conclusion that it was Shri K.K. Tewari who provided model signatures of Shri Ajeya Singh for the purpose of simulating his signatures on the safe keeping agreement and numbered account. The link between requisitioning the passport papers of Shri Ajeya Singh by Shri K.K. Tewari and the manufacture account is missing. There is no material to show that the passport papers of Shri Ajeya Singh received from Shri R.P. Joshi, Minister Coordination, High Commission of India, London, were actually seen by Shri K.K. Tewari. Though the passport papers of Shri Ajeya Singh were received in the Ministry on January 3, 1989, there is no material to show that these papers were shown to Shri K.K. Tewari. Neither Shri Shashank, nor Shri P.L. Sinai, then Secretary, MEA, nor Shri I.P. Khosla have stated that the passport papers of Shri Ajeya Singh were shown to Shri K.K. Tewari or sent to him or retained by him. On the contrary, on the own showing of the prosecution the forged photo copy of the so called safe keeping agreementlong form has a FAX marking of Bank of S. Palam Beach dated December 8, 1988. As a sequitur it could follow that this document existed on December 8, 1988, i.e., even before the passport papers of Shri Ajeya Singh were received in the Ministry. While the passport papers, as already seen above, arrived in the Ministry on January 3, 1989, there is a possibility of the existence of the forged photo copy of safe keeping agreement earlier than that, viz., December 8, 1988. On the other hand, there is also a possibility that a blank safe keeping form was faxed on December 8, 1988 which may have been filled up at a subsequent date. But for taking such a view some more material should have been available on record.
44. It was pointed out that Mr. George D McLean handed over copy of passport No. 090997 dated June 15, 1978 of Shri Vishwanath Pratap Singh to Shri Shashank, on which consular authentication was obtained by him on October 5, 1989. According to the statements of PW-13 Shri Gian Singh Mundari, Assistant, PV-II Section, M.E.A., dated April 30, 1996, and PW-14 Shri K.K. Saxena, Assistant, PV-IV Section, M.E.A., dated May 7, 1996 recorded under section 161 of the Code, the passport of Shri Vishwanath Pratap Singh was kept with MEA, PV-II Section, in safe custody vide entry No. 158/83 PV-II Section. It is surprising as to how Mr. George D McLean got a copy of the passport which was supposed to be kept in safe custody of the MES, PV-II Section. Obviously somebody having access to the passport papers supplied he aforesaid copy of the passport to Mr. George D McLean. But there is nothing on record to show that it was Shri K.K. Tewari who made papers available to Mr. George D McLean. The material is silent about the person who made a zeroxed copy of the passport of Shri Vishwanath Pratap Singh for providing it to Mr. McLean. There is also no allegation that the passport of Shri Vishwanath Pratap Singh was made available to Shri Tewari and Shri P.V. Narsimha Rao or they had ever requisitioned it. At this stage it may be noted that as per the statement of PW-14 Shri K.K. Saxena, who at the relevant time was posted as Assistant in IV-II Section of MEA, passport files No. VII/403/487/76 and No. VII/403/1654/83 of Shri Vishwanath Pratap Singh were requisitioned by Shri Diwakar Prasad, DIG/CBI, on November 21, 1988. This requisition was made to Shri Shashank, the then JS (CPV). The files were received by Diwakar Prasad on November 21, 1988 and the same were returned by him to Shri Shashank on November 22, 1988. The files were ultimately received in PV-II section by Shri K.K. Saxena on November 24, 1988 along with the passport of Shri Vishwanath Pratap Singh and the receipt of the same was diarised on December 26, 1988 through diary No. 690/VII/8/88. Shri Saxena, however, does not remember whether the said passport was also collected by Shri Diwakar Prasad on November 21, 1988 along with the file. The statement of Shri Saxena does not reveal that the files or the passport were collected by Shri Diwakar Prasad for making it available to Shri K.K. Tewari. There is no material on record to show that Shri Diwakar Prasad had obtained the files and the passport on instructions of Shri K.K. Tewari or for the purpose of showing it to him. The C.B.I. for reasons best known to it failed to record the statement of Shri Diwakar Prasad under Section 161 of the Code for the purpose of finding out the reason for requisitioning the files pertaining to the passport of Shri Vishwanath Pratap Singh. Undoubtedly, the happenings have an element of mystery. Why there was so much of interest in the passport and the passport papers of Shri Vishwanath Pratap Singh and his sons, this question does arise. But the material woefully falls short of showing that it was Shri K.K. Tewari who was responsible for supplying the model signatures of Shri Ajeya Singh and Shri Vishwanath Pratap Singh for forging and fabricating the aforesaid agreements.
45. Mr. Vakil, learned senior counsel appearing for the C.B.I., submitted that it is the regional passport authority which has the authority to issue the passport and to carry out modifications therein. He posed a question why Shri K.K. Tewari, Minister of State for External Affairs, should be interested in the application of Abhay Singh who had applied for addition of two visa sheets and for carrying out certain modification in his passport. He also raised the question why the passport papers of Shri Ajeya Singh and Shri Abhay Singh were requisitioned by him in the first instance. He pointed out that the application of Shri Abhay Singh for addition of visa sheets was retained till the passport papers of Shri Ajeya Singh were received in the Ministry of External Affairs. According to Shri Vakil, the act of calling the passport files of Shri Abhay Singh and Shri Ajeya Singh was incidental to the main object of the conspiracy, viz., to fabricate documents to show that Shri Ajeya Singh had a foreign account of which Shri Vishwanath Pratap Singh was the beneficiary. According to him, it could be reasonably inferred that it was Shri K.K. Tewari who made use of the passport papers of Shri Ajeya Singh for providing model of his signatures for fabrication of safe keeping agreement-long form and numbered account agreement. I regret my inability to subscribe to the views put forward by Shri Vakil. In absence of any material on record it is not possible to arrive at a conclusion that Shri Tewari had entered into any criminal conspiracy to supply the model signatures of Shri Ajeya Singh and Shri Vishwanath Pratap Singh for the purposes of simulating them on the safe keeping agreementlong form and numbered account agreement. Moreover mere calling of the passport files of Shri Ajeya Singh and Shri Abhay Singh by Shri K.K. Tewari and detaining the same does not lead to the inference that he was party to the conspiracy to forge documents. It seems to me that the argument of Shri P.R. Vakil, that guilt of Shri Tewari lies in asking Shri Shashank and other officers to collect the papers silently, cannot be accepted without the support of further material to show his complicity in the crime. The aforesaid act of Shri Tewari may appear to be extraordinary but the material on record is deficient for the purposes of framing charge against him. It is difficult to presume on the basis of the unrebutted evidence on record that he was connected with the forging of the signatures of Shri Ajeya Singh or Shri Vishwanath Pratap Singh or providing material to the forgers for copying their signatures on the safe keeping agreement-long form and the numbered account agreement. Therefore, insofar as Shri K.K. Tewari is concerned, there is no sufficient ground for proceeding against him. The trial court, therefore, was right in concluding that the material on record did not warrant framing of the charge against Shri K.K. Tewari. In this view of the matter, I do not find any illegality or impropriety in the order of the learned Special Judge holding that the evidence collected by the C.B.I. does raise a suspicion against Shri K.K. Tewari but the suspicion is not strong enough to justify framing of the charge against him. Since I have come to the conclusion that Shri K.K. Tewari has been rightly discharged on account of inadequate material appearing against him, it is not necessary to consider the submission of Shri Srivastava, learned counsel for Shri Tewari, that sanction under section 197 of the Code of Criminal Procedure was required to prosecute him. For the same reason it is not necessary to deal with the judgments cited by Shri Phiroze R. Vakil, learned senior counsel for the C.B.I., for the proposition that sanction under section 197 of the Code of Criminal Procedure was not required to prosecute Shri K.K. Tewari.
46. Now the roles of Shri Chandraswami and Shri K.N. Aggarwal need to be noticed to determine whether on the basis of the material on record the trial court was justified in framing the charges against them.
47. Shri Chandraswami: For considering the question whether the learned trial court was legally justified in framing the charge against Shri Chandraswami, the statements of Shri Arif Mohd. Khan (PW-3), Shri Raj Babbar (PW-6) and Shri H.C. Nahata (PW-4) recorded under section 161 of the Code and other relevant material need to be noticed.
48. The statements of Shri Arif Mohd. Khan, Shri Raj Babbar and Shri H.C. Nahata show that Shri Chandraswami was nursing a grudge against Shri Vishwanath Pratap Singh. Their statements also unfold other aspects of the case against Shri Chandraswami. Mr. Arif Mohd. Khan (PW-3) stated that he was called by Shri Chandraswami at his Ashram at New Delhi in middle of 1989 and was shown a document relating to an account of Shri Ajeya Singh with the F.T.C.L., St. Kitts, in which Shri Vishwanath Pratap Singh was mentioned as the beneficiary. According to him, Shri Chandraswami asked him to convey to Shri Vishwanath Pratap Singh that he should contact him if he wanted that the document should not be made public. Shri Arif Mohd. Khan told Shri Chandraswami that the document was forged. At this stage it would be apposite to quote the statement of Shri Arif Mohd. Khan to the extent it is relevant. It reads as follows:-
"xx xx xx Some time in mid 1989 I was called by Shri Chandraswami at his Ashram at New Delhi. I visited his Ashram and met him in the forenoon. Shri Chandraswami showed me one A-4 size paper relating to some bank namely First Trust Corporation. I took the paper from Shri Chandraswamy and found that it related to an account in the name of Shri Ajeya Singh son of Shri V.P. Singh with Shri V.P. Singh as the beneficiary or nominee, in some foreign bank at St. Kitts, namely, First Trust Corporation. On seeing the name of Shri V.P. Singh I got alerted and on careful examination of the signature of Shri V.P. Singh on that paper which were in English, I told Shri Chandraswamy that the signature appeared to be forged and further told him that except on his passport Shri V.P. Singh always signs in Hindi. When I insisted that the signature did not appear to be of Shri V.P. Singh and he signs in Hindi, Shri Chandraswamy told that why should V.P. Singh sign in Hindi on his account outside India. I further told him that he should not have shown me that paper as I was close to Shri V.P. Singh and if I did not tell him about it my conscious will keep on pricking me and if I tell him then I would be betraying Shri Chandraswamy. At this Shri Chandraswamy told me to tell about it to Shri V.P. Singh and further asked me to convey his message that if Shri V.P. Singh wanted that it should not be made public, he should contact him, i.e., Shri Chandraswamy. I noted down the contents of the documents shown to me by Shri Chandraswamy on my note pad. I remember that the signature of Shri V.P. Singh on that paper was his full signature in English and the name of some Kennedy, Prime Minister, was also written on that paper. It appeared to me that Shri Chandraswamy had shown me that paper intentionally so that I should tell Shri V.P. Singh about the same. No one else was present when Shri Chandraswamy showed me the document and talked to me.
