Delhi District Court
Cbi vs Sandeep Tiwari Etc (7)(Bx)(Ors Case) on 8 January, 2025
-1-
In the Court of Sh. Ashwani Kumar Sarpal, Special Judge-08 (PC) Act, CBI,
Rouse Avenue Court, New Delhi.
Central Bureau of Investigation
vs.
Sandeep Tiwari and others
CIS No. 188/2019
RC No. 05A/2011/AC-III/CBI/ND
U/s 120-B, 420, 465, 467, 468, 471 IPC
and Section 13 (2) r/w 13 (1) (d) of P.C. Act.
Date of Institution --21-11-2011
Date of decision--------8-1-2025
*****************
8-1-2025.
JUDGMENT:-
1) In this case, initial charge-sheet was filed on 21-11-2011 against accused Sandeep Tiwari (A-1) and Mahesh Arora (A-2) under Sections 120-B r/w 420, 467, 468, 471 IPC and Sections 13 (2) r/w 13 (1) (d) of P.C. Act for committing offences of criminal conspiracy, cheating, forgery etc. besides criminal misconduct by a public servant. Lateron, a supplementary chargesheet was also filed on 8-8-2012 impleading 5 more accused persons namely Suresh Sharma (A-3), Chandra Prakash Shivhare (A-4), Pankaj Shivhare (A-5), Ajay Dixit (A-6) & Pradeep Tiwari (A-7). All the above accused persons now will be referred herein below by their numbers as per chargesheet and not by name. A-1 and A-7 are real brothers.
-2-2) During pendency of the case, A-5 expired and proceedings against him were abated vide order dated 29-1-2018. In this matter, only A-1 was arrested on 24-8-2011 and was released on bail on 2-12-2011. This was the day, on which the Court also took cognizance against accused persons on the chargesheets.
3) Certain abbreviations used in this judgment are described below instead of repeating full name again and again as such words will come repeatedly.
(a) Non Governmental Organization/Organizations-------NGO/NGOs
(b) Gram Chetna Sewa Samiti--------------------------------GCSS
(c) Gram Chetna Sewa Samiti, Dholpur--------------------GCSS (D)
(d) Gram Chetna Sewa Samiti, Morena---------------------GCSS (M)
(e) Jan Sikshan Sansthan/Sansthans--------------------------JSS/JSSs
(f) Jan Sikshan Sansthan, Dholpur---------------------------JSS (D)
(g) Minister of Human Resource Development------------Minister HRD
(h) Ministry of Human Resource Development------------Ministry
(i) Feasibility Study/Studies----------------------------------FS/FSs
(j) Feasibility Study Report/Reports------------------------ FSR/FSRs
(k) Board of Management-------------------------------------BoM Scheme of Government to establish Jan Sikshan Sansthans (JSSs)
4) Before proceeding further, it is necessary to describe in brief one scheme -3- of Govt. as the alleged offences were committed in connection with such scheme. Department of Elementary Education and Literacy under HRD Ministry, Government of India floated a scheme for setting up JSSs in various parts of the country and the purpose of this scheme was to promote education, adult education, vocational and skill development education etc. JSS was earlier known as Shramik Vidya Peeths.
5) Prosecution file D-2 contains the details of such scheme, certain rules and regulations approved in this regard, how many JSSs are already approved and how many have to be approved in coming years, what procedure has to be followed for its setting up and movements of file from lower level to Minister HRD etc. PW-2 Dr. Nasim Ahmad, Asst. Educational Advisor, PW-14 Sh. M. L. Bhatia, Under Secretary, PW-21 Sh. N. Sathyan, Under Secretary and defence witness D2W4 Dr. V. Mohan Kumar, Additional Director in Directorate of Adult Education posted in Ministry at the relevant year 2001-2002 also in their respective deposition mentioned about objectives, eligibility, FSR, some procedure and guidelines as well as the manner in which JSS has to be established etc. in brief.
6) Under this scheme, NGOs sent a proposal to the Ministry for setting up JSSs mainly in the district, where these NGOs are working but there was no bar for setting up JSSs in different districts. Ministry team which is specifically appointed, preliminarily go through/screen the applications of such NGOs to find out whether it fulfils certain basic conditions or not and whether there is requirement to set up JSS in a particular district or not. After clearance of such proposal by Screening Committee, a FSR is obtained on the same. It was not necessary to sanction JSS for those NGOs in whose favour positive FSRs are received. Infact it was the -4- unfettered discretion of Minister HRD to accept the proposal of any NGO and to reject the another one without assigning any reasons, which means that it was the full discretionary power exercised without any rationality to pick any proposal and to reject any other despite the fact that rejected proposals were also having favourable FSRs.
7) However, basically it was decided that in one district, normally there should not be more than one JSS sanctioned except where the District or State is very large. The 5 basic criteria for preliminary screening of the applications/proposals of NGOs received for establishment of JSS is at page no. 40/64 of file D-2. Out of those 5 criteria, major condition was that only those NGOs which have been registered more than 3 years back can apply for setting up the JSS. Other criteria are relating to having some experience in the field of education, adult education, vocational education etc. as well as submission of audited account statements, location of parent NGO and the place where JSS is to be set up.
8) Certain Guidelines/Points to be kept in mind were also framed regarding conducting of FS upon the proposal received from NGO, which are at page no. 60/84 of file D-2. After the receipt of FSRs, the matter is placed before specifically appointed Scrutiny Committee which further study the proposals of NGOs in detail, consider in which District or State JSS has to be established and then matter is placed before the higher officers with recommendations but ultimately it is the final decision of Minster HRD, which proposal of NGO is to be accepted and which is to be rejected. He was not bound to give any reasons for accepting or rejecting any such proposal.
9) Once the proposal of any parent NGO is accepted, then the Ministry -5- sanction some initial amount to it to facilitate for setting up a separate JSS and subsequently other grants are released directly in favour of the said JSS only. The newly set up JSS gets a separate identity for all purposes even though it is formed by a particular parent NGO. Such JSS gets sanction of funds every year from the Ministry and the working of such JSS is also monitored from time to time by Central and State Govt. officials. Even BoM of such JSS is having different nominated government officers to keep check on its activities.
The brief facts regarding the JSS (D) in question
10) File no. D-2 seized by the CBI relates to setting up of various JSSs during the year 2001-2002 including the JSS (D) in question. Note sheets of this file shows that 16 new JSSs were to be sanctioned in that year, whereas 212 proposals from 22 States were received from different NGOs. However, this figure was changed from time to time. Some proposals of the previous years were also pending under consideration. After rejecting some proposals at preliminary stage by Ministry staff itself, a list of State wise 198 proposals received from different NGOs was prepared which were found viable qua which FSRs were to be called. However, since the number of JSSs to be set up in this financial year 2001-2002 was only 16, so it was decided that a team for conducting further preliminary screening be formed and this team completed the screening of the proposals received and recommended to conduct FS of 76 proposals from different States only. Some FSRs of few pending proposals were already received by the Ministry in the previous years. Accordingly, different officers were given the duty to prepare the FSRs in respect of 76 proposals selected by visiting the office of NGO concerned and to take into consideration the -6- guidelines/ points which are to be kept in mind by such officers, while conducting the FSs. Initially, no NGO from Rajasthan State was short listed but since one NGO GCSS (D) from Dholpur, Rajasthan was recommended by three different Member of Parliaments, so its name was subsequently included. A-2 who was posted as Under Secretary in the Ministry at that time was given duty to conduct the FSR of this NGO GCSS (D). He visited Dholpur on 19-12-2001 and submitted his FSR on 24-12-2001.
11) The concerned Minister HRD approved 10 JSS for the year 2001-2002 on 16-1-2002, out of 16 JSSs which were to be set up. Lateron 4 more JSSs including for Rajasthan through GCSS (D) was also approved on 1-2- 2002 by Minister HRD and formal sanction letter in this regard was issued on 19-2-2001 by Ministry. Subsequently, the balance 2 JSSs were also approved by the Minister HRD on 27-2-2002. This Court is concerned only with JSS (D) established through GCSS (D), so is not going through other details. Initial sum of Rs. 13 lakhs were released in favour of GCSS (D) on completion of certain formalities on 19-2-2001 and thereafter, JSS (D) started getting sanction of the funds directly which was setup by parent NGO i.e. GCSS (D).
12) This Court has not to scrutinize the legality and validity of discretion exercised by Minister HRD and to check whether Ministry followed the proper procedure/guidelines qua others GCSS or not but is mainly concerned with sanction of JSS (D) to GCSS (D). During examination of certain official witnesses, it has come on record that certain addition alteration and changing of the views from time to time in respect of certain proposals of NGOs had taken place as revealed from different notings of file D-2 but that is not the concern of this Court. Similarly, -7- during cross examination of certain official witnesses, different counsels also put various question related to different NGOs and brought into light certain discrepancies in various FSRs, the manner of preparing office files, non-availability of certain FSRs in official record and unauthorised changes taken place in the record etc., which are not directly concerned with the matter in question. Number of questions put in cross examination of some witnesses are to be ignored that are related to the proposals received from different States in between, FSRs conducted on the same and recommendations made on it which were previously rejected also for sanction of JSSs. Counsels wanted to show that no uniform criteria was being followed in the Ministry and there was full discretion to go anywhere and no due application of mind was exercised by different officials but this Court is not concerned with those other facts because it is not scrutinizing the legality and validity of such discretion used and to find out whether proper procedure qua others GCSS was followed or not as this Court is concerned only with sanction of JSS (D) to GCSS (D) and other matters related to it.
Brief Facts as per chargesheets
13) In this case, FIR Ex. PW64/A was registered on 19-5-2011 on the basis of a complaint of PW-26 Sh. Amit Khare, Chief Vigilance Officer & Joint Secretary of Ministry, Department of Higher Education dated 27-7-2010 Ex. PW26/A. Investigation of the said case was marked to IO PW-64 Sudhanshu Shekhar.
14) It is mentioned in the complaint Ex. PW26/A that two complaints dated 24-8-2009 and 31-8-2009 were given by Sh. Ashok Argal, Member of -8- Parliament with the averments that JSS (D) was got sanctioned on the basis of forged registration papers and the original proposal given by GCSS (D) with the Ministry was fraudulently replaced in the files with connivance of Ministry officials. After receipt of these complaints, internal enquiry was conducted which revealed that JSS (D) was sanctioned to NGO GCSS (D) on 19-2-2002 on the basis of the FSR submitted by A-2. According to the said FSR, GCSS (D) was registered on 15-6-1996 under Rajasthan Societies Registration Act and fulfilled the criteria of minimum period of 3 years. On the basis of this FSR, Rs. 13 Lakhs were released to GCSS (D) for establishing JSS at Dholpur. However, in the Ministry record, infact GCSS (M) was found registered under Madhya Pradesh Societies Registration Act on 18-9-1995. A-2 on inquiry admitted that his FSR has been manipulated and he even in his letter dated 6-10-2009 addressed to Director requested for investigation on it. The Ministry obtained report from District Collector, Dholpur who confirmed that GCSS (D) and JSS (D) were actually registered in the year 2002. The Chairman, GCSS (D) who was A-3 at that time, also informed to the Ministry that he had not applied for sanction of JSS at Dholpur, Rajasthan. He also informed that JSS (D) actually belongs to GCSS (M), which was registered on 28-9-1995 under Madhya Pradesh Societies Registration Act. Even Chairman, JSS (D) informed the Ministry that its parent NGO is GCSS (M) which had submitted a proposal to the Ministry on 12-2-2001 for sanction of new JSS. Since, it was found by the Ministry that the original record has been tampered with by some unknown officials of the Ministry in connivance with office bearers of GCSS (D), so the matter was referred to CBI for investigation. In the complaint, CBI was specifically asked to investigate on the four following issues;
-9-(i) The persons/officials responsible for changing/tampering the records of the Ministry in the aforesaid issue;
(ii) Even though Shri Suresh Shamra, Chairman, Gram Chetna Seva Samiti, Sepau Road, Ramkunj Colony, Dholpur (Rajasthan) has denied that they had never applied to the Ministry for sanction of JSS, the position intimated by Shri Mahesh Arora, the then Deputy Secretary who conducted the feasibility study contradicts the same.
(iii) Though the Samiti at Dholpur claims to be a branch of Gram Chetna Seva Samiti, Morena, there is no evidence on record to establish linkage of branch office at Dholpur with main Samiti at Morena.
(iv) If the allegations are established, the persons responsible for tampering the records and obtaining the grant from the Ministry in a fraudulent manner may be identified and brought to justice.
15) It is important to mention here that apparently investigating agency had not done complete and sincere investigation on all the above referred aspects as mentioned in complaint cum FIR. CBI did not register any FIR for about 9½ months even after receipt of complaint of PW-26 and during this period no preliminary inquiry was conducted. The role of internal departmental officials except of A-2, who allegedly were part of conspiracy in committing different offences was not investigated at all on the pretext that sufficient evidence was not available and actual culprit was not brought to books. Infact the investigation appears to be unprofessional, biased and defective and IO left various lapses and -10- lacunas in the same, the benefit of which goes to the accused persons. Facts came on record, even deposed by IO PW-64 himself point out that he had done investigation half-heartedly with pre-determined approach as well as in highly casual manner.
16) After investigation, CBI filed chargesheets and found that A-3 had submitted a proposal with the Ministry in the capacity of Chairman, GCSS (D) on 12-2-2001 for sanction of JSS (D) alongwith certain documents. This proposal was marked to A-2 vide office order dated 12-12-2001 for conducting FS in order to assess its viability and he submitted his report on 24-12-2001 recommending the proposal of GCSS (D) for sanction of JSS (D). According to his report, GCSS (D) was registered on 15-6-1996 under Rajasthan Societies Registration Act and its Chairman was A-3. Chargesheets further says that on the recommendation of A-2, JSS (D) was sanctioned to GCSS (D) on 19-2-2002 and funds of Rs. 13 Lakhs were released to it for setting up JSS (D). Subsequent grants were released in favour of JSS (D) for the period from 2001-2002 to 2009-2010 amounting to Rs. 1,47,56,169/-. Thus, the total amount released to GCSS (D) and JSS (D) was Rs. 1,60,56,169/-. It is also mentioned in the chargesheets that the original FSR submitted by A-2 was kept in the file no. D-1 of the concerned JSS (D), whereas copy of the same was kept in Guard file no. D-3. According to the investigation, some pages of the original proposal dated 12-2-2001 submitted by GCSS (D) and first four pages of FSR dated 24-12-2001 kept in file no. D-1 were replaced in order to show that JSS (D) was sanctioned to GCSS (M) and not to GCSS (D). However, the photocopy of FSR lying in Guard file no. D-3 was found correct and intact.
17) After filing of the initial chargesheet against A-1 and A-2 only, further investigation continued and in the supplementary chargesheet, 5 more -11- accused persons A-3 to A-7 were added and some more evidence was brought on record especially the opinions of two handwriting experts. During further investigation, specimen signature/handwriting of some accused persons and others were sent to CFSL for opinion with regard to questioned handwriting/signatures. Further investigation was also conducted for ascertaining the existence of members of the BoM of JSS (D), member of executive committee of GCSS (D) and GCSS (M) and on utilization of funds released by the Ministry to GCSS (D) & JSS (D). Due to detection of offences of cheating and forgery, further grant to JSS (D) was stopped by Ministry. Role of different accused persons in the commission of offences according to the chargesheets are described below.
18) Role of A-1:- During investigation, specimen handwriting of A-1 and A-3 were taken and sent to CFSL for expert opinion alongwith the questioned documents. The expert opined that A-1 had forged the signatures of A-3 and also wrote "Pra Kumar" against the name and signature of Secretary GCSS (D) on the proposal and submitted with the Ministry on 11-8-2001. Some pages of that proposal and FSR of A-2 were subsequently replaced by him in conspiracy with others to show that parent NGO of JSS (D) is GCSS (M). There was no NGO registered on 15-6-1996 in the name of GCSS (D) under Rajasthan Societies Registration Act. The funds received from the Ministry in the name of GCSS (D) and JSS (D) were deposited in the bank accounts of these two institutions maintained in State Bank of Bikaner and Jaipur, Dholpur and A-1 in the capacity of Secretary of GCSS (D) and in the capacity of fake Chairman of JSS (D) alongwith others had withdrawn the said money and misappropriated. It was also found that no JSS (D) was ever sanctioned to GCSS (M) and said GCSS (M) never undertook any activities though it was got registered under Madhya Pradesh Societies Registration Act on 18-9-1995. The address of GCSS -12- (M) was of PW-15 Sh. P.N. Tiwari who was the father of A-1 and A-7 and this NGO never functioned at that address and its office bearers were found fake. It was also found that CFSL report has confirmed that A-1 had made some correspondence with the Ministry and also sent audit report, balance sheet, utilization certificate etc. to it in respect of funds released to JSS (D) by forging the signature of A-7 designated as Director Incharge, JSS (D). He has sent some false information to the Ministry by forging the signature of A-3, Chairman, GCSS (D) that GCSS (M) registered under Madhya Pradesh Societies Registration Act, is the parent organization of JSS (D). He alongwith A-5 was illegally operating the bank account of JSS (D) which should have been operated by the Director of the JSS (D) as per rule who was A-7.
19) Role of A-2:- Chargesheet further says that A-2 was required to verify the registration details of GCSS (D) and its track record, its financial soundness and strength for running JSS (D) but he did not verify those details and recommended for sanction of JSS (D) to GCSS (D) fraudulently which never existed on 15-6-1996 as shown being the date of registration in his FSR. He created a fabricated report and on basis of his false report, JSS (D) was sanctioned to non existing and fake NGO GCSS (D) and huge funds was released. It is further alleged that this accused in conspiracy with A-1 committed forgery, cheated the government as well as described the forged documents of GCSS (D) as genuine which never existed. Due to his recommendation in the FSR, the funds were released to GCSS (D) and JSS (D) and the government suffered loss. He had prepared a false report without verifying the registration of GCSS (D) and other important details. According to the prosecution, he being a public servant had committed offence of criminal misconduct under Section 13 (2) r/w 13 (1) (d) of P.C. Act. He had retired from the service on 30-6-2010 and there -13- was no requirement to obtain any sanction under unamended Section 19 of the P.C. Act at that time.
20) Role of A-3:- According to the prosecution, A-3 alongwith A-1 and A-5 had opened bank accounts in the name of GCSS (D) and JSS (D) in State Bank of Bikaner and Jaipur, Dholpur. A-3 had signed in the capacity of Chairman in the account of GCSS (D), whereas he signed as Director/ Secretary in the account of JSS (D). He was one of the authorized signatories to operate the bank accounts which were opened only for the purpose of receiving of grants from the Ministry. He knew that he was not the Chairman of GCSS (D) and JSS (D) which even did not exist at the time of opening of accounts. He further in conspiracy with A-1 got registered one another organization in the same name of GCSS (D) on 19- 2-2002 under Rajasthan Societies Registration Act. He also submitted a false affidavit before SDO, Dholpur that his organization namely GCSS (D) had nothing to do with JSS (D) or he had not submitted any application before the Ministry. Even in his affidavit given to SDO, he furnished false name of his father and his address. He did not tell correct facts about GCSS (D) and JSS (D) to the SDO in his affidavit despite the fact that he was one of the authorized signatories of bank accounts of these two organizations and accordingly, misled the enquiry conducted by the SDO.
21) Role of A-4:- Investigation has also established that A-4 was associated with accused A-1, A-6 & A-7 in managing the affairs of JSS (D) from the beginning. As per CFSL report, this accused had impersonated as Sh. Rakesh Sharma and Sh. Ram Prasad and put their signatures on the bond dated 28-2-2002 submitted with the Ministry for purpose of sanction and receiving the first installment of payment of Rs. 13 Lakh to be made to parent organization of JSS (D) i.e. GCSS (D) subsequent to sanction of the -14- JSS (D) by the Ministry. Infact Sh. Rakesh Sharma and Sh. Ram Prasad were not existing at the addresses mentioned on this bond. According to the CFSL report, this bond dated 28-2-2002 was sent to the Ministry with forwarding letter under the signature of A-1 who had forged the signature as of A-3 on it. This accused A-4 has further impersonated the signature of Sh. Ram Prasad (Member), whose name alongwith others had been proposed by A-7 to the Ministry vide his letter dated 28-7-2003 for the purpose of constitution of the BoM of JSS (D), when infact no person with the name of Sh. Ram Prasad was staying at the address given in this letter.
22) Role of A-5:- This accused had expired during trial but according to the chargesheet, he had falsely put his signature in the bank account opening forms of GCSS (D) and JSS (D) as Treasurer and he was one of the authorized signatories alongwith accused A-1 & A-3 for operating the bank accounts as per CFSL report. He had signed some high value cheques alongwith A-1 which were issued from the bank accounts of GCSS (D) and JSS (D) and withdrew money which was remitted by the Ministry for running the activities of JSS (D).
23) Role of A-6:- Investigation has established that A-6 was associated with accused A-1, A-4 & A-7 in running the affairs of GCSS (D) from the beginning. CFSL report has confirmed the handwriting of A-6 on the body of "List of Board of Members (Proposed)" which was forwarded by A-7 to the Ministry vide letter dated 28-7-2003 for the purpose of constitution of the BoM of JSS (D). Investigation has revealed that persons mentioned in the list, who had been proposed as members in the BoM are fake and they did not exist. In this list, the name of one "Sh. Ajay Kumar" appears as Chairman, of parent Organization i.e. GCSS (D) and his name has been proposed as Chairman of JSS (D) also. Investigation has revealed that the -15- said Ajay Kumar is A-6 himself and he has functioned as the Chairman of JSS (D) all along. In this way A-6 has falsely presented himself as the Chairman of parent Organization i.e. GCSS (D) though it did not exist. CFSL report has also established that A-6 has put his signatures as Chairman, JSS (D) on the bond dated 17-9-2008 sent to the Ministry for the purpose of release of grant of Rs. 25 Lakh to the JSS (D). Investigation has established that witnesses in the said bond are fake and non-existent. CFSL report has also established that A-6 had signed as Chairman, JSS (D) on this bond and Utilization Certificates for grants received during the year 2007-08 and 2009-10 which were forwarded to the Ministry by the Director (I/C), JSS (D) and in these certificates the amounts shown as emoluments and office expenses are false. Investigation has further established that A-6 in the capacity of Chairman, JSS (D) has provided false information to the Ministry in respect of its query regarding the parent organization of JSS (D). It was informed by him to the Ministry that the parent organization of JSS (D) is GCSS (M) which was registered on 18-9-1995 under Madhya Pradesh Societies Registration Act, 1973. CFSL report has also established that A-6 had operated the bank account of JSS (D) in favour of A-1 in an illegal manner.
24) Role of A-7:- Investigation has revealed that this accused is the real brother of A-1 and he had functioned as Director (Incharge) of JSS (D). Investigation has established that he alongwith his brother A-1, A-4 and A-6 had been managing the affairs of JSS (D). As the Director of JSS (D), he was the executive head of the JSS (D), responsible for its proper administration of the affairs, appointment of staffs, supervision over them, proper execution, implementation of the decisions of the BoM of JSS (D) and Committee, planning of programme of JSS, initiation of action for identification and mobilization of resources needed for conducting the -16- programme etc. He was also the Drawing and Disbursing Officer of JSS (D) and empowered to issue cheques. CFSL report confirms that he has furnished the false names of proposed members of the BoM of JSS (D) to Ministry vide his letters. CFSL report has confirmed the signature of A-7 on the copy of minutes of meeting of general body of GCSS (D) held on 10-1-2003 in which the resignation of A-3 as Chairman was accepted and in his place A-6 was elected as the Chairman of the GCSS (D) & JSS (D). He submitted false information in this regard to the Ministry when infact GCSS (D) & JSS (D) were not in existence. Investigation has further established that audit reports, balance sheets, utilization certificates and details of expenses towards emoluments of staffs of JSS (D) and other expenses were forwarded by A-7 to the Ministry in the capacity of Director Incharge containing false details regarding emoluments of staffs of JSS (D) and other major expenses. Investigation has revealed that A-7 in the capacity of Director, JSS (D) was empowered to issue cheques from the bank account of JSS (D) but he was not the authorized signatory in the said bank account but he allowed his brother A-1 alongwith A-3 & A-5 to operate the bank account of JSS (D) and issue cheques in an illegal manner.
25) Thus, according to the prosecution, all the accused persons in conspiracy with each other got JSS (D) sanctioned from the Ministry on the basis of false and fabricated records and cheated the government to the tune of Rs. 1,60,56,169/- which was the total grant released by the Ministry for running the welfare activities of JSS (D) by means of fraud and forgery. This amount was deposited in two bank accounts opened in the names of GCSS (D) and JSS (D) and was fraudulently withdrawn. Prosecution also relied upon internal vigilance inquiry of Ministry which found manipulations in the record and replacement of proposal and first four -17- pages of FSR given by A-2. The FSR given by A-2 was also found not correct and containing false averments. It is also mentioned by prosecution that GCSS (D) was fake NGO and no office bearer was working in it, which fact was also confirmed from report of SDO, Dholpur as well as one affidavit given by A-3 in that office. Infact GCSS (D) was registered on 19-2-2002 and not on 15-6-1996. The main evidence against A-1, A-3 to A-7 is the four different reports of handwriting experts of CFSL.
Charges framed and Evidence led
26) My Ld. Predecessor vide order dated 23-1-2013 directed for framing of the charges and accordingly, a comprehensive charge under Sections 120- B r/w Section 420/465/467/468/471 IPC r/w Section 13 (2) r/w 13 (1) (d) of P.C. Act was framed against all the accused persons. A-2 was further charged separately under Section 420/465/467/468/471 IPC r/w Section 13 (2) r/w 13 (1) (d) of P.C. Act. Accused no. 3, 4, 5, 6 & 7 were separately charged under Sections 420/465/467/468/471 IPC. These charges were formally framed on 8-2-2013.
27) In order to prove its case, prosecution examined total 64 witnesses whereas A-1 examined 11 witnesses, A-2 examined 5 witnesses including himself, A-3 examined 4 witnesses, A-4 examined 1 witness and A-7 examined 3 witnesses in defence.
28) I have heard PP for CBI and counsels for the accused persons at length and gone through the record. As per the record, prosecution took 15 dates to complete its arguments, whereas counsels for different accused persons took 45 dates. After completion of the arguments of the defence counsels, -18- counsel for A-2 was permitted to additionally argue on 3 dates to counter the submissions made by other accused persons as there was an inter-se clash of interest because some of the accused persons have partly blamed A-2 for commission of offences. The counsel for A-3 was also permitted to make some more submissions which apparently were left and he took one date for this purpose. Written submissions of prosecution and accused persons had also come on record. Keeping in view the bulky record, big number of witnesses with lengthy statements and extensive arguments, even this Court while hearing the arguments had noted vide order dated 22-1-2024 that the time for passing of the judgment may be required atleast 2-3 months but every effort shall be made to pass final judgment in less time. Following points are required to be discussed one by one as raised during oral arguments and in written submissions;
When GCSS (D) was registered
29) JSS was used to be sanctioned to NGO applying for the same and once it is sanctioned, then the said NGO was used to be called as parent organization. It was the main condition of sanction of JSS, out of total 5 conditions as set up on page 40/64 of file D-2 that concerned applying NGO should have been registered more than 3 years prior to moving of application for sanction. This criteria was even found mentioned in note Ex. PW21/D-14 in file D-2 on page 8/6 prepared by Sh. U. Venkateshwarlu, Director (AE). Here in the present matter, after getting approval of Minister HRD, formal sanction letter for setting up JSS (D) Ex. PW21/D in file D-1 was issued on 19-2-2002 under signature of PW-21 Sh. N. Sathyan, Under Secretary of Ministry, whereas application for sanction of JSS Ex. PW6/D-2 lying in file D-1 is dated 12-2-2001 -19- under purported signature of A-3 being the President of said NGO, though this proposal came before PW-21 first time on 11-8-2001.
