Delhi District Court
State (Govt. Of Nct Of Delhi) vs Sh. Suraj Prakash Dua (S. P. Dua) on 20 December, 2016
IN THE COURT OF SH. M. K. NAGPAL, SPECIAL JUDGE
(P.C. ACT), CBI08, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
State (Govt. of NCT of Delhi)
Through Public Prosecutor
Central, Delhi ..........Appellant
Versus
1. Sh. Suraj Prakash Dua (S. P. Dua)
S/o Sh. Gopal Dass
R/o 11/235, Geeta Colony
East Delhi
2. Inder Sain
S/o Sh. Nar Singh Dass
R/o 11/334, Geeta Colony
East Delhi ..........Respondents/Accused
Case No. : 54805/16
Crl. Appeal No. : 3/16
CNR No. : DLCT01-001472-2016
Date of institution : 01.02.2016
Date of reserving order : 06.12.2016
Date of pronouncement : 20.12.2016
JUDGMENT
This appeal has been filed by the State against the impugned judgment dated 31.10.2015 passed by Ld ACMM, Central, Delhi in case titled as State Vs. S. P. Dua & Ors., FIR No. 281/92, U/s 420/468/471/120B IPC and Section 50 of the Delhi Sales Tax Act, 1975, PS I.P. Estate, whereby Ld ACMM CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 1 of 40 has acquitted both the respondents of the charges framed for the above said offences.
2. The facts of the case, in brief, are that the complainant/PW1 Sh. Devender Singh, who was working as a Sales Tax Officer, of Ward No. 37, Sales Tax Department, Government of NCT of Delhi, had made one complaint Ex. PW1/J dated 04.05.1992 to the DCP, Crime & Railways, alleging therein certain irregularities in the matter of registration of one firm named M/s Himachal Syndicate at the address of C 3/12, Rajouri Garden, New Delhi in the above said ward. It was alleged in complaint that as per the source information received in the department, the accused S. P. Dua (R1), who was working as an Assistant Sales Tax Officer in the said ward, had illegally granted the registration certificate to the above firm on the basis of fake ration card and fake surety bonds and further the sale and purchase account of the said firm was also fake. It was also alleged in the said complaint that a preliminary enquiry was got conducted by the Enforcement Branch of the department and as per the report of the said enquiry no such firm ever functioned from the said address.
3. It is alleged that the above enquiry also revealed, interalia, that the registration application in the name of the above firm was originally filed by one Sh. Dinesh Kumar S/o Sh. Puran Chand, resident of the above said address of C3/12, Rajouri Garden, New Delhi, but the registration certificate was CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 2 of 40 given to one Sh. Satpal as proprietor of the said firm. It was also revealed in the said enquiry, interalia, that though the above firm was originally registered for dealing in photographic goods, but subsequently various goods like ferrous and non ferrous metals, milk powder and desi ghee etc were also added in the registration certificate of the dealer without receiving any application therefor and further even though the dealer was not a manufacturer/exporter of the said goods holding a central registration. The above enquiry further revealed, interalia, that statutory Forms ST1 and ST35 were also issued by the department to the dealer on different occasions and the statement of accounts in Form ST2 filed by the dealer contained various incorrect details of dealers with whom the above firm had allegedly carried out business. It was further revealed in the said enquiry that the said Forms ST1 and ST35 were issued by R1 only, without obtaining any report from the concerned record keeper of the department. The above enquiry further revealed that the accused Inder Sain (R2) assisted the dealer of the above firm in obtaining the above statutory forms as an authorized representative of the dealer and R2 was also found to have acted in a similar manner in case of four other firms registered at different places of the same ward no. 37. Since the above facts and circumstances were indicative of certain malafides on the part of dealer of the said firm and raised suspicion regarding the roles played by both the above respondents/accused and further since violation of provisions of Section 50 of the Delhi Sales Tax Act was also apparent from CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 3 of 40 the records, the above complaint Ex. PW1/J was made by the complainant/PW1 Sh. Devender Singh in the office of the Crime Branch.
4. After receiving of the said complaint, the officials of Crime Branch also appeared to have initiated some preliminary enquiries and ultimately a case U/s 420/468/471/120B IPC and Section 50 of the Delhi Sales Tax Act was registered at PS Crime Branch on 12.08.1992 and investigation of the case was undertaken. The investigation confirmed that the registration was originally applied in the name of the said firm at the same address by one Sh. Dinesh Kumar Sharma as proprietor, but during the course of pendency of the said application another application for transfer was moved in the name of above Sh. Dinesh Kumar and the registration certificate was ultimately granted to one Sh. Satpal as proprietor of the said firm. Investigation further revealed that the registration certificate Ex. PW1/B of the said firm was granted and the registration order Ex. PW1/A was passed by R1 himself and even the surety bonds of the said firm were accepted by R1 vide his verification report Ex. PW1/C and all this was done without making any physical verification of the business and residential premises of the dealer. Investigation further disclosed that R1 used to make such fake applications for registration as dealers in different names and he also used to issue registration certificates in the names of those fictitious dealers without complying the requisite formalities and rules. The investigation CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 4 of 40 further revealed that R2 had also played a key role in the above process as he obtained the statutory forms from the department as authorized representative of the above said dealer and he further handed over those forms to one Hari Ram Gupta and Sanjay Gupta, who sold these forms in the open market. It was also found that all the above acts were done by these accused persons in furtherance of a well planned conspiracy hatched between them and their above acts had resulted into huge financial losses to the government exchequer.
5. During investigation, all the above four accused persons were arrested and after recording statements of the relevant witnesses, seizure of some documents and completing the other requisite formalities, including obtaining sanctions U/s 52 of the Delhi Sales Tax Act against the accused persons, a chargesheet for commission of the above said offences was ultimately prepared and filed against all the above four accused as well as the above firm. R1 and R2 were arrayed as accused no. 1 and 4 respectively and Hari Ram Gupta, Sanjay Gupta and the above firm were arrayed as accused no. 2, 3 and 5 respectively in the said chargesheet. It is also necessary to mention here that during investigation, certain specimen handwritings/signatures of both the respondents/accused were also obtained for the purposes of comparison with certain disputed signatures appearing on some documents of this case and chargesheet was filed against the accused persons in the court, pending the receipt of the CFSL report in this regard, and CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 5 of 40 the said report was subsequently received and also filed in the court.