On the same evening I met Shri V.P. Singh at the residence of Shri Arun Nehru in confection with some political meeting. I told him separately about the document and conveyed the message of Shri Chandraswamy after the meeting. I also showed him the details noted by me on my note pad. When Shri V.P. Singh asked me if he could keep the paper on which I had noted the details, I gave him the same. Shri V.P. Singh became very angry when I conveyed the message of Shri Chandraswamy and asked me to tell Chandraswamy that he may make it public or whatever he wanted and that he (Shri. V.P. Singh) was not willing to meet him. However, I did not convey it to Shri Chandraswamy.
xx xx xx"
49. Shri Raj Babbar (PW-6), inter alia, stated that around May/June 1989 Shri Chandraswami mentioned to him at Bombay that Shri Vishwanath Pratap Singh was not an honest person and myth of his honesty was going to be exploded. He also revealed the reason for the hostility of Shri Chandraswami towards Shri Vishwanath Pratap Singh. In this regard Shri Raj Babbar stated as follows :-
".................Sometime thereafter Shri Chandraswamy telephoned me from somewhere outside Bombay and asked me if at all I had to take part in politics and oppose Shri Rajiv Gandhi, why I had joined hands with Shri V.P. Singh whom he called "Jaychand". He also warned me and advised me to restrain myself and wait for his return to Bombay for guidance. I then recollected as to why he was so hostile to Shri V.P. Singh, because otherwise at that time he was always talking in favour of opposition. I remember that when I was in New York in his Olympic Tower Apartment, made available to him by Mr. Khashoggi, during my last visit to U.S. mentioned above, Shri Chandraswamy in my presence and within my hearing was talking to Indian Ambassador at Washington for getting appointment with Shri V.P. Singh who was then Finance Minister of India, and had come to the United States. From the conversation which Shri. Chandraswamy was having telephonically with our Embassy at Washington, I could make out that he was angry because he had failed to get appointment from Shri V.P. singh. He expressed his anger on Shri V.P. Singh after the telephonic conversation. After getting this warning over phone from Shri Chandraswamy for my participation at reception for Shri V.P. Singh. I developed disenchantment with Shri Chandraswamy. Thereafter, I always avoided talking or meeting Shri Chandraswamy, because I could notice that he was hostile to Shri V.P. Singh.
By May/June, 1989, I had started taking active part in mobilising support for Shri V.P. Singh and I had also been addressing meeting. Around that time Shri Chandraswamy came to Bombay and Shri Harakh Chand Nahata who was my financier of films, persuaded me to meet Shri Chandraswamy. Shri. Nahata was still close to Shri Chandraswamy and told me that he was likely to be misunderstood by Shri Chandraswamy if I did not go and meet him. I met Shri Chandraswamy at the house of one Shri Sanjiv Diwan at Juhu Tara Road, Bombay, which is near my house. Sanjiv Diwan has links with Daud and is a close associate of Chandraswamy. On reaching there apart from others I found Shri Arif Mohammed Khan there. Shri Kailash Nath Aggarwal @ Mamaji was, as usual with Shri Chandraswamy. Shri Chandraswamy greeted me sarcastically by calling me 'Netaji' and supporter of Shri V.P. Singh etc. Shri Chandraswami took me aside in another room. There he tried to persuade me to part company with Shri V.P. Singh. He also tried to lure me by giving temptation of financial help for my films etc. He also made some uncharitable remarks about capabilities of Shri V.P. Singh as leader etc. He then mentioned that Shri V.P. Singh was not an honest person at all and the myth of honesty that Shri V.P. Singh had created for himself was going to be exploded very soon and then I would realise my follies. He then mentioned that Shri V.P. Singh was going to be exposed very shortly and the mask of honesty of Shri V.P. Singh would be removed very soon. I then indicated to him my conviction and faith in the leadership of Shri V.P. Singh.
xx xx xx"
50. Shri H.C. Nahata (PW-4) stated that in late 1988 when he visited the Ashram of Shri Chandraswami at New Delhi he gathered that some thing was being cooked up against Shri Vishwanath Pratap Singh at St. Kitts with reference to a bank. This he understood from the conversation of Shri Chandraswami and also from his one sided telephone talk which he overheard. He also referred to the fact that he along with his son and daughter-in-law stayed with Shri Chandraswami at Olympic Tower at New York on September 24, 1989, September 25, 1989 and September 30, 1989. It also appears that he also stayed with Shri Chandraswami at New York from October 3, 1989 to October 6, 1989. The statement of Shri H.C. Nahata (PW-4) to the extent relevant reveals the following :-
1. Shri Chandraswami was allergic to Shri Vishwanath Pratap Singh as he used to keep himself away from the former.
2. Shri H.C. Nahata visited the Ashram of Shri Chandraswami at Delhi in late 1988, and understood that something was being cooked up against Shri Vishwanath Pratap Singh at St. Kitts.
3. While staying at Olympic Towers on September 30, 1989, Shri H.C. Nahata heard Shri Chandraswami talking over the telephone to Shri Satish Sharma. From the talk he gathered that Shri Nanday, an official from Delhi was being deputed for enquiry relating to the so called account of Shri Ajeya Singh at St. Kitts. Shri Chandraswami informed Shri Satish Sharma that Shri Nanday shall be received by one Dev Ketu at Miami Airport.
4. Shri Chandraswami and Shri K.N. Aggarwal accompanied by Shri H.C. Nahata, his son and daughter-in-law proceeded to Miami on October 1, 1989 in a private plane. On reaching Miami they stayed at Mariott Airport Hotel.
5. Shri Dev Ketu, a disciple of Shri Chandraswami, who had also reached Miami reported to Shri Chandraswami and Shri K.N. Aggarwal that Shri Nanday had also arrived but was feeling frightened as he felt that some body would harm him. Shri Devketu attributed this to consumption of alcohol by Shri Nanday.
6. After Shri Dev Ketu had reported the condition of Shri Nanday to Shri Chandraswami, the latter called Shri Satish Sharma at New Delhi on telephone about Shri Nanday upon which Shri Satish Sharma told him that he would speak to Shri Nanday and remove his fears.
7. Shri Nanday on meeting Shri Chandraswami on October 1, 1989 was told by the letter in the presence of Shri K.N. Aggarwal, Shri Pradeep Nahata and his wife, that he was to proceed to St. Kitts next morning for examination of some persons in regard to the bank account of Shri Ajeya Singh.
8. In the morning of October 2, 1989, Mr. Larry Kolb arrived at the hotel when Shri Chandraswami introduced him as son-in-law of his friend Mr. Adnan Khashogi.
9. Shri Chandraswami asked Shri Larry Kolb, Shri Devketu and Shri K.N. Aggarwal to take Shri Nanday to St. Kitts by a private plane.
10. On the morning of October 2, 1989 the aforesaid party left for St. Kitts and returned to Miami on the same day in the evening.
11. On October 3, 1989 Shri Nanday and Shri Devketu left Miami for New York by a commercial flight whereas Shri Chandraswami, Shri K.N. Aggarwal and the remaining party took a private plane for New York.
12. At New York, Shri Nanday was lodged at Stanford, a place arranged by Shri Devketu. This was done to keep control over Shri Nanday. Shri Chandraswami wanted the help of Shri P.V. Narsimha Rao in connection with the thentication of documents being collected by Shri Nanday. For this purpose he contacted Shri Narsimha Rao, who was also camping at New York, on telephone. Shri Narsimha Rao initially showed his reluctance whereupon Shri Chandraswami talked to Shri R.K. Dhawan to telephone and requested him to ask Shri Narsimha Rao to extend his help. Subsequently, Shri Narsimha Rao telephoned Shri Chandraswami and told him that he had received a telephone call from Shri R.K. Dhawan from Delhi. He also told him that he was going to call up the Indian Consulate Office, New York and the work for which Shri Nanday would be visiting the Indian Consulate Office would be immediately attended to.
13. On October 4, 1989, Mr. George D. McLean visited Shri Chandraswami at the Olympic Tower and was introduced to Shri Nahata. On this occasion Shri Chandraswami told him that Mr. George D McLean was owner of the F.T.C.L., St. Kitts. Shri Chandraswami told Shri Nahata that Mr. McLean was always in need of money and by paying money to him any legal or illegal work could be got done from him.
51. Shri Pradeep Nahata (PW-5), son of Shri H.C. Nahata, stated that he along with his wife and father stayed at Olympic Towers at New York with Shri Chandraswami on September 24, 1989, September 25, 1989, September 30, 1989, and October 3, 1989 to October 6, 1989. He also referred to the fact that on October 1, 1989, he, his wife and father ccompanied Shri Chandraswami and Shri K.N. Aggarwal to Miami in a private plan of Shri Adnan Khashogi from where they returned to New York on October 3, 1989 by the same plane. He also stated that he had seen Shri Devketu and Mr. Larry Kolb, a relation of Mr. Adnan Khashogi at Miami.