30) PW-1 Sh. Angad Ram, Assistant Registrar, Co-Operative Society, Dholpur proved the original files of his office Ex. PW1/B (D-8) & Ex. PW1/C (D-7), which he had handed over to the IO PW-64 vide his letter Ex. PW1/A and it shows that GCSS (D) was registered on 19-2-2002 whereas JSS (D) was registered on 1-3-2002. He further separately sent a letter to the IO Ex. PW1/D again confirming that GCSS (D) was registered only on 19-2-2002 and not on 15-6-1996. IO had also seized original Society Registration Register Ex. PW1/D1 for the year 1995- 1996 and Ex. PW11/B for the year 1996-1997 from PW-11 Sh. Bahuri Lal Dixit, Clerk from same office vide seizure memo dated 1-11-2011 Ex. PW11/A, whereas PW-12 Sh. Kuldeep Jain, LDC from the same office deposed that registers Ex. PW1/D1 and Ex. PW11/B were in the handwriting of Sh. Bal Chand Verma, UDC who had already retired from the service. Even in the register Ex. PW1/D1 pertaining to the year 1995- 1996, no society in the name of GCSS (D) was found registered in that year. The Court also observed after seeing this register that it appears to have been made in the ordinary course of business. From the testimony of these witnesses, it is established that the NGO GCSS (D) was registered on 19-2-2002 on which date sanction to JSS (D) was itself given by Ministry. There existed no registration of GCSS (D) on 15-6- 1996. Accordingly, legally GCSS (D) registered on 19-2-2002 could not have applied for sanction of JSS (D) by moving an application cum proposal dated 12-2-2001 (actually submitted in Ministry on 11-8-2001) as it was not fulfilling the necessary condition of 3 years prior registration. Mere fact that PW-1 had no personal knowledge regarding these registrations of GCSS (D) or JSS (D) itself is not a ground to reject -20- his testimony as he was deposing on the basis of the record maintained in his office in the official capacity.
Whether GCSS (D) was actually existing and working
31) Accused persons except A-2 have taken a defence that GCSS (M) working on All India basis was a parent organization of JSS (D) which had applied for sanction in the Ministry for opening of a branch in Dholpur. As held above, GCSS (D) registered on 19-2-2002 was incapable to apply for sanction of JSS (D) with the Ministry as mandatory condition of 3 years prior registration was not fulfilled because application for sanction of GCSS (D) was moved on 11-8-2001. However, registration of NGO and its actual working or existence are two different things. Mere non registration does not mean that NGO GCSS (D) was not in existence and working in Dholpur at all. IO PW-64 had not investigated whether GCSS (D) was functioning on 15-6-1996 or not and mere non registration cannot be equated with its functioning. Even in 2010, letters were sent by Ministry and its reply was given by GCSS (D) from the same official address but IO had not made any inquiry whether the old NGO was still working or not to whom JSS was sanctioned.
32) PW-21 Sh. N. Sathyan, Under Secretary proved a note Ex. PW21/B (part of file D-2) which shows that the name of GCSS (D) was approved for setting up JSS by the HRD Minister. This witness thereafter, prepared a note Ex. PW19/D4 (part of file D-2) for sanctioning of the funds to GCSS (D) and accordingly a sanction letter dated 19-2-2002 Ex. PW21/D was issued by him to GCSS (D). This witness further stated that the names of 3 MPs were mentioned on the proposal of GCSS (D) Ex. PW6/D2 by him in his own handwriting and he mentioned these names while putting up -21- the proposal to the Minster HRD after obtaining FSR of A-2 on it but before that it was also shortlisted by Screening Committee. Though, he did not remember whether he received the letters of recommendation of 3 MPs alongwith or subsequent to the receipt of the proposal Ex. PW6/D2 but stated that mentioning of 3 names of MPs on it indicates that some letters from those named MPs must have been received by him. This witness also stated that letter dated 6-1-2002 regarding approval of JSS (D) Ex. PW21/D4, sanction letter dated 19-2-2002 Ex. PW21/D were sent to GCSS (D) at Dholpur address and were not received back unserved. He also stated that GCSS (D) by signing the sanction letter accepted its terms and conditions and sent it alongwith bond in the prescribed form as well as pre-stamped receipt for the amount to be disbursed to it to Ministry besides other requisite document. Thereafter, he prepared a bill and sent to grant-in-aid cell for release of grant in favour of GCSS (D). This witness also stated that all the communications took place at the address which was verified by A-2 in his FSR and no such communication returned back till March 2003, when he remained posted there nor he had not received any objection or intimation to the effect that GCSS (D) was not functioning from the given address. Thus, as per this official witness PW-21, GCSS (D) was in existence and working from Dholpur, Rajasthan.
33) PW-8 Sh. Asha Ram stated that he was having a property at Bara Badola Sahib, Dhoolkoat, Dholpur which he had let out in May-June 2008 to A-1 @ Rs. 10,000/- per month for running GCSS (D). The said premises was vacated in February 2009 after settling all the accounts including electricity bills. This witness identified A-1 present in the Court. According to admission made by this witness in his cross examination, A-1 used to provide vocational training to children as well as to adults in -22- the premises let out to him. Prosecution declared this witness as hostile but nothing substantial came in its favour. Mere fact that he did not receive complete rent from A-1 who had adjusted part of rent against some amount spent upon the building or municipal numbers were not allotted to houses situated in Ramkunj Colony in year 2008 which was having small area is not a ground to reject his testimony. PW-28 Smt. Anju Devi who was working in JSS (D) till 2010 as Assistant Program officer also specifically stated in her cross examination that office of GCSS (D) was in Ramkunj Colony. D1W9 Sh. Brijesh Sharma s/o Sh. Tota Ram Sharma admitted in his cross examination that in March 2002, there was already an existing office of GCSS (D) at Dholpur and the said organization was functioning from the address of Saipau Road, Ramkunj Colony, Dholpur. Statement of these three witnesses thus also confirms that GCSS (D) was actually existing and working in the letout premises belonging to PW-8 and A-1 was running it.
34) From the testimony of PW-10 Sh. Vivek Singh, it has also come on record that in May 2010, PW-16 Sh. Somesh Upadhyay took his building situated at Sultan Singh Ka Bara, RAC Line, Dholpur on rent for running JSS @ Rs. 5000/- per month for GCSS (D) and in this regard, a rent agreement was executed between his mother Smt. Sudha and PW-16 which is Ex. PW10/A. He also deposed that 10 rooms were let out in the building and about 10-12 staff members of GCSS (D) were working at the relevant time. About 150-200 children/adults used to visit the tenanted premises throughout the day and used to engage in training on vocational subjects such as Computer and Beautician course. This witness also stated that according to his knowledge, there were other branches of GCSS (D) in Dholpur but he had never gone there.
-23-35) On the other hand, prosecution referred to the statements of PW-46 and PW-47 to show that no NGO in the name of GCSS (D) was ever running from Ramkunj Colony, Dholpur. PW-46 Sh. Ram Avtar Parmar, a Teacher in Sr. Secondary School, Dholpur and residing in Ramkunj Colony stated that no society in the name of GCSS (D) was functioning from the said Ramkunj Colony and also stated that his house was situated in Gali no. 1 of the said colony and in the said Gali, only few houses were constructed. However, it has come on record during his cross examination that there were 4-5 Galis in Ramkunj Colony and he knew nothing about shops, offices, institutions and NGO existing in other Galis. Thus, his testimony that there was no NGO in the name of GCSS (D) was confined to Gali no. 1 only and he was ignorant about existence and functioning of such NGO GCSS (D) in other Galis. In same manner, PW-47 Sh. Bhagwan Soni, another resident of Gali no. 1, Ramkunj Colony for last 25 years deposed that there was no society in the name of GCSS (D) functioning in his Gali no. 1 and he never heard about such society but he also did not know whether in other Galis of Ramkunj colony any NGO by the name of GCSS (D) was functioning or not. Hence, the statement of these two witnesses regarding non existence of GCSS (D) in only one Gali is immaterial and does not support prosecution case because the possibility cannot be ruled out that GCSS (D) was functioning from another Gali and not in Gali no. 1. Evidence of the neighbors in respect of GCSS (D) who did not know much is of no use.
36) IO PW-64 during investigation had also not examined MPs Sh. Ashok Argal and Sh. Babu Lal Solanki Ex. MP who were sending letters concerning GCSS (D) and JSS (D) to the Ministry and three other MPs who recommended the proposal of JSS (D) as they could throw some light on the fact whether GCSS (D) actually existed or not and whether -24- they in their correspondences were referring to GCSS (D) or GCSS (M) being parent NGO of JSS (D) or for which NGO they were making recommendations etc. IO even did not seize the recommendation letters of three MPs who favored for setting up for JSS (D) despite the fact that such letters were received in the Ministry and PW-21 Sh. N. Sathyan mentioned their names on the proposal Ex. PW6/D2 in his own handwriting after receipt of their recommendation letters.
37) Prosecution also referred to one RTI reply given by PW-19 Sh. S.P.S. Sangwan, two inquiry reports of SDO PW-9 Sh. Ram Avtar Sharma and one letter of PW-16 Sh. Somesh Upadhyay for creating an impression that parent NGO of JSS (D) was GCSS (M) and JSS (D) was only a branch of parent NGO situated at Morena and there was no NGO in the name of GCSS (D) but it is held below in detail that this RTI reply, SDO reports are liable to be discarded being wrong and contrary to the record, so prosecution cannot take benefit of the same. Accordingly, it is hereby held that GCSS (D) was actually existing and working when the proposal was sent to Ministry on 11-8-2001 for registration of JSS though it was not registered and was not fulfilling the necessary conditions of 3 years prior registration. The possibility cannot be ruled out that along with the proposal Ex. PW6/D2, GCSS (D) submitted fake registration certificate showing its registration in year 1996 which was not correct fact as it was actually registered on 19-2-2002.
Whether GCSS (M) was in existence and actually working
38) Defence of accused persons (except of A-2) is that GCSS (M) was active NGO and was in existence since year 1995 and it was running office -25- from Tulsi Colony, Ganeshpura, Morena, MP from the residential premises of PW-15 Sh. P.N. Tiwari. It is also alleged that infact GCSS (M) had applied to the Ministry for sanction of JSS (D) because it was doing work at All India Level.
39) PW-4 Sh. M.J. Qureshi, Assistant Registrar came from office of Registrar Firms and Societies, Gwalior, M.P. and deposed that GCSS (M) was registered in his office on 18-9-1995 vide registration certificate Ex. PW4/B. The objection raised by the defence counsel regarding exhibiting the photocopy of the registration certificate Ex. PW4/B was rejected by Court because the original was seized in some criminal case and the witness had the copy of the FIR and seizure memo regarding seizure of original certificate on his official record. PW-4 also sent a letter dated 28- 7-2011 Ex. PW4/A to the IO in this regard. In cross examination, he admitted that according to the memorandum regarding the aims and objectives of the society filed at the time of registration, GCSS (M) could carry on its activities anywhere in India and could form branches in same State or other States. It has also come on record from his cross examination as well as admission made during it, that process for registration of GCSS (M) was done by A-3 as he admitted his signatures on rules and regulations Ex. PW4/C annexed with the certificate Ex. PW4/B. In such circumstances, denial of PW-5 Sh. Santosh Tiwari that he was neither President nor any other office bearer of GCSS (M) as well as that he had not signed on the photocopy of the application mark Ex. PW5/A seeking registration of GCSS (M) becomes immaterial and unimportant fact.
40) PW-15 Sh. P.N. Tiwari, father of A-1 and A-7 stated that his sons alongwith A-6 were running GCSS (M) from his premises situated at -26- Tulsi Colony, Ganeshpura, Morena. He also stated that he had let out three rooms of his residential premises to GCSS (M) on rent and a board had been displayed there regarding running of activities of GCSS (M). He identified the photographs Mark X1 & X2 of his premises alongwith display board. According to this witness, 5-6 persons had been employed on regular basis who used to work from 10 a.m. to 5 p.m. and office of GCSS (M) used to be closed on Sunday and public holidays. He also stated that the rent was being collected by his deceased wife but did not know whether she was issuing any rent receipt or not. According to this witness, A-6 is still the President of this society. Though this witness was declared hostile by prosecution but nothing has come on record to shake his credibility and to presume that he had deposed falsely in favour of his two sons who are accused in this case.
41) PW-56 Sh. Jitender Singh Khushwah, is a police constable residing in Tulsi Colony, Laxman Talaiya, Morena and his statement was recorded in Court on 21-3-2018. According to him, one NGO in the name of GCSS (M) was functioning from the house of Sh. P.N. Tiwari about 20- 21 years back (i.e. around 1998-1999) and it stopped working about 4 years back (i.e. around 2014). This witness also stated that this NGO was situated at a distance of about 100 meters from his house. He saw a signboard of this NGO which was later on removed. He, however, did not know who was running this NGO, whether Sh. P.N. Tiwari or anyone else. He also stated that CBI had made inquiries from him but did not record his statement but he had informed to the CBI that NGO was functioning from that area. This witness was declared hostile and in cross examination done by prosecution, he stated that he cannot repeat the exact name of the said NGO but it had the word 'Chetna' in its name. He was having no knowledge regarding the working of NGO or in which -27- field it was working. Despite being declared hostile by prosecution, I could not find any ground to disbelieve him.
42) PW-57 Sh. Satender Tomar, a journalist working in a newspaper and resident of Tulsi Colony, Laxmi Talaiya, Morena deposed in Court on 21-3-2018. He stated that he had heard that an NGO by the name of 'Gram Chetna' was working in his locality but he does not know its full name. He had seen a board bearing the name of this NGO in front of his house which was across the road and belonged to PW-15 Sh. P.N. Tiwari though did not remember the house number or what work that NGO was doing and in which field or who was running this NGO. He also stated that this display board continued to exists till 4 years back. This witness was declared hostile by the prosecution and in cross examination again retreated that he did not remember the full name of this NGO but stated that the words "Gram Chetna" was written on the top and words "Sampoorna Bharat" below it. Mere fact that being a journalist, he had never covered any activity of this NGO GCSS (M) nor took any photograph of the board does not make out any ground to disbelieve him and the arguments of the prosecution that he was declared hostile itself is not a sufficient ground to reject his testimony which otherwise appears to be convincing.
43) PW-58 Sh. Narender Kumar Bajpai, a private tutor and resident of same locality Tulsi Colony, Laxman Talaiya, Mohalla Ganeshpura, Morena stated that he had seen a board carrying the name of NGO GCSS (M) in his locality which was there for the last 10-15 years and was affixed on the house of PW-15 Sh. P.N. Tiwari which was situated at a distance of about 100 meters from his house. This NGO was doing the work of educating poor children and giving training of stitching and tailoring to -28- the girls but had no knowledge who were the persons running that NGO. He stated that CBI never made any inquiry from him. He described that full name of the said NGO was written on the board as GCSS (M) and below the said name, it was written 'Karya Kshetra, Sampoorna Bharat'. This witness was also declared hostile and was confronted with his statement u/s 161 Cr.P.C. and he denied giving of any such statement or making of any inquiry by the CBI from him. Mere fact that he could not tell what address was written on the board is not a ground to reject his testimony.
44) D1W9 Sh. Brijesh Sharma s/o Sh. Tota Ram Sharma in his statement deposed that he met A-3 in March 2002 at the office of GCSS (M) situated at Ganeshpura, Tulsi Colony, Morena. A-3 informed him that he was running an NGO at Morena having branch office at Dholpur. A-3 further informed that he wanted to open an Educational Institution at Dholpur and sought assistance of this witness. This witness, accordingly, helped A-3 for obtaining certain premises at Dholpur and also introduced to certain trainers who could teach at the Institution. This witness further identified A-3 in the Court. In cross examination, he stated that when he visited the office, there was no staff and this address was in the nature of a house, the location of which was revealed to him by Smt. Manorama Sharma. However, he found office type furniture including chairs were lying at that address. He showed ignorance whether that address belonged to Sh. P.N. Tiwari, father of A-1 & A-7.
45) Similarly, D1W10 Sh. Brijesh Sharma S/o Sh. Hari Babu had met A-3 in year 2000 who was running/operating (Sanchalak) NGO in the name of GCSS (M) at Ganeshpura, Tulsi Colony, Morena which organization was engaged in educational activities/vocational training. This witness had -29- gone to get some work. A-3 asked him to come later on, so he visited again in Feb. 2001. There A-3 showed him a proposal which was to be sent to the Ministry and accordingly, A-3 asked this witness that he should visit him at Dholpur where he was proposing to open a branch for the said organization. However, this witness did not meet A-3 subsequently at any time as he got job somewhere else. He also identified A-3 in the Court. The building where he met A-3 appeared to be residential and there were rooms on the ground floor which looked like as an office.
46) IO did not examine Sh. Munna Lal Gupta, who was the Secretary of GCSS (M) as per record. He was required to check whether JSS (D) belonged to GCSS (M) but no investigation was done and even the medical officer who attested some documents of GCSS (M) was not examined. From evidence of PW-4, it has come on record that GCSS (M) was existing and its registration certificate was genuine and other witnesses proved that it was working from Morena but there was no reason available with the IO why it rejected the existence of GCSS (M). Thus, it is proved from record and statements of various witnesses referred above that GCSS (M) was in existence atleast since year 1998- 99 and remained an active NGO till year 2014 and A-6 was its President at the relevant time. The registration of this NGO was done through A-3 in year 1995. Further this NGO was authorized to function in whole of India as per its rules and regulations and was running its office from house of PW-15 Sh. P.N. Tiwari, where display board of this NGO was also affixed.
Which NGO applied for sanction of JSS (D), whether -30- GCSS (D) or GCSS (M)
47) An application or proposal Ex. PW6/D2 dated 12-2-2001 for sanction of JSS (D) was moved in Ministry on 11-8-2001 and it was sanctioned on 19-2-2002. Now question arises which NGO actually applied for registration of JSS (D) because GCSS (D) being registered on 19-2-2002 was not competent and legally permitted to apply due to lack of one main and basic condition of minimum 3 years prior registration. There could be two possibilities, either GCSS (D) applied on basis of fake documents or some another NGO applied for the same. Defence of the accused persons, other than A-2 is that GCSS (M) had applied for the same, whereas according to A-2 infact GCSS (D) had applied for it with wrong averments and wrong registration certificate.
48) PW-14 Sh. M.L. Bhatia, Under Secretary of Ministry stated in his testimony that on the basis of following documents it can be ascertained, whether a particular organization is the parent organization of the JSS:
--The proposal received from the parent NGO;
--Registration Certificate of the parent NGO;
--Feasibility Report conducted by the official with respect to the parent NGO, and
--Project sanctioned to the parent NGO.
This witness PW-14 also stated that the proposal received, resolution of parent NGO, sanction of project, its communication to the concerned parent NGO, receipt of acceptance with a bond, release of the initial grant to parent NGO in the present matter would show, which is the actual parent NGO of the concerned JSS.-31-
49) PW-14 Sh. M.L. Bhatia also stated that after receiving the complaint of MP Sh. Ashok Argal and while preparing the note dated 27-1-2010 Ex.
PW14/G (page 6/4 of D-5), he had seen the relevant documents and found tampering of project proposal and FSR of A-2. He also admitted that as per sanction order, sanction of JSS (D) was granted to GCSS (D) which is described as parent NGO. In his cross examination, this witness denied the suggestion that he had stated about replacement of pages in FSR Ex. PW14/D on the basis of guess work. He clarified that replaced pages were distinctly different and new in appearance, making it obvious that they were not the part of the original report and were replaced subsequently. Mere fact that FSR Ex. PW14/D & Ex. PW14/E were neither submitted nor processed during his tenure is no ground to discard this statement when Court itself has found discrepancies and manipulations on the face of the record by taking judicial notice. The photocopy of FSR Ex. PW14/E is still proved legally and not inadmissible because its author A-2 had clearly proved that it is genuine and correct copy, when the original report Ex. PW14/D was found already tempered with. Admission of PW-14 that in the Guard file D-3, copies of some FSR are not available cannot be held sufficient to totally discard the FSR Ex PW14/E.
50) Moreover, in the note dated 1-2-2002 Ex. PW21/B (page 16A/27 of D-2) prepared by Sh. U. Venkateswarlu, Director in the Ministry, it is again mentioned that the parent NGO is GCSS (D). PW-14 also admitted that once sanction order is passed in the name of a particular parent NGO, that means all procedural requirements have been complied with for the purposes of sanction of a project. PW-14 further besides giving information about 8 Section Officers of Ministry also gave information to -32- CBI that no NGO was sanctioned in the name of GCSS (M) to avail the benefit of JSS Project vide his letter Ex. PW-14/C (D-11). According to PW-14 as per his further cross examination, file of GCSS (D) contained tampered proposal and the FSR was also tampered but no file of GCSS (M) was received though only some letters were received. He clearly stated that it was not established that GCSS (M) was the parent organization of JSS, (D). He also stated that grant in Aid was sanctioned to JSS (D). The parent organization of JSS (D) was GCSS (D).
51) It has come on record also that the tempering of the record and FSR of A-2 apparently took place somewhere in September, 2009 first time mainly in file D-1 by not only changing certain documents of proposal Ex. PW6/D2 and first four pages of the FSR but over stamping was also done to show that parent NGO was GCSS (M) and not GCSS (D). All these tempering was even admitted by PW-21 Sh. N. Sathyan in his testimony but still some documents of the Ministry in this file could not be changed which was showing that the parent NGO was GCSS (D) such as covering letter having endorsement of Ministry, first two pages of application, sanction letter, response of NGO relating to acceptance of the approval, submission of bond, pre-signed receipt etc. The sanction was given by the Ministry in the name of parent NGO i.e. GCSS (D) and even grant was released to it.
52) PW-21 Sh. N. Sathyan, Under Secretary was one of the members of Screening Committee and he had initially scrutinized the proposals received collectively and shortlisted the same. Name of 3 MPs were written by him on the proposal dated 12-2-2001 Ex. PW6/D2 (page 20/23 of D-1) in his own handwriting who had recommended for sanction of JSS in Dholpur. Non production of original recommendation letters given -33- by 3 MPs is fatal to the prosecution case as such letters could show qua which NGO, whether GCSS (D) or GCSS (M), recommendations were made by them for setting up JSS (D). This witness in his cross examination denied that GCSS (D) had its jurisdiction all over India but specifically stated that proposal was received from GCSS (D) and not from GCSS (M), so he could not tell whether GCSS (M) was having branch office at Dholpur and was having jurisdiction all over India or not.
53) A-2 appeared in the witness box in defence as D2W5 and according to him, he had visited the office of GCSS (D) situated on Sapau Road, Ramkunj Colony, Dholpur and found this NGO working there. This address was mentioned on the proposal application also. Further, the Ministry sent approval letter dated 6-2-2002 Ex. PW21/D4 (page 103/106 of D-1) regarding sanction given for setting up of JSS (D) and another sanction letter Ex. PW6/6 (page 104/107 of D-1) or Ex. PW21/D (page 115 of D-1) dated 19-2-2002 for release of sanctioned amount of Rs. 13 lakhs at the same address. The concerned GCSS (D) after receipt of the sanction letters, sent its acceptance, pre-stamped receipt and the requisite bond vide its letter dated 28-2-2002 Ex. PW21/D6 (page 111 of D-1) on its letter head in which the same address was mentioned. The grant in aid through first cheque was also sent at the same address by the Ministry on 14-3-2002 vide Ex. PW21/D5 (page 123/120 of D-1). All these above mentioned documents were sent to GCSS (D) by post by Ministry and were duly received and had not returned back unserved which means that the said NGO was working from the same address Sapau Road, Ramkunj Colony, Dholpur, where A-2 conducted FS.
54) Further, account opening form of account no. 01100048547 in State Bank of Bikaner & Jaipur Ex. PW-3/3 (D-28) is in the name of GCSS (D), -34- which was seized by IO from PW-3 Sh. Rishi Kumar Saxena, Special Assistant. Sum of Rs. 13 lakhs received from Ministry towards first grant was deposited in the same account vide deposit slip dated 12-4-2002 Ex. 13/A (page 12 of D-9/1), out of which approximately Rs. 12.87 lakhs were withdrawn by 17-4-2002 vide cheque and withdrawl slips lying on page 3, 4, 5 of D-9/1. These documents also shows that infact GCSS (D) was the parent organization of JSS (D) which was dealing with Ministry and received first grant. Moreover, IO did not seize any other document regarding registration of NGO which was compulsory to be attached as per RBI guidelines along with this account opening form that could also show whether anywhere reference of name of GCSS (M) is coming or not.
55) During investigation, IO had moved an application u/s 164 Cr.P.C. in Court for recording statement of one Mohit Sharma, UDC in Ministry. In this application, IO clearly mentioned that NGO GCSS (D) had got sanctioned JSS (D). At one stage, even IO PW-64 during his cross examination admitted that Minister HRD had given sanction for JSS to GCSS(D). Accused persons other than A-2 could not brought any evidence on record to establish linkage of branch office at Dholpur with Main Samiti at Morena. The reliance placed upon the reports of SDO PW-9 Sh. Ram Avtar Sharma by prosecution that parent organization of JSS (D) is GCSS (M) and not GCSS (D) is liable to be discarded due to detailed reasons given below.
56) Thus, from the testimony of above witnesses and documents, it is clear that GCSS (D) had actually applied to the Ministry for sanction of JSS (D) and not GCSS (M). Initial grant of Rs. 13 lakhs was received by GCSS (D) in its bank account from which major portion of the same was -35- withdrawn. Since GCSS (D) was not competent to apply for JSS (D) due to absence of 3 years prior registration condition, so the possibility is that it had applied with fake registration paper showing registration in year 1996 when infact GCSS (D) was registered on 19-2-2002 only. Certain other evidence mentioned below also point out that proposal submitted in the name of GCSS (D) and FSR of A-2 was manipulated and tempered in the record of Ministry to show that GCSS (M) had applied for sanction of JSS (D), which fact was not correct at all.
Wrong RTI reply of PW-19 Sh. S.P.S. Sangwan, incorrect reports of SDO PW-9 Sh. Ram Avtar Sharma to connect JSS (D) with GCSS (M) etc.
57) PW-19 Sh. S.P.S. Sangwan, the then Director in the Ministry gave reply Ex. PW19/2 (D-4, page no. 130 to 147) of one RTI application of A-4 dated 22-7-2009 on the basis of the record available in the office at that time and also annexed some documents alongwith this reply. In this regard, various note sheets were prepared/signed by this witness Ex. PW19/3 to Ex. PW19/8 from time to time. In his reply, he mentioned that parent organization of JSS (D) is GCSS (M). He dealt with various issues in his notings including receipt of complaint of Sh. Ashok Argal MP, stoppage of grant to JSS (D), freezing of its bank account etc. However, he in his cross examination admitted that before giving reply, he had not seen the initial sanction file to GCSS (D). However, after going through the file in Court and various notings prepared by himself and communications issued, ultimately he accepted that during year 2001- 2002, JSS (D) was sanctioned to GCSS (D) which was its parent organization. He admitted that he had realized his mistake of sending -36- wrong RTI reply first time in Court during cross examination and CBI has not pointed out towards the same when inquiry was made from him during investigation. He even blamed his subordinates for supplying wrong inputs to him upon which basis he had sent wrong RTI reply. He also admitted after seeing the original documents that due to wrong inputs given to him, his wrong RTI reply had gone. During preparation of one noting dated 16-9-2009, this witness admittedly came to know about the correct facts that office file has been tampered and actual parent organization is GCSS (D), but still he did not send any correct and modified reply that forgery had taken place and no efforts were made to clear the picture and instead made a false plea that he came to know about his wrong reply first time in Court. He sent wrong reply without going through the documents carefully and give reply in very casual manner despite the fact that he was shown the documents of sanction of JSS (D) to GCSS (D) by his subordinates according to his own noting 20-7-2009 before sending the reply on 22-7-2009. He tried to explain that his reply was based upon some of the documents such as registration certificate of GCSS (M) lying in file of NLM division and he did not try to check other important documents including sanction order. He did not check the letter of Sh. Babu Lal Solenki, Ex. MP lying on the NLM file nor observed any manipulations of the record of his division. Thus, it is clear that before sending RTI reply, he either did not check the correct information himself from record and just signed the reply whatever was prepared by others and thus acted in very casual and in negligence manner. From the testimony of this witness, it has come on record that Ministry file was replaced first, then RTI reply was sent on basis of tempered record. It is thus clear from the cross examination of PW-19 that he gave wrong RTI reply dated 22-7-2009 Ex. PW-19/2 mentioning the name of parent NGO as GCSS (M) which was contrary to the official record. He specifically -37- admitted that the name of parent NGO in his reply was different from the name mentioned in the sanction letter.
58) The copy of RTI reply of PW-19 was also available in the vigilance file which was seized by IO during investigation but PW-19 was not confronted with the same with the record to ascertain on which basis he had given reply contrary to the office record and disclosed that NGO GCSS (M) is the parent organization of JSS (D). The repercussion of this wrong RTI reply became very serious subsequently as incorrect SDO reports and letter of PW-16 Somesh Upadhayay also followed it while relying upon this reply of PW-19 which turned the case towards one side and away from the actual truth.
59) SDO PW-9 Sh. Ram Avtar Sharma was deputed to conduct inquiry by District Collector regarding status of JSS (D) and GCSS (D) in pursuance of communication received from Ministry during internal inquiry proceedings which was initiated after receipt of complaints of Sh. Ashok Argal, MP. He gave two reports reports Ex. PW9/B1 and Ex. PW9/B2 and hold that parent organization of JSS (D) is GCSS (M) and not GCSS (D). During inquiry, SDO also received one affidavit Ex. PW9/A1 of A-3 and photocopy of registration certificate of GCSS (D) dated 19-2-2002 Ex. PW9/A2, both lying in file no. D-32 which were handed over to the IO vide seizure memo Ex. PW9/C. In his cross examination, PW-9 admitted that his both reports are based on the inputs that were derived from the office of Sub Registrar and he had not personally visited the said office. His finding in the reports that GCSS (M) is the parent organization of JSS (D) is based upon the information which was given to him by A-6 who also produced RTI reply given by PW-19 which is found to be wrong above. He also admitted that the contents of his report Ex.