6. On perusal of the TCR, it is revealed that chargesheet was filed in the court of Ld ACMM concerned on 10.11.1994 and cognizance of the above said offences was taken on the same day. On appearance of all the above named accused persons, copies of the chargesheet and other documents were supplied to them. However, it appears that the presence of the proprietor or any other person on behalf of the fifth accused, i.e. the firm named M/s Himachal Syndicate, could not be secured during the trial. The trial court record further reveals that accused Hari Ram Gupta (A2 in the chargesheet) expired somewhere in May, 2002 and proceedings against him stood abated vide a formal order passed by the court on 23.09.2004. An application was also moved by R1 (A1 in the chargesheet) before the Ld Trial Judge for closing of the proceedings against him, as well as in three other cases registered against him vide FIR Nos. 379/92, 403/92 and 70/94 of the same PS, on the ground that there was no sanction U/s 197 Cr.P.C. obtained for his prosecution in all these four cases, and also there was no sanction obtained U/s 52 of the Delhi Sales Tax Act in one case/FIR No. 70/94. However, the said applications were dismissed by the Ld ACMM concerned vide order dated 13.08.2007. A prima facie case for the above said offences was found to be made out against the remaining three accused facing trial, i.e. R1, R2 and accused Sanjay Gupta (A CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 6 of 40 1, A4 and A3 respectively in the chargesheet) vide order dated 30.01.2010 of the Ld ACMM and formal charges for the above said offences were also framed against the above accused persons on the same day. It is further observed on perusal of the trial court record that accused Sanjay Gupta (A3) preferred one Criminal Revision Petition (CR 28/10) against the above said order on charge and the charges framed against him and vide order dated 12.10.2010, the charges framed against him were held to be unsustainable and he was directed to be discharged in the present case.
7. During the course of trial conducted against both the respondents/accused, the prosecution examined on record total 10 witnesses. PW1 Sh. Devender Singh is the complainant of this case; PW2 Sh. K. M. Sahni is the then Sale Tax Commissioner, who granted sanction U/s 52 of the Delhi Sales Tax Act for prosecution of the accused persons in this case; PW3 Sh. Surender Kumar Jassal is the then UDC who was acting as a record keeper at the relevant time; PW4 HC Priyavrit is a witness of arrest of R1; PW5 Sh. Mukund Lal Verma is a Sale Tax Officer of the above ward in the year 1993; PW6 Inspector Sukhwinder Singh had only arrested R2 in some other case; PW7 Sh. Purshotam Lal Khanna was the Food Supply Officer of circle no. 8, Paharganj deposing about some fake ration card; PW8 Ct. Sameer Sharma only took the rukka for registration of this case; PW9 SI O. P. Sagar was one of the IOs of the case and PW10 Dr. S. C. Mittal is the concerned CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 7 of 40 handwriting expert who examined the above questioned and specimen handwritings/signatures of the respondents/accused and gave his report Ex. PW10/A. In their statements recorded U/s 313 Cr.P.C., both the respondents/accused denied all the incriminating evidence brought against them during the trial, but they did not lead any evidence in their defence.
8. I have heard the arguments advanced by Sh. Himanshu Garg, Ld Addl. PP for the State/appellant and Sh. S. C. Arora, Ld counsel appearing on behalf of both the respondents/accused. The submissions made by R1 himself in the court at length have also been heard and the impugned judgment and other record of the trial court, as well as of the appeal file, including the written submissions filed on behalf of the respondents/accused, have further been perused.
9. The first point of controversy between the parties is the issue of sanction granted for prosecution of the accused persons in the present case. As already discussed above, the sanction U/s 52 of the Delhi Sales Tax Act vide order Ex. PW2/A was obtained by the investigating agency for prosecuting the accused persons in the present case and on a perusal of the above said order, it is found that the said sanction was granted by PW2 Sh. K. M. Sahni, the then Commissioner, Sales Tax, New Delhi. The above sanction order has also been duly proved on record during the trial in the course of depositions made by PW2 Sh. K. M. Sahni. Admittedly, no sanction U/s 197 CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 8 of 40 Cr.P.C. for prosecution of any of the accused was obtained in the present case. But since Section 197 Cr.P.C. talks only about prosecution of judges and other public servants and admittedly only respondent/accused S. P. Dua (R1) was a public servant, even otherwise no sanction under this provision for prosecution of any other accused, i.e. except R1, was required.
10. It is observed on perusal of the impugned judgment that though both the respondents/accused have been acquitted by the Ld ACMM in the present case, but on the issue of sanction the findings given by Ld ACMM are that the sanction order Ex. PW2/A is a valid and legal sanction order and the above sanction for prosecution of the accused persons was granted by the sanctioning authority after perusing all the relevant material and after due application of mind. He has further observed that even otherwise no sanction was infact required for prosecution of the accused persons in the present case as the alleged acts or offences done by the accused were not done or performed in the discharge of their official capacity. Hence, now it is to be seen if the reasoning and the above findings given by the Ld ACMM on the point of sanction are legally sustainable or not and further if through the above sanction order Ex. PW2/A, a valid and legal sanction for prosecution of the accused persons has been granted by the concerned authority or not.
CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 9 of 40
11. On this aspect it has already been discussed above that no sanction U/s 197 Cr.P.C. was obtained by the investigating agency in this case against R1 and only a sanction U/s 52 of the Delhi Sales Tax Act vide order Ex. PW2/A was obtained against all the accused persons. As far as the provisions of Section 197 Cr.P.C. are concerned, it is now settled that a sanction under the above provisions for prosecution of any public servant is required only when the alleged acts constituting the offences have been committed by a public servant while acting or purporting to act in the discharge of his official duties. This is besides the fact that the sanction should always be granted by a competent authority, as mentioned in the above said provisions. Unless such a sanction for prosecution of a public servant has been obtained by an investigating agency, there is a bar on taking of cognizance of the alleged offences by a court. However, as already discussed above, the plea raised by R1 that his prosecution in the present case is bad for want of a sanction U/s 197 Cr.P.C. was already dismissed long back by the Ld trial court vide its order dated 13.08.2007 and the said order was not even challenged by the above accused before any higher court and he has accepted the above legal position.
12. However, it has been observed on perusal of the impugned judgment that the findings given by Ld ACMM to the effect that even otherwise no sanction for prosecution of the accused persons in this case was required, for the reasons CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 10 of 40 given in the impugned judgment, do not reflect the correct position of law as though these finding are true for the purposes of sanction prescribed by 197 Cr.P.C., but these do not hold good when the same are viewed from the perspective of Section 52 of the Delhi Sales Tax Act. It is so because though Section 197 Cr.P.C. uses the words 'while acting or purporting to act in the discharge of his official duty', but Section 52 of the Delhi Sales Tax Act does not use such kinds of words and rather it imposes a blanket ban on taking of cognizance by a court for any of offences under the said Act or the Rules made thereunder, except with the previous sanction of the Commissioner of the department. Hence, the above findings given by the Ld ACMM to the effect that moreover, in the facts of the present case, no sanction was required in the present case are not legally sustainable and are liable to be set aside. The legal propositions laid down in judgments of cases Shambhu Nath Mishra Vs. State of U.P. 1997 (5) SCC 326, Prakash Singh Badal Vs. State of Punjab 2002 (1) SCC 1, Rajiv Ranjan Vs. R. Vijay Kumar 2015 (1) SCC 513, Subramaniam Swamy Vs. Manmohan Singh 2012 (3) SCC 64 and Inspector of Police Vs. Battenapadla Venkata Ratnam 2015 SCC Online SC 339, as referred to in his impugned judgment by the Ld ACMM, are all with reference to the provisions of Section 197 Cr.P.C. and not in respect of Section 52 of the Delhi Sales Tax Act.
13. Now coming to the validity of the sanction order Ex. CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 11 of 40 PW2/A, as stated above, Section 52 of the Delhi Sales Tax Act specifically provides that no court shall take cognizance of any offence under this Act or the Rules made thereunder, except with the previous sanction of the Commissioner. It is not in dispute that the investigating agency in the present case has obtained a sanction for prosecution of the accused persons vide the above order Ex. PW2/A, which has been held to be a legal and valid sanction order in the impugned judgment of the Ld ACMM. However, when the findings given by the Ld ACMM on this aspect are considered in the light of contents of the above sanction order Ex. PW2/A and the relevant law on the point of sanction, it is found that even these findings are not legally sustainable and in the considered opinion of this court, the above sanction was given by the sanctioning authority without any due application of mind and without perusing all the relevant documents and material collected during the investigation and further that it was given in a mechanical manner. It is so because the above sanction order Ex. PW2/A nowhere states as to what kind of material or documents the investigating agency had placed before the sanctioning authority or what were the documents which the sanctioning authority was made to peruse before granting the said sanction. The entire case of the department is based on the report of some enquiry conducted by the Enforcement Department of the Sales Tax, but even this report is nowhere found mentioned or reflected in the above said sanction order. There is also no mention of any other document collected by the investigating CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 12 of 40 agency or the statements made by any persons during investigation, which could have been placed for perusal of the sanctioning authority. Hence, simply if the above said sanction order incorporates that the sanctioning authority was satisfied about commission of the alleged offences by the above accused on the basis of investigations made and material on record, the above sanction order cannot be termed to be a valid or legal sanction order and it appears to have been passed without due application of mind and in a mechanical manner.
14. Further, the evidence with regard to sanction can be given in two ways, i.e. one in the form of contents of the sanction order itself and the other in the form of oral depositions made by the sanctioning authority. As already discussed, the sanction order Ex. PW2/A by itself does not show any due application of mind on the part of the sanctioning authority. It is further found that even the oral evidence led on record in the form of depositions made by PW2, i.e. the sanctioning authority Sh. K. M. Sahni, is not sufficient to prove the legality or validity of the above sanction order. In his examinationinchief, he has only stated that he accorded a sanction U/s 50 of the DST Act, 1975 against the accused S. P. Dua, the then ASTO, Inder Sain and two other accused Hari Ram Gupta and Sanjay Gupta after going through the record available with file vide the sanction order Ex. PW2/A bearing his signatures at point A. This constitutes almost his entire examinationinchief. However, during his crossexamination, he was not able to recollect a CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 13 of 40 number of things pertaining to the above sanction, including as to what was the material placed before him to justify the grant of the sanction, the identity of the officer of their department who produced the said material before him or that of the police officer to whom the above sanction order was handed over, whether or not ST2 account furnished by the dealer was correct, whether any official of their department ever asked him to ascertain the correctness or truthfulness of the allegations made against the accused, whether he accorded any opportunity to the accused or not before grant of the above sanction, whether he made any efforts to ascertain the correctness of the allegations made in the sanction order or not and further whether any written complaint was lodged by any public servant or a registered dealer in the present case or not. He has also expressed his inability to produce any records pertaining to the grant of above sanction on the ground that he already stands retired from services and even no such records were got summoned by the prosecution during his examination to satisfy the Ld trial court with regard to the nature or kind of the documents or material gone through by the witness before granting the above sanction. His depositions made in the court further show that he was not even aware about the provision under which he accorded the above sanction, i.e. whether U/s 50 or Section 52 of the above said Act and rather when his depositions are read in a whole, the only inference which can be drawn from the same is that he was not able to recollect or remember any material aspect leading to the grant of above CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 14 of 40 sanction for prosecution of the accused persons in this case. Thus, this being the factual position, the above sanction granted by him vide order Ex. PW2/A for prosecution of the accused persons cannot be held to be a valid or illegal sanction simply because he had deposed on record vaguely that he considered all the material and documents before granting the same. Therefore, even the findings given by the Ld ACMM regarding the legality and validity of the above sanction order Ex. PW2/A are liable to be set aside and the above sanction order Ex. PW2/A cannot be held to be a legal and valid sanction order.