52. Mr. Rajinder Singh, learned senior counsel for Shri Chandraswami, and Shri K.N. Aggarwal submitted that there was no material against Shri Chandraswami warranting framing of charges against him. It was pointed out that framing of charge affects a person's liberty and, therefore, the need for proper consideration of the material before a charge is framed. In order to appreciate the submission it would be necessary to understand the allegations of the prosecution. The gist of the prosecution case is that forgery consisted of fabricating the photo copies of the so called safe keeping agreement, numbered account agreement and various other photostat copies of the alleged bank documents and then leaking it to the press to smear the reputation of Shri Vishwanath Pratap Singh and to expose Shri Ajeya Singh and Shri Vishwanath Pratap Singh to criminal prosecution. The trial court came to the conclusion that prima facie a case was made out against Shri Chandraswami under section 120B read with Sections 195, 469 and 471 of the I.P.C. The conclusion of the trial court cannot be faulted. The statements of Shri Arif Mohd. Khan and Shri Raj Babbar show that Shri Chandraswami was hostile to Shri Vishwanath Pratap Singh. From the statement of Shri Raj Babbar it appears that Shri Chandraswami was entertaining grievance and grudge against Shri Vishwanath Pratap Singh as he was not given appointment by Shri Vishwanath Pratap Singh when he was the Finance Minister. Having failed to get an appointment he expressed his anger on Shri Vishwanath Pratap Singh. In his conversation with Shri Raj Babbar he also told him that Shri Vishwanath Pratap Singh was not an honest person and the myth of his honesty shall be exploded. According to Shri Raj Babbar, Shri Chandraswami stated that Shri Vishwanath Pratap Singh shall be exposed and the mask of his honesty would be removed. From the statement of Shri Arif Mohd. Khan it appears that in the middle of 1989 Shri Chandraswami had shown him a paper relating to the so called account of Shri Ajeya Singh with F.T.C.L. at St. Kitts in which Shri Vishwanath Pratap Singh was described as the beneficiary. It needs to be noted that this event took place even before Shri Nanday was sent to St. Kitts and U.S.A. for an enquiry relating to the alleged bank account of Shri Ajeya Singh. This also shows that before anything was published in the newspapers, Shri Chandraswami had the paper relating to the so called bank account of Shri Ajeya Singh. The statement also revealed that Shri Chandraswami had asked Shri Arif Mohd. Khan to convey his threat to Shri Vishwanath Pratap Singh that in case Shri Vishwanath Pratap Singh wanted that the document be not published, he should contact him. It is significant to note that the statement of Shri Arif Mohd. Khan shows that he on seeing the paper noticed that the purported signatures of Shri Vishwanath Pratap Singh were in English. He is also stated to have told Shri Chandraswami that the signatures of Shri Vishwanath Pratap Singh were forged as he always signed in Hindi with the exception of his passport. It is equally significant that after Shri Arif Mohd. Khan had seen the document and had told Shri Chandraswami that Shri Vishwanath Pratap Singh signed in Hindi, the forged photo copies of the agreements that were handed over by Mr. McLean to Shri Nanday contained the purported zeroxed signatures of Shri Vishwanath Pratap Singh in Hindi. Despite the fact that Shri Arif Mohd. Khan had told Shri Chandraswami that the document relating to the St. Kitts account was forged, he still asked him to convey his threat to Shri Vishwanath Pratap Singh regarding publication of the document. It is also important to note that Shri Arif Mohd. Khan took down the contents of the document on his note pad and related the incident to Shri Vishwanath Pratap Singh. He is also stated to have handed over the slip on which he had noted the contents of the documents to Shri Vishwanath Pratap Singh. Shri Vishwanath Pratap Singh in his statement confirmed to having received the slip from Shri Arif Mohd. Khan but is stated to have misplaced the same. He also confirmed to his having been conveyed the threat that was given by Shri Chandraswami. It is also notworthy that in spite of the fact that Shri Arif Mohd. Khan had told Shri Chandraswami that the document pertaining to the account was a forged one, the latter still took active part in securing consular attestation by making a request in this regard to Shri Narsimha Rao on October 3, 1989, the day Shri Nanday reached New York. It is worth mentioning that though Shri Nanday had not collected any bank documents from St. Kitts except two letters from Mr. T.V. Byron and Ms. N. Selvesen and these two letters were not the ones which were produced for consular attestation, he told Shri P.V. Narsimha Rao on October 3, 1989 itself that Shri Nanday had collected certain documents which required consular attestation. This was obviously done in anticipation of the receipt of the documents that were to be made available to Shri Nanday by Mr. McLean who was in New York at that time. Therefore, it is clear that whoever called Mr. McLean to New York from Canada for handing over the documents kept Shri Chandraswami posted of the position. That apart Shri Chandraswami made arrangements for picking up Shri Nanday on his arrival at Miami Airport, for his stay at Miami, for his visit to St. Kitts in the company of Shri K.N. Aggarwal, Shri Dev Ketu and Mr. Larry J. Kolb. For the purpose of visit of Shri Nanday to St. Kitts and then back, a private aeroplane was hired which means large expense. The question arises why should be a private person undertake such trouble and expense for a government investigation or enquiry. It is intriguing to find from the material on record that Shri Nanday, an official of the Directorate of Enforcement, who had been deputed officially to conduct enquiry from sources abroad in connection with the alleged account pertaining to Shri Ajeya Singh and Shri Vishwanath Pratap Singh in St. Kitts., was guided and assisted by Shri Chandraswami, who was already involved in a FERA, case for which he was arrested and subsequently released on bail. The theory that since Shri Nanday was on a very sensitive and delicate mission which required maintenance of secrecy, use of official machinery for the purpose of his visit abroad would not have been conducive to his mission and, therefore, the reliance on Shri Chandraswami, does not appeal to me. How can the agency which was investigating a FERA case against him could enlist his active participation in a mission of this nature or for that matter any mission. The whole host of activities undertaken by Shri Chandraswami cannot be ignored. They assume significance in view of the fact that he was warned by Shri Arif Mohd. Khan in the middle of 1989 itself that the document pertaining to the said account was a forged one and despite the warning he talked of exposing Shri Vishwanath Pratap Singh. Therefore, it cannot be urged that he might have acted without knowledge of the document being forged. Even while ignoring that part of the statement of Shri H.C. Nahata which was castigated as being vague and lacking in material particulars to the effect that something was being cooked up against Shri Vishwanath including the telephonic conversation in late 1988, still when the rest of his statement is examined in the light of the statements of Shri Arif Mohd. Khan and Shri Raj Babbar it does not show that Shri Chandraswami was not aware of the fact that the documents relating to the said bank account were forged. The material also does not show that he assisted Shri Nanday to gather information in the absence of such knowledge and that due to lack of information regarding the fabrication he asked Shri Narsimha Rao to speak to the concerned for consular attestation. The material on record suggests that Shri Chandraswami facilitated the collection of documents and their authentication despite the indication to him that the documents were forged. While arriving on this conclusion statement of Mr. Larry J. Kolb that he was called to New York to assist Shri Chandraswami in seeking to arrange for the publication of allegation against Shri Vishwanath Pratap Singh has not been taken into account as it tantamounts to statement of a co-accused.
53. In the circumstances, I am not persuaded to hold that Shri Chandraswami was not rightly chargesheeted by the trial court.
54. Shri K.N. Aggarwal : The statements of Shri H.C. Nahata (PW-4), Shri Shiv Kumar (PW-18), Shri S.C. Gupta (PW-19), and Mr. Allen Helton (PW-39) form the material on the bais of which the prosecution claims complicity of Shri K.N. Aggarwal in the crime. From the statement of PW-4 Shri H.C. Nahata it is clear that Shri K.N. Aggarwal accompanied Shri Chandraswami to Miami on October 1, 1989 when on the same day Shri A.P. Nanday also arrived there and was received at the airport by Shri Devketu, a disciple of Shri Chandraswami. Shri K.N. Aggarwal even accompanied Shri A.P. Nanday and Mr. Larry Kolb to St. Kitts on October 2, 1989 in a private aircraft. Thereafter, on the same day he returned with the other members of the party to Miami after Shri A.P. Nanday collected the statements of Mr. T.V. Byron, the then Director and Solicitor of the F.T.C.L. and Ms. Selvesen, the erstwhile Secretary to Mr. George D McLean. Mr. Allen Helton, aptain of the chartered flight which was used to carry Shri A.P. Nanday to St. Kitts and back to Miami, supports the aforesaid fact. PW-18 Shri Shiv Kumar, the then Indian High Commissioner at Port of Spain, in his statement under section 161 of the Code stated that Shri Kailash Nath Aggarwal rang up the Indian High Commission at Port of Spain, Trinidad, and dictated the following letter to Shri S.C. Gupta, the then Second Secretary, Indian High Commission, Port of Spain, Trinidad, for the Prime Minister of St. Kitts which he required to be sent under the signatures of the High Commissioner :-
"Kindly confirm my meeting with you and also confirm that you will be conducting necessary enquiries in the matter of account of Ajeya Singh."
55. He also stated that Shri K.N. Aggarwal called him up at his residence from New York on October 6, 1989. He claimed to be a businessman and a family friend of Shri Narsimha Rao and others. Shri K.N. Aggarwal urged him on telephone to go to St. Kitts and Navis and meet the Prime Minister of that country and request him to institute investigation into the matter.
56. PW-19 Shri S.C. Gupta in his statement under section 161 of the code confirmed the fact that Shri K.N. Aggarwal rang up and introduced himself as Mamaji and claimed that he was ringing up from New Delhi from the office of Shri P.V. Narsimha Rao, Minister of External Affairs, and dictated the said letter.
