Delhi District Court
9 Thus vs . on 5 July, 2014
IN THE COURT OF SH. R.P.PANDEY: SPL. JUDGE 01
(PC ACT) CBI : ROHINI COURTS: DELHI
CBI Case No. : 56/08
CENTRAL BUREAU OF INVESTIGATION
Vs.
1. Bibianus Toppo s/o late Joseph Toppo (A1)
14G, Sector4, DIZ Area, Raja Bazar,
Gole Market , New Delhi.
2. Harbhajan Yadav s/o late Sultan Singh Yadav (A2)
H.No.949/1, Gali No.4, Ashok Vihar,
Gurgaon, Haryana.
3. Ram Chander s/o Sh.Maman Ram (A3)
R/oJ624, Sardar Colony, Sector16
Rohini, Delhi85
4. G.D.Joshi s/o Late Sh.K.D.Joshi (A4)
R/o676, Sector8, R.K.Puram,
New Delhi
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5. R.S.Rawat son of Late Bachan Singh Rawat (A5)
r/o X258, Srojini Nagar,
New Delhi23
6. Anil Dhawan s/o Sh.Madan Lal Dhawan (A6)
R/oH.No.254, DDA Flats, Ist Floor
New Ranjit Nagar, New Delhi8
7. Pankaj Chaturvedi (A7)
son of Gopesh Chandra
r/o BG5/DDA Flats, Paschim Vihar
New Delhi63
8. Naieem Safi s/o Sh.Salim Safi (A8)
r/o A296 DDA Flats, Ist Floor
New Ranjit Nagar, New Delhi8.
9. Smt.Sweta Dhawan w/o Sh.Anil Dhawan (A9)
(since discharged)
r/o 254, DDA Flats, Ist Floor, New Ranjit Nagar
New Delhi8
10.Amit Kumar Khatri (A10)
s/o Sh.Lekh Raj Khatri
r/o C2/151, Sector 16, Rohini,
New Delhi.
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Date of Registration of FIR : 01.02.2005
FIR No. : RC.2(A)/2005/SCU.V/CBI/SCRII/New Delhi
Under Section : 120 B IPC r/w Section
419/420/467/468/471/474 IPC
13 (2) r/w 13 (1) (d) of P.C. Act 1988
and Section 12(1)(b) of Passport Act, 1967
Date of Filing Charge : 27.06.08
Sheet
Arguments Concluded on : 05.06.14
Date of Judgment : 05.07.14
CASE ID No. : 02404R957592008
Appearances: Ms.Shashi Vishwakarma, Public Prosecutor
for CBI.
Mr. R.Ramachandran, Advocate for A1.
Mr.Vijay Bishnoi, Advocate for A2.
Mr.R.K.Verma, Advocate for A3.
Mr.Mrityunjay Singh, Advocate for A4 & 5
Mr.Ashwani Verma, Advocate for A6 & 8
Sh.Jagjit Singh, Advocate for A7 & 10
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JUDGMENT
1.0 The case against accused persons, as per the charge sheet filed by CBI, is that in pursuance of a criminal conspiracy amongst Bibianus Toppo (A.1), Harbhajan Yadav (A.2), Ram Chander (A.3), G.D.Joshi (A.4), R.S.Rawat (A.5) all officials of Regional Passport Office (RPO), New Delhi and accused Anil Dhawan (A.6), Pankaj Chaturvedi (A.7), Naieem Safi (A.8), Smt.Shweta Dhawan (A.9) and Amit Khatri (A.10) all private persons, various passports, in the form of additional passport booklets, have been issued with different photographs and signatures but with similar personal particulars in the name of Ms.Reena d/o Janki Dass Khanna, r/o 18D, Pocket A, Dilshad Garden, Delhi.
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1.1 The investigation disclosed that one passport
application in the name of Ms.Reena was submitted in RPO, New Delhi vide file No.A39354 dated 12.11.98 and after due processing, a passport No.A6837991 dated 20.01.99 was issued to her. Ms.Reena could not be examined by CBI during investigation as she had reportedly gone abroad. 1.2 Against above said passport in the name of Ms.Reena, applications dated 31.07.03, 21.04.04 & 18.06.04 for additional passport booklets with similar personal particulars but with different photographs and signatures on each occasion, were submitted in RPO, New Delhi and accordingly passport Nos.E6067924 dated 05.08.03, E8585349 dated 23.04.04 & E8915831 dated 18.06.04 were issued as additional passport CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.5 of 191booklets.
1.3 The applications for issue of all the three additional passport booklets as mentioned above were processed in the office of RPO, New Delhi by accused Harbhajan Yadav (A.
2) LDC, RPO, New Delhi.