15. It is well settled that grant of sanction for prosecution of an accused is a sacrosanct act and it is not a mere formality and it is incumbent upon the prosecution to prove in any trial that a valid and legal sanction was granted by the concerned competent authority after perusal of all the relevant materials on record. It is so because the purpose of incorporating such a provision in any statute is to provide safeguard to a public servant against frivolous and vexatious litigations. Reference in this regard can be made to the judgment of Hon'ble Supreme Court in case State of Maharashtra Vs. Mahesh G. Jain (2013) 8 SCC 119. It is also well settled that the issue of sanction is a legal issue and it can be raised at any stage and it goes to the root of the case. Reference on this aspect can also be made to the judgment of Hon'ble Supreme Court in case Nanjappa Vs. State of Karnataka AIR 2015 SC 3060. Hence, since Section 52 of the CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 15 of 40 DST Act imposes a complete ban on taking cognizance of any of the offences made punishable by the said Act or the rules framed thereunder, even the cognizance which was taken by the Ld trial court for commission of the offence punishable U/s 50 of the said Act by the accused persons was illegal and no finding of guilt for commission of the said offence by any of the accused could have been or can be legally arrived upon in this case, though there was or is no bar for proving of the other charges against the accused for commission of the offences punishable under different Sections of the IPC. Further, though in case of Nanjappa, Supra, it was held that in case the issue of validity of a prosecution sanction is raised at a final stage, the court should avoid giving findings on merits of the case and rather should discharge the accused, but the present case can be differentiated as apart from the offence punishable U/s 50 of the DST Act, for which the sanction order Ex. PW2/A has been held to be illegal, charges for commission of other offences punishable under different Sections of IPC are also found framed against the accused for which no sanction U/s 197 Cr.P.C. is required. Moreover, a discharge order on the ground of sanction may not also be required and it will defeat ends of justice in cases pending since long, as was also held in the case of Nanjappa, Supra.
16. Coming to merits of the case, it is a basic principle of civil as well as criminal judicial administration that the best ever evidence should be produced in the court by any party to a CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 16 of 40 litigation and the facts should always be proved by the primary or direct evidence, unless the law permits the secondary or circumstantial evidence of those facts to be given and the conditions required for giving of the same have been satisfied or fulfilled. However, when the evidence led on record by the prosecution during trial of this case is appreciated in the light of the above legal propositions, it is found that the prosecution has miserably failed to lead on record the primary or direct evidence in the case and has thus failed to prove their case against the accused beyond reasonable doubts.
17. The appreciation of the trial court record reveals that as per the complaint Ex. PW1/J made by PW1/complainant Sh. Devender Singh to the police, some source complaint was received in the department alleging certain irregularities on the part of R1 in registration and other allied matters in respect of the above firm named M/s Himachal Syndicate. However, there is no evidence on record as to who had received the above source complaint or if the same was a written complaint or an oral complaint or information received by some official of the department. In any case, neither any such source complaint received in writing has been brought in the evidence nor the above complaint was reduced into writing by the official concerned, if it was received orally.
18. Again, it is mentioned in the above complaint Ex. PW1/J itself, as well as in the FIR registered on its basis CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 17 of 40 subsequently, that some enquiry was also conducted by an Inspector of the Enforcement Branch of the department on receiving of the above source complaint and a report of enquiry dated 26.03.1992 was also given by the Inspector concerned to the effect that no such firm was found existing at its given address. Further, the above complaint Ex. PW1/J and the FIR also indicate that even some local enquiries were got conducted by the complainant/PW1 himself showing various discrepancies on the part of R1 in granting registration certificate and issuance of statutory forms etc to the above firm, which allegedly were indicative of some malafides on the part of R1 and the existence of some criminal conspiracy between the respondents/accused and some other persons. However, neither the report of any such enquiry conducted by the above Inspector of Enforcement Branch nor by the complainant/PW1 himself is a part of the evidence led by prosecution during the trial.
19. On appreciation of the prosecution evidence, it is also found that the complainant/PW1 Sh. Devender Singh, PW3 Sh. Surender Kumar Jassal and PW5 Sh. Mukund Lal Verma are the three material and official witnesses of the prosecution story who could have deposed about and proved on record the relevant material facts and documents of the prosecution case showing commission of the alleged offences by respondents/ accused. However, it is observed that the depositions made by these witnesses are not sufficient to prove the guilt of the CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 18 of 40 accused persons for the charged offences beyond reasonable doubts as the same are found to be lacking reliability and corroboration from any documentary evidence on all the incriminating aspects deposed by them.
20. PW1/complainant is the Sale Tax Officer of the above ward no. 37 in the year 1992, when the above complaint Ex. PW1/J was made to the police. He talks about receiving of some report from the Enforcement Branch with regard to non existence of the above firm at its given address and also about some cross checking of the informations done by him with regard to the irregularities committed by the said firm and his arriving at a conclusion that for registration of the said firm, fake ration card, fake surety bond and fake sale and purchase accounts were furnished on behalf of the firm. He has also stated that the application for registration of the firm was filed by one Sh. Dinesh Kumar and M/s Deep Sanitation, F245/5, Mansarover Garden, New Delhi, furnished surety bond for the above registration and the registration order of the firm was issued by R1 and he has also identified the signatures of the above accused/R1 on the registration order Ex. PW1/A, the registration certificate Ex. PW1/B, the acceptance of the surety verification report Ex. PW1/C as well as on some other documents, in the form of orders passed on applications Ex. PW1/D, Ex. PW1/E and Ex. PW1/F submitted on behalf of the above firm for issuance of Forms ST1 and the applications Ex. PW1/G and Ex. PW1/H for issuance of Forms ST35. He has CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 19 of 40 further stated that the Enforcement Branch of the department also submitted that the utilization sheet Ex. PW1/I was submitted by the above firm/dealer to the department and on cross verification, it was revealed that either the purchasing dealers were not traceable or the purchasing amounts differed from those shown in the Form ST2 account. He has further deposed that he also made enquiries and found that R1 had issued the statutory Forms ST1 and ST35 to the dealer without obtaining from the concerned record keeper. Then he also deposed about making the above complaint Ex. PW1/J to the police about various discrepancies observed in registration of the above firm and the role of R2. He has further deposed that after he came to know about the above irregularities, he had cancelled the registration of the said firm vide his order Ex. PW1/K as none turned on behalf of the firm to show cause against the proposed cancellation despite issuance of the notices Ex. PW1/L and Ex. PW1/M and a publication proposal Ex. PW1/N.