57. Thus, it is seen that Shri K.N. Aggarwal though a private person goes to the extent of taking Shri Nanday to St. Kitts for the enquiry in a private plane, calls up Shri Shiv Kumar, High Commissioner of India at Port of Spain, on telephone from New York and urges him to go to St. Kitts and meet the Prime Minister of that country in connection with the aforesaid matter and on an another occasion rings up Shri S.C. Gupta, Second Secretary, High Commission of India at Port of Spain, and claims to be calling from the office of Shri P.V. Narsimha Rao, Minister of External Affairs, and dictates a letter for the Prime Minister of St. Kitts. From the material on record it appears that like Shri Chandraswami he has also played a prominent role in the sordid affair and appears to be one of the moving spirits behind it.
58. At this stage it may be mentioned that there is a confessional statement of Shri Nanday which lends assurance to the material on record noticed heretofore against Shri K.N. Aggarwal. Before referring to the statement of Shri Nanday it would first be necessary to point out that since the trial court by its order dated October 4, 1996 did not take cognizance of the offence against Shri Satish Sharma and Shri R.K. Dhawan, the Peoples Union for Civil Liberties, Delhi, filed a criminal revision being Criminal Revision No. 339/96 (Peoples Union for Civil Leberties, Delhi Vs. Central Bureau of Investigation and others) which came up before J.K. Mehra, J. By order dated April 10, 1997, J.K. Mehra, J. while ismissing the criminal revision held that no case of conspiracy was made out against them inasmuch as except for the statement of Shri A.P. Nanday no other material was available which could form legal evidence on the basis of which charge could be framed against them. It was also held that section 30 of the Evidence Act, 1872 will also have no application as Shri R.K. Dhawan and Shri Satish Sharma could not be tried jointly with Shri Nanday due to demise of the latter. Against the order of J.K. Mehra, J. an S.L.P. was filed by the P.U.C.L. but the same was dismissed. At the same time it must be pointed out that Shri J.K. Mehra, J. in that case did not encounter a situation where it may be safe to frame charge on the basis of evidence de hors the confessional statement of a deceased person. In those cases the Judge can call in aid the confession of a deceased person under section 32(3) of the Evidence Act for a limited use for lending assurance to the other evidence existing independently of it and fortify himself in believing that without the aid of the confession he would not be prepared to accept the same. Section 30 of the Evidence Act provides, that when more persons than one are being tried jointly for the same offence and confession is made by one of them affecting himself and others, the court may take into consideration such confession as against maker there of and other persons. But confession of a deceased accomplice giving details of the incident of crime and incriminating himself and the accomplice is admissible against the latter under section 32(3) of the Evidence Act for lending assurance to the incriminating evidence notwithstanding the provisions of Section 30 thereof, the application whereof is, inter alia, dependent upon a joint trial. It is well settled that conviction cannot be based wholly and solely on the basis of a confession of a co-accused. The language of Section 32 shows that the confession of a co-accused does not have the force of a sworn evidence and cannot take the place of a proof. A confession of a co-accused is only one element in the consideration of all the facts of the case and it does not have the effect of doing away the necessity of the other evidence. It is only when there is such an evidence that the court may proceed further and look at the confession of the accused and consider it as an additional factor that would further weigh the balance against the co-accused. The proper way to approach a case of this kind is to marshal the evidence against the accused excluding the confession altogether from consideration and see whether the evidence collected against the accused can be the basis of conviction. If the evidence is capable of being believed independently of the confession, then the same can be taken into consideration to lend support to the conclusion reached on the basis of the independent evidence. Cases may arise where a Judge is not prepared to act on the other evidence de hors the confession even though if believed it would be sufficient to sustain a conviction. In such an event the Judge can call in aid the confession and use it to lend assurance to the other evidence and then fortify himself in believing what without the aid of the confession he would not be prepared to accept (see Kashmira Singh Vs. The State of Madhya Pradesh, ). When there is no other evidence against an accused except the confession of a co-accused, his conviction on the basis of the confession would be illegal.
59. But in the instant case, as already noted, there is material on record de hors the confessional statement of Shri Nanday which raises strong suspicion of the complicity of Shri K.N. Aggarwal in the conspiracy. Therefore, the confessional statement of Shri A.P. Nanday dated July 18, 1990 before the Metropolitan Magistrate, Delhi, can be utilised for the purposes of lending assurance to the evidence on record. Shri A.P. Nanday, while admitting that the documents collected by him were false and fabricated and were collected as per direction of Shri K.L. Verma, Director Enforcement, unfolded the role played by Shri K.N. Aggarwal. Shri K.N. Aggarwal accompanied Shri A.P. Nanday to St. Kitts in a private plane, Shri K.N. Aggarwal during the journey to St. Kitts told Shri Nanday that they had been trying to get some material against Shri Vishwanath Pratap Singh or his son Shri Ajeya Singh and it was now that they succeeded in finding something. On October 4, 1989 Shri Nanday along with Shri Devketu went to Hotel Sheraton located at 43rd Street, Seventh Avenue, New York, where Shri K.N. Aggarwal was present. Shri K.N. Aggarwal took them to the room of Mr. George D McLean where Mr. McLean handed over twenty-two photo copies of various documents. Mr. McLean signed the document before him. On October 4, 1989, Shri Nanday accompanied by Shri K.N. Aggarwal went to the Consulate General Office and got the documents authenticated by the Consul General, Shri R.K. Rai. On October 5, 1989 Shri Nanday accompanied by Shri K.N. Aggarwal went to the office of the Consul General after collecting the statement of Mr. McLean running into four pages (Marked A-22 to A-25) and copies of passports of Shri Ajeya Singh dated June 3, 1986 and Shri Vishwanath Pratap Singh dated June 15, 1978 (marked A-26 and A-27). After getting the documents authenticated from the Deputy Consul General, New York, on October 5, 1989 Shri K.N. Aggarwal took Shri Nanday to Plaza Hotel New York and introduced him to Shri Prakash Shah, the then Additional Secretary, MEA, New Delhi. From the room of Shri Prakash Shah, Shri K.N. Aggarwal rang up Shri Shiv Kumar, High Commissioner of India at Port of Spain. After dialling he handed over the telephone to Shri Prakash Shah who asked Shri Shiv Kumar to act according to the Fax message sent by Shri A.P. Nanday dated October 5, 1989 whereby the latter had requested Shri Shiv Kumar to contact the Prime Minister of St. Kitts and Nevis for requesting him to cooperate with the enquiry in respect of the alleged bank account of Shri Ajeya Singh in the F.T.C.L. at St. Kitts. After Shri Prakash Shah had spoken to Shri Shiv Kumar, Shri Nanday also talked to Shri Shiv Kumar and requested his to act as per the request contained in the aforesaid fax. Shri K.N. Aggarwal had told Shri Nanday that Mr. Larry Kolb was a friend of the then Prime Minister of India. Shri Shiv Kumar while talking to Shri Nanday asked him as to who was Mr. Larry Kolb, upon this Shri Nanday replied that he was a friend of the Prime Minister. On October 6, 1989 Shri Nanday accompanied by Shri Devketu went to the hotel of Mr. McLean in New York when he found Shri K.N. Aggarwal to be present. There Mr. McLean introduced Mr. Tonks, a former director of F.T.C.L., to Shri Nanday. Statement of Mr. Tonks was recorded (marked A-29 and A-30). After the recording of the statement Shri Nanday accompanied by Shri K.N. Aggarwal and Shri Devketu went to the office of the Consular General of India at New York and got the statement of Mr. Tonk authenticated by Shri Sengupta, the then Deputy Consul General. Shri Nanday on October 6, 1989 informed the developments to Shri Chandraswami who told him to go back to Delhi and submit his report. The final conclusion of the report was dictated by Shri K.N. Aggarwal.
60. Thus, the statement of Shri A.P. Nanday can be relied upon for it lends credence to the other material on record appearing against Shri K.N. Aggarwal. In view of the material on record I do not find any illegality in the order of the learned Special Judge in framing charge against Shri K.N. Aggarwal.