-38-PW9/B1 that GCSS (D) registered in year 2002 which had not started any work has no concern with JSS (D) nor it applied for any sanction to the Ministry are based on the information supplied by A-3 in his affidavit. Further, in his cross examination, this witness PW-9 admitted that copy of one RTI reply of PW-19 Sh. S.P.S. Sangwan dated 22-7-2009 obtained under RTI Act was received by him from A-6 but that was not handed over to CBI by him. This witness PW-9 also admitted that as per inquiry conducted by him, JSS (D) had been properly running its activities from the site in question and he had not inquired whether the documents concerning GCSS (M) were genuine or not because Morena was not within his jurisdiction being situated in another State though the distance between Morena and Dholpur was only about 30 Kms. During inquiry he met only A-6 and also gave report that GCSS (D) already closed. Since A-3 was also called during inquiry but when his affidavit Ex. PW9/A1 was received in his office, then he found no question of conducting any further inquiries or to ascertain whether in the past, GCSS (D) was functioning or not. Thus, it is clear that PW-9 had not conducted any independent inquiry or done anything himself but simply relied upon information given by A-6 and affidavit of A-3 as well as wrong RTI reply of PW-19. He even did not check whether GCSS (M) was running JSS (D) anytime or not on the pretext that Morena was in another State. He also did not check whether unregistered GCSS (D) ever existed and working in past in Dholpur and associated with JSS (D) or not. He did not call A-3 in his office even to check genuineness and correctness of his affidavit Ex. PW9/A1 as well as to ascertain whether this affidavit was given by him or not because the actual particulars of father's name and address of A-3 are not matching with the particulars given in this affidavit. The identity of the author of affidavit was not checked by PW-9 before relying upon the same. Moreover, PW-9 also had handed over all -39- the annexures alongwith his reports to IO but those annexures are not found in the judicial record and were concealed. Concealment of annexures of the reports by prosecution also creates a ground to reject these two reports of PW-9. In such situation, findings given in both the reports Ex. PW9/B1 and Ex. PW9/B2 by this witness that parent organization of JSS (D) is GCSS (M) and not GCSS (D) cannot be relied upon especially when a doubt has already arisen whether affidavit Ex. PW9/1 was actually given by A-3 or not as well as from the fact that RTI reply of PW-19 was false being contrary to record. Thus, false RTI reply given by PW-19 which is also one of the strong base for submitting reports by PW-9 creates a good reason to discard his both reports. Non examination of Collector, Dholpur by IO during investigation and non seizure of letter containing terms and conditions of reference to SDO PW-9 for conducting inquiry is also fatal to the prosecution case. IO also admitted in his cross examination that he could not find any linkage between GCSS (M) and JSS (D), so the SDO reports also falls on the ground on this additional ground.
60) Even PW-16 Somesh Upadhyay had given wrong information to the Ministry in his letter dated 21-8-2009 Ex. PW-16/A7 on behalf of JSS (D) as this letter was also based upon the wrong RTI reply of Mr. Sangwan. In view of the above, it is held that RTI reply of Sh. S.P.S. Sangwan, both SDO reports and letter of Sh. Somesh Upadhyay all were wrong to the extent that JSS (D) belonged to GCSS (M) and not to GCSS (D).
Manner of conducting of FS by A-2 and whether he was required to visit office of Registrar, CA and bank to verify the -40- documents of GCSS (D)
61) During final arguments, counsel for A-2 on the basis of record of file D-3 submitted a chart giving details therein which officer conducted FSs, in respect of which NGOs, how many FSs conducted by each one and what was their final conclusion, whether recommended or not as well as which recommended NGOs were sanctioned with the JSSs.
62) There is no dispute of the fact that A-2 conducted only one FS in question pertaining to GCSS (D). Admittedly, A-2 while conducting FS at Dholpur had not visited any office of Registrar of Societies to check the genuineness of the society registration certificate nor gone to any CA or bank to verify the audited reports and financial condition of said NGO, whereas according to prosecution, it was compulsory required from him. In this regard, prosecution is heavily relying upon 'Main points to be kept in mind' by the officer conducting FS which is Ex. PW21/D23 at page no. 60/84 of file D-2.
63) As per record of file D-3, PW-21 Sh. N. Sathyan conducted total nine FSs of which only five were recommended cases for establishment of JSS. PW-21 while conducting FSs of nine proposals in the relevant year 2001- 2002 did not visit any office of Registrar of Societies for verifying the registration certificate of the NGO concerned which fact is admitted by him in his cross-examination. He further admitted that the officers conducting FSs visit the office of the NGO concerned and verify the documents as furnished by the NGO and after looking at the originals produced by the NGO, if he is satisfied, then the officer would not visit Registrar of Societies, Income Tax Department or any other government -41- body to verify the certificate of registration, ITR etc. Thus, prosecution witness PW-21 clearly admitted that there was no need to go to any office for verification of any document, if officer is satisfied. In the present case, charge was framed against A-2 after keeping in view the statement of PW-21 given u/s 161 Cr.P.C. to the effect that A-2 was required to visit office of Registrar Societies to check the correctness of the registration certificate of GCSS (D) but in Court he did not allege anything about it, which means that the charge framed against A-2 falls on ground.
64) D2W4 Dr. V. Mohan Kumar had conducted total 17 FSs in his life out of which 7 were kept in recommended cases list and 10 were kept in non recommended list as per file D-3. Even he conducted 6 FSR in relevant year 2001-2002. This witness working as Additional Director in the Directorate of Adult Education, being a highly experienced officer and providing monitoring technical and academic support to JSSs, admitted in his cross-examination that he had not visited any office of the Registrar to verify the registration certificate of the NGO concerned and also stated that there was no mandate for it. Infact none of the officers who had conducted FSs during the relevant financial year visited any office of the Registrar of Societies as there was no such requirement. A-2 was working under this witness D2W4 during the relevant period when major portion of the offence was allegedly committed as per prosecution. D2W4 specifically deposed that the 6 proposals received from different NGOs in relevant year were handed over to him to compare the photocopies submitted with the originals in the office of organization/NGO itself. It was given to understand at that time that the officer going for FS should see whether NGO is really running at the address given in the proposal, whether original documents are available in the office of the said NGO -42- and whether the NGO is run as a family unit or not. D2W4 further deposed that normally it took one day to conduct FS of an NGO and for this purpose, he himself used to physically go and visit the office of NGO because the purpose of such study is to see whether particular NGO exists and conducts program as claimed and also whether original records are available in the office of NGO or not and beyond that there is no responsibility on the person conducting FS because it was the responsibility of the NGO to produce the original documents at the time of visit for comparison. This witness being very important witness and very higher officer of the department cannot be disbelieved.
65) A-2 while appearing in witness box in defence as D2W5 deposed that he was directed to carry out the FS of GCSS (D) vide Ministry's office order dated 12-11-2001. After approval of his tour program only for one day by the higher officer, he was handed over the copy of the proposal submitted by the GCSS (D) alongwith the documents annexed. He also stated that there was no mandate even in 'Main points to be kept in mind' by the officer conducting FS which is Ex. PW21/D23 to compulsory visit office of Registrar, CA or bank. He also stated that even other officers who conducted FSs had not gone to such offices and had checked the copies supplied with the original documents in the office of NGO only. Even there was no such practice or procedure to be followed in his office at any time in past. Only the detail verification was required to be done under clause 2 of Ex. PW21/D23 to check whether the NGO is running as a family unit or not. A-2 further deposed that after reaching in the office of GCSS (D) on 19-12-2001, he interacted with office bearers and employees of the NGO, compared the copies with original documents shown to him and also saw that NGO was running primary school, conducting typing and shorthand classes, computer learning and craft -43- center and thereafter came back to Delhi on the same night by train as per approved tour program. He also stated that on 24-12-2001, he gave his FSR to the Ministry alongwith the documents which were given to him before leaving to Dholpur. He also proved that he claimed Rs. 754/- towards his TA/DA bill for visiting Dholpur on 19-12-2001 which fact is further established through D2W3 Sh. Jagdish Yadav who proved some record of RTI reply Ex. D2W3/A dated 9-2-2012 in this regard. According to A-2, there were no written guidelines regarding the mode of verification but he had followed prevalent practice and convention and there was no direction for him to verify the certificate by going to the office of Sub Registrar. He had given certain facts regarding grant by other ministries etc. to GCCS (D) in his report but those were mentioned on the basis of the information and data given to him by the office bearers of the NGO. However, he had personally visited the site, where running of school and craft center were found active though he did not mention its place and location. He had prepared his FSR on the basis of the documents/material/activities shown to him by the office bearers of the NGO during his field inspection.
66) During his testimony, PW-14 Sh. M.L. Bhatia at one stage stated that A-2 while giving FSR was required to check the registration certificate of the NGO from the office of Registrar concerned where the NGO was registered. However, he lateron admitted that his deposition about this checking of certificate from office of Registrar was based upon the revised guidelines dated 2-12-2008 and there were no such directions in earlier guidelines prevalent at the time, when A-2 submitted his report on 19-12-2001. He further admitted that he gave his statement to CBI in this regard on the basis of the guidelines of the year 2008, which requires re- verification of the registration of certificate from the office of sub-
-44-registrar that was not therein earlier in year 2001-2002.
67) PW-2 Dr. Nasim Ahmed, Assistant Educational Advisor of Ministry in his examination in chief also stated that the proposal selected by the Screening Committee are to be given to the identified officials/institutions for FS on the spot. He also admitted in his cross examination that the officer who was vested with the tasks of FS was not supposed to visit the office of Registrar of Societies as such to verify the genuineness of the Certificate of Registration, if any produced by the NGO/Society. This witness was not associated with sanction or grant ever and thus being independent witness of the Ministry has to be believed.
68) PW-2 Dr. Nasim Ahmed, also stated that official who was to carry out the FS was required to obtain necessary approval for going outstation or get approval of the tour plan sanctioned from his Controlling Officer. As per record, A-2 was given only one day to conduct the FS by going to Dholpur from Delhi and to come back. D2W4 also stated so in his statement that normally it took one day to conduct FS of NGO. The TA bill of A-2 on page 6 of Ex. D2W3/A (Colly) also confirmed this fact that A-2 was given only one day for conducting the study and during this period of one day, it was not possible for him to visit office of Registrar or CA or bank, so the stand taken by A-2 and supported by evidence of D2W4 as well as certain document and previous similar type of procedure and practice being followed coupled with the fact that there was no such mandate under any guidelines and even in the 'main points to be kept in mind' Ex. PW21/D23, no fault can be found in the manner of conducting FS by A-2 for not personally visiting the office of Sub Registrar or CA or bank and his simple visit to the office of NGO to verify the copies with the originals was appropriate. The stand taken by -45- prosecution to the contrary is hereby rejected.
69) Prosecution even could not produce or show any such mandate to the contrary except for relying upon clause 2 of Ex. PW21/D23 from portion A to A1 of 'Main points to be kept in mind' while conducting FS. However, there is nothing in this whole document that the officer has to visit personally in office of Registrar or CA or bank as alleged by the prosecution. The responsibility to verify and detail investigation under this point is only on the aspect whether the agency is run as a family unit or not and in this regard, query had to be made from the office bearer and staff members of parent organization about the names, addresses and through personal dialogues. Only such guidelines/main points to be kept in mind as relied upon by the prosecution nowhere says about visit to such offices and even otherwise the points to be kept in mind appears to be not mandatory. These points are only for reference purposes and are only guiding factor. Thus, there was no such obligation upon A-2 to visit office of Registrar or CA or bank while conducing FS as pleaded by prosecution. Moreover, various FSRs which have come on record nowhere point out that any officer had gone to such offices to check and verify the documents and instead everyone had simply gone to office of concerned NGO to see the originals. The record also points out that various JSSs have been sanctioned by the Ministry on the basis of such FSRs also, where there was no personal visit of the officer conducting study in the office of Registrar, CA or bank.
70) Ministry had issued certain fresh guidelines effective from 2-12-2008 but those were not applicable when A-2 conducted the FS in year 2001. Thus, A-2 who stated that he had given his report correctly and there was no occasion for him to doubt the registration certificate of NGO, which he -46- had compared with the original as shown to him by GCSS (D) has to be believed. Even PW-64 IO in his cross examination could not comment on the suggestion given on behalf of accused that the concerned official assigned to give the FSR regarding an organization was not required to physically go to the Registrar's office to verify registration of an organization. He stated that his deposition that the concerned officer was required to independently verify the registration certificate by visiting the office of Registrar/Sub-Registrar, where the NGO/organization was registered was based upon the statements given by witnesses PW-2 and PW-14 who did not allege anything in this regard in Court. Accordingly, it is held that A-2 had conducted FS properly and there was no requirement for him to go to office of Registrar, CA, banks etc. to check the documents of GCSS (D).
Which FSR of A-2 is genuine
71) There are two FSR of A-2 on record. Ex. PW-14/D lying in file D-1 is the FSR in which first four pages are allegedly replaced by accused persons in conspiracy with each other as per prosecution allegations and last fifth page is genuine bearing the original signatures of A-2. However, photocopy of the original/actual report is Ex. PW14/E available in Guard File D-3.
72) PW-14 Sh. M.L. Bhatia identified both FSR of A-2 lying in files D-1 and D-3. According to him, original FSR used to be kept in the file concerning the relevant NGO for JSS benefit, while its copy used to be kept simultaneously in the Guard File D-3. He also confirmed that in the report Ex. PW-14/D, first four pages of the FSR submitted have been -47- replaced in the file D-1, which he noticed after receipt of complaint from Sh. Ashok Argal, MP and while preparing a note on it and after seeing the concerned files, he found discrepancies. He also at that time found that tampering of proposal has also taken place. This witness confirmed that Ex. PW14/E lying in Guard File D-3 is the photocopy of original FSR given by A-2. This witness also clarified that replaced pages were distinctly different and new in appearance, making it obvious that they were not the part of the original report and were replaced subsequently.
73) Another witness PW-21 Sh. N. Sathyan in his statement also mentioned how and in which manner the changes were done in the FSR of A-2 regarding use of words, change of fonts, spacing between lines, alignments etc. and clearly stated that first four pages of Ex. PW14/D are different from last page of the document. As per PW-21, the word "Ram Kunj Colony branch" has been mentioned in place of "Ram Kunj Colony" in Ex. PW14/D. The word "Gram Chetna Sewa Samiti branch, Dholpur is an all India organization registered under M.P. Societies Registration Act, 1973 on 18-9-1995" has been mentioned in Ex. PW14/D instead of words "Gram Chetna Sewa Samiti, Dholpur is an organization registered under Rajasthan Societies Registration Act, 1958 on 15-6-1996".
74) Even D2W5 i.e. A-2 while appearing in Court as a witness also proved copy of his correct report which is Ex. PW14/E lying in Guard File D-3 whereas first 4 pages of his original report kept in file D-1 has been replaced. Even he also stated that some of the documents which were given to him while deputing to conduct FS are now not available on the record and have been either manipulated, replaced, forged or removed.
75) Counsel for A-1 pointed towards discrepancies etc. relating to width, -48- appearance, spacing, margin, length of words and figures etc. mostly within the range of one or two centimeters apparently by using the scale but the possibility cannot be ruled out that these things had happened while taking the photocopies as sometimes due to use of different papers, fixation of different ratio in the photocopier machine, placing of original slightly at different place in the machine etc., so these discrepancies and difference can be ignored. Even by taking judicial notice, this Court on cursory look of FSR Ex. PW14/D can say that apparently first four pages are in different font, spacing and also of different colour and quality of the paper, when is compared with the last page of the same which is bearing the original signatures of A-2. If both these reports Ex. PW14/D and Ex. PW14/E are compared with each other, then in respect of certain words, vowels and punctuation marks etc. difference can be found. Further, certain words and punctuation marks appearing at the last of a particular line are found at different place in both FSR. In Ex. PW14/E on second last page under the heading observation at serial number 2 in the last line a word "lot" has been written in hand in place of word "cost" which was originally printed but the same is not found in Ex. PW14/D at that particular place. Certain words were having first letter in capital in Ex. PW14/E but the same are in small letter in Ex. PW14/D. From the apparent perusal of Ex. PW14/D, it is thus clear that an attempt was made to show that JSS (D) has been sought to be established by GCSS (M) through its branch office at Dholpur. GCSS (D) is described as All India Organization registered under M.P. Societies Registration Act in the replaced four pages of Ex. PW14/D. Since the last page of this FSR could not be changed at it was bearing the original signatures of A-2, so clearly the first four pages were changed to represent that infact GCSS (M) was having a branch of GCSS (D) and this branch had applied for sanction of the JSS. The other documents on record containing insertion of stamp in -49- different colour on the head-note portion of letterhead, over-stamping done at some places in different ink leaves no doubt that the actual FSR was Ex. PW14/E which is a photocopy kept in Guard file no. D-3, whereas the first four pages of original FSR lying in file D-1 had been replaced.
76) File D-3 which is a Guard file and in which photocopies of FSRs are kept is not properly maintained and out of 16 sanctioned JSSs, reports of 6 JSSs were found not available in it, which fact is admitted by even PW-14 Sh. M.L. Bhatia and PW-21 Sh. N. Sathyan in their cross- examination. The copies of some FSRs which were available in file D-3 were also incomplete to some extent. This fact alone itself is not sufficient to totally discard this file when relevant FSR pertaining to GCSS (D) given by A-2 is available and is intact.
77) Counsel for A-1 argued that original FSR of A-2 is not proved as per law and the photocopy of the said report lying in Guard file D-3 cannot be considered in evidence because no witness has alleged that he saw the original FSR, prepared its photocopy Ex. PW-14/E and after comparing the same with original kept the same in Guard File D-3. Thus, according to this accused the alleged photocopy of the original report lying in D-3 being a secondary evidence has not been proved due to non fulfillment of the necessary condition as required under Evidence Act. Counsel in this regard relied upon case laws Ashok Dulichand vs. Madhav Lal Dubey UJ (SC) 1975 page 601 and J. Yashoda vs. K. Shobha Rani (2007) 5 SCC 730 and pointed towards rules of primary and secondary evidence, where and in which manner it has to be proved etc. Before admitting secondary evidence, firstly it has to be proved that the original document was in existence and was executed and there should be a proper explanation of -50- the absence of the original. According to A-1, the photocopy of the original FSR lying in D-3 is not proved as per law and thus cannot be relied upon and even IO had not conducted any scientific study in respect of this report by seizing the typewriter on which original was allegedly prepared.
78) The photocopy of the FSR kept in Guard file D-3 is described as a genuine report by A-2 himself whereas the manipulated report is in file D-1 and he was the best person being author of this document to tell which actual report he had given. He was not cross examined in this respect by prosecution, so it is held that A-2 has actually proved which is his correct report. Further, A-2 in his cross examination also explained how and on which basis, he was giving opinion that the original report kept in file D-1 was changed in respect of first four pages. Use of different typewriter/ computer, difference of font, spacing etc. were the clear evidence even in respect of first four pages and last page of the report Ex. PW14/D to show with naked eye that first four pages were replaced. This Court even after suo moto comparison found that in original manipulated report kept in file D-1, there are clear manipulation and variation. First 4 pages are of computer typed whereas original last page is of electronic typed writer which was used in the ministry at the relevant time. The suggestion given on behalf of A-1 and A-7 that both these reports are same is not correct.
79) However, despite holding that first four pages of FSR lying in file D-1 had been manipulated but who had done the same is not clear. From the cross examination of IO PW-64 and some documents relating to Mohit Sharma as come on record, it is revealed that A-1 in conspiracy with Mohit Sharma had done these manipulations but certainly, A-2 was not -51- involved in such tempering which is the allegations in the chargesheet. In the complaint, 4 points were mentioned specifically upon which CBI was requested to investigate but the IO has not done any proper and fair investigation and left the actual conspirator Mohit Sharma intentionally being the insider official of the Ministry who had done the replacement of the documents and FSR of A-2 in connivance with A-1. (The role of A-1 and Mohit Sharma is being discussed hereinafter below in detail). Accordingly, it is held that prosecution has failed to establish that A-2 had changed his report Ex. PW14/D kept in file no. D-1 in connivance with other co-accused or he had not done verification as per procedure and guidelines. Further, it is held that photocopy of FSR of A-2 Ex. PW14/E lying in the Guard file D-3 is genuine and correct.
No demand or acceptance of bribe on part of A-2
80) Counsel for A-2 relied upon case Sayaji Dashrath Kawade vs. State of Maharasthra Crl. Appeal. No. 492/2005 decided on 30-8-2022 by Bombay High Court and argued that presumption under Section 20 of P.C. Act is not attracted because nothing has been proved that accused ever demanded any bribe from other accused persons. Counsel also relied upon one decision dated 14-2-2024 given in case CBI vs. Priyabrata Mitra by this Court itself while passing order on charge in which question of demand of bribe was considered. The prosecution is required to prove that accused had demanded and voluntarily accepted money knowing it to be bribe. In absence of proof of demand of illegal gratification for use of corrupt or illegal means or abuse of position for obtaining any valuable thing or for gaining pecuniary advantage, the offence under Section 13 (2) r/w Section 13 (1) (d) of P.C. Act do not stand established. Mere -52- possession and recovery of currency notes are not sufficient to constitute offence under these provisions. Presumption against public servant under Section 20 of the Act can be drawn only after demand or acceptance of illegal gratification is proved and such presumption is applicable only in respect of the offence under Section 7 of the Act and not under Section 13 (1) (d) (i) & (ii) of the Act. A person charged with offences of corruption under the P.C. Act cannot be convicted on moral and ethics grounds and when the law provides certain mandatory requirements for proving offence, no shortcut is permitted. Prosecution has not brought any single evidence to show that A-2 at any time demanded any bribe amount or accepted anything from any other co-accused persons. On the other hand, some facts came on record during cross examination of IO indicates that demand of bribe and its acceptance was done by Mohit Sharma, UDC posted in Ministry from A-1 and said Mohit Sharma is spared by IO without any basis.
No conspiracy on the part of A-2
81) D2W5 i.e. A-2 while deposing in defence stated that after 19-12-2001, he never met any of the office bearer of GCSS (D) nor met them prior to going to Dholpur for conducting FS. A-2 in his statement also mentioned that after submitting FSR on 24-12-2001, he remained on casual leave for three days, thereafter his father expired on 4-1-2002, so he remained on earned leave from 7-1-2002 to 11-1-2002 and joined the office on 14-1- 2002. He was, thereafter, transferred and joined the new posting on 16-1- 2002. All these dates are not disputed by prosecution. Prosecution even has not cross examined A-2 about material deposition that he was having no connection with the accused persons. Accused is a competent witness -53- and his deposition has to be read in same manner as of other prosecution witnesses. He has proved his defence through his statement in this regard.
82) According to A-2, after submitting the FSR, he neither remained in the department nor handled any file relating to further processing of GCSS (D) or even the scheme of JSS or any other related file. He maximum had given his FSR and had no knowledge about sanction of JSS (D) till 2009, when he received a copy of the letter of MP Sh. Ashok Argal Ex. D2W5/D1 dated 25-8-2009 who had enclosed two FSRs alongwith his letter. From this letter, A-2 came to know first time that his original FSR kept in file D-1 Ex. PW14/D has been manipulated whereas the photocopy of the original FSR kept in file D-3 Ex. PW14/E was intact. A-2 himself asked his Director Mr. I.P.S. Bakshi to investigate about the allegations levelled by MP in his letter Ex. PW26/DA dated 6-10-2009. Even in his letter, MP has not raised any doubt over A-2 for conducting such manipulations. No officer of Ministry deposed about the integrity of A-2 during trial.
83) Admittedly, there is no evidence against A-2 in setting up of GCSS (D) or any evidence that he had met any of the office bearer of NGO before proceeding to conduct FS on 19-12-2001. He met office bearers only during the spot inspection at Dholpur first time on 19-12-2001. He never met any of the accused persons after this date. Thus, A-2 claimed that there was no evidence on record to show that he had conspired with other accused persons before going to conduct FS or at any time thereafter to attract the offence of conspiracy under Section 120-B IPC.
84) PW-14 Sh. M.L. Bhatia had seen file D-5 whereby certain complaints in regard to GCSS (D)/JSS (D) were received and the note initiated on the complaint of Sh. Ashok Argal, MP regarding sanction of JSS (D), also -54- bears his signatures Ex. PW-14/F (Colly). Vide noting of Director Sh. I.P.S. Bakshi Ex. PW14/H, the matter was ultimately marked to the Vigilance Section. In none of the notes or anywhere during vigilance proceedings, any finger is raised against A-2 for his involvement in any conspiracy or his dishonesty. PW-21 Sh. N. Sathyan also stated that A-2 was given copies of proposal and the documents received with it at the time of conducting the FS with respect to GCSS (D) and he submitted his report alongwith those documents which were not found on record. He also admitted that after furnishing FSR, A-2 had no role in the matter in the processing of the proposal, sanction of JSS and no query or clarification was ever sought from him with respect to FSR submitted by him.
85) Here also comes the question whether A-2 was negligent or had given intentionally wrong report. The negligence and inaction in submitting the detailed report cannot be equated with the intention to give the wrong report. Even if for the sake of arguments, it is held that A-2 had not visited the office of Sub Registrar or bank or CA to check the registration certificate and audited accounts which were required, then also it is not sufficient to held that he had mixed up with the other co-accused persons and had given wrong report. Prosecution has not brought on record any document to show that A-2 was having access to the files of GCSS (D) maintained in the Ministry and had occasion to manipulate his own report and other documents of the GCSS (D) initially filed. On the the other hand, prosecution has not denied the fact that A-2 was transferred from the Ministry after submitting the FSR and much prior to sanction of JSS (D) and release of funds. Here, the conspiracy angle between A-2 and other accused persons after submitting the FSR is missing.
-55-86) After receipt of complaints of MP Sh. Ashok Argal, a vigilance inquiry was initiated in the department but no explanation or comments were asked from A-2 nor any observation was given that A-2 was required to verify the registration of GCSS (D) from the office of Sub Registrar. The vigilance section also found that registration papers shown to A-2 revealed that GCSS (D) was registered under the Rajasthan Societies Registration Act. Even vigilance department did not find any fault or short coming on the part of A-2 in conducting FS and instead the documents which were given to A-2 for conducting the study were replaced. Hence, if the GCSS (D) had faked the papers which were shown to A-2, then he cannot be found faulted for the same and cannot be held liable for any conspiracy to commit forgery and for giving wrong report. On the face of record, A-2 acted bonafidely and according to good faith and even he had no knowledge that registration paper of GCSS (D) were faked. Accordingly, it is held that A-2 was not a part of any conspiracy in committing forgery or cheating or any other offence.
Whether FSR was the only basis for sanction of JSS
87) D2W4 Dr. V. Mohan Kumar, Additional Director in Ministry and very senior officer in the department in start of his deposition, firstly mentioned about the procedure and the manner in which the JSS could be established as well as the necessary conditions for the same which are already referred above. During relevant year, he himself conducted 6 FS and gave 5 favourable reports in which he recommended for sanction of JSS but despite it, JSS were not sanctioned by the Ministry for all those 5 recommended reports. This witness specifically stated that it was not mandatory to grant JSS merely on the basis of recommendations in the -56- FSR. PW-2 Dr. Nasim Ahmed also in his cross examination admitted that the sanction of JSS was not always to follow in the case of positive FSR pertaining to a society.
88) A-2 while appearing himself as a defence witness D2W5 proved various notings available in the official files of Ministry and qua these notings, prosecution has not raised any single dispute. A-2 was posted as Under Secretary at that time in the office but was not the member of the Preliminary Screening Committee which had shortlisted the proposals qua which FS was to be conducted. It was the duty of the Preliminary Screening Committee to see whether the proposals submitted by different NGOs fulfills the basis requirements including of registration of atleast 3 years at the time of submitting application for sanction of JSS. Note at page no. 14 of file D-2 shows that the Ministry had received total 237 proposals in the relevant year for sanction of the JSS and Preliminary Screening Committee only shortlisted 99 proposals who apparently fulfilled the required parameters. The proposal of GCSS (D) was approved by this committee, firstly it was fulfilling the basic requirements including registration of 3 years back as well as it was recommended by 3 different Member of Parliament. Initially, the name of this NGO was not included but was added lateron as the Minister HRD was interested apparently as he had given directions on 16-1-2002 while sanctioning 10 JSS that proposals of remaining should be expeditiously sent as per his noting on page no. 16 of D-2.