21. Thus, it is clear from the above depositions made by the complainant/PW1 during his examinationinchief that he has simply deposed about certain official documents and identified the handwriting or signatures of R1 on certain official documents and was further responsible for filing the above complaint Ex. PW1/J. However, his depositions nowhere show that he was posted in the above ward at the relevant time when registration of the above firm actually took place or the surety CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 20 of 40 verification report of the above firm was accepted by R1 or the above statutory forms were issued by R1 and thus he cannot be said to have any first hand information of the alleged discrepancies or irregularities committed by R1 in the course of registration of the above said firm. His depositions further show that the same are based on some report given by an Inspector of the Enforcement Branch of their office, but as already discussed above, the said report is not a part of the evidence and hence, his depositions made with regard to the contents of or the findings arrived in the said report are of no weight or consequence as the contents of the said report could have been proved only the said report itself. Again, though he also talks about cross checking the informations in some enquiry got conducted by himself, but even this report of enquiry or his conclusions have not been brought in the evidence. Except the bald depositions made by him that the surety of the firm was fake, no other substantive oral or documentary evidence has also been led on record to prove this fact. Hence, his depositions, as discussed above, do not help the case of prosecution in any way as at the most these go to show that registration of the above firm was ordered and the registration certificate was issued by R1 and R1 had also passed some orders on the different applications submitted on behalf of the firm for issuance of the above statutory forms. Moreover, the prosecution has also brought nothing on record to show as to what actually was the procedure prescribed for dealing with such registration applications and the issuance of statutory CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 21 of 40 forms and merely the oral statements of some witnesses are not sufficient to prove this fact.
22. Further, during his crossexamination, this witness also specifically admitted on record that though as per the official record, the above firm was registered at the address of C3/12, Rajouri Garden, New Delhi, but he does not remember if any application was moved on behalf of the said firm subsequently vide diary no. 4522 dated 31.03.1992 informing the new address of the firm as 11/227, Subhash Nagar, New Delhi. He has also deposed specifically that he does not remember if any officer of the Enforcement Wing or of the Sales Tax Department ever visited the given address of the firm for the purposes of verification and in view of his these depositions, it cannot be said that the address of C3/12, Rajouri Garden, New Delhi furnished by the firm was a fake address. This view is further strengthened from the other depositions of this witness as he was not even able to remember if any notice under registered AD post was ever issued at the given address of the firm or not. Though, on this aspect PW9/IO SI O. P. Sagar also deposed that he made certain enquiries with regard to the above address of the firm and found that though the above premises were existing at the given address, but one Smt. Bhupender Kaur was found to be the owner of the said property. However, the above Smt. Bhupender Kaur has also not been made a witness in this case by the police nor any original document of her title with regard to the said property has been CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 22 of 40 brought in the evidence and mere exhibition of the photocopies of her title documents as Ex. PW9/B during the testimony of the IO/PW9 was not enough to prove the above fact. Even otherwise, something further was also required from the prosecution to prove that R1 was aware about the said address of the firm being fake at the time of directing the registration of the firm or to show that he was privy to any such alleged criminal conspiracy, in furtherance of which the registration of the firm at the above given address was applied for and granted by him.
23. As far as the evidence regarding ST2 account statement of the firm being fake is concerned, the complainant/PW1 has also stated specifically on record that the said account of the above firm was not filed in his presence and he also did not get the genuineness thereof verified from the EDP Cell. He was not even able to tell as to which Inspector of their department had scrutinized the correctness of the above said account and also that whatever he deposed in the court was based on the above report of the Enforcement Wing, which has not been produced in the court during the course of trial. This witness also admits that he had never furnished the said report to the police. Hence, in the absence of their being direct oral or documentary evidence of the witness who had scrutinized the genuineness or correctness of the above said account or reported it to be fake, the mere depositions made by this witness regarding the said document being fake are of no CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 23 of 40 consequence. There is also no evidence to show as to how and in what manner the purchasers or the amounts shown in the said statement were found or observed to be fake.
24. Coming to the issuance of the statutory Forms ST1 and ST35 by the accused to the above said firm also, it is observed that the evidence led on record is not sufficient to prove that the said forms were directed to be issued by the accused in furtherance of any such criminal conspiracy as alleged against the respondents/accused or that the said forms were misused or sold to some other persons in furtherance of the said conspiracy. It has already been stated above that the prosecution has not brought on record anything to show as to which was the particular established or approved procedure applicable to the issuance or use of such forms. As per PW3 Sh. Surender Kumar Jassal, he was the record keeper of the department dealing with the issuance of such forms and was responsible for maintenance of the relevant register called the movement register in respect of the said forms. He has also stated on record that on enquiry, he had told the police officials that there was no entry in the above said register to show that the above firm ever applied for the said forms or that the same were issued to it. However, on this aspect also the above movement register was neither seized by the police during investigation nor subsequently got summoned or produced on record to substantiate the above depositions being made by this witness. Hence, the mere bald depositions made by this CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 24 of 40 witness in this regard or with regard to the fact that the said forms were issued to the firm against the established procedure cannot be held sufficient to prove the guilt of the accused persons.