61. Shri P.V. Narsimha Rao: The main allegations which appear from the material on record against Shri P.V. Narsimha Rao are that Shri Narsimha Rao asked the Consul General of India at New York to attest the documents relating to the alleged account of Shri Ajeya Singh with F.T.C.L. at St. Kitts, but without mentioning his instructions to Indian Ambassador to U.S.A. and also required Shri Shiv Kumar, High Commissioner of India at Port of Spain to ask the Prime Minister of St. Kitts to institute an enquiry into the alleged account of Shri Ajeya Singh, and calls were made on September 27, 1989, October 1, 1989, October 2, 1989 and October 4, 1989, from the suite occupied by him at Hotel U.N. Plaza to the apartment of Mr. Adnan Khashoggi at New York where both Shri Chandraswami and Shri K.N. Aggarwal were staying. The material on record consists of statements of PW15 Shri R.K. Rai, the then Consul General, Indian Consulate Office at New York, PW-17 Shri Prakash Shah, Additional Secretary, MEA, PW-4 Shri H.C. Nahata, PW-18 Shri Shiv Kumar, then Indian High Commissioner, Trinidad. As already noted, according to Shri Nahata, Shri Chandraswami on telephone asked Shri Narsimha Rao to extend his help for the purposes of securing the authentication of documents which Shri Nanday had collected. Shri Narsimha Rao in the first instance showed his reluctance. Thereafter, Shri Chandraswami talked to Shri R.K. Dhawan on telephone and requested him to ask Shri Narsimha Rao to help him. After some time Shri Narsimha Rao rang back and told Shri Chandraswami that he had received a telephone call from Shri R.K. Dhawan from Delhi. He also told him that he was going to ring up the Indian Consulate Office, New York, so that the work for which Shri Nanday would be visiting the Indian Consulate Office is immediately attended to. Shri R.K. Rai (PW-15) in his statement under section 161 of the Code stated that on October 4, 1989 he was informed by the Private Secretary to Shri Narsimha Rao that the latter wanted to speak to him. Thereupon he reached Hotel U.N. Plaza where Shri Narsimha Rao was staying. In the suite of Shri Narsimha Rao, Shri Prakash Shah, Additional Secretary, MEA, was also present. Shri Narsimha Rao told him that Shri A.P. Nanday, an official of the Directorate of Enforcement, New Delhi, would come to him with some documents for consular attestation. He asked him to do the job personally on the same day. Upon this he told Shri Narsimha Rao that he would be free at 4.30 P.M. on that day and thereafter he had to proceed to Ohio in connection with the programme which was to take place on the morning of October 5, 1989. At this Shri Narsimha Rao asked him to wait and went to his bed room. Shri K.K. Rai presumed that Shri Narsimha Rao rang up some one and soon thereafter came out and told him that Shri Nanday would reach his office at 4.30 P.M. Shri K.K. Rai was told by Shri Narsimha Rao that he had to attest the recorded statement of Mr. George D McLean and some other documents recorded/collected by Shri Nanday. Shri K.K. Rai told Shri Narsimha Rao that Dr. Karan Singh, the then Ambassador of India to U.S.A., was also in New York and the former was required to attend upon him as well. He also asked him whether the details of the aforesaid talk should be mentioned to Dr. Karan Singh. In answer to the query, Shri Narsimha Rao told him that the instructions given by him need not be mentioned to the Ambassador. He also told him that in case the Ambassador required him around 4.30 P.M., Shri K.K. Rai should inform him that he was busy with an assignment of the Minister but he should not give any details. Thereafter, he went back to his office where Shri Nanday visited him at about 4.00 P.M. He introduced himself and produced some zeroxed documents for consular attestation. Shri K.K. Rai asked him for the statement of Mr. McLean but he was informed by Shri Nanday that it was not ready. He told him that he would get the statement on the next day. According to Shri K.K. Rai he examined the documents which bore the signatures of Mr. George D McLean in ink thereon. Shri Nanday also produced the Canadian Passport of Mr. McLean for the purpose of identification. Accordingly, Shri K.K. Rai attested the documents and instructed Shri Deepak Sengupta, Deputy Consular General, to attest the remaining documents on the next day. Shri Rai found the direction of the Minister as most unusual. He also stated that he had not made any attestation earlier during his tenure. He also stated that after the attestation in question he did not carry out any other attestation. According to him, the consular attestation work was being attended to by junior officers. He also stated that on October 10, 1989 he received a phone call from Shri Prakash Shah, Additional Secretary, Ministry of External Affairs, New Delhi, asking him to ask Shri Shiv Kumar, Indian High Commissioner, Port of Spain at Trinidad, to get St. Kitts enquiry expedited.
62. PW-17 Mr. Prakash Shah, the then Additional Secretary, Administration (UN and Latin America), MEA, in his statement under section 161 of the Code stated that on September 16, 1989 he left for America to attend a bilateral conference on security matters pertaining to Indian Ocean region between US and India, and reached Washington the same day at 4.30 PM. He stayed at Water Gate Hotel till September 22, 1989. Thereafter he proceeded to New York on September 22, 1989 at 4.30 P.M. in connection with the UN General Assembly Session as he was a member of the Indian Delegation led by Shri P.V. Narsimha Rao, the then External Affairs Minister, who was staying at United Nations Plaza Hotel. At about 9.00 A.M. on October 4, 1989 he was with Shri Narsimha Rao at his hotel when the latter enquired whether it will be possible to have documents brought by an officer of the Enforcement Directorate attested by the mission (Indian Consulate Office). He informed Shri Narsimha Rao that the Consulate General normally attests the documents. However, he advised him to consult the Consulate General. On Instructions of Shri Narsimha Rao he called Shri R.K. Rai, Consul General of India, to the United Nations Plaza Hotel. Shri Rai reached the hotel at 9.30 A.M. He told Shri Rai that Shri Narsimha Rao wanted to know if documents signed by a foreigner could be attested. The Minister (Shri Narsimha Rao) personally talked to Shri Rai, but he was not able to recall the details of the discussions which the minister had with Mr. Rai. Thereafter, Shri Rai left for his Consulate Office. On being asked by Shri Narsimha Rao he informed him that the Indian Mission at St. Kitts came under the jurisdiction of the Indian High Commissioner at Port of Spain. Thereupon Shri Narsimha Rao told him that some official documents would bag sent by the Indian Consulate Office, New York, to the Indian High Commissioner's Office, Trinidad, for taking urgent action. Shri Narsimha Rao asked him to talk to Shri Shiv Kumar, Indian High Commissioner at Port of Spain for getting the action expedited. Shri Narasimha Rao is also stated to have told him that Shri A.P. Nanday from the Enforcement Directorate would also meet him in the same connection. Shri A.P. Nanday met him at about 4 P.M. He called Trinidad but could not talk to Shri Shiv Kumar as he was not in the mission at that time. He, however, asked Shri Shiv Kumar's Private Secretary to pass on the message of Shri Narsimha Rao to Shri Shiv Kumar that necessary action should be taken on the FAX message which was being sent to them from Consulate Office, New York. He also stated to the effect that on October 10, 1989 after reaching India, he talked to Shri S.C. Gupta, Second Secretary, Indian High Commissioner, Port of Spain, on telepnone and informed him that Shri S.K. Singh, the then Foreign Secretary, desired Shri Shiv Kumar or Shri S.C. Gupta to proceed to St. Kitts for collecting certain official documents from the Prime Minister of that country, and after obtaining the same FAX them to the Foreign Secretary as quickly as possible. Similar message was passed on by him to Shri R.K. Rai, Consul General at New York for Indian High Commissioner, Port of Spain. It was also stated that Shri R.K. Rai was also able to convey his message to Shri Gupta. He expressed his ignorance about the nature of documents which were required to be collected from the Prime Minister of St. Kitts. He, however, knew that these documents related to official enquiry being conducted by the Government of India in the so called St. Kitts affair. While concluding his statement he stated that he had passed on the message to Port of Spain under the directions of Shri Narsimha Rao, the then External Affairs Minister, and Shri S.K. Singh, the then Foreign Secretary.
63. Shri Shiv Kumar (PW-18) inter alia confirmed the telephone calls received from Shri Shah. He also alluded to the fact that he received similar instructions from Shri R.S. Rathore, Joint Secretary, Ministry of External Affairs, New Delhi, at his residence. He is also stated to have received a telephone call of Shri A.P. Nanday, Deputy Director, Directorate of Enforcement, New Delhi, from New York to confirm whether he had received FAX message sent by the latter from the office of the Consulate General of India at New York. He confirmed the receipt of the following FAX message which Shri Nanday had sent to him :-
"Reference of enquiry.
It is alleged that one Shri Ajeya Singh had an account with the First Trust Corporation Ltd., St. Kitts and Nevis. The nature is criminal and contrary to the Indian Foreign Exchange Regulations Act Law. The Prime Minister of St. Kitts and Nevis may please be requested to cooperate in the enquiry through me and/or through one Mr. Larry Kolb of Florida who will on my behalf call on the Prime Minister.
You are kindly requested to officially request the Prime Minister for his and his Government's cooperation and assistance."
64. Pursuant to the instructions and the FAX message, he is stated to have sent a note to the Prime Minister of St. Christopher (Kitts and Nevis) by FAX on January 17, 1990. This note reads as under :-
"The High Commissioner for India presents his compliments to the Rt. Honourable Dr. Kennedy A. Simmonds, Prime Minister of St. Kitts and Nevis, and has the honour to state that Mr. A.P. Nanday, Deputy Director in the Ministry of Finance, Government of India, has been assigned as Special Officer to investigate and enquire into the foreign bank accounts held by one Mr. Ajeya Singh. The High Commissioner would be grateful if the concerned agencies in the Government of St. Kitts and Nevis could be asked to extend necessary cooperation to Mr. A.P. Nanday.
The High Commissioner for India avails himself of this opportunity to renew to the Rt. Honourable Dr. Kennedy A. Simmonds, Prime Minister of St. Kitts and Nevis, the assurance of his highest consideration."
He also received a FAX message from Mr. Larry J. Kolb which is reproduced in his statement and reads as under :-
"H.E. Shiv Kumar, Indian High Commissioner, Port of Spain, Trinidad.
Dear Sir, Please immediately prepare and transmit by facsimile a letter, on your official letter-head and signed by you, addressed to the Right Honourable Doctor Kennedy Simmonds, Prime Minister of Saint Christopher and Nevis. Your letter should :
(a) make reference to the letter dated 30th September 1989 from A.P. Nanday of the Enforcement Directorate to Doctor Simmonds;
(b) formally request on behalf of the Government of India that the government of Saint Christopher and Nevis immediately institute an investigation into the matters discussed in Mr. Nanday's letter;
(c) request that the Doctor Simmonds meet with you as soon as possible and request a meeting on Monday, 9 October 1989. A copy of Mr. Nanday's said letter should be transmitted with your letter to Doctor Simmonds. The facsimile number of Doctor Sim-
monds government is (809) 465-1001.
Thank You, and very best wishes, Sd. Larry J. Kolb."
65. He also stated that on October 6, 1989 Mr. Larry J. Kolb telephoned him in his office and later in the evening at his residence to find out as to what action had been taken in regard to the fax message. In the same connection he received a telephone call from Shri Kailash Nath Aggarwal at his residence from New York on the same day. As already noted, Shri Aggarwal on telephone claimed that he was a businessman and a family friend of Shri Narsimha Rao and others. Both Mr. Larry J. Kolb and Shri K.N. Aggarwal urged him on telephone to proceed to St. Kitts and Nevis and meet that country's Prime Minister. While he was being asked to go to St. Kitts, he sent a message to the Ministry of External Affairs to the following effect :-
"Reference your telephone calls. Montserrat, Antigua and St. Kitts werer badly devastated in last month's hurricane. I was able to send messages of sympathy to Prime Ministers last week through a friendly source. Communications only partially restored last week-end. I have telefaxed a message just now to Prime Minister on specific subject of your calls. Please ask F.S. if it is desirable for me to travel briefly to meet him before he leaves for CHOGM."