89) A-2 further stated that even department has not noticed any deficiency or short coming in his report at any time nor any clarification was asked from him in respect of any point. Similarly, PW-2 Dr. Nasim Ahmed, Assistant Educational Advisor admitted in his cross examination that in -57- case any irregularity or deficiency are found in FSR, the examining officer at any level may call upon the Field Officer (the officer concerned who has been deputed to conduct FS) to rectify such irregularities or fill up the deficiency because FSR was required to be examined by the officers at different level starting from the Under Secretary and above upto the level of Secretary and final decision rest with the Minister. It is also stated by A-2 that Ministry itself could seek clarification or information in writing directly from the concerned Registrar Office to check the genuineness of registration certificate etc. in case of any doubt but it was not done.
90) It is further stated by A-2 that even after receipt of FSR, a further scrutiny was conducted by the officials of the Ministry and only 10 proposals were found viable which were approved by HRD Minister on 16-1-2002 and it did not include the proposal of GCSS (D) despite the fact that FSR of A-2 had already come on record. Lateron without any change of circumstances, the proposal of GCSS (D) alongwith other 7 were found viable but out of the same, only 4 proposals including GCSS (D) were approved. The notesheets were not containing any explanation or criteria why some proposals having favourable FSR reports were rejected and why some were approved for JSS. This shows that it was the discretion of the competent authority to approve any proposal for sanction and ignore other recommended proposals without any criteria and without assigning any reason. Thus, even various proposals having positive FSRs in their favour were not sanctioned despite the fact that they were fulfilling the conditions for setting up the JSSs and the Minister HRD was using its exclusive unfettered discretion in this regard. In his deposition during cross examination, A-2 further specifically stated that the positive FSR -58- was only one of the considerations among other factors which governed the grant of such sanction of JSS but not only consideration and this fact is correct in view of different notings of the file of the Ministry. PW-42 Virender Kumar Sharma, Under Secretary clearly stated that it was at the discretion of the competent authority to accept all the recommendations or part of the recommendations or he may completely reject the recommendations.
91) In addition to JSS (D), two more other JSS namely Shivam Development Society and Reena Samaj Datia were sanctioned to same set of accused persons but no investigation was done in this regard by IO. D3W2 Sh. Rajendra Ramchandrarao from office of Registrar Firms and Societies, Gwalior, Chambal Division proved one RTI reply Ex. D3W2/C alongwith some documents which shows that JSS, Khalkapur, Datiya, MP was registered on 28-6-2002 and it also reveals that A-1 was the President, A-3 was the Secretary, A-5 was the Treasurer of this organization. The giving of favourable FSR was not the only guidelines for the Ministry for sanction of JSS because there were 50 positive recommendations and only 16 JSS were sanctioned in the particular year. After receipt of FSR, again thorough scrutiny was used to be done by Scrutiny Committee on all aspects. If the statement of A-2 himself and different notings in the file D-2 are taken into consideration, then it is clear that Preliminary Screening Committee had found that GCSS (D) on the face of it was fulfilling all the requirements and accordingly, A-2 was directed to conduct its FS. Preliminary Screening Committee consisted of 4 members including the main prosecution witness PW-21 Sh. N. Sathyan. The copy of the registration certificate submitted alongwith the proposal of GCSS (D) showed that it was registered on 15-6-1996 under Rajasthan Societies Registration Act. The proposal was submitted by GCSS (D) in the year -59- 2001 after more than the period of 3 years of its registration. It is also established that even favourable FSRs are ignored by Scrutiny Committee and ultimately by Minister HRD. Thus, the vague allegations of prosecution that sanctioning of funds to GCSS (D) took place only on the basis of FSR of A-2 is not correct.
Confusion regarding number of FSR of A-2
92) Prosecution witnesses themselves were confused and not sure how many FSRs were submitted by A-2. PW-14 Sh. M.L. Bhatia stated that he had gone through the FSR of A-2 which is actually dated 24-12-2001 but the FIR mentioned two other FSRs of A-2 which are dated 27-12-2001 and 19-2-2002 relating to GCSS (D). It may be a typing mistake in the complaint regarding mentioning of the date of 19-2-2002 as it could not have been possible because on that day itself funds were released to GCSS (D), whereas as per procedure of Ministry, after receipt of FSR, the proposal is considered alongwith the report by Scrutiny Committee and then file is moved from different level officers to Minister. This fact cannot be denied that A-2 conducted only one FSR of GCSS (D) and not more than one. Thus, there could not have been any chance of availability of any other report dated 19-2-2002 on record. Even in the letter of Sh. Ashok Argal, MP dated 31-8-2009 sent to different officers, there is a reference of another FSR dated 27-12-2001 instead of 24-12-2001. Neither vigilance department nor NLM division made any inquiry from Sh. Ashok Argal, MP about the FSR dated 27-12-2001 mentioned in his letter. In fact, complainant PW-26 Sh. Amit Khare had not conducted himself any inquiry and just forwarded the complaint on the basis of the reports prepared by others. From the complaint of PW-26 alongwith -60- annextures, it appears that there were three FSRs dated 24-12-2001, 27- 12-2001 & 19-2-2002. According to him, FSR dated 27-12-2001 is missing from record. It is very strange that even IO did not seek any clarifications about the non existed two other FSRs either from complainant PW-26 or Sh. Ashok Argal MP to find out on which basis they had mentioned wrong dates in their complaint and letter respectively. These facts indicates that complaint was given to CBI in very casual manner without proper verification of facts in internal vigilance inquiry and without going through the record. IO admitted in his cross examination that had not examined the complainant PW-26 Mr. Amit Khare with respect to 2 other proposals mentioned by him in his complaint Ex. PW-26/A on the ground that those were not the subject matter of the investigation. It means even IO accepted that there were other 2 FSRs of A-2 in existence, which fact is totally incorrect from the record because A-2 gave only one FSR dated 24-12-2001. This is one of the parts of the casual investigation done by the IO as well as sending of complaint to CBI for registration of FIR.
Tempering of proposal submitted by GCSS (D) and some documents annexed with it
93) There was a clash in the defenses raised by A-2 on one side and of other accused persons especially A-1 on another side. A-1 is taking stand that the parent NGO of JSS (D) was GCSS (M) registered in year 1995 and not GCSS (D). A-1 is blaming A-2 for giving false FSR but it is already held above that A-2 had conducted FS only in respect of GCSS (D) which was in existence in Dholpur though it was not actually registered at the time when the proposal was submitted by it with the Ministry and -61- apparently it has been submitted alongwith photocopy of forged and fabricated registration certificate. Record shows that no proper and complete investigation was conducted in respect of the NGO GCSS (M). IO could not give any clarification why the documents of genuine NGO were not used and what were the circumstances or motive which compelled to use the fabricated document of GCSS (D) instead of genuine documents of GCSS (M) at initial stage.
94) According to PW-21 Sh. N. Sathyan, the proposal of the GCSS (D) Ex. PW6/D2 was accompanied with certain enclosures and the said documents pertained to GCSS (D). There is a seal of 'Adyaksh GCSS (D)' on it and and there was no seal of 'Adyaksh GCSS branch Dholpur'. After seeing certain seal on documents attached with the proposals, he admitted that the earlier seal put in black ink has been superimposed with another seal in blue ink. Earlier, stamp was 'Adyakhs GCSS (D)' and 'Sachiv GCSS (D)' but the superimposed stamp mention 'Adyaksh GCSS Shakha Dholpur' and 'Sachiv GCSS Shakha Dholpur' respectively. Similarly, he also admitted that rubber stamp 'Karyashetra Sampuran Bharat' was not there on Ex. PW6/D2 at the time of the receipt of this proposal or till the sanction of JSS (D) and this rubber stamp must have been put subsequently. He also stated that certain rubber stamps put on different pages was not there at the time of receipt of proposal or till its sanction during his tenure which continued till March, 2003. He also admitted that pages no. 1 to 3 and 9 to 22 of file D-1 were not there during his tenure and were put in this file at later stage and the papers actually filed were replaced with these papers. This witness PW-21 Sh. N. Sathyan in his cross examination denied the suggestions of accused persons that documents at page no. 73 to 100 of file D-1 were filed alongwith the proposals. He also stated that rubber stamps 'Adyaksh -62- GCSS Shakha Dholpur' on pages 25 to 29 of D-1 was seen by him first time in the Court. He also denied the suggestion that stamps in blue and black ink existed at the time of examination of proposal. According to him, CBI official only showed him notings in the file and made enquiries from him with respect to the FSR of the proposal Ex. PW6/D2 and the documents annexed with it but those documents were not shown to him. He also denied the suggestion that the registration certificate Ex. PW21/D24 at page 76 was very much there alongwith the letter PW6/D2. He specifically stated that page no. 80 and 87 to 92 of file no. D-1 including photocopy of registration certificate of GCSS (M) were there at the time of examination of proposal. On one document which is on page no. 22/25 of file D-1, stamp of branch is affixed but on page 175/197 of D-5, which is a photocopy of the same document, original stamp regarding branch is affixed at different place, which point out that there was no stamp affixed on both initially and it was put later on. Thus, from the testimony of this official witness itself, tempering of proposal and some annexed documents is proved.
95) IO PW-64 during his cross examination admitted that the forwarding letter dated 12-2-2001 of GCSS (D) Ex. PW-6/D-2 is on the letter-head of "Gram Chetna Seva Samiti Karyalay, Ram Kunj Colony, Sepau Road, Dholpur, Rajasthan", which bears a rubber stamp in the box of letter- head at point P to P-1. He also saw the photocopy Ex. PW-64/D2-X1 of the same letter on page 173/195 in the file Ex. PW-51/A and admitted that the impression of rubber stamp in the photocopy is below the box of letter-head at point X to X-1. He also accepted that both these documents i.e. the original forwarding letter, Ex. PW-6/D-2 and the photocopy Ex. PW-64/D2-X1 were tampered individually. IO further saw various other documents during his cross examination and admitted the tampering as -63- well as over stamping in different inks. He also admitted that the words "Shakha Dholpur" was not included in the name of the applicant organization in the proposal form but was put subsequently on some documents. He had noticed over-stamping on various documents during investigation and also found that over-stamping was done by the accused persons for manipulating the record and some documents were replaced or removed in the Ministry. Thus, even IO also admitted that original proposal had been tempered but still he failed to conduct proper investigation in this regard and failed to chargesheet Mohit Sharma who allegedly in connivance with A-1 had done the same despite conducting some proceedings qua him during investigation. Totally concealing all the facts relating to Mohit Sharma in the chargesheets leads to the inference that IO wanted to save him for ulterior motives that is why not a single word about him was mentioned in the chargesheets and entire blame was put upon A-2 for such forgery and manipulations which is found not correct.
96) Record indicates that even initial communications of GCSS (D) and stamp affixed on it does not mention about any branch of GCSS (M). Departmental files show that from September 2009 to 2010, the letter heads of JSS (D) started incorporating the name of parent NGO as GCSS (M), whereas from 2002 to September 2009 nothing was mentioned in any correspondence that parent NGO was GCSS (M) and not GCSS (D). This was also done by over stamping in different ink as well as putting stamps in the head note of the letters in between. The file D-5 was received from Ministry by IO is containing photocopies of some newspaper cuttings showing JSS (D) belonging to GCSS (M) but all such advertisements are subsequent to year September, 2009 when manipulations in the record had started. Fresh letter heads were got -64- printed in between 12-9-2009 to 19-4-2010 as prior to this date, there was no mention of GCSS (M) anywhere because after September, 2009 grant was stopped and account of JSS (D) was freezed, so letter heads were changed.
97) Prosecution has not specified how many documents have been changed by the accused persons, how many documents are genuine and how many documents are tempered. No recovery of any document has taken place from A-1 and even no specific date, time or place is mentioned in the chargesheets when such alleged tempering took place. The alleged disclosure statement of A-1 is also not placed on record which could throw some light on the above aspects even though such disclosure statement might not be admissible in evidence. Even no pointing out memo was prepared after disclosure statement of the A-1 to show that at a particular place the originals were destroyed. IO even did not allege anything about destruction of documents either in the preliminary or supplementary chargesheets and this alleged fact came first time during his testimony in Court.
98) Complainant PW-26 Amit Khare was also unaware who exactly tempered with the record. There was some evidence available with the IO regarding existence of conspiracy between A-1 with Mohit Sharma for changing the record of the Ministry in respect of proposal and the first four pages of FSR of A-2 but that was not brought on record and concealed. IO also not collected the evidence of reception counter which could show that A-1 visited the office of Ministry by obtaining a pass and met Mohit Sharma or A-2. IO examined only three officials of rank of Section Officers who were in custody of the record from time to time, out of eight mentioned in letter Ex. PW-14/C (D-11) and further not relied -65- upon the statement of two such officials examined and not cited them as a witness in the charge-sheet. One of the witnesses out of eight, PW-6 Sh. Shiv Nandan Kumar examined by prosecution had not disclosed about any fact alleged regarding tempering of record by A-2 in connivance with other co-accused persons. The documents allegedly replaced were also not recovered. There is a clear cut case where IO falsely impleaded A-2 in this case and blamed him for tempering the Ministry record and actual culprits were not brought to books. Moreover, the tempering of original proposal has taken place somewhere in September 2009 or thereafter and documents pertaining to GCSS (M) were not there initially in August, 2001 when proposal was submitted. It is already held above that JSS (D) was sanctioned to GCSS (D) and not to GCSS (M).
Important facts pertaining to Mohit Sharma, UDC in Ministry
99) In the present matter, A-1 was arrested by CBI on 24-8-2011 and remained in police custody till 27-8-2011 and thereafter he was sent to judicial custody and ultimately was granted bail on 2-12-2011. In between statement of one suspect Mohit Sharma, UDC working in Ministry under Section 161 Cr.P.C. was recorded by the IO on 26-8- 2011, wherein he admitted being involved in tempering of the record of the Ministry i.e. in the file regarding sanction of JSS to GCSS (D) and the file containing original FSR submitted by A-2, in connivance with A-1 in lieu of taking of bribe. Mohit Sharma had disclosed that he had received Rs. 10,000/- from A-1, handed over the original file of JSS (D) to him and took back the same after A-1 replaced some pages. In his statement under Section 161 Cr.P.C., Mohit Sharma clearly stated that the files in the Ministry are kept in the open and anyone can have access to the file.
-66-There was no system of proper handing over and taking over the files. According to Mohit Sharma, A-1 had come in his Section and met him at about 12 or 1 p.m. and on the next day Mohit Sharma handed over the original file to A-1 at bus stop of R.K. Puram, Sector 12. A-1 took the file, paid Rs. 10,000/- and then went away and came back after half an hour and returned the original file which was brought back in the Ministry.
100) Further admittedly, after expiry of about one year, IO PW-64 during investigation had moved an application in the Court on 29-5-2012 for recording statement of this Mohit Sharma u/s 164 Cr.P.C. without mentioning whether his statement has to be recorded in the capacity of a witness or his confession in the capacity of an accused. There was no mention in the application that Mohit Sharma was being granted pardon or he was being made an approver, but simply stated that his statement under Section 164 Cr.P.C. was required. Even, from the interrogation of A-1 during police custody, IO again had come to know that he in connivance with Mohit Sharma had replaced certain documents pertaining to JSS (D) and four pages of FSR of A-2, that is why he filed an application in the Court for recording of his statement u/s 164 Cr.P.C. Even in his cross examination, IO admitted that he had recorded disclosure statements of A-1 during his police remand period but no such statement was filed along with the charge-sheet on the ground that no recovery was made from this accused. The disclosure statement of A-1 could reveal some facts regarding tampering of record but that was withheld from the Court.
101) However, the said Mohit Sharma moved an application in the Court to the effect that he did not wish to make statement u/s 164 Cr.P.C., so -67- Court declined to record his statement but in the chargesheet filed in the Court on 21-11-2011 not only the statement of Mohit Sharma recorded u/s 161 Cr.P.C. was withheld but even also he was neither cited as a witness or made an accused despite the fact that IO fully knew that Mohit Sharma was responsible for facilitating the tampering of the above files by A-1 and was a part of the conspiracy. When supplementary chargesheet was also filed in Court on 8-8-2012, again nothing was disclosed regarding involvement of Mohit Sharma. The plea taken by IO during his cross examination that he could not get sufficient material against him to prosecute is clearly an attempt to save Mohit Sharma. In such situation, IO could keep him in column no. 12 of the chargesheet and should leave upon the Court to treat him as per law but IO infact did not utter any word in whole of the chargesheets about involvement of Mohit Sharma in conspiracy. The IO did not even arrest the Mohit Sharma for further detailed interrogation despite the fact that both A-1 and he had already disclosed about tempering of the record. Mere referring the matter to Ministry for initiating departmental enquiry against Mohit Sharma cannot be treated as sufficient to ignore the lapse committed by IO and still Court gets an indication that IO played mischief with the Court who intentionally concealed this material fact from the Court especially when even during hearing of the bail of A-1 on 2-12-2011, no evidence relating to Mohit Sharma was put up before the Court that he in conspiracy with A-1 had tempered the govt. record and instead indirectly supported the bail application of A-1 by confirming that funds allotted to JSS (D) were properly utilized.
102) PW-14 Sh. M.L. Bhatia, Under Secretary had also provided the names of different Section Officers to CBI who were having custody of the record from time to time vide his letter Ex. PW 14/C but no proper inquiry was -68- made from those Section Officer to find out who was responsible for such tempering and during whose tenure such tempering had taken place. The above facts point out that IO intentionally had not conducted the fair investigation but on the other hand entire blame was put upon A-2 for such tempering. As per Ex. PW14/C (D-11), 8 Section Officers had kept the record of JSS (D) in which tempering had taken place during different durations but IO examined only 3 such officers during investigation namely Smt. C. V. Sarda, Sh. M.S. Rawat and Sh. Shiv Nandan Kumar by recording their statements u/s 161 Cr.P.C. Even thereafter only one official PW-6 Sh. Shiv Nandan Kumar who was posted in the department from October 2010 onwards was cited in list of witnesses and statements of remaining 2 Section Officers were not relied upon. IO had not examined the person responsible for custody of the record from 2002 to September 2010 during which the tempering had taken place most probably and recording of statement of Section officer PW-6 was of no use when tempering had already taken place. If the statement of PW-51 Sh. G.J. Raju in his cross examination is taken into consideration that there was no custodian of the file and no one can be held responsible for tampering, then in that situation also putting entire blame without any evidence upon A-2 is highly vague. This fact also creates a ground that Mohit Sharma was involved in some conspiracy for tempering the office record. IO had not done any proper investigation in this regard.
Requirement of gate pass to enter office of Ministry
103) PW-20 Sh. Ramesh Kumar Chopra, Deputy Secretary in his statement explained the manner in which Gate Pass or visitor pass are obtained by anyone visiting the Ministry. The name, address and purpose of visit of -69- the visitor as well as officer to be visited are noted at the reception and the Reception Officer confirms with the officer to be visited before issuing visitor pass. He also disclosed that visitor pass can be issued only by an officer of the rank of Deputy Secretary and above. Under Secretary cannot gave any such authorization for any visitor. Complainant PW-26 Sh. Amit Khare, Joint Secretary also mentioned about the procedure of entry in the Ministry by anyone who has to contact at the reception, disclose the name of the officer to meet, purpose either it is private or official and then after making the enquiry from the said officer to be met by the receptionist, the visitor pass is issued. Similarly, PW-42 Sh. Virender Kumar Sharma also described the procedure how a visitor can enter in the office of Ministry and how entry pass is given to him. This witness also admitted that no visitor or outsider has any access to the record of Ministry and such record can be inspected by the outsider under RTI only on the instructions of the senior officers. He also stated that for visiting any official in Ministry, one has to obtain a pass at the reception and at the time of issuing of such pass, the identity and address of the visitor as well as the identity of the official to be visited is recorded. The details of such visitors can be retrieved from the said record. PW-19 Sh. S.P.S. Sangwan also admitted that for visiting any official in the Ministry one has to obtain a pass at the reception. At the time of issuance of such pass, the identity and address of the visitor as well as identity of the official to be visited is recorded. The details of such visitor can be retrieved from the said record lying at reception. Same procedure of obtaining gate pass or visitor pass was disclosed by other witnesses namely PW-14 Sh. M.L. Bhatia, PW-21 Sh. N. Sathyan and PW-51 Sh. G.J. Raju who clearly stated that no public person could meet Under Secretary in the Ministry without such pass and no outsider can have any access to the files of the Ministry. The details of such visitor can be -70- retrieved from the reception record maintained by officials of Ministry of Home Affairs.
104) Thus, from the statements of these witnesses, atleast it has come on record that no stranger can enter into the Ministry office without permission and no such private person will have any access to the official record. The IO had not seized any such entry register to show that A-1 at any time went in the office of the Ministry and met Mohit Sharma in order to tamper with the record or any of the accused went in Ministry in order to meet A-2. Thus, the connivance angle between anyone especially of A-2 is also not proved.
Requirement of sanction under Section 197 Cr.P.C.
105) Counsel for A-2 cited R. Balakrishna Pillai vs. State of Kerala AIR 1996 SC 901, Rakesh Kumar Mishra vs. State of Bihar, Appeal (Crl.) no. 12/2006 decided on 3-1-2006 by Hon'ble Supreme Court, State of M.P. vs. Sheela Sahai 2009 Crl. L. J. 4436 (SC), D.T. Virupakshappa vs. C. Subash Crl. Appeal No. 722 of 2015 decided by Hon'ble Supreme Court on 27-4-2015, Prof. N.K. Ganguly vs. CBI Crl. Appeal no. 798/2015 decided by Hon'ble Supreme Court on 19-11-2015 and Indira Devi vs State of Rajasthan Crl. Appeal No. 593/2021 decided by Hon'ble Supreme Court on 23-7-2021 in which law regarding requirement of sanction under Section 197 Cr. P. C. is laid down qua IPC offences.
106) Even if A-2 had already retired and under unamended provision of P.C. Act, there was no necessity to obtain prior sanction under Section 19 of P.C. Act but still the prosecution was required to obtain the prior sanction -71- of Section 197 Cr. P. C. against A-2 atleast for IPC offences despite his retirement without which prosecution fails. Even though sanction under Section 19 of unamended P.C. Act was not required, if the public servant has retired or ceased to be public servant but sanction under Section 197 Cr. P.C. is required both for those who were or are public servant. The question of prior sanction under Section 197 Cr. P.C. can be raised at any stage of the proceedings. The object of Section 197 Cr. P. C. is to see that the official acts do not lead to needless or vexatious prosecutions. The question whether the sanction under Section 197 Cr.P.C. is required or not mainly depends upon the facts and circumstances of each case.
107) The crux of the above judgments is that when the act alleged is directly and reasonably connected with the official duty of a public servant, then he is entitled to claim the protection of Section 197 Cr.P.C. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. One safe and sure test to determine whether there is a reasonable connection between the act done and official duty is to consider, if the omission or neglect on the part of the public servant to commit the act complaint of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in affirmative it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. It is the quality of the act that is important and if it falls -72- within the scope and range of his official duties, the protection contemplated under Section 197 Cr.P.C. will be attracted. Sometimes, an offence may be entirely unconnected with the official duty and where it is unconnected with the official duty, then there cannot be any protection but if it is coming within the scope of official duty or in excess of it, then the protection is claimable. Those acts committed in discharge of official duty or in purported exercise of official duty or under the colour of the office are covered. The offence alleged to have been committed by the accused must have something to do or must be related in some manner with the discharge of official duty and there must be a reasonable connection between the act and discharge of duty, the act must bear such relation to the duty that the accused could lay a reasonable claim but not a pretended or fanciful claim that he did it in the course of performance of his duty. No question of sanction can arise under Section 197 unless the act complained of is an offence. The Section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office though in excess of the duty or under a mistaken believe as to the existence of the such duty nor is it necessary to go to the length of saying that the act constituted the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction. The act of commission or omission must be one which has been committed by the public servant either in his official capacity or under colour of his office or in dereliction of it. Sometimes intention behind performing the act also becomes important to determine whether the act done is covered under discharge of official duties or not.
108) Whether sanction is to be accorded or not is a matter for the government to consider. The absolute power to accord or withhold sanction on the part of the government is irrelevant and foreign to the duty casts on the -73- Court which has to ascertain of the true nature of the act. The sanction to prosecute can be given by an authority competent to remove the public servant from his office which he has misused or abused because that authority alone would be able to know whether there has been misused or abused of the office by the public servant and not some outsider authority. Such authority must apply its mind to the facts of the case, evidence collected and other incidental facts before according sanction. A grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of government servant against frivolous prosecution and aforesaid requirements must therefore be strictly complied with before any prosecution could be launched against public servant. The Legislative advisedly conferred power on the authority competent to remove the public servant from the office to grant sanction for the obvious reason that the authority alone would be able when facts and evidence are placed before it to judge whether a serious offence is committed or the prosecution is either frivolous or speculative as well as whether public servant has abused or misused his office. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been actually abused or misused. Section 197 Cr.P.C. should neither be construed too narrowly that it can never be applied and even too liberally that it is attracted in each and every case. Instead, a middle path has to be adopted which depends upon facts and circumstances of each case. Public servants have to be treated as a special category in order to protect them from malicious or vexatious prosecution and at the same time the shield cannot protect corrupt officers and the provision must be -74- construed in such a manner as to advance the cause of honesty, justice and good governance.
109) A-2 was discharging his official duties by conducting FS of GCSS (D) and was a public servant. Apparently, there is no violation of rules on his part while conducting FS as already held above. Even if for the sake of arguments, it is held that some instructions or guidelines were missed by him while conducting FS, then that was only an act or omission done in good faith and there was no malice on his part. There is no evidence that A-2 intentionally gave any false report or mixed up with any accused. In view of the above law laid down, it is held that even if there was no requirement of obtaining sanction under unamended Section 19 of P.C. Act against A-2 but still the sanction under Section 197 Cr.P.C. was mandatory which was never obtained by the prosecution and thus A-2 deserves to be acquitted. In this regard reliance also can be placed upon latest decision of the Hon'ble Supreme Court titled as Directorate of Enforcement vs. Bibhu Prasad Acharya, Criminal Appeal no. 4314-4316 of 2024 decided on 6-11-2024.
Mens-rea under P.C. Act not proved
110) Counsel for A-2 cited the decision of Renu Ghosh vs. P. Ramarao 2011 Legal Eagal (Del) 1757 and argued that case also falls under Section 13 (1) (d) (ii) of P.C. Act and not under sub-clause (iii), so the mens-rea or criminal intent was required to be proved by the prosecution. In the charge framed against A-2, it is only mentioned that he is charged under Section 13 (2) r/w Section 13 (1) (d) of P.C. Act without mentioning whether the exact charge is framed under Section 13 (1) (d) (i) or (ii) or -75-
(iii) but the operative part of framing of charge invariably do not have any ingredients for the charge being framed under Section 13 (1) (d) (iii) of P.C. Act. No doubt in the order on charge also, it is not specifically mentioned which sub clause whether (i), (ii) or (iii) is applicable but if the contents of the order on charge and formal charge framed and averments made in it are taken into consideration, then the sub clause (ii) appears to be fully applicable. Even, if the charge at the most either should have been framed under Section 13 (1) (d) (i) or 13 (1) (d) (ii), then in both situations, mens-rea is necessary and essential fact to be proved and no presumption can be taken against A-2.
111) In my opinion, non mentioning of exact sub clause in the charge does not vitiate trial or causes failure of justice but is a simple an irregularity which has not caused any prejudice to the accused specially when the relevant and important facts are already mentioned in the detailed order on charge and consequentially in the formal charge framed against the accused. The intentional commission of an act wrongly can be distinguished from simple negligence or unintentional inaction. Any act of the public servant may cause pecuniary advantage to a third person but that itself is not sufficient to hold that accused public servant had criminal intent or there was any mens-rea to act in conspiracy. If the public servant is able to show that he followed all the safeguards and exercised all reasonable precautions having regard to the circumstances despite which there was a loss of public interest, he would not be guilty of the offence of criminal misconduct under Section 13 (2) of the P.C. Act. Thus, after considering the facts and circumstances, I am of the view that Section 13 (1) (d) (ii) of P.C. Act at the most was attracted against A-2 but in absence of mens-rea, it was also not proved which compels the Court to acquit him on this account also.
-76-Whether JSS (D) existed and working
112) After initial grant of Rs. 13 lakhs to GCSS (D), remaining grants were issued to JSS (D) from time to time for several years. According to PW-10 Sh. Vivek Singh, in May 2010, his building situated at Sultan Singh Ka Bara, RAC Line, Dholpur consisting of 10 rooms was taken on rent by Sh. Somesh Upadhyay for running JSS @ Rs. 5000/- per month and in this regard, a rent agreement was executed between his mother Smt. Sudha and Sh. Somesh Upadhyay which is Ex. PW10/A. It is also stated that about 10-12 staff members were working at the relevant time and about 150-200 children/adults used to visit the tenanted premises throughout the day and used to engage in training on vocational subjects such as Computer and Beautician course.