25. Again, as per the prosecution case, R2 had obtained the above forms on behalf of the firm and further sold these forms in the open market with the help of other two co accused (one of which stands already discharged and the other expired), but no evidence has also been brought on record with regard to the alleged sale or misuse of the above statutory firms as there is nothing on record to show or suggest as to by and to whom the above statutory forms were actually used. Hence, simply because the accused had directed the issuance of the statutory forms to the above firm, it is not indicative of commission of any offence by him under the IPC or the Delhi Sales Tax Act or of the offence of criminal conspiracy to commit any such offence. Again, even the evidence of PW5 is not sufficient to help the prosecution in proving charges framed against the accused as during his examinationinchief he has only stated that though as per records the RC of the above firm was signed by R1 and further that certain items were added in the RC of the above firm by the above accused vide amendment made at point X on the back of RC, but during his cross examination he also stated that the said amendment was not made in his presence and further that the above RC did not bear the signatures of R1 and also that R1 had never worked with CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 25 of 40 or under him nor he had seen R1 signing or writing.
26. The next material evidence of the prosecution case is in the form of the CFSL report Ex. PW10/A, which has been proved on record by the concerned handwriting expert Sh. S. C. Mittal, the then Principal Scientific Officer of the CFSL, CBI, New Delhi, who was examined on record as PW10. As per the depositions made by this witness, he examined some specimen handwritings of both the respondents/accused and also some questioned documents of this case and gave his report Ex. PW10/A, which stands duly proved on record from his depositions. From the depositions made by this witness regarding his educational qualifications and experience etc in the field of examination of documents, this court has no doubts that he is a competent witness in his field of examination of documents.
27. However, as far as the CFSL report Ex. PW10/A given by this witness is concerned, it was seriously under challenge before the Ld trial court and is also being challenged in this court as well. The challenge to the above said report is from two angles, i.e. one pertaining to its admissibility and the other with regard to its relevance for proving the commission of the alleged offences. As far as the admissibility of the report is concerned, the challenge made to this report is on the ground that the specimen signatures or handwritings of the respondents/ accused, which were compared and analyzed by CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 26 of 40 PW10 and are the subject matter of this report, were taken by the police on their own and not on the directions or with permission of the court concerned. In view of the law laid down by the Hon'ble Supreme Court in case State of U.P. Vs. Ram Babu Mishra AIR 1980 SC 791 and a Full Bench decision of the Hon'ble Delhi High Court in case Sapan Haldar & Anr. Vs. State 2012 VIII AD 533, the Ld trial court has observed in his impugned judgment that the above CFSL report is not admissible in evidence as the above specimen signatures or handwritings of the accused could not have been legally taken by the police. In case of Ram Babu, Supra, the Hon'ble Supreme Court has held that even a Magistrate has no power to direct an accused to give his specimen handwriting or signatures during the course of investigation of a case as the provisions of Section 73 of the Evidence Act, which enable the Magistrate to give such directions, are applicable only when some proceedings are pending before the said court and the same are not applicable at the stage of investigation. In case of Sapan Haldar, Supra, also, while referring to the above said propositions laid down by the Hon'ble Supreme Court, the view of the Hon'ble Delhi High Court was that prior to insertion of Section 311A in the Code of Criminal Procedure in the year 2005, which became effective from the year 2006 and which enables a Magistrate to give such a direction to an accused to give his specimen signatures or handwritings as sample, there was no provision enabling a Magistrate to give such direction and such specimen handwriting or signatures of the accused CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 27 of 40 could not have even been taken by an investigating officer during investigation of the case. Ld counsel for the respondents/accused has referred to and relied upon the above said judgments in this court also, in support of his argument regarding the above report to be inadmissible in evidence.
28. However, Ld PP for the State has relied upon the judgment of the Hon'ble Supreme Court in case Rabindra Kumar Pal @ Dara Singh Vs. Republic of India (2011) 1 SCC (Cri) 706, wherein the Hon'ble Supreme Court has accepted the expert evidence pertaining to such specimen handwriting and signatures taken by the police during investigation of a case and without any permission or directions of the court. Some of the relevant observations made by their lordships of the Hon'ble Supreme Court in the above case are being reproduced herein below: '75. Another question which we have to consider is whether the police (CBI) had the power under CrPC to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only after the amendment of CrPC in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se illegal, the report of the expert cannot be used as evidence against him.
76. To meet the above claim, the learned Additional Solicitor General heavily relied on a elevenJudge Bench decision of this Court in State of Bombay Vs Kathi Kalu Oghad. This larger Bench was constituted in order to re CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 28 of 40 examine some of the proposition of law laid down by this Court in M.P.Sharma Vs Satish Chandra.
77. After adverting to various factual aspects, the large Bench formulated the following questions for consideration: (Kathi Kalu Oghad case, AIR pp.1810 & 1812, paras 2 &
4) "2. ... On these facts, the only questions of constitutional importance that this Bench has to determine are; (1) whether by the production of the specimen handwritings, Exts.
27,28 and 29, the accused could be said to have been 'a witness against himself' within the meaning of Article 20(3) of the Constitution; and (2) whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings. ...
4. ... The main question which arises for determination in this appeal is whether a direction given by a court to an accused person present in court to give his specimen writing and signature for the purpose of comparison under the provisions of Section 73 of the Evidence Act infringes the fundamental right enshrined in Article 20(3) of the Constitution."
The following conclusion/answers are relevant: (AIR pp. 181417, paras 1012 & 16) "10. ... 'Furnishing evidence' in the latter sense could not have been within the contemplation of the Constitutionmakers for the simple reason thatthough CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 29 of 40 they may have intended to protect an accused person from the hazards of self incrimination, in the light of the English law on the subjectthey could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. ...
11. ... When an accused person is called upon by the court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony'. The giving of a 'personal testimony' must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness'.
12. ... A specimen handwriting or signature or finger impressions by themselves are CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 30 of 40 no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the court that its inference based on other pieces of evidence is reliable.