1.4 A passport No.E6067924 dated 05.08.03 was granted by Sh.P.K.Kapoor (reportedly expired on 11.09.04) Suptd., RPO, New Delhi and passport Nos. E8585349 dated 23.04.04 and E8915831 dated 18.06.04 were granted and signed by Bibianus Toppo (A.1)the then Suptd., RPO, New Delhi. The real identity of the persons whose photographs have been affixed on passport application forms submitted in the name of Reena, could CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.6 of 191not be established during the course of investigation. However, none of the passports issued in the form of additional passport booklets in the name of Ms.Reena, were used for visiting any country.
1.5 It was disclosed during the investigation that Ram Chander (A.3)LDC posted in RPO, New Delhi had cleared passport files Nos.T6833 dated 21.04.04 & Y432 dated 18.06.04 in the name of Ms.Reena in HIT Section without pointing out about the issue of earlier passports/additional passport booklets in the same name. As regards passport file No.P9167 dated 31.07.03 it could not be established as to who had cleared the said files in HIT Section.
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1.6 HIT Section of RPO, New Delhi was provided
with facility in the computer system with the photographs and signatures of the earlier passport holders which could be seen clearly and in case of any dissimilarity it was required to be pointed out by the officials working in HIT Section. But in the present case accused Ram Chander (A.3) working in HIT Section had cleared the files in the HIT Section without pointing out about the dissimilarity of photographs and signatures and in this way he intentionally added in issuance all additional passport booklets, issued in favour of fictitious persons in the name of Ms.Reena. 1.7 It has been opined by the handwriting expert that the passport application form for issue of first additional passport booklet in the name of Ms.Reena was filled up by Sh.Amit Kumar CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.8 of 191Khatri (A.10) and the signatures in the name of Ms.Reena were affixed by Pankaj Chaturvedi (A.7). The handwriting expert has opined that passport No.E6067924 dated 05.08.03 issued in the form of first additional passport booklet was received by Pankaj Chaturvedi (A.7) by signing the passport file and in the passport delivery register in the name of Reena.
1.8 It has also been opined by the handwriting expert that request letter for obtaining passport in the form of second additional passport booklet was written in the handwriting of Smt.Shweta Dhawan (A.9) wife of Anil Dhawan (A.6) and that the passport issued in the form of second additional passport booklet and third additional passport booklet were received by Naieem Safi (A.8) and Anil Dhawan (A.6) respectively by signing the CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.9 of 191respective passport file and passport delivery register in the name of Ms.Reena. These passport application forms prepared in the name of Ms.Reena were signed by Anil Dhawan (A.6). G.D.Joshi (A.4) UDC, RPO, New Delhi had allegedly delivered passport No.E6067924 dated 05.08.03 and R.S.Rawat (A.5) Assistant, RPO, New Delhi had delivered rest of the two passport Nos. E8585349 dated 23.04.04 and E8915831dated 18.06.04. 1.9 Thus, the passports were delivered to the recipients without any authority letter issued by the applicant and passport issued in the name of lady Ms.Reena were received by male persons namely Pankaj Chaturvedi (A.7), Naieem Safi (A.8) and Anil Dhawan (A.6) by singing in the name of Reena and the opinion of handwriting expert is available in this respect.
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1.10 On the basis of these facts and circumstances it
is alleged that accused persons have entered into criminal conspiracy, the object of which was to get issued passports in the form of additional passport booklets fraudulently from RPO, New Delhi and accused officials of RPO New Delhi had abused their official position as public servant and conspired with other accused persons whereby they did not ask to the applicant to produce the previous passport booklets for observation and cancellation and every time the original passport No.A6837991 dated 20.01.99 was shown to had been cancelled whereas the same passport could not be cancelled again and again and could not be the basis for issue of several passports in the same name.
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1.11 Sanction u/s 19 of P.C. Act, 1988 in respect of all
public servants named above and sanction u/s 15 of Passport Act, 1967 for prosecution of remaining accused persons were obtained and filed alongwith the charge sheet. The court took cognizance, accused were summoned and compliance of provisions of Section 207 Cr.PC was made.
2.1 After hearing the arguments on charge, ld. Predecessor of the court had framed charge against all accused persons, vide his order dated 23.04.10, except against accused Smt.Shweta Dhawan (A9), who was discharged. Charge against remaining accused persons u/s 120B r/w Section 419/420/467/468/471 IPC, Section 13(2) r/w Section 13 (1) (d) of PC Act, 1988 and Section 12 (1)(b) of Passport Act, 1967. All the CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.12 of 191above named public servants were additionally charged for an offence u/s 13 (2) r/w section 13(1)(d) IPC. The charge for substantive offence against accused Anil Dhawan (A.6), Pankaj Chaturvedi (A.7) and Amit Khatri (A.10) were framed u/s 420 and 471 of IPC and section 12 (1)(b) of Passport Act. Additionally, a charge u/s 467 IPC was framed against accused Bibianus Toppo (A.1) and u/s 419 and 468 IPC against accused Anil Dhawan (A.6), Pankaj Chaturvedi (A.7) and Naieem Safi (A.8). 2.2 To prove the case, the prosecution has examined 28 witnesses and closed PE.