113) PW-2 Dr. Nasim Ahmed in his cross examination admitted that representatives of the Central Govt. are vested with the task of monitoring the functions and financial aspects of the NGOs that are sanctioned JSS. He also admitted that officers of level of CMO, Municipal Corporation Officer, District Literacy Officer, Officer of DRDA and Joint Secretary or his nominee of the Ministry are supposed to be involved in the task of monitoring who are to be included in the BoM of such JSS. He also admitted that in the Executive Committee of sanctioned JSS, there are officers representing the Central Govt. and State Govt. and powers of such Executive Committee are well defined by the byelaws and the guidelines. Such Executive Committee is fully empowered to manage the affairs and funds of JSS. He also admitted that it is mandatory to get the accounts of the sanctioned JSS audited every year and such audited report -77- are submitted every year by the sanctioned JSS with the Ministry giving details of allocation/grants and expenditure incurred.
114) PW-14 Sh. M.L. Bhatia admitted that JSS are independently registered under Societies Registration Act and guidelines for bye Laws of JSS are laid down by the Government but not Memorandum of Association. He admitted JSS is managed by BoM. He also admitted that certain Government Official from State and Center also are the members of BoM including Joint Secretary, Adult Education (AE) and Director General, National Literacy Mission (NLM). He also stated that BoM supervises and reviews the functioning of JSS and the money spent in achieving the objectives of JSS. The draft proposal of courses which are to be conducted by the JSS are placed before the BoM. These draft proposals are submitted to Directorate of Adult Education, which monitor JSS. The Executive Committee of BoM includes Government Officials and such management is required to hold 2-3 meetings in a year and Directorate of Adult Education monitors the performance of JSS.
115) PW-19 Sh. S.P.S. Sangwan, Under Secretary stated that affairs of JSS are to be managed by BoM consisting of 12 persons in which 5 officials of different Government agencies participate. This BoM is a policy making and supervisory body of JSS as per point no. 6.13 (i) of Guidelines for Management, Planning and Programming under the scheme of JSS (Institute of People's Education) Ex. PW14/B (page no. 2 to 44 of D-45). However, he also could not deny the fact that no complaint with respect to JSS (D) was received from the side of any government representatives on the BoM of JSS (D). It means that functioning of JSS (D) was smoothly going on.
116) PW-20 Sh. Ramesh Kumar Chopra, in his cross examination admitted -78- that in Ex. PW6/7 (page 128 of D-1), he had recorded his satisfaction therein about the fulfillment of the conditions subject to which the grant- in-aid was sanctioned to JSS (D) and that the money was utilized by it for the purpose for which it was sanctioned. He further admitted that the next year's grant is sanctioned only when the department is satisfied that the utilization of the grant for the previous years by the JSS (D) had happened. He also admitted that on Ex. PW20/14 (page 11 of D-6) and Ex. PW20/18 (page 85 of D-6), it is mentioned by him that "I have no reason to believe that the grantee institution is involved in corrupt practices". The same wordings are found in Ex. PW20/DB and Ex. PW6/9. He also admitted that copies of sanction of grant were also sent to Education Department of Government of Rajasthan and Accountant General of Rajasthan with a request to keep vigil on the activities of JSS (D). The grant-in-aid bills further contained a condition that the accounts of JSS (D) will be open for test check by the Comptroller and Auditor General of India. The grant for the next year for JSS (D) was to be considered after issuing of utilization certificate for the previous grant. This witness after seeing various documents also admitted that grants of JSS (D) were sanctioned in accordance with the pattern approved by the Ministry of Finance and was in conformity with the rules and principles of the scheme as approved by Ministry of Finance. He also admitted that unspent money out of the grant of the previous year is carried forward and is adjusted towards the next installment of the grant to JSS, meaning thereby that the unspent money would be reduced from the second installment. This witness not only proved his own grant-in-aid bills and certification given in connection with the same besides issuing of utilization certificate but also of some other Under Secretaries containing the same terms and conditions and averments. Even PW-42 Sh. Virender Kumar Sharma, Under Secretary also corroborated these facts as deposed -79- by PW-20 Sh. Ramesh Kumar Chopra. PW-20 had seen the document Ex. PW20/DK according to which one Mr. Anil Roongta, Director SRC, Jaipur was the officer designated for supervision and monitoring of JSS (D), who was supposed to visit the JSS, attend their meetings and supervise their functioning. The JSS concerned was also directed to hold the BoM meetings during the visit of the Designated Officer and the such Designated Officer were visiting the JSS once in every four months. He also admitted that point no. 10.1 on page 24 of D-45 Ex. PW14/B there are guidelines for management, planning and programming under the scheme of JSS and according to the same every JSS will be evaluated once in three years by an external agency. However, the witness was not aware that AMC Research Group, New Delhi was appointed as External Evaluating Agency for JSS (D). CBI even did not make any enquiry from him in respect of any irregularity with respect to JSS (D). In fact this witness had told the CBI officials that utilization certificate was issued by him and there was no discrepancies in the working of JSS (D) during his tenure. This witness also stated that he had signed some office note and sent some correspondences to JSS (D) in respect of Constitution of BoM, giving directions to JSS (D) to appoint a regular Director, demanded some information/documents regarding BoM of JSS (D) as well as approval given for proposed BoM members. He further stated that any JSS is managed by a BoM and certain Government officials were nominated to attend the meetings only for such BoM.
117) PW-16 Sh. Somesh Upadhyay had joined JSS (D) as Program Officer after interview and left the services of this JSS (D) in March 2011. His salary was about Rs. 7000/- - Rs. 8,000/- when he joined and it was Rs. 10,000/- per month when he left the services. According to this witness, when he left the services, A-6 was the Chairman of the society and A-1 -80- used to visit the society on regular basis and use to perform various functions being Director Incharge of JSS (D). This witness also stated that JSS (D) was running its affairs from a property belonging to Dr. Ramesh Datray at AB Road, Near Waterworks in Dholpur and there were 14-15 other employees working in the society besides him. In 2006-2007, the society shifted its premises to the house of Sh. Asha Ram Gujjar, near employment Office and after one year shifted to house of Sh. Vivek Singh at Sultan Singh Ka Bara, RAC Road, Dholpur. PW-16 also proved various documents bearing his signatures and also stated that he assumed charge as Director Incharge of JSS (D) vide Ex. PW16/A (page 49/65 of D-4). He communicated with the Ministry by writing letters about change of address of the society Ex. PW16/A1 (page 57/72 of D-4), forwarding of proposal of BoM Ex. PW16/A2 (page 60/75 of D-4). He also got advertised the vacant post of regular Director in JSS (D) and sent the information to the Ministry vide his letter Ex. PW16/A4 (page 93/106 of D-4) alongwith copy of the advertisements Ex. PW16/A5 (Colly). Besides these communications, he also sent various letters to the Ministry on behalf of JSS (D) which are available in the file no. D-4 as well as submitted the bond, pre-stamped receipt, resolution, authorization letter, registration certificate of the year 2009-2010 etc. He also submitted receipt, payment account, utilization certificate, list of emoluments, statement of office expenditures etc. for the year 2008-2009. During cross examination, this witness stated that JSS (D) was running several centers in Dholpur at various places including villages for providing vocational training in different fields and even JSS (D) organized social and cultural programs besides awareness program which used to be attended by various senior government officers. He identified some photographs Mark X3 to X25 in respect of these functions.
-81-118) PW-62 Sh. Vinayak Ram Chandra Vaidya, who worked as Accountant with JSS (D) from 2002 to 2006-2007 and again from year 2009 for one year, in his evidence disclosed how and in which manner he was appointed in it, what were his duties, what was his salary, opening of bank account, who were managing affairs of the JSS (D), places where centers of it were running and on some occasion withdrawl of 'self' cheques issued from account of JSS (D) and handing over the amount of the same to A-1 etc. Similarly, PW-63 Sh. Satish Gupta who also worked as an accountant in JSS (D) in year 2006 to 2008 and again for two months in year 2010 disclosed almost similar facts as told by PW-62. Names of some other officials working in JSS (D) have also come in his cross examination. He also stated that except his salary, no other money was deposited or received in his account and no one else except him operated this account. He denied that his bank account was used by A-1 & A-7 and IO had not collected any contrary proof also in this regard.
119) PW-28 Smt. Anju Devi also worked in JSS (D) from year 2003 till 2010 as Assistant Program officer in it who also mentioned certain facts relating to existence and functioning of JSS (D). She was getting salary of Rs. 7,000/- to Rs. 8,000/- per month which was received in her bank account maintained in Dholpur Urban Co-operative Bank Ltd. According to her bank statement of account Ex. PW7/I (lying in D-15), she had withdrawn sum of Rs. 30,000/- on 24-1-2004, Rs. 58,800/- on 27-4-2005 and Rs. 45,000/- on 23-12-2004 vide withdrawl slip Ex. PW7/J1 to Ex.PW7/J3 from her account but stated that most of the times her salary used to be late by 4 to 6 months and deposited in lumpsum in her account after receipt of grant by JSS (D). Whenever she needed money to meet her regular expenses, then she used to withdraw huge amount. She also being Assistant Program officer of the JSS (D) used to purchase articles -82- for it and used to be given money for buying articles before purchase. From her testimony it is not proved that her bank account was misused for siphoning of the money given by Ministry.
120) No doubt, some of the witnesses such as PW-17 Sh. Bal Mukand Sharma, PW-18 Sh. Bharat Saran Dangi, PW-41 Sh. Ram Mohan Aggarwal, PW-49 Sh. Bala Prasad Sharma, PW-55 Sh. Manoj Kumar Sharma and PW-61 Sh. Umesh Mishra denied having any concern with JSS (D) or being its member and also disputed the correctness of their bio-data submitted with Ministry or told about their forged signatures on the same but still they admitted some part of their bio-data as correct in their cross examination. Otherwise also, the denial of some portion of bio-data by these witnesses does not prove that JSS (D) was not in existence at all.
121) PW-49 Sh. Bala Prasad Sharma stated that his brother Sh. Rajeev Kumar Sharma never worked with any NGO or JSS. He was not sure whether the bio date Mark PW49/1 on the file D-4 is bearing the signatures of his brother or not but admitted that photograph pasted on the same and other particulars belongs to his brother. He also could not tell whether his brother Sh. Rajeev Kumar Sharma was attached with the JSS (D) or not. IO during his cross examination also admitted that Sh. Rajiv Kumar Sharma was alive when he recorded the statement of witness PW-49 but did not examine Sh. Rajiv Kumar Sharma himself during investigation and neither confronted him with his bio-data, Mark PW-49/1.
122) Similarly, denial of PW-24 Sh. Alok Saxena regarding receipt of any emoluments of Rs. 8,400/- from JSS (D) as alleged in expenditure list Ex. PW24/A (part of D-6) is of no consequence because question was whether JSS (D) existed or not and not whether it had committed any financial irregularity and illegality or not. This witness even in his cross -83- examination admitted that he used to visit the office of JSS (D) for attending some functions and programs on the oral invitations of A-1 and A-3 in the capacity of guest and he had attended about 7-8 such functions. According to him about 15-20 persons were working in that office and around 250 students were taking training in the area like stitching, knitting, beautician, computer etc. IO during hearing of bail application of A-1 on 2-12-2011 also admitted that JSS (D) had utilized the funds for welfare activities which means that he was also accepting that JSS (D) was in existence and working. Thus, from the statements of various witnesses, it is proved that JSS (D) was in existence and running its affairs and was not a fake or imaginary institution, though it might had committed some lapses, illegality etc. Whether GCSS (D) misappropriated initial release of grant of Rs. 13 lakhs
123) PW-6 Sh. Shiv Nandan Kumar, Section Officer of Ministry after seeing the office file Ex. PW6/3 (page no. 107 to 110 of D-1), deposed that initial installment of Rs. 13 Lakhs was sanctioned in favour of GCSS (D) by Under Secretary PW-21 Sh. N. Sathyan vide his sanction order Ex. PW6/6. This witness also proved that GCSS (D) submitted bond before release of this grant. This sanctioned amount of Rs. 13 lakhs was deposited vide original bank pay-in slip dated 12-4-2002 Ex. PW-13/A (part of D-9, page 12) in the account of GCSS (D) maintained in State Bank of Bikaner & Jaipur, Dholpur.
124) During investigation, IO PW-64 had seized original account opening form Ex. PW-3/3 (D-28) of account no. 01100048547 in the name of -84- GCSS (D) opened in State Bank of Bikaner & Jaipur from PW-3 Sh Rishi Kumar Saxena. This account could be operated with the signatures of any two office bearers whose photographs were pasted on this form who were authorized to operate the accounts. PW-3 proved that from the account of GCSS (D), the Secretary and the Treasurer issued the cheques except one cheque which was under the signature of President and Treasurer. IO also seized cheques Ex. PW3/4 to Ex. PW3/8 issued from the account of GCSS (D) which were cleared. Besides it, some original bank pay-in slip dated 16-5-2005 for depositing Rs. 5000/- Ex. PW-64/F, dated 28-9-2005 for depositing Rs. 11,000/- Ex. PW-64/G and dated 22- 3-2002 for depositing Rs. 1000/- Ex. PW-64/H in the account of GCSS (D) in State Bank of Bikaner & Jaipur, were also collected.
125) IO admitted in his cross examination that the receipt and payments accounts and Income-Expenditure accounts for the year ended on 31-3- 1999, 31-3-2000 & 31-3-2001 of GCSS (D) were given by Chartered Accountant N.K. Sharma & Associates but admittedly he had not examined any witness from this CA firm. He explained that these documents were found forged, so he felt no need to examine the witness from N.K. Sharma & Associates but it is very strange that the author of these documents were neither made witness nor an accused. Only the concerned CA, who submitted the audit report could tell whether it was genuine report or fake but IO did not take pain to examine him. If the audit report given by Sh. N.K. Sharma was forged according to the IO, then examination of such CA was necessary to find out the correctness of details of expenditures given in such report. Similarly, one another CA was examined out of 3 CAs in connection with the audit reports of JSS (D) but not made a witness.
-85-126) Out of Rs. 13 lakhs credited in the account of GCSS (D), some of the cheques issued were in favour of A-1, A-3 and A-7. Two account payee cheques in favour of A-1 were amounting to Rs. 50,000/- and Rs. 5,60,000/- respectively whereas one cheque in favour of A-3 was only of Rs. 12,000/-. The cheque in favour of A-7 was only of Rs. 670/-. One cheque of Rs. 15,000/- was in the JSS (D). One of the cheque no. 571901 dated 15-4-2002 was issued in favour of 'yourself' from the account of GCSS (D) for Rs. 6,77,349/- Ex. PW-3/4 (part of D-33, page 78). It means that huge amount of this cheque which was almost of more than half of Rs. 13 lakhs grant received was transferred in favour of bank itself. IO did not investigate why this amount was transferred in favour of bank and what bank had done with this amount as well as what had been done by A-1 and A-3 from the amount of the cheques which were issued in their names. Further, IO did not collect statement of account of GCSS (D) for confirmation whether these cheques were actually encashed and whether the amount of the same were credited in the accounts of payee or not. PW-3 Rishi Kumar Saxena bank official who had handed over these cheques to IO had no knowledge about any transaction of these cheques amount as well as operation of the bank account as he has not personally dealt with the documents. IO also did not collect copies of bye-laws and Resolution of Management regarding authorization in favour of the members to operate the accounts of GCSS (D) which were required to be submitted along with an application for opening of bank account. Thus, non investigation of fact whether the cheque amount actually gone in favour of its payees and what they had done with that amount after receipt does not prove that amount of grant of Rs. 13 lakhs given to GCSS (D) has been misutilised or misappropriated.
-86-Whether JSS (D) misappropriated any allocated funds
127) IO had also seized file Ex. PW6/3 (D-1), Ex. PW6/2 (D-2) & Ex. PW21/D18 (D-3), Ex. PW6/4 (D-4), Ex. PW6/5 (D-6) from PW-6 Sh. Shiv Nandan Kumar, Section Officer, NLM Division of Ministry on 24- 5-2011 vide seizure memo Ex. PW6/1. Most of the evidence of witnesses related to the documents and notings lying in these files.
128) PW-19 Sh. S.P.S. Sangwan admitted that grant to all JSS was sanctioned only after taking into account the utilization certificate for the previous year and the same procedure must have been followed in case of JSS (D). A-2 in his deposition while appearing as D2W5 also explained that as per rules of JSS scheme, different government officials used to be member of BoM and none of them pointed out any deficiency or short coming in the functioning of JSS (D) for several years and every time after due verification and on the recommendation of officials of Ministry grants were used to be released by certifying the due utilization of the funds earlier granted. This means that JSS (D) continued to get grants for several years and department had not noticed any misutilization of such funds.
129) During hearing of bail application of A-1 on 2-12-2011, IO PW-64 confirmed that the funds allotted by the Ministry had been applied by JSS (D) towards welfare activities concerning vocational training of students belonging to under privilege and backward classes and this submission of the IO was also one of the main reasons for grant of the bail to this accused. IO has also found that file Ex. PW-6/5 (D-6), contains certificates issued by Ministry in the name of JSS that no funds was misappropriated or misutilised.
-87-130) IO had come to know that the accounts of JSS were required to be annually audited by the Auditor and the report of such auditor was considered to record satisfaction about utilization of funds granted to a particular JSS and for further release of funds to it. JSS (D) had also given several auditors reports to Ministry and IO did not examine those auditors to ascertain whether they had given correct reports or not.
131) PW-6 Sh. Shiv Nandan Kumar, after seeing the file D-1 stated that the grants till 2009-2010 were sanctioned in favour of JSS (D) on the basis of utilization certificate for the years 2001-2002, 2002-2003, 2003-2004, 2004-2005 issued by different Under Secretaries posted from time to time. He proved various utilization certificates lying on the record of files D-1 & D-6. He also deposed that JSS (D) had submitted the audited accounts from time to time lying on file D-6. He also stated that various bonds were executed by office bearers of JSS (D) with regard to release of the grants by the Ministry and the said bonds Ex. PW6/31 to Ex. PW6/38 are lying in the file D-6. He in the cross examination admitted that JSS (D) had been utilizing the funds for the purpose for which they were sanctioned and after satisfying about the utilization of funds properly, the utilization certificate were used to be issued by the Ministry from time to time and he also stated that process of sanctioning of funds, disbursement and issuing of utilization certificate used to be dealt with by the officials of Ministry upto the level of Joint Secretary in the ordinary course of business. He also stated that accounts of JSS (D) sanctioned by the government were required to be audited on annual basis and this audited report also a document to be considered about the satisfaction of utilization of funds by the Ministry and for further release of the funds for that year or subsequent years. He also admitted that various Under -88- Secretaries who have sanctioned the grants had also certified that JSS (D) was not indulging in any corrupt practices.
132) PW-20 Sh. Ramesh Kumar Chopra, Under Secretary in his testimony also found that no corrupt practices were done and even CAG checked the pattern of the grants but did not find any discrepancy. No complaint of Rajasthan government about misuse of the funds or any report of Accountant General about such misuse came on record despite the fact that copy of the grant was sent to Rajasthan government. This witness even stated about unspent money carried forward for next year. Every year same procedure was followed and no complaint brought on record and everyone used to issue proper utilization certificate. There was no criminality on the part of the accused persons, otherwise they would have withdrawn the entire amount and not left any unused funds. He also stated that the subsequent year grant used to be released after taking into consideration the unspent balance and after settling the account of previous years. There is no evidence that the funds meant for a particular purpose were used for another purpose. Otherwise also, there is no investigation done by IO about the manner who misused the funds. Utilization certificate and no corrupt practices certificate issued by officials of the Ministry from time to time and release of further payments also goes in favour of the accused persons.
133) During investigation, IO PW-64 had seized original account opening form of account no. 049183 in the name of JSS (D) opened in State Bank of Bikaner & Jaipur Ex. PW-3/2 (D-27). This account could be operated by President or Secretary of JSS (D) jointly with Treasurer. He also seized various original cheques, pay-in slips Ex. PW3/10 to Ex. PW3/80 lying in file D-9 from PW-3 Sh. Rishi Kumar Saxena, Special Assistant, -89- State Bank of Bikaner & Jaipur vide seizure memo dated 7-9-2011 Ex. PW3/9. Vide another seizure memo Ex. PW3/81 dated 1-9-2011, certain more original cheques and pay-in-slips Ex. PW3/82 to Ex. PW3/146 pertaining to the account of JSS (D) were received from PW-3 by IO. During investigation, IO had also seized certain more cheques and pay-in slips Ex. PW3/95 to Ex. PW3/146 from PW-13 Sh. Dhanraj Singh, Branch Manager, State Bank of Bikaner & Jaipur, Dholpur, vide seizure memo dated 1-9-2011 Ex. PW-3/81, which are lying in file no. D-9 and D-23. These cheques include self cheques, cheques issued in favour of A-7, PW-16 Sh. Somesh Upadhaya, Sh. Sharad Kumar Chaudhary, PW-28 Smt. Anju Devi Sharma, Smt. Mamta Sharma, Sh. Manoj Kumar etc. Again IO further seized certain more cheques and pay-in slips Ex. PW13/B1 to Ex. PW13/B48 from PW-13 Sh. Dhanraj Singh vide seizure memo Ex. PW13/B. He also proved credit entries in the account of JSS (D) through RTGS Ex. PW13/C (D-21). IO did not make inquiries from various payees of cheques and Pay-in slips issued from account of JSS (D) to find out whether they had received money for any purpose or any activity connected with this institution or it was received without any basis.
Internal Vigilance Inquiry conducted in Ministry
134) D2W1 Sh. Sanjay Kumar proved one RTI reply dated 14-11-2018 Ex. D2W1/A consisting of 11 pages given to A-2 relating to some notes of vigilance department. This was prepared before sending the complaint Ex. PW26/A to CBI by PW-26 Sh. Amit Khare, Joint Secretary and CVO in Ministry mentioning therein that JSS (D) was sanctioned on the basis of fraudulent documents given by GCSS (D) and major blame was put -90- upon A-2 for submitting wrong FSR dated 19-2-2002 upon which JSS (D) was sanctioned. However, this fact is not disputed that after coming to know the allegations from complaints of MP Sh. Ashok Argal dated 24-8-2009 and 31-8-2009, internal vigilance inquiry started in Ministry and A-2 himself in his letter dated 6-10-2009 Ex. PW26/DA asked his director Mr. Bakshi to investigate the manipulation of his FSR which shows his bonafide and clear intention. PW-26 during internal vigilance inquiry called the report from NLM Division which revealed that FSR of A-2 had been changed in the Ministry's file and certain officials of the Ministry and the GCSS (D) had manipulated the same.
135) PW-26 being CVO had not made separate enquiries nor recorded any statement of any person but simply relied upon report of NLM division in which A-2 was made responsible for giving wrong FSR upon which basis sanction was granted to JSS (D). He instead of conducting any personal enquiry got it conducted from NLM division and whatever observation has given by that NLM division, the same is mentioned in his complaint given to CBI. This witness admitted that NLM division alongwith its report had not sent the record of main files of D-1, D-2, D-3 and stated that he received only record of D-5. PW-26 does not know whether the facts mentioned in his complaint that GCSS (D) was registered on 18-9- 1995 with 7 members under Madhya Pradesh Society Registration Act or whether the averments made from point C to C in his complaint are correct or not because he has not personally checked these facts from the record.
136) This witness PW-26 also admitted that he had not done any personal meeting with MP Sh. Ashok Argal upon whose complaints this dispute had arisen, to ascertain how he came in possession of two FSRs and -91- where is FSR of A-2 dated 27-12-2001 which he was referring in his complaint. Even, MP Sh. Ashok Argal along with his complaints dated 24-8-2009 & 31-8-2009 annexed copies of two proposals to show that JSS (D) was sanctioned on fake registration papers and were replaced but that earlier proposal, copy of which was sent by MP Sh. Ashok Argal along with his complaint was not found available in the Ministry record. Had complainant PW-26 Sh. Amit Khare contacted MP Sh. Ashok Argal, then he could have come to know how copies of two different proposals came in the hands of this MP. Instead of conducting any personal enquiry being CVO which was his duty, PW-26 left everything to be examined by NLM division and also admitted that the Ministry had not got conducted any forensic examination of both the FSRs of A-2 lying in files D-1 and D-3.
137) If the complaint of PW-26 Ex. PW-26/A given to CBI along with complaints and annextures received from MP Sh. Ashok Argal are taken into consideration, then it shows that PW-26 had given reference of 3 different FSR of A-2 i.e. 24-12-2001, 27-12-2001, 19-2-2002. In his complaint, the date of one FSR of A-2 is prominently mentioned as 19-2- 2002 at several places but he could not find such report dated 19-2-2002 on the record. This witness PW-26 further stated that only in extraordinary situation, the day when the FSR is conducted, sanction for establishment of JSS is granted and on the same day funds are released otherwise not. But, in the present matter this possibility does not appear because he referred to FSR dated 19-2-2002 and on the same day sanction to JSS (D) was given and funds were ordered to be released. Actual fact is that A-2 had given only one FSR which is dated 24-12-2001. Thus, it is clear that this witness before sending complaint to CBI had not conducted proper internal departmental inquiry but done his duty in very casual -92- manner.
138) Though, in initial letter Ex. PW26/DX4 (lying in file D-5), Sh. Babu Lal Solanki Ex. MP mentioned that parent NGO of JSS (D) is GCSS (M) and not GCSS (D), but neither PW-26 nor NLM division examined Ex. MP Sh. Babu Lal Solanki who in one of his subsequent letters stated that there was no requirement of any investigation and even disputed the genuineness of his first letter. Sh. Babu Lal Solanki wrote various letters and his stand used to be changed from time to time, so in such situation, it was necessary to examine him by PW-26 to clarify exact position and to remove the confusions created by him.
139) No doubt, PW-26 had nothing to do with the process of sanction of JSS as it was not the role of CVO and he had examined the matter through vigilance angle particularly tampering of the record but still he admittedly took one year time between receipt of the complaint of MP Sh. Ashok Argal and reference to the matter to CBI. During his cross examination, this witness also admitted that some of the important documents such as Ex. PW14/D8 were not placed before him by NLM division while submitting the report and he did not recollect whether Ex. PW14/1A (page 2 to 7 of D-24) was placed before him or not. Vigilance Section besides asking for a report from NLM division had given directions to it to examine the letters received from Ex. MP Sh. Babu Lal Solanki but his letters were not examined. PW-26 during inquiry did not summon anyone from GCSS (M). He was not told by NLM division as to in whose custody the files used to remain but someone from NLM division had tampered the same and admittedly, A-2 was not posted in that division. He was not aware till the date of examination in Court who exactly tampered with the record though he admitted that the first proposal Ex.
-93-PW6/D2 on the basis of which the approval was granted by the Ministry and FSR of A-2 conducted on the basis of first proposal itself has been changed fraudulently.
140) PW-14 Sh. M.L. Bhatia also deposed certain facts relating to internal vigilance inquiry and some notes prepared by him and lying in file D-4 and D-5. He opined in one note that parent organization of JSS (D) was GCSS (M) after seeing the letter Ex. PW6/D1 issued by PW-19 Sh. S.P.S. Sangwan of NLM division, file maintained by this section and FSR lying in the said file. He also stated that the proposal for sanction of JSS (D) was found tampered by him so he had called the information from Chairman, JSS (D) with respect to its parent organization and received a reply dated 25-9-2009 in which it was mentioned that parent NGO of JSS (D) is GCSS (M) which is working all over India. This witness admittedly had not seen the original registration certificate of GCSS (M) but saw attested photocopy of registration certificate and Bye Laws of GCSS (M) found in file D-5. In cross-examination PW-14 admitted that in one of the letters Sh. Babu Lal Solanki, Ex. MP denied sending of some letter and alleged misuse of his letter heads. Sh. Babu Lal Solanki had sent 4 letters to the Ministry on different dates and he changed the stand every time but department has not investigated on those complaints to check its genuineness as signatures on all the 4 letters were different. During enquiry and while preparing the notings, PW-14 had not seen various letters of Sh. Babu Lal Solanki lying in file D-4. Infact he had also not seen the file D-4 at all. He also stated that before writing to stop release of funds he did not make any enquiry at his own. He also admitted in his cross examination that in the file D-6, various communications sent by JSS (D) on its letter head are available upon which words 'Jan Shikshan Sansthan, Dholpur' only is mentioned but certain -94- communications sent with effect from September, 2009 onwards, the letter heads started mentioning the words 'Jan Shikshan Sansthan, Dholpur, Matri Santha Gram Chetna Sewa Samiti, Morena, M.P'. Thus, his notes prepared in vigilance file were one sided and did not reflect the true picture.