They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony'.
16. In view of these considerations, we have come to the following conclusions (1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.
(3) 'To be a witness' is not equivalent to 'furnishing CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 31 of 40 evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'.
(5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise.
(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made."
78. In view of the above principles, the procedure adopted by the investigating agency, analysed and approved by the trial court and confirmed by the High Court, cannot be faulted with. In view of the oral report of Rolia Soren, PW 4 which was reduced into writing, the evidence of PW 23, two letters dated 122002 CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 32 of 40 and 222002 addressed by Mahendra Hembram (A3) to the trial Judge facing (sic confessing) his guilt coupled with the other materials, we are unable to accept the argument of Mr. Ratnakar Dash, learned Senior Counsel for Mahendra Hembram (A3) and we confirm the conclusion arrived at by the High Court.'
29. Ld PP for the State has also relied upon another judgment of the Hon'ble Delhi High Court in case Raksha Jindal Vs. CBI Crl. A. 152/2013, as well as various connected appeals decided vide a common judgment dated 05.03.2015, and in this case, while relying upon and reiterating the law laid down by the Hon'ble Supreme Court in case of Rabindra Kumar Pal @ Dara Singh, Supra, as well as in cases of State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600 and Selvi Vs. State of Karnataka (2010) 7 SCC 263 the Hon'ble Delhi High Court has also held that the evidence pertaining to the handwriting and signatures of an accused taken by the police without permission of the court to be admissible in evidence. The relevant observations made by the Hon'ble High Court in case Raksha Jindal, Supra are being reproduced herein below: "444. Strong resistance has come on behalf of appellants with regard to admissibility of the report of the handwriting expert. It was argued that the handwriting and signature specimens were obtained in blatant disregard of all prescribed procedure and the same has to be eschewed from consideration. Reliance is placed primarily on the Full Bench judgment of this Court in Sapan Haldar (supra).
445. Learned trial judge has taken note of the Supreme Court decision in Rabindra Kumar Pal alias Dara Singh v. Republic of India, (2011) 2 SCC 490, wherein the argument on admissibility of report of handwriting expert was urged and the Court observed that the same would be admissible despite CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 33 of 40 having obtained the specimen handwriting and signature without permission of Court.
446. I have meticulously gone through the case laws cited at the Bar. The decision of the Supreme Court in Navjot Sandhu (supra) and reiterated in Dara Singh (supra) is quite clear. Expert evidence in the form of report on handwriting and signature specimens is not barred from consideration on the ground that they were obtained without permission of Court. The law on obtaining handwriting specimen is now specially incorporated under Section 311A Cr.P.C. which came in to effect on 23.06.2006. The specimens were taken prior to this date and, therefore, the procedure prescribed by the section could not be adhered to. The decision in Ram Babu Mishra (supra) was based on the question whether the Magistrate is empowered to direct an accused to give his specimen writing and signature under Section 73 of the Evidence Act for the purpose of enabling the Court to compare" such writings with writings alleged to have been written by such person. The Court in Ram Babu Mishra interpreted the purport of Section 73 and held that the words "for the purpose of enabling the Court to compare" assume continuance of some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. It was observed that the language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. The ratio of this case was, therefore, limited to observing that Section 73 Indian Evidence Act is not an enabling provision for the Magistrate to give any such direction to an accused in a matter that is pending investigation. However, it cannot be said that as a necessary corollary to this principle, the specimen handwriting and signature is not obtainable at all during investigation. The investigating officer in a criminal case is empowered under Section 2(h) Cr.P.C. to collect evidence and undertake various steps in that endeavor. The Supreme Court in Selvi v. State of Karnataka, (2010) 7 SCC 263 has endorsed this view and held that the term investigation includes steps which are not exhaustively and expressly enumerated. Even otherwise, experience suggests that every crime requires its own tailor made investigation which may be peculiar to the circumstances of the case. It would not be prudent and neither possible to exhaustively catalogue such steps taken during investigation in a code like Cr.P.C. Thus absence of a specific provision enabling a particular step under investigation does not imply that the investigation agency is disabled from taking CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 34 of 40 that step under its power/duty (power coupled with duty) to conduct investigation. For e.g. the police during investigation of a murder case prepares the site plan, collects/seizes the blood stained earth, seized various articles lying on the spot, seizes the weapon used during commission of crime, seizes the clothes of the victim and the accused etc. However, there is no such express provision in the Cr.P.C. or other statute to enable the police to undertake such acts for collection of evidence during investigation.
447. In this context I am reminded of the observations of Lord Halsbury in Quinn v. Leathem, (1901) A. C. 495 at p. 506, quoted with approval by a Constitution Bench of this Court in State of Orissa v. Sudhansu Misra; (1970) ILLJ 662 SC and again in Orient Paper and Industries Ltd. and Anr. v. State of Orissa and Ors.; [1991] Supp. 1 SCC 81, at page 96:
Now, before discussing the case of Allen v. Flood and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
448. The decision in Sapan Haldar (supra) again has considered the question whether handwriting and signature specimens are obtainable under Section 4 and 5 of the Identification of Prisoners Act, 1920 and the Court observed that since both handwriting and signature of a person are not a mark of identification, the same cannot be measurement as defined under Section 2(a) of the Identification of Prisoners Act. However, the very next line which declares that an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence is in teeth with the view adopted by the Supreme Court in Navjot Sandhu (supra) and Dara Singh (supra).
449. In view of the aforesaid discussion, I am of the opinion CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 35 of 40 that the report of the expert and analysis of handwriting and signature specimens of the accused persons cannot be rendered inadmissible on the ground that it was obtained in violation of the prescribed procedure."
30. In view of the above, the findings given by the Ld ACMM regarding the inadmissibility of the above CFSL report Ex. PW10/A are not legally sustainable and the same are set aside and the above report is held to be admissible in evidence.