66. In response to the written communication, Shri Prakash Shah by a telegram informed him that visits to countries which were under his jurisdiction was a matter within his own discretion and if he considered a visit to any country within his jurisdiction to be necessary on account of official work it was for him to decide. While this was stated on paper, his Private Secretary received a telephonic message from the Deputy Consul General, New York, Shri Sengupta, conveying urgent instructions from the Foreign Secretary that he should personally go to St. Kitts and Nevis and collect the letter from that country's Prime Minister and fax the same to the Foreign Secretary within the next twenty-four hours, or he should depute his second in command, Shri S.C. Gupta, for this purpose. In this connection Shri Prakash Shah on October 10, 1989 spoke to Shri S.C. Gupta from India. He later telephoned him at Barbados on the same day conveying the same instructions from the Foreign Secretary. From the talk he gathered the impression that Mr. Larry Kolb had arranged a suitable letter from the Prime Minister of St. Kitts and Nevis but the letter could be collected only by him personally or by Shri S.C. Gupta. Accordingly, Shri S.C. Gupta was deputed to St. Kitts on October 11, 1989. He met the Prime Minister of St. Kitts and Nevis and returned to Trinidad on the same day. The Prime Minister of St. Kitts directed Shri Gupta to the Attorney General, Mr. S.W. Tapley Seaton, who promised that the Ministry of Finance in St. Kitts would go into the matter. However, letter from the Prime Minister of St. Kitts was not forthcoming and accordingly Shri S.C. Gupta was not able to collect the same and returned back to Trinidad on October 11, 1989 itself. These events were brought to the notice of the Foreign Secretary on telephone on the same date. However, the Foreign Secretary again emphasised that letter from the Prime Minister of St. Kitts and Nevis must be faxed in next few days. On October 12, 1989 Mr. Larry Kolb telephoned his office to find out if the letter from the Prime Minister of St. Kitts was obtained and telefaxed to New Delhi. On coming to know that no such letter was received from the Prime Minister, he got furious and asked Shri Shiv Kumar's Private Secretary to call Shri S.C. Gupta that he better arrange to get the letter quickly otherwise his job would be at risk. Mr. Larry Kolb also telefaxed the following message to Shri Gupta:-
URGENT "Mr. Gupta Indian High Commission Port-of-Spain Trinidad.
Dear Mr. Gupta:
I am fixing this to you because I am unable to reach you now by telephone, to discuss your business in St. Kitts. As to this, please note the following :
1. Your office has known since last week that I intended to be in st. Kitts to advise and assist you in your meeting with the local government.
2. Your office has known since Monday morning, 10 October 1989, that I have been in St. Kitts awaiting a representative of your commission, and has been informed of how to contact me here.
3. Therefore, I am most disappointed that today, when I asked you why you did not contact me prior to your meeting yesterday in St. Kitts, you replied that you did not know that I had yet arrived in St. Kitts.
4. I am also most disappointed that you did not discuss this matter with me before your meeting with the Prime Minister of St. Kitts. Had you done so, I would have been able to inform you of all the groundwork which had been done for your meeting, to advise you of the informal arrangements which had been made with the Prime Minister of St. Kitts, and to advise you of the specific objectives of your meeting.
5. Had you spoken with me in advance of your meeting you would have known that your meeting had only two goals : (1) to officially request that the government of St. Kitts and Nevis Cooperate with the Indian Investigation of V.P. Singh and Ajeya Singh's alleged St. Kitts' bank account; and (b) to request and receive, from the Prime Minister a letter confirming that the Government of St. Kitts and Nevis had received your request and would investigate the matter.
6. You this morning told me that, during your meeting yesterday, the Prime Minister confirmed orally that his government would investigate this matter. When I asked you why you had not requested that the Prime Minister provide you written confirmation of this, you said that you had "believed that his verbal assurance was sufficient."
7. It is most unfortunate that it is only now that I have the opportunity to inform you that you were wrong to believe that such verbal assurance was sufficient, and that the main purpose of your meeting was to obtain a written confirmation of this verbal assurance.
8. The Prime Minister of St. Kitts is leaving tomorrow on an extended visit to Asia. As such, it is very important that you immediately take steps to ensure that you receive today or tomorrow, a letter from the government of St. Kitts confirming that it will investigate this matter.
9. Toward this end, I hereby advise and ask you to immediately draft and sign a letter to the Prime Minister of St. Kitts along the following lines:
(DRAFT) Indian High Commission (Letterhead) 12 October, 1989 The Right Honourable Doctor Kennedy Simmonds, Prime Minister and Foreign Minister of Saint Christopher and Nevis, Government Headquarters Basseterrs, St. Kitts.
Dear Mr. Prime Minister:
Thank you for meeting with me yesterday to receive the Indian government's request that the government of Saint Christopher and Nevis cooperate in the Indian government investigation into certain allegations about Mr. V.P. Singh and Mr. Ajeya Singh.
As to this, I would appreciate it if you would be so kind as to immediately, by facsimile transmission, confirm to me in writing that you have received our official request in this matter, and that your government will now initiate an investigate into this matter.
Yours very truly, title Gupta"
Such a letter should immediately be faxed to the St. Kitts Prime Minister on fax number 1-809-465-1001. Immediately after that fax is transmitted you should telephone the Prime Minister or his secretary to confirm that your fax was clearly received, and to request that the Prime Minister immediately respond in writing by fax.
Sd/-"
67. Undoubtedly Shri Shiv Kumar's statement shows how he was being nagged by various persons within the Ministry of Foreign Affairs and even by private persons. But the statement of Shri Shiv Kumar and the aforesaid witnesses do not in any way show that Shri P.V. Narsimha Rao was a privy to the conspiracy to forge the documents relating to the alleged St. Kitts account of Shri Ajeya Singh.
68. The conduct of Shri Narsimha Rao in giving instructions to Shri R.K. Rai, Consul General of India at New York for consular attestation of the documents which were to be produced by Shri Nanday, has been , inter alia, relied upon by the prosecution to allege that he was a part of the conspiracy. Much is being made of the fact that he asked the Consul General to do the needful personally and without divulging his instructions to Dr. Karan Singh, the then Indian Ambassador to the USA. It appears to me that without further material being on record even when these allegations are taken on their face value, it is difficult to presume his complicity in the commission of the offence. It is to be noted that there is not even a shred of evidence to show that he had asked Shri Rai to attest the signatures of Mr. George D. McLean on the documents without Mr. McLean signing in his presence or without Mr. McLean being present before him. There is neither any direct evidence nor circumstantial evidence on record linking Shri Narsimha Rao with the fabrication of documents and their publication in newspapers. There is also nothing to show that Shri Rao was aware of the fact that the documents were fabricated. In case there was any evidence to show that Shri Narsimha Rao knew that the documents were fabricated and yet he asked the Consul General of India at New York to attest the same and asked the Indian Mission at Trinidad to expedite the matter relating to the aforesaid fax of Shri A.P. Nanday, certainly in that event he could have been said to be part of the conspiracy, but there is no such evidence. The only evidence is of his unusual behaviour as a Foreign Minister in asking the Consular General to attest the documents and that too personally. This was not the job of a Foreign Minister at all. Shri R.K. Rai in his statement has clarified that neither before the request of Shri Narsimha Rao nor subsequently thereto he had done any such attestation at New York, and this work was being attended to by junior officers. As pointed out by Shri P.R. Vakil, learned senior counsel for the C.B.I., Shri Narsimha Rao wanted three things to be done by Shri Rai-(1) attestation of documents brought by Shri Nanday should be done by him personally, (2) job should be done on October 4, 1989 itself, (3) the Ambassador should not be told about his instructions. Besides, the above instructions, blameworthy conduct, according to Shri Vakil, includes his direction to Shri Prakash Shah to ask the Indian Mission at Trinidad to expedite the matter relating to the FAX of Shri A.P. Nanday in connection with St. Kitts affair. It was also pointed out that Shri Narsimha Rao was part of the conspiracy inasmuch as he was very much in know of things having dealt with the matter relating to the application of Shri Abhay Singh for addition of two visa sheets, etc. According to him, the fact that Shri Narsimha Rao was in picture from the very beginning is evident from the note of Shri Sinai, Secretary (E), dated January 12, 1989. Mr. Vakil submitted that the conduct of Shri Narsimha Rao must be judged in the peculiar circumstances of the case. He canvassed that it must be presumed that Shri Narsimha Rao must have read the newspaper reports relating to St. Kitts affair. He specifically referred to the denial of Shri Ajeya Singh and Shri Vishwanath Pratap Singh with regard to the existence of the alleged F.T.C.L. account. He also made a pointed reference to an article by Lynn Hudson in the issue dated September 28, 1989 of 'India Abroad' which showed that as per the investigation made by 'India Abroad' no such deposit of 21 million dollars in the FTCL was made as the FTCL never had assets of more than a million dollars. He also pointed out that besides this several other reasons were given to discount the theory that such a huge deposit was made by Shri Ajeya Singh. He also submitted that factum of attestation is admissible even when Mr. George D. McLean or Shri A.P. Nanday were dead and had the effect of proving the documents thus exposing Shri Ajeya Singh and Shri Vishwanath Pratap Singh to criminal prosecution. He contended that certain presumptions under the economic statutes like FERA, and Excise Act can be drawn from these documents. It was submitted that at this stage benefit of doubt cannot be given to the accused. It was canvassed that role may be small or big, but knowing the object and purpose behind the role is enough for the purposes of charging a person under section 120B IPC. He further argued that since Shri Narsimha Rao had committed an illegal act, it is for him to explain his conduct at the trial. He contended that if the work had to be done in accordance with the rules, Shri Narsimha Rao would not have sent for Shri R.K. Rai, the Consul General of India at New York. According to him it may not be possible to unravel all the details of the conspiracy and evidence in support thereof as conspiracy is hatched in secrecy. In the circumstances, therefore, something can be inferred on the dictates of prudence. I have considered the submissions of Shri Vakil. It has come in the statement Shri H.C. Nahata that initially