141) All these facts clearly point out that even NLM division has not disclosed the all, true and correct facts to PW-26 and other officers while preparing the notes have not checked the record and blamed A-2 without proper inquiry. A-2 certainly had suffered due to lapses and negligence of various Ministry officials including the complainant PW-26. Even IO PW-64 despite receipt of various records including vigilance enquiry file did not conduct proper investigation and CBI also did not conduct any preliminary inquiry before registration of FIR on 19-5-2011 despite the fact that complaint Ex. PW26/A dated 27-7-2010 remained with it for more than 9 months. Had Ministry conducted proper internal vigilance inquiry or CBI conducted preliminary inquiry before registration of FIR or IO conducted unbiased investigation, then no question of charge- sheeting of A-2 had arisen.
Expert evidence
142) Basically, the prosecution case against A-1, A-3 to A-7 is rested upon the 4 handwriting experts reports given by PW-30 Dr. S. Ahmed and PW-31 Sh. S.P. Acharya from CFSL. Prosecution for the convenience of this Court given a chart about the questioned documents, files no. D-1, D-4, D-6, D-32 and D-33 in which those are lying, to whom it relates to as -95- well as specimen handwriting/signatures taken and admitted handwriting/ signatures collected and the result of experts in respect of such questioned documents, matched with which specimen/admitted documents of a particular accused. During investigation, specimen handwriting/ signatures of few accused persons were taken either in English or in Hindi or in both language which are part of D-26. Before proceeding further, it is necessary to sum up the law relating to legality, validity and admissibility of handwriting expert report.
Law relating to hand writing opinion
143) In Titli vs. Alfred Robert Johns 1933 ILR 428, it is held by Hon'ble Allahabad High Court that opinion of an expert may be relevant under Section 48 of Indian Evidence Act but would carry little weight with a Court unless it is supported by clear statement of what he noticed and on what he based his opinion. The expert, if he expects his opinion to be accepted, should put before the Court all the materials which induced him to come to his conclusion, so that the Court although not an expert may form its own judgment on those materials under Section 51 of the Evidence Act. The mere mention that certain kinds of tests were applied and certain results were obtained might be relevant as a piece of evidence but would not be conclusive.
144) Hon'ble Supreme Court in case Pandit Ishwari Prasad Mishra vs. Mohd. Isa AIR 1963 SC 1728 held that evidence given by experts of handwriting can never be conclusive because it is after all an opinion evidence. Where the evidence given by the witnesses is satisfactory and it proves the execution of a document, then their evidence does not require any corroboration by the opinion of the expert. Hon'ble Supreme Court in -96- another case S. Gopal Reddy vs. State of A.P. (1996) 4 SCC 596 also held that expert evidence is a weak type of evidence which cannot be safely relied upon without independent and reliable corroboration. Same view is given in Padum Kumar vs. State of UP (2020) 3 SCC 35, that opinion of handwriting expert requires corroboration and prudence requires that Court must see that such evidence is corroborated by other evidence either direct for substantial.
145) In case Shashi Kumar Banerjee vs. Subodh Kumar Banerjee AIR 1964 SC 529 Hon'ble Supreme Court held that no two signatures written by a person in the ordinary course of writing are precisely alike and differences may arise from various factors such as diversity in the makes of the pen, the level of signatures, the space it occupies etc. The evidence of expert is not conclusive and cannot falsify the evidence of oral testimony. The expert evidence as to handwriting is an opinion evidence and it can rarely, if ever take the place of substantive evidence. Before acting on such evidence, it is usual to see, if it is corroborated either by clear direct evidence or by circumstantial evidence.
146) In case State of H.P. vs. Jai Lal (1999) 7 SCC 280, Hon'ble Supreme Court held that an expert witness is one who has made the subject upon which he speaks a matter of particular study, practice or observation and he must have a special knowledge of the subject. An expert has to show that he has made a special study of the subject or acquired special experience therein or in other words that he is skilled and has adequate knowledge of the subject. Allahabad High Court in case Devi Prasad vs. State AIR 1967 All 64 held that there is need for care and caution in judging and utilizing the testimony of handwriting expert. The technical terminology of handwriting expert enables the expert to conceal errors -97- and even dishonesty to a degree which an untrained witness cannot attain. The object of expert evidence is to assist the Court informing its own opinion. Even if the expert opinion was not reliable in any particular case, a Court is not absolved from the duty forming its own opinion about the disputed handwriting. In the absence of batter evidence, opinion evidence has to be utilized by the Court in forming its own opinion. It is certainly hazardous to rely upon expert evidence solely without any corroboration from other kinds of evidence in the case but it is seldom that a prosecution case hinges purely on expert opinion evidence. Usually there is also other evidence in the case.
147) In Bhagwan Kaur vs. Shri Maharaj Krishan Sharma (1973) 4 SCC 46, Hon'ble Supreme Court held that evidence of a handwriting expert unlike that of a fingerprint expert is generally of a frail character and its fallibilities have been quite often noticed. The Courts should, therefore, be vary to give too much weight to the evidence of handwriting expert.
148) In Magan Bihari Lal vs. State of Punjab (1977) 2 SCC 210, Hon'ble Supreme Court held that expert opinion must always be received with great caution and perhaps none so with more caution, then the opinion of a handwriting expert. There is profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. Opinion of handwriting expert can be relied upon when supported by other items of internal and external evidence. This type of expert evidence being opinion evidence is by its very nature, weak and infirm and cannot of itself form the basis for a conviction.
-98-149) In Murari Lal vs. State of M.P. (1980) 1 SCC 704, Hon'ble Supreme Court held that evidence of handwriting expert need not be invariably corroborated and it is for the Court to decide whether to accept such an uncorroborated evidence or not. Court should approach the question cautiously and after examining the reasoning behind the expert opinion and considering all other evidence should reach its conclusion. Even where there is no expert, Court has power to compare the writing itself and decide the matter and where the defence raising no doubts against the reasons given by the expert for his opinion, expert evidence can be accepted without any corroboration. It is also held that the hazard in accepting the opinion of an expert is not because they are unreliable witnesses but because all human judgment is fallible while the science of identification of fingerprint has attained perfection and risk of an incorrect opinion is practically non-existence, the science of identification of handwriting is not nearly so perfect and the risk is higher. Section 73 of the Evidence Act enjoins the Court to compare the disputed writing itself and this duty cannot be avoided by recourse to the statement that the Court is no expert. Where there are expert opinion, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative text books and Court's own experience and knowledge. Having due regard to the imperfect nature of science of identification of handwriting, the approach should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of handwriting expert may be accepted.
150) In State of Maharashtra vs. Sukhdev Singh (1992) 3 SCC 700, Hon'ble -99- Supreme Court held that need of corroboration is not an inflexible rule and it depends upon facts and circumstances of each case. Quality of opinion would depend on soundness of reasons on which it is based but before acting upon the opinion evidence, Court must be satisfied about the genuineness of the specimen or admitted handwriting of the accused and competence and dependability of the expert. Although, Section 73 specifically empowers the Court to compare the disputed writing with the specimen/admitted writings shown to be genuine, prudence demand that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, then the quality of evidence in respect of specimen/admitted writing is not of high standard.
151) In Malaya Kumar Ganguly vs. Sukumar Mukherjee (2009) 9 SCC 221, Hon'ble Supreme Court held that a Court is not bound by the evidence of the expert which is to a large extent advisory in nature. The Court must derive its own conclusion upon considering the opinion of the expert which may be adduced by both sides, cautiously and upon taking into consideration, the authorities on the point on which he deposes.
152) In Ramesh Chandra Aggarwal vs. Regency Hospital Ltd. (2009) 9 SCC 709, It is held that scientific opinion if intelligible, convincing and tested becomes a factor an often an important factor for consideration alongwith other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusion and the data and material furnished which form the basis of his conclusion.
Use of some instruments by experts
153) Prosecution examined two hand writing experts from CFSL namely PW-30 Dr. S. Ahmed and PW-31 Sh. S.P. Acharya. PW-30 submitted -100- one expert report dated 27-6-2012 Ex. PW30/26 whereas PW-31 gave 3 different reports dated 8-7-2011 Ex. PW31/15, dated 25-5-2012 Ex. PW31/17 and dated 28-2-2012 Ex. PW31/19. Both experts in their respective reports stated that they had used Video Spectral Comparator (VSC), Twin Video Comparator, Stereo Microscope and Magnifying Glass at the time of examination of documents. However, in defence, A-1 and A-7 examined some witnesses from CFSL itself and Central Information Commission who contradicts these averments of reports through RTI replies given to accused persons as well as through some orders of CIC passed on the appeals of these accused persons and some other persons. Prosecution in the cross examination did not virtually dispute the testimony of those defence witnesses.
154) D1W3 Sh. V.K. Sharma, posted as Designated Officer of Central Information Commission at the relevant time proved two decisions of CIC Ex. D1W3/A and Ex. D1W3/C dated 25-10-2016 & 15-7-2016 respectively passed on the basis of the informations supplied by CFSL itself in an appeals. The decision dated 25-10-2016 Ex. D1W3/A of CIC alongwith the affidavit of Sh. John George Moses, CPIO of CFSL reveals that no entries in the logbook of Video Spectral Comparator-IV (VSC-IV) instrument was made in the logbook during the period from 21-6-2012 to 27-6-2012 which was kept in Document Division of CFSL. From order dated 15-7-2016 Ex. D1W3/C of CIC, it has come on record that VSC equipment and Stereo Zoom Microscope were not being used in the CFSL that is why no logbook of the same were maintained.
155) D7W1 Mr. J.G. Moses from CFSL proved certain RTI applications moved by accused persons and some other persons and replies given by him on the same. He proved RTI reply Ex. D7W1/A1 dated 17-3-2015 -101- given to A-7 which shows that Video Spectral Comparator-5000 was not functioning in the CFSL during the period from January 2012 to June 2012. Another reply Ex. D7W1/B1 given to one Mr. Ashish Tiwari dated 17-3-2015 shows that there is no entry in the log book of Video Spectral Comparator-5000 in respect of report no. CFSL-2011/D-492 and report no. CFSL-2012/D-300 as well as the fact that at that time, no Senior Scientific Assistant is reporting cases in Document Division of CFSL. One another reply Ex. D7W1/C1 was given to A-7 on 8-5-2015 by same witness in which it is mentioned that as per quality manual of CFSL-CBI, maintenance of logbook is provisioned for each analytical instrument. This witness gave another reply dated 1-12-2014 Ex. D7W1/D1 to Mr. Ashish Tiwari by stating that no information is available on the records of CFSL- CBI, New Delhi about the availability and functionality of Stereo Zoom Microscope and Stereo Microscope during the period from April 2011 to September 2011 and September 2011 to August 2012 respectively. One another RTI reply dated 11-12-2014 Ex. D7W1/E1 was given to A-1 by this witness through which the photocopy of the relevant logbook pages of Video Spectrum Comparator-5000 for the period from January 2010 to July 2011 was supplied. One RTI reply dated 8-1-2015 Ex. D7W1/F1 was given to Mr. P.N. Tiwari, advocate in respect of query raised whether Dr. S. Ahmed working in Document Division of CFSL from 21-6-2012 to 27-6-2012 used Video Spectral Comparator and Stereo Microscope in his report CFSL-2011/D-1029 dated 27-6-2012 as per logbook entries. The reply was given that no information is available on records in this regard. This witness further gave another RTI reply dated 11-11-2014 to advocate Sh. P.N. Tiwari Ex. D7W1/G1 mentioning therein that no Stereo Microscope and no Stereo Zoom Microscope is available in the Document Division of CFSL. However, Video Spectral Comparator-5000 is available but not functional in this Document -102- Division. Another RTI reply Ex. D7W1/H2 dated 16-1-2015 was given to Mr. P.K. Tiwari in which it was mentioned that no information is available on record about the functionality of the Twin Video Comparator for the period from June 2011 to July 2012 in the Document Division of CFSL.
156) One Mr. Ashish Tiwari moved an application under RTI dated 3-12-2014 Ex. D7W1/J asking about various instruments used by expert Sh. S.P. Acharya and relevant entries in the logbook pertaining to those instruments for the period from 28-6-2011 to 11-7-2011 relating to his report CFSL-2011/D-492 dated 8-7-2011, for the period from 4-5-2012 to 1-6-2012 pertaining to his report CFSL-2012/D-300 dated 25-5-2012 as well as of expert Dr. S. Ahmed pertaining to his report CFSL-211/D-1029 dated 27-6-2012 for the period from 21-6-2012 to 27-6-2012. The answer was given that no record is available in respect of these queries.
157) D7W1 Mr. J.G. Moses also filed one affidavit dated 1-4-2017 Ex. D7W1/K in CIC under the order of CIC dated 25-10-2016 Ex. D7W1/K2 in which he stated that there are no entries in the logbook for the instrument Video Spectral Comparator-IV of the Documents Division of CFSL for the period from 21-6-2012 to 27-6-2012. Vide Ex. D7W1/L dated 20-8-2015, this witness supplied copy of the logbook relating to the instrument VSC-IV to A-7.
158) From the above defence evidence as come from the office of CFSL itself, it is now clear from record;
(i) That Video Spectral Comparator and Stereo Zoom Microscope were not available or being used in CFSL from 21-6-2012 to 27-6-2012.
-103-(ii) That there was no availability and functionality of Stereo Zoom Microscope and Stereo Microscope during the period from April 2011 to August 2012 in CFSL.
(iii) That no information was available on record about the functionality of the Twin Video Comparator for the period from June 2011 to July 2012.
(iv) That Video Spectral Comparator-IV was being used in CFSL from 21-6-2012 to 27-6-2012 but no entry of its use by anyone was found in log book of this machine.
(v) That Video Spectral Comparator-5000 was not functioning in the CFSL during the period from January 2012 to June 2012.
(vi) That logbook pages of Video Spectral Comparator-5000 for the period from January 2010 to July 2011 were not containing any entry of its use either by PW-30 or PW-31.
(vii) That even there is no entry in the log book of use of Video Spectral Comparator-5000 in respect of report given by PW-31 Ex. PW31/15 dated 8-7-2011 and dated 25-5-2012 Ex. PW31/17.
(viii) That as per quality manual of CFSL-CBI, maintenance of logbook is provisioned for each analytical instrument.
(ix) That virtually no record was found available in respect of use of any instrument by PW-30 and PW-31 while examining the questioned documents and while submitting their reports and no entry of logbook of any such instrument was found.
159) The above facts and evidence given by CFSL itself create a big dent in the evidence of two experts PW-30 Dr. S. Ahmed, Assistant Government Examiner of Questioned Documents (AGEQD) and PW-31 Sh. S.P. Acharya, Reporting Officer/Senior Scientific Assistant (Documents) and -104- a doubt has arisen about the correctness of their reports regarding alleged use of various instruments which are given during the relevant period for which evidence of defence witnesses has come. In this regard, both experts had made false averments in their respective reports. Infact both these witnesses had not used any instruments while examining the questioned documents as alleged in their reports because either such instruments were not available in CFSL or were not functioning during the period from the date of receipt of documents till the reports were given. Further, non mentioning of any entry in the logbook of any instruments which were even available in the office also rule out possibility of its use as making entry in such logbook was compulsory as per rules. The false submissions made by both the experts in their respective reports make out a case to reject the same as a whole even without discussing any other merits. The major portion of the case was based upon the reports of experts and if the reports are ignored, then nothing much survives against accused A-1, A-3 to A-6.
Specimen signature/handwriting not taken before Court or with its permission
160) IO took the specimen handwriting and signatures S-1 to S-20 and S-31 to S-50 of A-1 Ex. PW27/A, specimen handwriting and signatures S-21 to S-30 and S-51 to S-60 of A-3 Ex. PW25/A, specimen handwriting and signatures S-61 to S-100 of A-4 Ex. PW30/23 in the presence of independent witnesses which are lying in file D-26 in CBI office. PW-27 Sh. Uma Shanker, Manager in MMTC Ltd. deposed that in his presence specimen signatures/handwriting of A-1 was taken on 31-5-2011. PW-25 Sh. Satish Kaushik, UDC from PWD Department deposed that specimen signatures of A-3 were taken by the IO in his presence.
-105-161) IO also took specimen signatures and handwriting S-161 to S-170 of A-5 Ex. PW30/25, specimen signatures and handwriting S-101 to S-160 of A-6 Ex. PW30/24. All these are lying in file D-26 on different pages. PW-32 Sh. Rajeev Sharma, Executive Engineer, PWD stated that on 18- 8-2011, the specimen signatures/handwriting of A-5 (since deceased) were obtained by the IO in his presence in CBI office.
162) It is important to mention here that no specimen signatures/handwriting of A-7 was ever taken. The above specimen signatures and handwriting were sent to CFSL for opinion alongwith questioned and admitted writings by IO who received total 4 CFSL reports given by PW-30 and PW-31. There is no dispute of the fact that before taking the specimen signatures and handwriting of accused persons, neither any permission of the Court was taken nor it was done in presence of Judge but the same were taken in CBI office. Andhra Pradesh High Court in case M. Durga Prasad vs. State of A.P. 2004 Crl. L. J 242 in para no. 95, held that the opinion based upon the specimen signatures which are not taken in open Court cannot be relied upon by the Court as it is not a valid opinion. Therefore, conviction cannot be based solely placing reliance on such opinion. This judgment was even upheld by Hon'ble Supreme Court in State of A.P. vs. M. Durga Prasad (2011) 15 SCC 365. In Sandeep Dixit vs. State (2012) 190 DLT 600, Delhi High Court also discarded the specimen handwriting of the accused obtained without the permission of the Court by the investigating agency. Accordingly, the above mentioned specimen signatures/handwriting of A-1, A-3 to A-6 cannot be treated as fit documents for comparison of questioned handwriting by experts.
PW-30 was not competent expert to give report and to depose in Court -106-
163) PW-30 Dr. S. Ahmed from CFSL had given his report dated 27-6-2012 Ex. PW30/26 and at that time he was working as Assistant Govt. Examiner of Questioned Documents (AGEQD). He was also not competent to depose in the Court. Following instructions as available on the website of CBI, CFSL were produced in Court by counsel for A-1 and prosecution had not raised any dispute about it.
"The case is reported by an officer of the rank of Group A Gazetted Officer i.e. Senior Scientific Officer Grade-II and above with the assistance of a team of experienced Senior Scientific Assistant, Scientific Assistant and Laboratory Assistant. Before finalizing and forwarding the case report to the forwarding authority, the report is duly recommended by the Head of Division and finally submitted for approval of Director, CFSL. The reporting officer has to depose before the Court as and when summoned by the Hon'ble Courts."
164) As per these instructions of CFSL itself, PW-30 was only assisting the main expert and was not competent to submit report under his own signatures. Moreover, he was not the reporting officer of CFSL and was not competent to depose in the Court and to prove the report Ex. PW30/26. On this ground also, his report as a whole is liable to be discarded. Since the main evidence against most of the accused persons are experts reports and when reports are liable to be rejected, then the benefit of the same goes in favour of those accused persons.
Only similarities checked and not dissimilarities
165) Prosecution could not deny the fact that both experts PW-30 and PW-31 -107- during examination of questioned documents only checked similarities and not pointed out dissimilarities though it existed, if their cross examination is taken into consideration. PW-30 specifically in his cross examination admitted that he had not mentioned about dissimilarity in his report in respect of some questioned documents relating to A-3 and stated that since there are similarities in the writings of A-3 that is why he has not mentioned the dissimilarity in his report. Both the witnesses in their cross examination first time in Court mentioned about some comparison, similarity and dissimilarities to justify their reasonings which were nowhere mentioned earlier in their reports, so their evidence coming first time in Court beyond their reports cannot be accepted.
166) There were only two questioned documents against A-4 as per prosecution allegations marked as Q71 and Q77. A-4 examined in his defence one expert witness Dr. S.C. Mittal (Retired) Principal Scientific Officer from CFSL itself as D4W1 who also examined two questioned documents Q71 Ex. PW6/31 and Q77 Ex. PW30/16 (lying in file D-33) relating to A-4. According to his testimony, he worked in CFSL, CBI for 35 years and mainly worked as handwriting expert. In his deposition, he mentioned 9 basic principles and rules for examination of the questioned documents. One of such principles is that on the face of numerous similarities observed between the questioned and specimen/admitted signatures/handwriting, one repeated and consistent dissimilarity is sufficient to prove their different authorship. Prosecution has not raised any question about the existence of such basic universal principles and rules of handwriting/ signature examination as mentioned by D4W1 but cross examined him on other aspects. Even if this witness was once convicted by CBI Court for giving wrong opinion against which he had filed an appeal, but that fact itself is not sufficient to ignore basic rules of -108- examination of documents as described by this witness, qua which there is no dispute and no question was asked by prosecution in the cross examination about it.
167) Mysore High Court in Ravjaippa vs. Neelakanta Rao AIR 1962 Mys 53 in para no. 20, held in examining a disputed document that true test is not the extent of the similarities observed when compared with genuine documents, as forged documents usually are good imitations of genuine documents, but the nature and extent of the dissimilarities notices. The importance has to be given to the dissimilarities as the science of calligraphy is not a perfect science and the instances are not rare when even the best handwriting expert have not been able to find out the forgery. Similarly, Bombay High Court in Bhargav Kundalik Salunkhe vs. State of Maharashtra 1996 Crl. L. J. 1228, held in para no. 10 after referring to text book that whatever features two specimens of handwriting may have in common, they cannot be considered to be of common authorship, if they display but a single consistent dissimilarity in any feature which is fundamental to the structure of the handwriting and whose presence is not capable of reasonable explanation. Hence, non examination of dissimilarities in the handwritings of various accused persons leads to the impression that reports given by PW-30 and PW-31 are incomplete which cannot be relied upon. Attempt made by these experts to show dissimilarities now in Court during examination is of no use.
Expert evidence going against direct substantive evidence not reliable:-
168) According to opinion of prosecution witness PW-30 Dr. S. Ahmad, as per his report Ex. PW30/26 (D-42) the questioned signatures and handwriting -109- mainly on proposal dated 12-2-2001 submitted with the Ministry and bonds etc. matched with the specimen and admitted signature and handwriting of A-1. It is the case of the prosecution that A-1 impersonated as A-3, signed on the proposal as A-3 for submitting false documents with false signatures to the Ministry. However, D1W10 Sh.
Brijesh Sharma S/o Sh. Hari Babu specifically deposed that when he had met A-3 in February, 2001 at Ganeshpura, Tulsi Colony, Morena for getting some work, then A-3 had signed proposal Ex. PW6/D2 at point Q10 and Ex. PW64/D2-X2 at point Q12 in his presence though he was not sure about various other disputed signatures of A-3 at point Q20, Q22, Q28, Q40, Q42, Q44, Q46, Q48 & Q50 because he had seen only one or two pages of the proposal from the front side and had not seen the entire document. He also identified A-3 in the Court. He denied the suggestion given by the PP that A-1 had signed on this document in the name of A-3. On the other hand, report of expert PW-30 is that even questioned signatures Q10 and Q12 are in the handwriting of A-1. Law is well settled that when any conflict arises between the opinion of handwriting expert and the witness who actually had seen someone signing the document, then opinion of handwriting expert has to be ignored and substantive evidence of witness will prevail. Thus, the prosecution story that proposals and bonds were submitted by A-1 and bearing his handwriting and signatures by impersonating as A-3 is not proved.
169) CBI had sent only two questioned documents Q71 and Q77 both lying in file no. D-33 relating to A-4 to handwriting expert PW-30 Dr. S. Ahmed for opinion who gave finding that these were written by A-4 only. Q71 is a signature of 'Rakesh Sharma' and Q77 is a signature of 'Ram Prasad' on bond. However, prosecution examined PW-26 Sh. Rakesh Sharma -110- who stated that signatures at point Q71 were put by him and is not fake. It has also come on record that IO did not make serious attempt to trace out another witness of the bond namely Sh. Ram Prasad. Otherwise also, from the testimony of D4W1 Dr. S.C. Mittal, another handwriting expert examined by A-4, the reasonings and findings given by PW-30 appears to be unreliable and non acceptable.
170) Thus, the direct evidence of the witnesses deposing against expert opinion create a ground to reject report of such expert. In Fakruddin vs. State of M.P. AIR 1967 SC 1326, it is held by Hon'ble Supreme Court that expert evidence as to handwriting is opinion evidence can rarely takes the place of substantive evidence. The evidence given by an expert can never be a conclusive evidence. The sole evidence of handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not.
Inconsistency between both expert witnesses on various factors including basic rules and nature of handwriting examination etc. and existence of some other facts to make them unreliable
171) In his cross examination, PW-30 stated that science of handwriting identification is a perfect science and not a developing science. He also stated that fingerprint examination is a perfect science as compared to handwriting examination and there is no possibility of two competent handwriting experts giving different opinion on the same subject matter. On the other hand, PW-31 stated that science of handwriting examination is a progressing science and not as perfect as science of finger print though he could not comment on the questions that if two experts examine same material and gave two different reports, there might be -111- difference of opinion.
172) PW-30 had not taken enlarged photographs of the questioned document and denied the suggestion that for ideal examination of questioned document, their enlarged photograph need to be taken. On the other hand, PW-31 stated that that in the course of examination, generally all the documents i.e. admitted, specimen, standard and questioned documents are enlarged and photographed which are required, though those photographs are not filed alongwith the report nor the fact of its enlargement or photography is mentioned in his reports.
173) Both witnesses PW-30 Dr. S. Ahmed and PW-31 Dr. S.P. Acharaya admitted in their cross examination that for comparison of two handwritings, their juxtaposition is required and they had prepared the same but admittedly those were not send to CBI along with their reports. Both the witnesses also did not sent worksheets along with their reports.
174) PW-31 had not observed line quality defects, tremors, hesitations, pen pauses, retouching, blunt commencement and finish etc. in the questioned signatures and simply has given the opinion in respect of finding of similarity between the questioned and specimen signatures. PW-30 also in his cross examination stated that he had not observed the line quality effects, pen pause, hesitation, tremors, retouching, blunt commencement and finish etc. in his report and even said to this extent that the some of the questioned signatures Q126, 128, 129, 130, 133, 136, 140, 142, 146, 148, 150, 152, 164 and Q166 are not the forged signatures but are genuine signatures.
175) As per PW-31, the quality of pen stroke, pin lifts, pen position, -112- connection etc. are not smooth in execution, the movement also differ and when the documents under examination are seen under the microscope, the same are revealed. He also stated that in the case of old age and diseased person, there may be some hesitation in pen movement due to the reason that writing is a neuromuscular activity and old people are particular of formation of letters. He also stated that the flow and other characteristics of the writing become magnified and more clear during examination under microscope and view is not restricted or ink also do not look diluted under such microscope view which should not be morethan 2X but it has come on record that no instrument was used by expert at the time of examination of documents. Moreover, from the cross examination of PW-30 it has come on record that most of the questioned documents are of year 2002 whereas the specimen signatures were taken after about 9½ years. The age of accused persons was not given by the IO to the expert nor the expert knew whether accused was left hander or right hander. Despite his demand, further material was not provided to him prior to preparing of the report. PW-30 also stated that a person writing with his left hand and another person writing with right hand, the stroke will be different. PW-31 after seeing the specimen signature/writing Ex. PW27/A, said that quality of strokes executed while writing this specimen signatures was a conscious efforts of the author of bringing a difference in the writing which means that more documents especially admitted one were required by the experts but the IO slept over the matter subsequently and did not provide other one.
176) PW-30 avoided to give answers to number of questions put in cross examination and he left everything upon the contents of his report and was attempting to give evasive replies. He stated that he had observed line quality effects, pen pause, hesitation, tremors, retouching, blunt -113- commencement and finish etc. in his report which fact is missing in his report. Same was the position qua PW-31 who also did not properly answer some questions put in his cross examination.
177) PW-30 had not given any opinion in respect of the questioned documents A-128A & A-129A. He had also not compared Q81 with the specimen writing of A-1 as further material was required by him which was not provided at all by IO. PW-30 also stated that he had not given any opinion on Q127, 143, 147, 149, 151, 153, 160 & Q163 on the ground that all the characteristics as occurring in the questioned signatures are not available in the specimen signatures as he found specimen signatures and admitted signatures insufficient for this comparison and that is why, he asked for further material which were not provided by IO at any time lateron.