31. However, coming to the relevance of the above report, it has already been discussed above that the above report pertains to comparison of some specimen handwritings and signatures of both the respondents/accused with some questioned documents of the case. The specimen signatures and writings of R1 S. P. Dua are stated to be marked as S26 to S42 and the specimen writings and signatures of R2 Inder Sain are stated to be marked as S1 to S25. The questioned writings and signatures sent for comparison with the writings and signatures of R1 are marked as Q1A to Q10A and the questioned writings and signatures those compared with the specimen writings and signatures of R2 are marked as Q1 to Q12. As per the CFSL report Ex. PW10/A, though the opinion was expressed by PW10 with regard to the comparison of the questioned and specimen writings and signatures of R2, but no opinion was given by him with regard to questioned and specimen writings and signatures of R1, either due to the fact that sufficient individual handwriting characteristics were not found between them or that the questioned material was CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 36 of 40 considered to be insufficient for comparisons.
32. However, even on perusal of the above report Ex. PW10/A and the depositions made by PW10 with regard to comparison of the questioned and specimen writings and signatures of R2, it is observed that the above report is of no help to the case of prosecution. It is found that Q1, Q2, Q11 and Q12 were the purported signatures in the name of R2 appearing on the order sheets of the sale tax proceedings in which he is stated to have signed on behalf of the above firm. Q3 and Q4 are the particulars allegedly filled in the handwriting of R2 in applications for issuance of Forms ST5 and ST36, Q5 and Q6 are his alleged writings in respect of furnishing of the surety bonds, Q7 is an application purported to be written by him for change of proprietor of the above firm, Q8 is his writing on an affidavit and Q9 and Q10 are his writings on the applications for issuance of Forms ST35. Even if the above questioned and specimen writings and signatures of R2 are found to be similar or purported to be the writing and signatures of the same person, i.e. R2, as per the opinion given by PW10 in his above report Ex. PW10/A, it only leads to an inference that R2 had been appearing in proceedings being conducted by R1 in relation to registration of the above said firm and other incidental matters and he had also been filing different applications on behalf of the above said firm. However, in no case, the above oral and documentary evidence led in the form of depositions made by PW10 and the expert report Ex. PW10/A CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 37 of 40 given by him leads to a conclusion that the above appearance or signing and writing of the documents by R2 on behalf of the above firm was indicative of any such criminal conspiracy between the above two respondents/accused and certain other persons or the same amounted to the commission of any offence on his part or on the part of the other respondent. His appearance on behalf of the above firm was not barred and it was in accordance with the usual practice being followed by the Sales Tax Department, as has also come on record during the evidence led in the court. Hence, the findings given by the Ld ACMM to the effect that the above evidence does not establish the theory of criminal conspiracy being alleged by the prosecution are found to have been arrived at on correct appreciation of the evidence and hence, the same are not required to be interfered with. Since the above report Ex. PW10/A does not in any way help the case of prosecution, there is no use of any further discussion regarding the authenticity of the above specimen writings and signatures of both the respondents/accused.
33. Apart from the above evidence, there is also no other oral or documentary evidence led during trial of the case to show the existence of any such criminal conspiracy exiting between the two respondents/accused or some other persons. There is also nothing on record to suggest that R1 was aware of the falsehood of the address of 6/77, Subhash Nagar, New Delhi as furnished by R2 in the above applications for issuance CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 38 of 40 of Forms ST5 and ST36. Hence, simply because both R1 and R2 are residents of Geeta Colony, Delhi is not a ground to draw any inference about their being known to each other before hand or their being part of any criminal conspiracy, as has been alleged by the prosecution. A perusal of the impugned judgment of the Ld ACMM shows that he has well appreciated the evidence pertaining to the charges framed against the accused as far as merits of the case are concerned and thus, he has correctly arrived at a finding of acquittal of the respondents/accused in the present case. In terms of the propositions of law laid down in cases of Joginder Singh Vs. State of Haryana 2014 (1) JCC 113, Govindaraju Vs. State, Crl. Appeal No. 984/2007 decided on 15.03.2012, Gangabhavani Vs. Rayapati Venkat Reddy & Ors., Crl. Appeal No. 84/2011, State of Rajasthan, The Secy., Home Dept. Vs. Abdul Mannan, Crl. Appeal No. 29/2008 decided on 07.07.2011, Manpreet Singh @ Bobby Vs. Jitender Singh @ Sonu & Ors. Crl. Appeal No. 1166/2011, Prem Singh Vs. State of Haryana, Crl. Appeal No. 225/2009, Bhadragiri Venkata Ravi Vs. Public Prosecutor, High Court of A. P., Hyderabad, Crl. Appeal No. 248/2007 etc, all decided by the Hon'ble Supreme Court, as are being relied upon by Ld counsel for the respondents/accused, the findings of acquittal arrived at by the Ld ACMM are not required to be interfered with by this court unless there are good reasons to do the same as the presumption of innocence available to the respondents/accused CA No.: 3/16, State Vs. S. P. Dua & Anr. Page No. 39 of 40 at the beginning of the trial further got bolstered with their acquittal by the trial court.
34. Hence, in view of the above discussion, this court is of the considered opinion that the evidence led by the prosecution on record during the trial of the case is not sufficient to prove the guilt of the accused persons/respondents beyond reasonable doubts for the charges framed against them and therefore, the impugned judgment of the Ld ACMM acquitting both the respondents/accused of the charges framed in this case is being upheld and the present appeal filed by the State is dismissed being devoid of any merits.
35. Both the respondents/accused have also furnished the bonds U/s 437A Cr.P.C., alongwith their photographs and proofs of addresses, and the said bonds shall remain valid for a period of six months from today. Both the respondents/accused are also directed to present themselves before the Hon'ble High Court in case the prosecution choses to assail their acquittals further before the Hon'ble High Court.
36. Let the appeal file be consigned to record room. TCR be returned back to the court concerned, alongwith a copy of this judgment for information of the Ld trial court.
Announced in the open court
today, i.e. 20.12.2016 (M.K. Nagpal)
Special Judge (PC Act), CBI08,
Central District, Delhi/20.12.2016
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