when Shri Chandraswami sought Shri Narsimha Rao's help for attestation of the documents, he showed his reluctance. This fact by itself reflects that if Shri Narsimha Rao was part of the conspiracy he would have readily acceded to the request of Shri Chandraswami. According to Shri H.C. Nahata, Shri Chandraswami after talking to Shri Narsimha Rao talked to Shri R.K. Dhawan on telephone and requested him to ask Shri Narsimha Rao to render his help in the matter. It was thereafter that Shri Narsimha Rao telephoned Shri Chandraswami and told him that he had received a call from Shri R.K. Dhawan from New Delhi. He also told him that he was going to ring up the Indian Consulate Office at New York and the work for which Shri Nanday would be visiting the Indian Consulate Office would be immediately attended to. At the highest without going into the question how Shri H.C. Nahata knew that Shri Chandraswami talked to Shri R.K. Dhawan after speaking to Shri Narsimha Rao regarding attestation of the documents and how he knew that Shri Narsimha Rao telephoned Shri Chandraswami after receiving call from Shri R.K. Dhawan, it can be said that Shri Narsimha Rao acted pursuant to the call from Shri R.K. Dhawan. Acting to the recommendation of Shri R.K. Dhawan without there being evidence of his knowledge regarding fabrication of the documents will not make him a participant in the conspiracy. It may be noted that the trial court did not take congnizance of the offence against Shri Satish Sharma and Shri R.K. Dhawan and this order was affirmed by J.K. Mehra, J., in Criminal Revision No. 339/97 on April 10, 1997. Therefore, when no cognizance against Shri R.K. Dhawan could be taken on the basis of the inadequate material being on record, then it is difficult to frame a charge against Shri P.N. Narsimha Rao, who allegedly acted at the asking and bidding of Shri Dhawan, without further material of his complicity in the crime. There is nothing to show that Shri Narsimha Rao had reason to doubt the bona fides of Shri A.P. Nanday or Mr. George D. McLean. He merely asked Shri R.K. Rai to attest the documents personally. He, however, did not ask Shri Rai to attest the signatures of Mr. George D. McLean in his absence. As per rule 14 appearing at page 192 of the Consular Manual, normally where a Consular Officer is required to attest the signature of any person, it is essential that the signature should be affixed in his presence unless he is able to identify the signature from his own knowledge in which case he may, at his discretion, certify a signature whose affixation he has not witnessed. There is no material on record including the statement of Shri Rai to indicate that Shri P.V. Narsimha Rao had asked Shri Rai to given a go-by to the aforesaid rule. It will be too much to assume that he had spoken to Shri Rai because Mr. McLean was not to be present before him. Unless there was some evidence to show that Shri Narsimha Rao was privy to the fabrication of documents, or had the knowledge about their fabrication, he cannot be chargesheeted for the offence of conspiracy because he asked the Consul General to attest the documents and not to mention his instructions to the Ambassador. The act of Shri Narsimha Rao in acceding to the request of bidding of Shri Chandraswami of Shri R.K. Dhawan may be irregular but that cannot be classified as illegal. An order of a criminal court framing a charge against the accused affects his liberty to a large extent. Therefore, the court must consider whether the material on record in a case warrants the framing of the charge (see State of Karnataka Vs. K. Muniswamy and others, . Charge can be framed against a person when there is material to show him complicity in the crime. If on the basis of material on record the court comes to the conclusion that commission of an offence is a probable consequence, a case for framing of a charge exists. At the stage of framing of a charge the probative value of the material on record is not to be gone into. The material brought on record by the prosecution must be accepted as true at that stage [see State of Maharasthra and others Vs. Som Nath Thapa and Others, ]. At the time of framing of the charge the trial court is to consider whether there is a ground to frame the charge and for this limited purpose it must weigh the material on record as well as the documents relied on by the prosecution. In Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijjaya and Others, , it was held the if the evidence which the prosecutor proposes to adduce to prove that guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defense evidence, does not show that the accused committed the offence, then there would be no sufficient ground for proceeding with the trial. It was also held that at the stage of Sections 227 and 228 of the Code the court is required to evaluate the material on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence and for this limited purpose the court may sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. While holding so the Supreme Court cited with approval its earlier decision in Union of India Vs. Prafulla Kumar Samai, , where after considering the scope of Section 227 of the Code it was observed that the words "no sufficient ground for proceeding against the accused' show that the Judge is not merely a post office or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, total effect of the evidence and the documents produced before the court and any basic infirmities appearing in the case, and so on. Besides, clarifying the position further it was observed that while exercising power under Section 227 a Judge should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was a conducting a trial. Besides, it was laid down as follows:-
"(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted 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.
(2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.
(3) The test of 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 adduced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
xx xx xx"
69. Having regard to the law laid down by the Supreme Court, if from the unrebutted material on record, accepting the same to be true, ex facie an offence is made out against the accused only then he is to be chargesheeted. Conversely, if the material is not sufficient to cannot be accused with the crime but the evidence gives rise to some suspicion but not grave suspicion against the accused, the trial court is required to discharge the accused. In the instant case, the material against Shri Narsimha Rao, which the prosecution has placed along with the charge-sheet, does not justify the framing of the charges against him under section 227 of the Code. All that the material shows is that his conduct was irregular and unusual in asking Shri R.K. Rai for consular attestation of the documents at the instance of Shri Chandraswami whose request was allegedly backed by Shri R.K. Dhawan, especially when Shri Chandraswami at the time of talking to Shri Narsimha Rao in connection with the authentication of documents which were collected by Shri Nanday, was already being proceeded with by the Enforcement Directorate for FERA violation and was on bail. At the most his conduct can be said to be questionable. But surely it does not show that he was part of the conspiracy to fabricate the documents or he had the knowledge of the fabrication of the same. His conduct of going out of the way is asking Shri R.K. Rai for consular attestation of documents brought by Shri Nanday is as much questionable as the conduct of many others in the Government and outside who have not been chargesheeted. The statement of Shri Shiv Kumar clearly reflects how he was being pestered by the functionaries of the State and private persons for proceeding to St. Kitts for securing a letter from the Prime Minister of that country in connection with the alleged account of Shri Ajeya Singh. It also prima facie reflects how private persons were harassing and threatening him.
70. Learned senior counsel for the C.B.I. argued that each one of the accused was assigned a specific role in the conspiracy and it was not necessary that each one of the participants should have known the ultimate aim of the conspiracy. The role of Shri Narsimha Rao in the conspiracy was to get the documents authenticated, and he executed the role. It seems to me that this fact was not enough to bring home the charge of conspiracy against him. Mr. Vakil, learned senior counsel for the C.B.I., highlighted the meaning of the word "conspiracy" as defined in Section 120A I.P.C. It may be noted that section 120A provides that when two or more persons agree to do or cause to be done an illegal act or an act which is not illegal by illegal means, such an agreement amounts to 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 Explanation to Section 120A clarifies that it is immaterial whether the illegal act is the ultimate object of such an agreement, or is merely incidental to that object. In a group action by conspirators it is not necessary that each one of them must know each other or know all the details of the conspiracy. It is also not necessary that every conspirator must have taken part in each and every act done in pursuance of a conspiracy. But it is essential ingredient of a criminal conspiracy that a person accused of conspiracy along with other should have knowledge of either commission of any illegal act or of taking recourse to illegal means by the co-conspirators along with intent to further the illegal act or facilities the illegal means. Some times knowledge by itself may be enough to infer intent. In support of the proposition that intent can be inferred from knowledge, Shri Vakil cited the decision of the Supreme Court in State of Maharasthra and Others Vs. Som Nath Thapa and Others, . In this case, which is better known as Bombay blast case, it was argued that the charge of conspiracy was not established as the accused did not know that RDX was meant to be used for bomb blasts to Bombay. It was held that to establish the charge of conspiracy it would not be necessary to establish that the accused knew that the RDX was meant to be used for bomb blasts at Bombay so long as they knew that the material would be used for bomb blasts in any part of the country. Since RDX is a dangerous material, which can be used for blasts, the intent to use the same for unlawful purposes was inferred from the knowledge itself.
71. In the instant case no such inference can be drawn from the mere fact that Shri Narsimha Rao had asked the Consulate General to attest the documents. Documents are not like RDX which a user must know that they will be used for unlawful purposes. Therefore, no party can be drawn between the Bombay Blast Case and the case in hand for the purposes of inferring knowledge that the documents were forged ones. Similarly, the intent to use the documents for unlawful purposes cannot be inferred. There should have been some evidence to show that Shri Narsimha Rao was conscious of the fact that the documents were forged ones. Since the prosecution has not brought on record any material whereby it could be shown or even inferred that he had the knowledge of the documents being forged he has rightly not been charged by the trial court for any offence of conspiracy, etc.
72. Shri Vakil, learned senior counsel for the C.B.I., canvassed that there is material on record to show that telephone calls were made from the hold room of Shri P.V. Narsimha Rao at New York to the apartment where Shri Chandraswami was staying. This may be so, but this fact cannot raise presumption that Shri Narsimha Rao knew about the conspiracy and after knowing about the conspiracy he asked Shri Rai to attest the documents.