178) Relevant portion of report given by handwriting expert PW-31 Sh. S.P. Acharaya is on page no. 3 to 5 of Ex. PW31/17 dated 25-5-2012 pertaining to A-7. After comparing the questioned documents Q-168 to Q-177 (lying in file D-4) and Q-182 to Q-192 (lying in D-6), all bearing the alleged signatures of A-7 with stamp of Director JSS (D), expert PW-31 opined that all the questioned documents are written by A-7. In his report, this witness mentioned at several places about comparison of questioned documents with specimen signatures in English and also mentioned point of similarities between those but this is a fact that no specimen signatures of the accused A-7 were ever taken by IO at any time as per chargesheet so no question could arise that specimen signatures of A-7 were used for comparison. PP argued that infact this witness had compared the questioned documents with admitted documents but inadvertently in his report mentioned everywhere -114- specimen documents. This wrong averments with other factors pointed above in the report itself are sufficient to reject his report as a whole even against other accused persons because alleged typing mistake can be at one or two places but not everywhere. Moreover, PW-31 in his evidence nowhere stated about such alleged typing mistake occurred in his report and this plea of typing mistake was raised first time by PP during arguments. If this is so, and typing mistake had happened at various places, then in that situation also, the possibility exists that while preparing the report this witness PW-31 become absent minded or made report casually.
179) During investigation, IO either seized number of bank documents pertaining to different accused persons containing admitted signatures or came to know that their signatures are available in certain banks but those were not collected. Those admitted signatures which were either collected or would be easily available were not sent to experts that could be the best evidence for an expert to give report instead of relying upon specimen signatures.
180) IO seized certain documents from Sh. Rakesh Babu, Manager, Dholpur Urban Co-Operative Bank Ltd. on 21-9-2011 vide memo Ex. PW7/A (part of D-23, page 19) which included original account opening form cum specimen signature card of A-1 relating to saving account no. 1845 Ex. PW7/C (D-31). During investigation, IO had conducted search at the premises of A-3 on 22-5-2011 Ex. PW-64/B and the documents seized included passbook of A-3 Ex. PW-50/A (D-34) of Recurring Deposit account maintained in Audhyogik Sahakari Bank Ltd., Syopur, Morena branch. PW-50 Sh. Nilesh Kumar Pathak, Assistant Accountant in Vyavsayik & Audhoygik Sehkari Bank Ltd. and PW-53 Hamir Singh, -115- Accountant proved this passbook of A-3. According to PW-50 A-3 used to come to the bank for deposit of monthly installments and he identified A-3 in the Court. Some entries of the passbook were in the hand of these two witnesses. PW-50 however stated that CBI officer did not collect any document of the bank containing the signatures of A-3. During search, IO also seized one another passbook of A-3 of account in SBI Morena and another passbook of the joint account of A-3 and Manorama Sharma maintained at Audhyogik Sehkari Bank Limited, Morena, but IO had not collected the specimen signature cards of the above account holders from the concerned banks. These banks must have been containing the admitted signatures of A-3 in its record but still IO only send specimen signatures of this accused to handwriting expert. Similarly, IO had also seized account opening form cum signature card in the joint name of A-4 and his wife Smt. Surekha Shivhare Ex. PW30/22 from Sh. Arvind Srivastava, Chief Manager, SBI, Morena on 21-9-2011 vide seizure memo Ex. PW59/A but it was not send. IO had also seized document i.e. account opening form and specimen signature card of Satpura Narmada Kshetriya Gramin Bank of A-6 Ex. PW-30/21 & Ex. PW-64/D from Ambrish Sharma vide seizure memo dated 13-9-2011 Ex. PW-64/C. He also seized vide seizure memo Ex. PW7/A (part of D-23, page 82), one letter Ex. PW7/D (part of D-33, page 82) dated 18-12-2003 of A-7 Director JSS(D) addressed to Manager, Dholpur Urban Co-Operative Bank Ltd. for opening of saving account of Ajay Kumar, Sandeep Kumar and R.B. Singh of JSS (D) but instead of document containing admitted signatures, only specimen signatures were sent which otherwise also already held above being not reliable.
181) In view of the above, there is no need to discuss anything more about the both experts reports in detail and above grounds are sufficient to discard -116- the same. The reports of handwriting experts are unreliable. When the evidence of experts and their reports are ignored then, the accused persons A-1, A-3, A-4, A-6 and A-7 are required to be acquitted straightway as mainly evidence against them was of such handwriting experts reports.
Importance of mentioning of Pin Code number on registered or speed post envelopes
182) Prosecution alleged that accused persons had given wrong information about office bearers of GCSS (D), GCSS (M) and proposed members of BoM of JSS (D) to the Ministry and gave their fake addresses and particulars with incorrect bio-data. First question came into consideration is whether without Pin Code number or mentioning of wrong Pin Code number, registered or speed post letter can be delivered upon addressee or not.
183) In response to the two RTI applications of A-1, D1W1 Sh. G. S. Solanki, Suptd. Post Office, Chambal Division, Morena gave replies dated 12-11- 2015 and 24-11-2015 Ex. D1W1/A-1 and D1W1/B-1 respectively and stated that it is mandatory to mention the Pin Code number on any letter or article booked by registered post or speed post, otherwise the same will not be accepted by the post office. In cross examination, this witness, however, stated that if an article is received in the post office without mentioning Pin Code in the address, then the same may be delivered at the given address or may be returned to the post office, if the address is not located. He also clarified that as per rule of the Postal Department, address must mention Pin Code number but article cannot be returned -117- simply for not having the Pin Code in the address. He also admitted that if the area address mentioned on the article is prominent, then due effort is made to deliver it and the post man of a particular area will have good assessment of locations in the area on the basis of his practical experience over a period of time. According to this witness, the rule of mentioning of Pin Code in the address was framed by the department in the year 2012.
184) Another witness D1W2 Sh. Rajinder Singh Shekhawat, retired Suptd. from the office of Post Master, Rajasthan Circle, Jaipur also produced and proved the record of one RTI application moved by A-7. Under this RTI application, only attested copy of "Hand book on speed post services and operations" published by Postal Department of Government of India was provided to A-7 vide letter Ex. D1W2/A-3.
185) D1W4 Ms. Lovleena was posted as SSPoS, Bhopal Postal Division in the year 2014 and she produced the record of two RTI applications moved by A-1 and A-7 out of four because the record of two RTI applications could not be traced out. She in her reply dated 19-1-2015 Ex. D1W4/B informed A-1 that according to software of registry booking, no registered article can be booked without mentioning the Pin Code number. In another reply dated 10-4-2015 Ex. D1W4/C, she further clarified that Pin Code is a mandatory field in the software used for booking registered article and without mentioning Pin Code, software does not proceed further, so due to this technical situation, the article must mention the Pin Code number. Similar reply dated 19-9-2014 Ex. D1W4/D was given by her to the RTI application moved by A-7. In cross examination of the PP, she clearly denied that this rule of mentioning Pin Code on the article came in existence in the year 2012 but stated that this rule was applicable since beginning of the year 2010 when she joined the -118- service. Online postal services through computer was implemented and introduced PAN India in phases, region wise. She further stated that speed post or registered post article booked through online postal service without mentioning Pin Code cannot be done but it was not the position through manual postal services. She could not come across any incident where registered or speed post article was booked without mentioning Pin Code and clearly stated that it could not have been done.
186) D1W5 Sh. B.S. Tomar was posted as Superintendent of Post, Morena in the year 2014-2015. He in response to one RTI application moved by A-1 gave information Ex. D1W5/B & dated Ex. D1W5/D both dated 14-7- 2015 that it is mandatory to write Pin Code number on registered post letter even in Chambal Division. This witness further in another RTI reply dated 1-4-2014 Ex. D1W5/F given to A-1 stated that Pin Code number 462001 is of Bhopal, GPO Post Office whereas Pin Code no. 476001 belongs to Morena. A-7 has also sought RTI information and this witness in his reply dated 31-10-2014 Ex. D1W5/H stated that as per directions given in Post Office Guide Part-1, it is compulsory to mention Pin Code number while booking registered article alongwith the address including the distributive Post Office. In another reply dated 28-4-2015 Ex. D1W5/K, this witness informed A-7 that mentioning of Pin Code number while booking a registered letter is necessary but in case the customer has no knowledge about the Pin Code number where the article is to be delivered, then the booking clerk will inform the said customer the Pin Code number. According to this witness as per his reply dated 1- 6-2015 Ex. D1W5/K-1, this rule is applicable in Chambal Division. In another reply given to A-7 under RTI Ex. D1W5/M, he further stated that as per para no. 2.5 of Speed Post Hand Book, it is compulsory to mention Pin Code number alongwith the address besides the name of the district -119- and without Pin Code number, speed post article cannot be accepted. Alongwith this reply, the witness even annexed relevant provisions of Hand Book on Speed Post Services & Operation which was corrected upto 1-3-1997. Provision 2.5 of this Hand Book described how to write the address and it specifically says that article without Pin Code will not be accepted. Further, the use of words "corrected upto 1-3-1997" on the title page of this Hand Book clearly shows that atleast on this date, the rule of mentioning Pin Code number compulsory has come in existence. This witness further gave reply Ex. D1W5/O to A-7 that Pin Code number of Morena is 476001 and Pin Code number 462001 is of Bhopal GPO. In cross examination done by the PP, he stated that the Pin Code specifies the place where the post is to be delivered and if Pin Code is not mentioned on an article, it will not be booked for delivery through registered/speed post. If Pin Code is not mentioned on an article booked, then post office will still make an effort to deliver the article/post.
187) D1W6 Sh. N.L. Yadav was posted as Superintendent of Posts, Guna, M.P. in the year 2014. He supplied the attested copies of relevant pages of hand book on Speed Post Services & Operation to A-7 through his reply dated 2-9-2014 under RTI Ex. D1W6/D. In cross examination by PP, he stated that an article/letter is accepted at the Post Office for delivery through registered post even without mentioning of Pin Code in the address but Pin Code is necessary for delivery of the article/letter booked through speed post. He further stated that if the sender does not know the Pin Code of destination, then on his request, post office official can mention the Pin Code to facilitate the delivery. However, if due to human error or oversight an article/letter is accepted for delivery through speed post wherein Pin Code is not mentioned, then the Postal Department will make all efforts for delivery.
-120-188) D1W7 Sh. Amar Singh Rathore. Suptd. of Post is another witness of the Postal Department of Gwalior Division and he under RTI supplied the attested copy of Hand Book on Speed Post Services & Operation to A-7 vide his reply dated 25-7-2014 Ex. D1W7/D. He also proved another reply Ex. D1W7/F sent to A-1 mentioning therein that writing of pin code number is necessary for sending any article through speed post and without mentioning the pin code number, the article cannot be book. In case, the sender has no information about pin code, then he can write the same from the information available in the post office. Same reply was given to A-7 vide Ex. D1W7/H dated 23-4-2014. In cross examination, he stated that the article/letter can be accepted by the post office for delivery through registered post without mentioning of pin code in the address but it is necessary for speed post.
189) D1W8 Sh. Satyanarayan Saini was posted as Assistant Director in the office of Chief Post Master General, Jaipur in year 2014 who also provided Hand Book on Speed Post Services & Operations to A-7 vide his RTI reply dated 3-9-2014 Ex. D1W8/C. According to this witness, the word "Speed Post" in block Capital letter and the Pin Code is required to be mentioned on the article to be booked for speed post but if inadvertently Booking Clerk accept such article for speed post without mentioning of the words and Pin Code number, then article shall be processed for delivery through speed post.
190) D7W2 Sh. Amar Kumar Verma, Asst. Suptd. of Posts from the Postal Department, Delhi South Division in his RTI reply Ex. D7W2/B dated 9- 3-2015 and Ex. D7W2/D dated 5-6-2015 given to A-7 stated that it is compulsory for the registered article and speed post article to have Pin Code for booking purposes and without Pin Code, it is not possible to -121- book the article on MPCM. D7W3 Sh. Kailash Chander Pant, Public Relation Inspector also from Postal Department, Kalkaji Head Post Office proved the same replies Ex. D7W2/B & Ex. D7W2/D.
191) If the statements of above witnesses are considered, then it can be said that where the speed post or registered post article is booked manually, then it can be done but where it is to be booked through online system, then the software will not accept the same until the Pin Code number mentioned on an envelope is inserted in the system. The rule regarding mentioning of Pin Code number compulsory on speed post envelope had come in existence atleast on 1-3-1997 through Hand Book on Speed Post Services & Operation. The booking clerk helps the sender for mentioning the Pin Code number also, in case he does not know the Pin Code of addressee. However, if by mistake any such article is accepted by booking clerk, then still the post office will make efforts to get it served.
Letters sent to some persons by IO during investigation
192) During investigation, certain registered and speed post letters were sent by the IO to various office bearers of GCSS (D), GCSS (M) & proposed members of BoM and Board of Directors of JSS (D) as well as some witnesses of the bonds submitted in the Ministry at the addresses mentioned in the seized record of Ministry to verify their existence and those were returned undelivered. All those unserved envelopes are lying in file D-25. Prosecution through those unserved envelopes and through the reports of postal department tried to show that those persons were fake persons and never lived at their addresses given.
-122-193) Prosecution alleged that notices sent to Smt. Krishna Devi, Smt. Shobha Rani, Sh. Brij Kishore, Smt. Nibha Tiwari, Smt. Laxmi Devi, Sh. Pradeep Kumar Sharma, Sh. Rakesh Sharma, Sh. Pramod Kumar, Smt. Rajrani/Sh. Pramod Kumar, Sh. Ajay Kumar, Dr. Santosh Tiwari, Ms. Dr. Raj Kumari, Smt. Malti Devi c/o Sh. Vishambhar Dyal, Sh. Ram Prasad, Smt. Sudha Devi/Sh. Ram Niwas, Ms. Bindu Devi, Smt. Malti Devi c/o Sh. Anil Kumar, Smt. Archana Gaur, Sh. Mahendra Pachauri, Sh. Rabinder Kumar Sharma, Sh. Sanjay Kumar, Smt. Beena Devi and number of others by speed post and registered post were not served and returned back due to various reasons including incomplete address, not residing at the address or wrong address etc. In this regard, prosecution also examined various postal department officials to prove their unserved reports given on undelivered envelopes.
194) PW-22 Sh. Ram Niwas, postman in Post Office, Matsura, Distt. Dholpur received one registered letter Ex. PW22/A in the name of Sh. Moonga Ram c/o Vrindavan Lal, village Husainpur Panchayat Samiti, Bari, Distt. Dholpur, Rajasthan which he returned with remarks "Vapis is naam ka koi nahi hai". In cross examination, this witness admitted that he is not resident of this village Husainpur nor can tell the names of the residents of this village nor he can tell whether there are more than one person having same name. He did not note down the names of the villagers and their residential addresses from whom he made inquiries about Sh. Moonga Ram who allegedly was found not traceable. He also stated that he did not make any inquiry from Gram Panchayat. He further admitted in his cross examination that address given on the envelop was incomplete because Panchayat Samiti, Bari and Husainpur are two different places. He also stated that many villages fall under Panchayat Samiti, Bari and Husainpur is one of such villages. He had not mentioned -123- the dates of his visit in village Husainpur on the returned envelope and even there is no rubber stamp of his office i.e. post office Matsura on it.
195) PW-23 Sh. Satbir Singh, postman from Morena Head Post Office deposed that in the year 2011, he had received a speed post envelope Ex. PW23/A for delivery to Dr. Santosh Tiwari s/o Sh. Satya Prakash, Gopalpura, Morena which he returned with the remarks "Adhura Pata, Vapis". In the cross examination, he admitted that Pin Code no. 462001 mentioned on this envelope is not the Pin Code of Morena and once the Pin Code is incorrect, the letter would not be delivered. He also stated that even if the Pin Code is incorrect, still it is the duty of the postman to find the addressee as per the address. He also admitted that population of Distt. Morena is around 3 Lakhs. He further stated that Pin Code of Morena is 476001 but had no knowledge whether the Pin Code no. 462001 is of Bhopal. He was not sure whether the population of Gopalpura was One Lakh or more but stated that it is a big area. The unserved envelope did not bear stamp of Morena Head Post Office and he did not note the names of the persons from whom, he made inquiries in Gopalpura about the addressee.
196) PW-33 Sh. Brijesh Kumar Srivastava, postman posted in Post Office Lashkar, Head Office, Gwalior stated that he received one speed post envelop Ex. PW33/A for delivery but he returned the same with his remarks "insufficient address". In cross examination he stated that he did not remember the exact date when he went at the address as the date is not visible on the envelop now. He also stated that he could not deliver the letter because the address was insufficient and even Pin Code number was also not completely mentioned as only two digits were written instead of 6 digits. Lashkar is described as a big city by this witness.
-124-197) PW-34 Sh. Rajender Sharma, postman in Rajakhera Post Office, Distt. Dholpur stated that he received a speed post envelop Ex. PW34/A addressed to Smt. Rani Sharma/Sh. Pramod Kumar, Rajakhera, Distt. Dholpur, Rajasthan on 15-9-2011 for delivery but he returned the same with the reasons that address is incomplete. He also received another speed post envelope addressed to Smt. Sudha Devi/Sh. Ram Niwas, Rajakhera, Distt. Dholpur Ex. PW34/B on same day but was returned with the same reason that address is incomplete. In cross examination, he stated that the word "Kayakhera" on Ex. PW34/B is written against the address but has no knowledge whether this place is situated in Distt. Dholpur or not. He also stated that in both the envelopes, Pin Code numbers are not mentioned.
198) PW-37 Sh. Mange Lal, postman in Head Post Office, District Dholpur, Rajasthan stated that he received one speed post envelope Ex. PW37/A on 10-2-2012 for delivery to Smt. Bindoo Devi, Patpara, Purana Shahar, Dholpur but he returned the same with the reason that no such person was found at the address after inquiry. He also stated that he received another speed post envelope Ex. PW37/B addressed to Sh. Ravindra Kumar Sharma r/o Kela Colony, Dholpur and returned the same on 9-2- 2012 with the reasons 'AF' (i.e. absent not found). In cross examination, he admitted that area of Patpara is a big area and Smt. Bindoo Devi was a tenant at the address given on the envelope and she was not found there when he visited at that address. Same was the position in respect of Sh. Ravindra Kumar Sharma.
199) PW-38 Sh. Biri Singh, postman in the Head Post Office, Dholpur took the speed post envelope Ex. PW38/A for delivery to Sh. Rakesh Kumar r/o Pratap Nagar, Distt. Dholpur and returned the same with the remarks -125- that addressee does not reside at the given address. In cross examination, he stated that there are only two streets in Pratap Nagar but was not sure whether the addressee earlier resided at the said address or not. He did not remember if he made an inquiry from the neighborhood whether the addressee ever resided at the said address. He did not remember if he was told that addressee used to reside at given address and had left for Heetampur, Morena, M.P. but also admitted that he had written words "Heetampur, Morena, M.P." on the envelope which he had cut the same later on. He stated that Pin Code of Dholpur is 328001 but the Pin Code mentioned on the envelope is 32604. He received this envelop on 19-9- 2011 and returned the same on the same day with his remarks but there is no date mentioned on it.
200) PW-39 Sh. Ram Babu, postman, Head Post Office, Dholpur had received one speed post envelope Ex. PW39/A in the name of Sh. Ram Babu, Distt. Dholpur, Rajasthan which he returned with the remarks that complete address, mohalla, caste not mentioned, so it is returned. Another speed post envelope in the name of Sh. Pankaj Kuamr r/o Mamti Nagar, Dholpur Ex. PW39/B was also returned by him for the same reason. In cross examination, he stated that it will not be possible to deliver the post, if the caste of the addressee is not mentioned.
201) PW-43 Sh. Poonanand Tiwari, postman in Main Post Office, Shivpuri, M.P. took speed post envelope Ex. PW43/A addressed to Smt. Shobha Rani, Ahir Mohalla, Shivpuri, M.P. for delivery but returned the same on 15-9-2011 with his remarks that no person in the name of Smt. Shobha Rani ever resided at the address which was insufficient address. In the cross examination, he admitted that Ahir Mohalla has a large area of residence. He also admitted that Pin Code number has not been given in -126- the address mentioned on the said envelope.
202) PW-45 Sh. Narain Lal Kulshrestha was working as postman in Head Post Office, Morena. He was given two registered post envelopes in the name of Smt. Nisha Tiwari, Ganeshpura and Sh. Pradeep Kumar Sharma, Ganeshpura, Morena Ex. PW45/A & Ex. PW45/B respectively which were returned undelivered due to incomplete address. In the cross examination, he admitted that Ganeshpura, Morena is a big area wherein approximately 50,000 people might be living. He admitted that he was not knowing each and every person living in this Ganeshpura area. He described the Pin Code of Morena as 476001 but was not sure whether the Pin Code of Bhopal is 472001. He admitted that Pin Code numbers mentioned on both the envelopes are not of the Head Post Office, Morena. He could not deny that the distance between Morena & Bhopal is about 450-500 kms. He also stated that on Ex. PW45/A, the name of the addressee appears to be Ms. Nibha Tiwari.
203) PW-48 Sh. Shrikant Sharma, postman received speed post and registered post envelopes addressed to Smt. Malti Devi c/o Vishambher Dayal, Housing Board Colony, Dholpur Ex. PW-48/A and Ex. PW-48/C which were returned on 15-9-2012 and 8-8-2012 as the address of the receiver was not correct. This witness also received another registered post envelope addressed to Smt. Malti Devi c/o Anil Kumar, r/o 1/100, Housing Board Colony, Dholpur Ex. PW-48/B which was also returned on 9-8-2012 as the address of the receiver was not correct. He also received one another registered post envelope addressed to Smt. Sudha Devi c/o Vinod Kumar, Housing Board Colony, Dholpur, Ex. PW-48/D which was also returned on 9-8-2012 as the address of the receiver was not correct. This witness stated that no house number was mentioned on -127- envelopes Ex. PW-48/A, C and D whereas no person was found residing at the address 1/100. In the cross-examination, he stated that CBI did not ask from him the list of undelivered post given to Assistant Post Master by him. He also stated that Pin Code number of Dholpur is 328001. He had not visited the office of Housing Board Colony to confirm about the persons and the respective houses allotted to them by it. He had not mentioned the names and addresses of the persons from whom he made inquiries about the addresses.
204) PW-54 Sh. Rambir Gaur working as postman in Head Post Office, Morena received one speed post envelope Ex. PW54/A for delivery upon Smt. Laxmi Devi r/o Jivaji Ganj, Morena which was returned as the address was found incomplete. This witness stated that he inquired about the addressee in the locality but no one could tell about correct address or the addressee. In cross examination, he admitted that Pin Code no. 462001 mentioned on the envelope is not of Morena. He also admitted that there is no locality in the name of Jivali Ganj in Morena as it appears that on the envelope Jivali Ganj is mentioned instead of Jivaji Ganj. He also admitted that in case the tenants vacate the house and shift to another place, in that case he used to return the speed post on the same day. He also stated that in the post office, a list is prepared for the purpose of delivering the speed post to the addressee and in case it is not delivered, then the reasons are also mentioned in the said list but he does not know whether the said list was given to the CBI or not which remains with the post master. In Jivaji Ganj area about 2000 families are residing as an owner and tenants. In the cross examination, this witness also admitted that on the envelope Ex. PW54/A, there is no seal impression of Morena Head Post Office and he was unable to produce any document to show that this envelope was received in his post office for delivery.
-128-205) PW-35 Sh. Jagdish Prasad Sharma, postman posted in Head Post Office, Dholpur received one speed post envelope Ex. PW35/A in the name of Sh. Rakesh Sharma, Dholkot Road, House No. 36, District Dholpur, Rajasthan on 15-9-2011 but he returned the same with the reason that nobody is available at the address. He also received another speed post envelope Ex. PW35/B in the name of Sh. Pramod Kumar, Dholkot Road, House No. 14, District Dholpur, Rajasthan on the same day which was also returned with the same remarks that nobody is available at this address of this name. He also received another speed post envelope Ex. PW35/C on the same day in the name of Dr. Raj Kumari, Dholkot, 6, Near Mahamaya Mandir, Dholpur, Rajasthan which was returned with the remarks that nobody is available at the address/wrong address. He also received one another speed post envelope Ex. PW35/D in the name of same addressee Dr. Raj Kumari on 8-2-2012 which was returned with the reason that nobody is available at the address. He also received one another speed post envelope Ex. PW35/E on 9-2-2012 in the name of Smt. Archana Gaur, Nursing Road, Tabela, Dholpur, Rajasthan which was also returned with his remarks that nobody is available at the address. He also returned one another speed post envelope in the name of Smt. Beena Devi, Near Punjab National bank, Dholpur on 9-2-2012 Ex. PW35/F with the remarks that nobody is available at the address. He had also received two other speed post envelopes on 11-9-2011 Ex. PW35/G & Ex. PW35/H in the names of Suresh Sharma s/o Sh. Ganga Dhar & Sandeep Kumar s/o Sh. Purshottam, both resident of Dholkot Road, Dholpur which he returned with the reasons that nobody is available at the addresses. He also received one another speed post envelope Ex. PW35/J in the name of Sanjay Kumar, Santar Road, Dholpur on 13-2- 2012 which he returned with the reasons that nobody is available at the -129- address. In the cross examination, he admitted that Dholkot area is very big and heavily populated and residents of this area are not personally known to him as he is not resident of this area. He did not make any inquiry from the neighbours of the addressee regarding the non availability at the given address. He admitted that the address of Rakesh Sharma on Ex. PW35/A was incomplete and no neighbour disclosed his address despite inquiry. He also admitted that due to this incomplete address, he could not go at the correct place. Qua Ex. PW35/B, he stated that there is no place by the name of Dholkot as mentioned on it and even there is no Pin Code number so due to incomplete address, he could not go at the proper address. He also stated that when he reached at the address of Dr. Raj Kumari, then came to know that she was residing earlier at that address given in two envelops and had already left the said addresses. He searched the address mentioned on Ex. PW35/J but due to incomplete address, could not deliver the envelope. Smt. Archana Gaur was found earlier residing at the address but she had left that address. He also could not deliver the envelope Ex. PW35/F, no house number or proper address was mentioned, so he could not search the said address. Same was his reply in respect of two other envelopes Ex. PW35/G & Ex. PW35/H. In the cross examination, he stated that if the address mentioned in the envelop is incomplete, then he used to mention that the "pata adhura hai" and if the person is not found, then address is complete. He stated that if the name of the mohalla is not mentioned, then it seems that address is not complete. There is one another report of different postman on Ex. PW35/J at point DX which shows that the said letter was given to the postman of wrong beat no. 5 and he made remarks "Santar Road, Beat No. 5 se bategi" but also stated that there was no ward in beet no. 5 but there is a mohalla and he had given the remarks on each and every envelop after making his best efforts to search the address.
-130-206) PW-36 Sh. Manoj Kumar Sharma, postman of Head Post Office, Distt. Dholpur took two speed post envelops on 15-9-2011 and 14-2-2012 Ex. PW36/A & Ex. PW36/D in the name of Brij Kishore c/o Matadin, Behind Jagan Talkies, Near Jagan Choraha, Dholpur. He returned the same with the reasons that "Jagan Chorahe par Jagan Talkies ke peechhe koi vyakti Matadin nahi" and "address is incomplete" respectively. He also returned one another speed post envelope Ex. PW36/C in the name of Sh. Ram Prasad, Near Palace Halwai Khana, Dholpur, Rajasthan on 15-9-2011 with the reason that "address is incomplete". He also returned one another speed post envelope Ex. PW36/D on 9-12-2012 in the name of Smt. Archana Gaur c/o Sh. Anil Kumar Gaur, Defence Colony, Dholpur, Rajasthan with the reason that "Vyaktigat sthan par jagah jagah poochne par iss naam ka koi vyakti nahi bataya". He also returned one another speed post envelope Ex. PW36/E in the name of Sh. Mahender Pachauri, Jawahar Colony, Dholpur which was returned on 9-2-2012 with the reason "Vyaktigat sthan par jagah jagah poochne par iss naam ka koi vyakti nahi bataya". In the cross examination, he admitted that Dholpur district is a big district and he had visited only once at the address given on the envelops Ex. PW36/A & Ex. PW36/C and had not mentioned the name or person from whom he came to know that no such person is residing at the address. He also admitted that areas of Defence colony, Jawahar Colony, Halwai Khana and Jagan Choraha are the big areas but further stated that there was no house number in Jawahar Colony and Defence Colony and he was recently posted in those areas at the relevant time so did not know personally any resident of that area. He did not meet any counsellor of concerned area to find out the addresses mentioned on the envelopes Ex. PW36A to Ex. PW36/E nor tried to meet any office bearer of Mohalla Sudhar Samiti when the addresses could not -131- be found. The Pin Code of Dholpur according to this witness is 328001 but did not know whether the pin code numbers 312012 and 324012 are of Dholpur district or not. He had not provided any computer generated list of speed post letters to the CBI as it was not demanded. He was having no knowledge regarding any stamp of his post office on the envelops Ex. PW36/A to Ex. PW36/E as it is known to dealing clerk who put the stamp on the envelops. He denied making any endorsement at point A on Ex. PW34/B and Ex. PW35/B.