73. It was further urged by Shri Vakil that the involvement of Shri P.V. Narsimha Rao is manifest from the diary of Shri K.N. Aggarwal which records and abbreviation 'PVN' against the date '12.10.1989'. He pointed out that this was the very same date on which Shri K.N. Aggarwal rang up Indian High Commissioner at Port of Spain and claimed that he was speaking from the "room" of Shri P.V. Narsimha Rao. He submitted that this was a material against Shri P.V. Narsimha Rao. In Shri L.K. Advani Vs. Central Bureau of Investigation, 1997 III AD (Delhi) 53, it was held that the entries made in a diary of an accused can at the most be said to be a document within the meaning of Section 3 of the Evidence Act and mere production thereof is of no value unless the entries are proved by proper evidence. In this regard the court observed as follows :-
"There is another side of the picture. The entries in the said diaries and loose sheets, assuming arguendo, even if they were considered as a piece of evidence admissible under the Evidence Act, the same are of little help to the proposition. The entries therein can at the most be said to be a document within the meaning of Section 3 of the Evidence Act. However, mere production of the said documents does not lead us anywhere unless the contents of the said documents are proved by proper evidence. A document can be proved either by examining the writer of the said document or by a person who is well versed with the handwriting of the maker of the said document or by a fingerprint and hand writing expert. However, even then the contents of the said document have to be proved still by a separate evidence like any other relevant fact.
I am fortified in my above view by the observations of the Hon'ble Supreme Court in Ramji Dayawala & Sons (P) Ltd. Vs. Invest Import, AIR 1981 Supreme Court 2095 (pr.16) .. "Undoubtedly, mere proof of the handwriting of a document would not tantamount to a proof of all the contents or the facts stated in the document, if the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e., by the evidence of those person who can vouch safe for the truth of the facts in issue."
The above view was also reiterated by a Division Bench of the Bombay High Court as reported in Sir Mohammed Yusuf and Another Vs. D. and Another, . "The reason on which the decision of Bhagwati J. is based is not far to seek. The evidence of the contents contained in the document is hearsay evidence unless the writer thereof is examined before the Court. We, therefore, hold that the attempt to prove the contents of the document by proving the signature of the handwriting of the author thereof is to set at naught the well recognised rule that hearsay evidence cannot be admitted. This question has been discussed by Halsbury as paragraph 533 at page 294 (Halsbury's Law of England, 3rd Edn.Vol. 15) under the heading "Hearsay". Says Halsbury:
".....Statements in document may also be hearsay. So, if A had taken counsel's opinion before acting, the contents of the opinion would be admissible for the same purpose, but not to prove the truth of any statement of fact therein."
The same view was also expressed in Om Prakash Berlia and Another Vs. Unit Trust of India and Others, .
Admittedly, there is no evidence with the prosecution to prove the contends and the truth of the entries in the said diaries and loose sheets, except the report of the fingerprint and handwriting expert and the statement of certain witnesses, namely, Pawan Jain, A.B. Pathak and D.K. Gupta which would simply prove the handwriting of Shri J.K. Jain and signatures of Shri S.K. Jain."
74. Therefore, the mere production of the dairy is not enough and cannot be relied upon as the contents thereof have not been vouchsafed by the writer thereof or by the person well versed with his handwriting or by a handwriting expert. The writer of the documents is an accused person. Therefore, obviously his statement cannot be there to prove the contents of the diary. No statement of any person familiar with the writing of Shri K.N. Aggarwal was recorded under section 161 of the Code. Even there is no opinion of the handwriting expert on record with regard to the entries made in the diary.
75. Learned senior counsel for the C.B.I. submitted that Shri P.V. Narsimha Rao was part of the conspiracy to secure the passport documents of sons of Shri Vishwanath Pratap Singh with a view to getting hold of their signatures for the purpose of immitating them. This he wants me to infer from the fact that the passport file of Shri Abhai Singh was placed before him by Shri P.L. Sinai, Secretary (E). According to the note to Shri P.L. Sinai dated January 12, 1989 it appears that in absence of Shri K.K. Tewari, Minister of State for External Affairs, the file pertaining to the passport papers of Shri Abhai Singh was put up before Shri P.V. Narsimha Rao. But that does not mean that he was privy to secure the passport papers of sons of Shri Vishwanath Pratap Singh, or that he had knowledge of the conspiracy to forge and fabricate documents for the purposes of showing that Shri Ajeya Singh had no account with the F.T.C.L. At this stage it will be relevant to refer to the office order No. 9206/FS/88 dated July 1, 1988 issued by the M.E.A. with regard to the distribution of work between the Minister for External Affairs and the Ministers of State in the Ministry. This order reads as follows:-
1. Shri P.V. Narsimha Rao, Minister for External Affairs:
(a) Co-ordination and supervision of the conduct of foreign policy.
(b) All policy issues: papers requiring PM's directions to be submitted through MOSs to EAM.
(c) India's neighbours, including China and Afghanistan.
(d) United Nations & Disarmament, NAM, SAARC and Commonwealth.
(e) USA, USSR, UK, Japan and FRG.
(f) Administration of the IFS 'A', including service conditions and Cadre and recommendations of the Foreign Service Board.
(g) ICCR.
(h) Africa Fund.
(i) All items not specifically mentioned in this order.
2. Shri K. Natwar Singh, Minister of State:
(a) India's neighbours, including China and Afghanistan (through MOS to EAM).
(b) Southern Division, including South East Asia and ASEAN.
(c) United Nations & Disarmament, NAM, SAARC and Commonwealth (through MOS to EAM).
(d) Eastern Europe ) Papers on the USSR, ) UK and FRG will go (e) Western Europe ) through MOS to EAM. including EEC.
(f) Multilateral Economic Relations.
(g) Economic Division, including ITEC.
(h) Policy Planning.
(i) Conference Division.
(j) Protocol Division.
(k) External Publicity.
(l) Foreign Service Training Institute.
3. Shri K.K. Tewari, Minister of State:
(a) Administration matters (except of 1(f) above, which is to be submitted directly to EAM).
(b) Establishment Division.
(c) Africa Division and Southern Africa Unit.
(d) South America and Caribbean.
(e) Haj work.
(f) East Asia (except Japan and China).
(g) West Asia and North Africa.
(h) Gulf.
(i) North and Central America (except USA).
(j) Consular, Passports and Visas.
(k) Legal and Treaties Division.
(l) Coordination and Special Coordination Division/Foreign students.
76. Thus, Shri P.V. Narsimha Rao was not concerned with the matters relating to passports and visas.
77. At this stage it will be advantageous to refer to the statement of Shri P.L. Sinai (PW-12) with regard to his aforesaid note dated January 12, 1989. The statement reads as follows:-
"....The note shows that I have got the approval of MOS (K) for issue of documents to Shri Abhay Singh son of Shri V.P. Singh. From the notings I presume that I must have raised the matter with EAM. As far as I remember Shri P.V. Narsimha Rao was the EAM at that time. On his instructions I must have talked to MOS (K) - I have written OR meaning "on return". I must have awaited the return of MOS (K) and after obtaining his approval, must have given instructions for issue of additional sheets for the Passport of Shri Abhay Singh, as requested by him..."
78. Neither the note nor the statement of Shri P.L. Sinai helps the prosecution in showing the involvement of Shri Narsimha Rao in the conspiracy. There is nothing to show that Shri Narshima Rao knew the purpose for which the passport papers of sons of Shri Vishwanath Pratap Singh were called. In case there was some material to connect Shri P.V. Narsimha Rao with the fabrication of documents, or there was some material to show that he, while knowing that the documents were forged, secured their authentication, he could have been charged along with Shri Chandraswami and Shri K.N. Aggarwal, Since such material is lacking, therefore, the trial court was right in declining to frame charges against Shri P.V. Narsimha Rao.
79. In view of the above discussion, I do not find any ground to interfere with the order of the trial court dated June 4, 1997. The revision petitions are accordingly disposed of, and interim order dated October 15, 1997 passed in Criminal Revision No. 385/97 is hereby vacated.
80. Before parting with the order it needs to be pointed out that the investigating agency should have questioned Shri Diwakar Prasad, DIG, C.B.I., who had requisitioned the passport files of Shri Vishwanath Pratap Singh on November 21, 1988. The questions which beg for answers are: why Shri Diwakar Prasad requisitioned the passport files of Shri Vishwanath Pratap Singh and whether these files were shown to any person or persons in the Government or outside the Government? These questions could have been resolved by examining Shri Diwakar Prasad under section 161 of the Code. Unraveling of this mystery would have been conducive for working out the case. That apart, it appears that Shri Shashank, Joint Secretary, CPV, was not asked any question with regard to the requisitioning of the passport files by the DIG, CBI. Even no question seems to have been put to him to find out whether or not the files after they were returned by Shri Diwakar Prasad were shown to any person or persons including the Minister of State or the Minister for External Affairs. It is also not clear that whether or not the passport of Shri Vishwanath Pratap Singh which was lying in safe custody with the Ministry of External Affairs was handed over to Shri Diwakar Prasad. This clarification should have been sought from Shri Shashank, JS, CPV. It is also not clear whether the present file of Shri Ajeya Singh requisitioned by Shri Shashank at the instance of Shri K.K.Tewari and which was lying in the Ministry was shown to the latter. In the statement of Mr. Lynn Hudson he adverted to the fact that one Mr. Cecil Paper, a businessman of Singapore, knew many details about the F.T.C.L. account.
According to his statement, one Mr. Earny Miller would also be having information regarding the case. It appears that these persons have not been examined by the investigating agency. The investigating agency has the power to further investigate the matter under section 173(8) of the Code. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwandadha Maharaj, , it has been laid down that the investigating agency can conduct further investigation even after a court has taken cognizance of the offence on the strength of the police report submitted before it. The Supreme Court, however, relying upon an earlier decision in Ram Lal Narang Vs. State (Delhi Admn.), , observed that it would be desirable that the investigating agency should seek formal permission of the trail court to make further investigation. In such a situation the power of the trial court to direct the investigating agency to further investigate is not inhibited by section 173(8) of the Code. In this view of the manner, it will be for the C.B.I. to consider the question of making further investigation in the matter, for which purpose it can seek the permission of the trial court. In case the C.B.I. chooses to investigate the matter further, such an investigation shall not come in the way of the trial court in proceeding with the trial of the revisionists in Criminal Revision No. 283/97.
81. Any observation made hereinabove shall not be taken as observation on merits of the case affecting the trial.