207) According to PW-52 Sh. Rajender Kumar Sharma, his wife Smt. Santoshi Kumari was Branch Post Master of Mahmad Pur Post Office, Dholpur and he was helping his wife in her day to day official affairs and also used to distribute the posts received in Mahmad Pur Post Office for delivery. The Ramkunj colony area comes under the Post Office Mahmad Pur. This witness unauthorizedly was doing the duty of his wife and had gone on the relevant date to deliver 10 posts including for the area of Ramkunj colony. He could not deliver two of the said posts i.e. in the name of Sh. Ram Gopal, 43 Ramkunj Colony, Sapau Road, Dholpur, Rajasthan and in the name of Smt. Savitri Devi, late Sh. Nathu Ram, Ramkunj Colony, Dholpur, Rajasthan because no one in the said locality could tell about the persons in whose name the posts were received. Hence, he had returned the said two posts with endorsement of incomplete address dated 27-9-2011 Ex. PW52/A and Ex. PW52/B. He admitted that a list i.e. delivery challan in respect of these posts was not collected by the CBI in which the reasons for non delivery are written. Similarly, CBI had not taken the register regarding entries of registered post maintained in post office nor made any inquiries from his wife. He after seeing endorsement on Ex. PW52/B stated that it was made in the year 2011 but after seeing the receipt pasted on the backside of envelope -132- Ex. PW52/B, he told that this registered post was booked on 6-2-2012. After seeing the speed post envelope Ex. PW52/A, he could not identify which is the seal of his post office on it. He also stated that since the addressee was not found even after enquiry from various persons of the locality, so he had sent back the posts. The Ramkunj colony is situated in the area of around 1 kilometer and there are 5-6 Galis and a Mandir of Mahadevji. In the said colony, there are approximately 80 houses. He admitted that he was not working as a post man but stated that he used to deliver the posts to help his wife. He had no proof that he was authorized to make endorsement on the registered posts and speed posts. He admitted that he had not been authorized by the officials of post office to deliver the posts in absence of his wife and to give the report about delivery/non delivery of the posts. He could not read or write English. His wife had written the name and locality on the envelopes in Hindi so he can read the address.
208) Prosecution relied upon various such notices returned unserved lying in file no. D-25 as proved by above mentioned witnesses and accused persons cross examined IO on various such notices one by one. The IO had not personally contacted any such addressee and the notices sent to them were either containing certain incorrect particulars or wrong Pin Code, overwriting, cuttings on the envelopes etc. which fact was also admitted by him in his cross examination. The particulars given on some of envelopes were not exactly matching with address and other particulars as supplied by Ministry. In some envelopes, the postal department had given report that addressee are not available or addresses do not exist but that addressee were found by IO and made prosecution witnesses. Even from certain bio data of proposed members of office bearer of GCSS (D) or GCSS (M) or BoM of JSS (D) etc. to whom -133- notices sent were received back unserved, some other particulars were also available from which that person could be easily traced but no effort was made to trace them from those particulars. D-4 page 26 is giving the details of office bearers of JSS (D) with their designations and in some bio-data phone numbers, institutions where they are working or are associated are also mentioned and the IO could trace them easily by contacting them on phone or through those institutions but no efforts were made by the IO in this regard and instead they were sent notices to join investigation through speed post or registered letters. Some of the postmen gave reports regarding non availability or incorrect address but the statements of various postmen are found unreliable and non convincing. Even the IO had not sent notice through post to all the persons mentioned in the list such as Sanjay, Anju, Rajeev. IO admitted in his cross examination that no independent inquiry was made by him regarding the availability of such members. No inquiry was made even from government officials who were representatives of BoM of JSS (D) to confirm whether such alleged untraceable persons attended the meetings or not. IO even admitted in his cross examination that in respect of some notices, partly wrong address and Pin Code has been mentioned whereas RTI reply of Postal Department as proved by accused persons in defence itself shows that correct Pin Code is required to be mentioned on envelopes. On some envelopes, the address and other particulars were not written by IO or under his instructions.
209) According to the Postal Department report, no person in the name of Sh. Rakesh Sharma was found available or traced but prosecution examined him as PW-29. Witness PW-35 stated that Sandeep Kumar and Suresh Sharma were found not traceable but they were impleaded as an accused in this case and were traced by the IO. IO did not try to visit area and -134- search persons and instead completely relied upon the reports of the postmen on the basis of incomplete addresses and without complete particulars. Similarly, PW-39 could not trace Pankaj but he was made A-5 in the chargesheet. No steps were taken by the IO to trace out the shifted addresses of some persons to whom the notices could not be served due to change of address. Before mentioning the address on some envelopes, the exact address was not written which IO admitted in his cross examination. Record shows that IO sent notices and two were served but they were not called for investigation to know the truth about their membership and they could also tell about others who were allegedly not traceable or fake persons as per prosecution. Following part of cross examination of IO also indicates that even addresses mentioned on registered or speed post envelopes were not written correctly before dispatching the same.
210) IO PW-64 admitted that the envelope, Ex. PW35/B was addressed to Pramod Kumar, Dhal Kot Road, House No. 14, Dhol Pur, Rajasthan as he had signed as a witness on a bond of JSS (D) dated 31-5-2003 Ex. PW-6/32. IO admitted that the words "Dhal Kot Road" has been written on the unserved envelope whereas on the bond, it is written as "Dholcoat Road". Another closed envelope Ex. PW-34/A was addressed to Smt. Rani Sharma/Pramod Kumar, Raja Khera, Distt. Dhol Pur, Rajasthan as she/he had been shown as office bearer in Sangh Vidhan Patra of JSS (D) Ex. PW-30/15. IO admitted that there is an over-writing on the third alphabet of the word "Raja" which can be read as "Raya" and not "Raja".
211) The closed envelope, Ex. PW-34/B was addressed to Smt. Sudha Devi/Ram Niwas, Kaya Khera, Dhol Pur, Rajasthan as she/he had been shown as office bearer in Sangh Vidhan Patra of JSS (D) Ex. PW-30/15.
-135-IO admitted that there is a clerical mistake in the address on the envelope where in place of "Raja Khera" it is written as "Kaya Khera".
212) The envelope, Ex. PW-38/A, was addressed to Sh. Rakesh Kumar s/o Sh. Genda Lal, Pratap Nagar, Distt. Dhol Pur, Rajasthan as he had been shown as office bearer of GCSS (D) in Sangh Vidhan Patra Ex. PW-30/12. IO admitted that this envelope was returned with endorsement on the backside that the addressee does not reside. However, IO did not make an investigation as to where this person had shifted his residence. He also stated that he had no occasion or reason to find out his shifted address after receipt of unserved envelope.
213) The envelope Ex. PW-39/A was addressed to Sh. Ram Babu s/o Sh. Ram Swaroop, Distt. Dholpur, Rajasthan who had been shown as office bearer of GCSS (D) in Sangh Vidhan Patra Ex. PW-30/12. IO admitted that address of Sh. Ram Babu mentioned in the Sangh Vidhan Patra is "Village Buddha Ka Pura, Bari Dholpur" whereas his address mentioned on the envelope is simply "Distt. Dholpur, Rajasthan".
214) The closed envelope Ex. PW-43/A was addressed to Smt. Shobha Rani w/o Sh. Omprakash, Ahir Mohalla, Shivpuri (M.P.) who had been shown as office bearer of GCSS (M) in the photocopy of document Ex. PW-4/C lying in the file D-1 for the purpose of registration of Society GCSS (M). IO admitted that in the photocopy of the documents name of the husband of Shobha Rani is mentioned as "Prem Prakash", whereas on the envelope Ex. PW-43/A, it is mentioned as "Omprakash". He also stated that it is a clerical mistake in the name on the envelope.
215) The envelope Ex. PW-45/A was addressed to Smt. Nibha Tiwari w/o Sh. Munna Tiwari, Ganesh Pur, Morena (M.P.) who had been shown as -136- office bearer of GCSS (M) in the photocopy of document Ex. PW-4/C in file D-1 for the purpose of registration of NGO GCSS (M). IO admitted that due to clerical mistake, name of "Smt. Nisha Tiwari" is written as "Smt. Nibha Tiwari" on the envelope. He also admitted that in the address on the envelope, the place is mentioned as "Ganesh Pur" instead of "Ganeshpura". He also did not know to which place, the Pin Code 462001 mentioned on the envelope relates to. Another closed envelope Ex. PW-54/A was addressed to Smt. Laxmi Devi w/o Sh. Devi Dayal, Jiwali Ganj, Morena (M.P.) who had been shown as office bearer of GCSS (M) in Ex. PW-4/C in file D-1 for the purpose of registration of GCSS (M). IO also admitted that in the document Ex. PW-4/C, the address is mentioned as "Jiwaji Ganj" whereas on the envelope it is mentioned as "Jiwali Ganj". IO did not know to which place, the Pin Code 462001 mentioned on the envelope relates to. Another envelope Ex. PW-35/A was addressed to Sh. Rakesh Sharma Dhol Kot Road, house no. 36, Dholpur, Rajasthan who had been shown as witness in the bond of GCSS (D) Ex. PW-6/31. This person Sh. Rakesh Sharma is a prosecution witness PW-29 though he was not traceable as per postal department report. IO admitted that in the bond Ex. PW-6/31, the address has been mentioned as "Dualkot" whereas on the envelope, it is mentioned as "Dhol Kot".
216) Another envelope Ex. PW-23/A was addressed to Dr. Santosh Tiwari s/o Sh. Satya Prakash, Morena, M.P. who had been shown as the office bearer of GCSS (M) in the photocopy of Ex. PW-4/C in the file D-1. IO did not know to which place, the Pin Code 462001 mentioned on the envelope relates to as he stated that this Pin Code is not mentioned by him or the CBI official who wrote the address. He also stated that it seems to have been mentioned by the postal staff himself during the -137- process of postal delivery. Same is his answer to the Pin Code mentioned on other envelopes. Same is the position in respect of the closed envelope Ex. PW-36/E addressed to Sh. Mohendra Pachauri s/o Late Devi Dayal, Jawahar Colony, Dholpur, Rajasthan who had been shown as one of the members in the proposed list of BoM of JSS (D) Ex. PW-20/2 and Ex. PW-20/3. IO could not tell in whose handwriting, the addresses have been mentioned on the various envelopes. He also stated that in respect of the Pin Code mentioned on some of the envelopes, he cannot say that they are mentioned by the Postal Department officials because they are in different handwriting. He admitted that Pin Codes on the envelopes, Ex. PW-45/A, Ex. PW-54/A and Ex. PW-23/A were not written in his presence.
217) According to the IO, application for registration of Society along with its annexures of GCSS (M) Ex. PW-4/C (part of D-1) contains names of 7 Office Bearers and he had issued notice to all of them during investigation. He also stated that name of Hari Shankar Sharma is mentioned in this application as a witness on page 15 whereas name of Sanjay Sharma is also mentioned on this page. According to the IO, he had sent the notices to all the office bearers including Sanjay Sharma but admittedly he had only placed on record those envelopes which were returned unserved or undelivered. The envelope issued to Hari Shanker Sharma and Sanjay Sharma are not found mentioned in the bunch of unserved envelopes which means that they were served but they were not summoned during investigation.
218) During investigation, IO PW-64 had recorded statement of witness Viri Singh who told that Rakesh Kumar s/o Sh. Gainda Lal had shifted to Hitampur, Morena. He did not make any further investigation about said -138- Rakesh Kumar. IO stated that he did not make any inquiry about Ram Prasad to whom two notices Ex. PW-36/C & Ex. PW-64/J-1 were sent but returned unserved with the comments that address was incomplete. IO admitted that he had not made any independent effort to trace out Braj Kishore to whom notice was sent but envelope Ex. PW-36/A was returned unserved because of incomplete address. Same position was in respect of the persons Sh. Rabindra Kumar Sharma, Raj Kumari, Malti Devi, Bindu Devi, Mahendra Pachauri and Monga Ram upon whom envelopes could not be served. IO also admitted that he had not examined Archana Gaur, Sudha Devi, Sanjay Kumar, Savitri Devi, Beena Devi and Rajeev Sharma etc. whose names and addresses were found attached with the letter dated 17-12-2008 of PW-16 Somesh Upadhyay Ex. PW-16/A-2 (part of D-4). The above mentioned facts especially the admission of IO clearly shows that his investigation was not upto the mark and he neither himself had gone to trace out the various persons nor deputed anyone and simply relied upon the reports of postal departments which are not reliable. Various persons could be traced out through other particulars mentioned in the bio-data but no effort was made to check the same. Such type of investigation as done by the IO has infact spoiled the case to great extent.
Delay in lodging FIR
219) IO PW-64 during his cross examination stated that investigation of this case was assigned to him on 19-5-2011 on which date FIR was registered and no preliminary inquiry was conducted in this case before registration of FIR and he had no knowledge what had happened during the -139- intervening period as the complaint Ex. PW26/A was given to CBI on 30- 7-2010. Prosecution thus could not justify the delay of about 9½ months in lodging FIR which fact goes against it. Had CBI conducted some preliminary inquiry specially the role of A-2 public servant before registration of FIR, then there might not have been any chance of his being chargesheeted as discussed above in detail.
No investigation in respect of second bank accounts of GCSS (D) & JSS (D)
220) IO PW-64 stated that during investigation, he came across only one bank account of JSS (D) maintained in State Bank of Bikaner & Jaipur, Dholpur. However, from the cross examination of IO and from the bank record seized from witnesses PW-3 Sh. Rishi Kumar Saxena and PW-13 Sh. Dhanraj Singh both officials of State Bank of Bikaner and Jaipur, it has come on record that JSS (D) was maintaining another bank account in PNB Dholpur also bearing account no. 01258712. Some amount was transferred from account of JSS (D) in State Bank of Bikaner & Jaipur to PNB through cheques from time to time and in this regard, IO was shown various cheques lying on record. IO had not investigated anything about second bank account of JSS (D) nor made any inquiry from officials of PNB, Dholpur to find out why and for what purpose cheques had gone to second account of PNB and what had happened to the money lying in that second account. Except one bank account of JSS (D) in State Bank of Bikaner & Jaipur, infact IO had not contacted anyone in PNB nor even visited this bank to check any transaction. IO was shown various cheques and pay-in slips during his cross examination and he admitted that money was also transferred from the account of JSS (D) maintained at PNB, -140- Dholpur to account of same JSS (D) maintained at State Bank of Bikaner & Jaipur and vice versa but investigation of the IO remained confined to only one account and no query was made in respect of the second account in PNB, Dholpur. Same was the position in respect of non investigation of the second bank account in the name of GCSS (D). Even in respect of account of JSS (D) in State Bank of Bikaner and Jaipur, his investigation was incomplete. He found that 7 cheques were issued in favour of one Sh. Manoj Kumar from account of JSS (D), but did not examine said Sh. Manoj Kumar to find out for what purpose those cheques were issued to him. Even some cheques were issued favouring 'Yourself' but had not investigated for what purpose it was issued in favour of State Bank of Bikaner and Jaipur. Similarly, one cheque was issued favouring M/s M.L.G. Computer Point, Morena, 8 cheques were issued in favour of Sh. Sharad Kumar Chaudhary, 2 cheques were issued in favour of Sh. Raj Kumar Sharma but they were not contacted to find out the purpose of issuing the cheques to them. From the accounts of JSS (D), cheques were also issued in faovur of Sh. Dilip Gupta, Sh. Lalit Jadon, Balaji Hosiery House, M/s Jain Readymade Store but they were not examined to check what was their interest in JSS (D) or what was the consideration behind receiving the huge amounts from time to time.
221) It is also the allegation of the prosecution that accounts of some witnesses and others were opened for purpose of siphoning of the funds received from Ministry. Amount was deposited in their accounts and those persons lateron withdrew the amount from their accounts and handed over to A-1 or A-7 but this fact is also not proved due to non collection of sufficient proof including statement of accounts. Thus, the complete trail of money could not be established. This incomplete and defective investigation on the part of IO has provided benefit to the accused persons and leads to the -141- inference that money received from the govt. in the account of GCSS (D) and JSS (D) was not misappropriated or misutilised.
Recording of incorrect statements u/s 161 Cr.P.C.
222) IO in his deposition stated that he or his authorized official had recorded statements of various witnesses under Section 161 Cr.P.C. according to the statements as narrated by them and nothing was added, deleted or modified in it. However, during examination of various prosecution witnesses in Court, it has come on record that either the IO had not recorded their statements or not recorded what exactly they had said or the same were not read over to them after recording as well as not allowed to read after recording or some unauthorised changes had been done in it or the same were not recorded at the time when inquiries were made from witnesses etc. due to which prosecution was compelled to declare them fully or partly hostile. The testimony of various witnesses including main official witnesses had gone against prosecution due to this lapse of IO for example as per PW-21 Sh. N. Sathyan, his statement u/s 161 was not shown to him nor he was allowed to read it. In his statement u/s 161, this witness stated some incriminating facts against A-2 but in cross examination denied the same and did not allege anything against him. The charge against A-2 was basically framed on the basis of the statements of official witnesses but it has fallen on ground when they deposed contrary to their statements u/s 161 Cr.P.C. in Court and prosecution even did not put any suggestion to them that they had mixed up with accused and intentionally not giving correct statements in order to save him.
-142-Non seizure of documents alongwith account opening forms
223) IO also admitted and it is a fact as per RBI guidelines that for opening a bank account of NGO, documents like rules & regulations governing the NGO and details of office-bearers, resolution showing person authorized to operate the account are required to be filed with the application in the bank but he stated that no such documents were filed by NGO GCSS (D) or JSS (D) except the names of the persons authorized to operate the account and their signatures in the account opening form. This submission of the IO could not be possible. He had not intentionally collected those documents which could show which NGO, whether GCSS (D) or GCSS (M) had applied for opening of the accounts or to which NGO, JSS (D) belonged to. Rules and regulations and resolution of NGO could reveal who was authorized to open the accounts and who was authorized signatory of the same. It is not necessary that a person who opens the account is always the authorized signatory of the cheques etc. From record it has also come on record that some cheques were cleared by the bank under signatures of that person who had not opened the account and was also not signatory of signature card. The identity of person who opened the account and who was authorized signatory and who issued some cheques was necessary to be establish because even some photographs affixed on the account opening form were not bearing any stamp and signature of any official of the bank and were in loose condition. Even the introducers of the accounts who normally have account in the same bank were not contacted by IO to find out the truth. Thus, non examination of the official who opened the accounts or non seizure of documents annexed with the account opening forms as well as non making any query from introducers of accounts is fatal to the case of the prosecution. Simple production of the cheques in the Court does not -143- make any offence unless its encashment is also established.
Non examination of different MPs
224) In the cross examination, IO PW-64 admitted that in the complaint of Sh.
PW-26 Sh. Amit Khare, reference was also made of complaint of Sh. Ashok Argal, MP but he did not examine him as a witness during the investigation nor cited him as a prosecution witness. Even IO did not verify the authenticity of complaint filed by Sh. Ashok Argal because PW-26 had not sent the complaint of Sh. Ashok Argal and its annexures with his complaint Ex. PW-26/A upon whose complaint, Ministry started making vigilance inquiry and ultimately filed complaint with CBI for lodging FIR. Even Sh. Babu Lal Solanki Ex. MP who was taking much interest in the activities of GCSS (D) and JSS (D) and had sent number of communications was not contacted. File D-5 was containing the letters of both MPs and IO did not make inquiry from Sh. Babu Lal Solanki Ex. MP why he was changing his stand in his three letters and why he was saying that his letter heads are misused. IO also did not examine three MPs Sh. Girdhari Lal Bhargav, Sh. Dalpat Singh Paraste, and Sh. P.R. Khunte, who recommended for sanction of JSS (D) nor collected their recommendation letters as those could throw a light to which NGO whether GCSS (D) or GCSS (M) they had recommended.
Non examination of certain important persons or withholding their statements
225) IO had also found one list of 48 persons Ex. PW-64/D-A1/P-1 (part of -144- D-6) having direct or indirect connection with the GCSS (D) or JSS (D) but had not examined any of them. During cross examination, IO admitted that document Ex. PW-30/15 (part of D-33) bears names of Sh. Lakhmi Chand Sharma and Sh. Vinod Kumar with their corresponding signatures. However, he did not examine them as witnesses nor called them to identify their signatures on this document though they were available but simply examined Sh. Manoj Kumar Sharma son of Sh. Lakhmi Chand Sharma and brother of Sh. Vinod Kumar who denied the signatures of his father and brother on Ex. PW30/15. These two persons were themselves available and were the best persons to identify or not their signatures but IO did not send any notice to Sh. Lakhmi Chand Sharma and Sh. Vinod Kumar to join the investigation and opted to get their signatures identified from other person. Even IO was not sure whether Sh. Rakesh Sharma whose name is mentioned on the same document Ex. PW30/15 was the same person who is the brother of Sh. Manoj Kumar Sharma as highly defective investigation was done by him. IO also stated that the files D-5 and D-33 contains photocopy of legal notice sent to Ministry & others but had not examined the lawyer Mr. Santosh Mishra, on whose letter-head these notices Ex. D1W11/1 to Ex. D1W11/8 had been issued. Instead, A-1 examined this advocate in defence as D1W11 and he had sent four legal notices dated 14-12-2009 and reminder dated 23-11-2009 on the letter head of GCSS (D) to different persons at the instructions of A-3 who also signed on the same and even this advocate identified A-3 in Court. According to this witness, A-3 personally visited him for preparation of the legal notices and affixed his signatures in his presence and denied that A-1 signed on it. Prosecution story is that this notice was sent by A-1 who had signed the same as A-3 whereas evidence of D1W11 is totally contradictory who even identified A-3 who had come for sending the notice and also signed -145- on the same. Had IO examined this advocate, then some facts would have been cleared during investigation itself who was managing affairs of GCSS (D) and in which capacity and whether it was existing or not. IO had also not examined CA and Auditors nor made any inquiry from them about the expenditures details of JSS (D) which were submitted to Ministry and simple countersigning of their certificates by A-6 or A-7 does not make them responsible for submitting false information or draw any adverse inference. IO had examined Sh. Sunil Mittal during investigation and had recorded his statement who was the Chartered Accountant and had given the audit reports of JSS (D) for the years 2003- 04, 2004-05, 2005-06, 2006-07 and 2008-09 which are in the file D-6 but he was not cited as a witness nor his statement was filed along with the charge-sheet on the pretext that he is not relied upon witness. In the same manner, the audit report of JSS (D) for the year 2007-08 was given by Sh. Mukesh Bansal, CA which is also in file D-6 was discarded by the IO despite examination of Sh. Mukesh Bansal during investigation. Another audit report of JSS (D) for the year 2009-10 was given by Sh. Vishnu Kumar, CA but he was not examined during investigation. Thus, non examination of some material witnesses and discarding statements of some important witnesses being unreliable point out that investigation done by the IO was biased.
Non taking of specimen signatures of some persons named in bio-data
226) On behalf of JSS (D) a list of proposed members of BoM was sent to Ministry, some of whom such as Sh. Ram Mohan Aggarwal denied their signatures on the same but admitted correctness of part of their bio-data.
-146-IO had not taken specimen signatures of the persons named in such bio- data to confirm whether they actually signed or not nor collected any documents from them bearing their signatures to enable the Court to compare it.
No investigation of other JSS managed by accused persons
227) In addition to JSS (D), two more other JSS namely Shivam Development Society and Reena Samaj Datia were sanctioned to same set of accused persons but no investigation was done in this regard by IO. He took documents of Shivam Development Society from PW-14 Sh. M.L. Bhatia but did not conduct any investigation about its irregularity and avoided to bring truth on record and chose to confine the investigation of this case only. D3W2 Sh. Rajendra Ramchandrarao from office of Registrar Firms and Societies, Gwalior, Chambal Division proved one RTI reply Ex. D3W2/C alongwith some documents which shows that JSS, Khalkapur, Datiya, MP was registered on 28-6-2002 and it also reveals that A-1 was the President, A-3 was the Secretary, A-5 was the Treasurer of this organization. During investigation, IO had not conducted any investigation to find out whether A-3 was the Director of JSS, Datiya, MP though one identity card of A-3 was seized during search but was returned being unrelied document. Investigation of these two other JSSs could reveal some motive behind replacement of documents of GCSS (D) in Ministry because technically some persons could not be office bearers of different NGOs and JSSs at the same time and another JSS could not have been opened in same District if it was already having. Since in the previous years, JSS was sanctioned to Morena NGO i.e. Shivam -147- Development Society and it could not have been given another JSS, so the possibility cannot be ruled out that the documents were manipulated to show that GCSS (M) is having branch at Dholpur. From D-24, a letter of Sh. M.L. Bhatia to IO dated 11-11-2011, IO came to knew that some accused were involved in multiple JSS and he even called specific information in this regard from the concerned authorities but did not took any action against those persons by saying that it was not required and immaterial. D3W3 and D3W4 also proved some bank accounts of A-3 in SBI and PNB, Datiya respectively having some credit entries and none of the same was containing any entry of receipt of any money from the account of JSS (D) which rule out misappropriation of funds of Ministry on his part. Investigation on these accounts by IO could show that he was having any interest in GCSS (D) or JSS (D) or not. Failure of IO to investigated in this respect also a fact goes in favour of accused persons and motive of replacement of documents in Ministry is not proved.
IO did not know some provisions of CBI Manual
228) In the cross-examination, IO admitted that CBI Manual provides guidelines for investigation of the case but was having no knowledge about the procedure for seeking the documents from audit department of Ministries and such manual provides that audit department was required to send the documents to CFSL directly and not to handover the same to the IO. He had not taken any document from the audit department of the Ministry.
-148-Which file was given to IO along with the complaint
229) PW-26 Complainant stated that he had enclosed certain documents with his complaint but IO denied receipt of such documents. PW-26 also stated that a bulky file D-5 was given alongwith the complaint which is denied by the IO. Complaint of MP Sh. Ashok Argal was available in the file D-5 which was sent alongwith the complaint by PW-26 but IO denied receipt of that complaint of MP and stated that no vigilance file was seized during investigation and only certain notings were seized by him.
Pick and choose policy adopted by IO
230) IO stated that during investigation, he came to know that accused A-7 was the Director/In-charge of JSS, Dholpur but denied that for some period PW-16 Sh. Somesh Upadhyay was also the Director/Incharge of JSS (D). This deposition of IO is totally contrary to the Ministry file in which various correspondence sent by PW-16 in the capacity of Director/ Incharge were sent to Ministry. The role of PW-16 was virtually more than role of A-7 but he was made an accused whereas PW-16 became prosecution witness.
Final conclusion
231) During arguments, counsel for A-2 requested that IO should be prosecuted for filing wrong case against A-2 without any solid ground and FIR should be lodged against him. In this regard, counsel relied upon the decision of Hon'ble Supreme Court in case R.N. Agarwal vs. R.C. Bansal 2014 (12) Scale 89 but this request cannot be allowed and A-2 has -149- separate remedy against CBI or IO for claiming compensation. Various other facts and circumstances can be found from the evidence of witnesses and record but in my view the above itself are sufficient to give benefits to the accused persons and to reject the prosecution case. Basically, evidence against accused persons except A-2 is the opinion of handwriting experts but it is already held that such opinion of both experts cannot be relied upon due to various reasons so these accused persons are liable to be acquitted. No irregularity or non compliance of any rule on the part of A-2 for conducting FSR is found, so he is also liable to be acquitted. Otherwise also, due to absence of sanction u/s 197 Cr.P.C. and absence of proof of mens-rea for P.C. Act offence, prosecution of A-2 is barred. Qua offence of tempering of the record of Ministry, the main culprit Mohit Sharma has been not chargesheeted for reasons best known to the prosecution against whom there was full suspicion. Prosecution adopted pick and choose policy and made some persons as witnesses against whom same allegations existed without making them approver. The conspiracy angle among accused persons is not established. Various certificates given by officials of Ministry and even submission made by IO during bail application of A-1 clearly shows that the funds released to JSS (D) were properly used. Non making inquiries from persons who received money from JSS (D) through cheques from time to time could tell why they received the same and what was their concern with this institution is also fatal to the prosecution. Even no proper investigation was done regarding the trail of money came in the accounts of GCSS (D). Second bank accounts of GCSS (D) and JSS (D) were not checked at all and IO did not collect material documents relating to the accounts from the banks. The benefit of incomplete, unprofessional and defective investigation done by IO also goes in favour of the accused persons and big setback has caused to the -150- prosecution. Even, prosecution is believed that there are some evidences against accused persons but it is also established that same evidence goes in favour of accused persons also and if two views are possible, then the view going in favour of the accused person is to be accepted. Hence, all the accused persons are hereby acquitted. Their bail bonds are cancelled and sureties are discharged. File be consigned to record room.
Digitally signed by ASHWANIASHWANI KUMAR KUMAR SARPAL Date:
SARPAL 2025.01.08 16:19:02 +0530 Dated-8-1-2025. (Ashwani Kumar Sarpal) Special Judge (PC Act), Delhi.