2.3 In view of the fact that the oral testimony of the witnesses is quite lengthy, it would be useful to sum up the CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.13 of 191testimony of prosecution witnesses recorded in this case. 3.1.1 PW.1 Sh.M.S.Thapar was UDC in RPO, New Delhi and his duty was to allot passport numbers on the granted files on which PIA/PRO/Suptd. had granted ECR or ECNR. He deposed that after receiving the files he used to feed the file number in the computer and the details of the applicant used to appear on the computer screen. Thereafter he used to tally the applicant's name, his father's name, date of birth between the data displayed on the computer and the details mentioned in the application form and if the same was found in order, he used to enter "Yes" button on the keyboard and then computer used to allot passport number to the file and he used to write the number displayed on the computer screen, on the respective passport file.
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Page No.14 of 191Thereafter the files were collected by the printing section. 3.1.2 He was shown the file for issuance of additional passport booklets bearing No.T9167/03(D.3), Y432/04 (D.5) & T6833/04 (D.4). After seeing the same, he said that these files belong to RPO, New Delhi and the same were marked as Ex.PW. 1/A, PW.1/B & PW.1/C respectively. He identified that in Ex.PW. 1/A, grant order was signed by Sh.P.K.Kapoor, then PIA whose signatures he identified at point A at page Nos. 4 & 10 of the file. On being shown file Ex.PW.1/B he said that grant order was signed by Bibianus Toppo (A.1) at point A on page No.4 and he also identified his signatures at point A on page No.10 of the said file as PIA. Similarly he also identified that grant order in file Ex.PW.1/C was passed by Bibianus Toppo (A.1) by signing at CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.15 of 191point A on page no.4 of the file and he also identified signatures of Bibianus Toppo (A1) at point B on page no.4 and at point A on page no.5 of the file as PIA.
3.2.1 PW.2 Sh.Tara Dutt worked with RPO, New Delhi as Office Assistant and his duty was to do data entry of file in respect of the photographs and signatures of the applicants who applied for passport/additional passport booklet. He stated that by checking the computer login ID Number, it can be found out as to who had scanned/entered the data of the particular file and that his login ID is P 755.
3.2.2 During his cross examination by ld.counsel for Bibianus Toppo (A.1), on being shown the computer generated CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.16 of 191record of RPO New Delhi (D.15/1) in respect of file No.T9167/03(D.3) and file no.T6833/04 (D.4), he said that his name and P.No. appeared thereon at points A as the person who had done the detail entry in respect of these passports. On the basis of this, he said that he had done detail entry in respect of additional passport file Ex.PW.1/A & PW.1/B. He stated that he had verified the place of issue of original passport from point Q209 & Q.224 appearing at second page of files Ex.PW.1/A & 1/B. He deposed that PIA used to grant the passport after the entry was made by him.
3.3.1 PW.3 Ms.Uma Kapoor is about identity of Ms.Reena, who deposed that Sh.Janki Dass and Smt. Ram Devi Khanna (parents of Ms.Reena) are known to her as Ram Devi CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.17 of 191Khanna was her Bua Saas and Janki Dass was her husband, who are presently residing in foreign. She said that 56 years ago they used to live in Dilshad Garden at A18D, Dilshad Garden, Delhi who had two daughters and three sons one of which was Reena. She deposed that Reena is married and she is in Germany. 3.3.2 After seeing the scanned copy of passport file bearing No.039354 dated 12.11.98 in the name of Reena d/o Janki Dass Khanna and Ram Devi Khanna r/o 18D, Pocket A, Dilshad Garden, Delhi (D.2), Mrs.Uma Kapoor stated that the photo impression of two photographs appearing at points A & B on the scanned copy of passport application forms are of Reena which she identified. The scanned copy of passport application form (D2) was marked as Mark PW.3/X. The same document was CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.18 of 191subsequently proved as Ex.PW.15/Y.3 and the certificate u/s 65B of Evidence Act has been proved as Ex.PW.15/Y, as the said scanned copy is a computer generated print out. Another scanned print out of the file is also marked as Ex.PW.15/Y.1 which has been filed with the certificate Ex.PW.15/Y. 3.3.3 PW Smt.Uma Kapoor (PW.3) was also shown the additional passport booklet file No.9167/03 Ex.PW.1/A (D.3) in the name of Ms.Reena with same parentage and address and after seeing the same she stated that photographs appearing at points A & B on the passport application form at page 2 and 3 are not of Reena. Similar was her testimony about the photographs appearing on passport application forms for issuance of additional passport booklet in file No.T6833/04 Ex.PW.1/B (D.4) and CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.19 of 191additional passport booklet in file No.Y432/04 Ex.PW.1/C (D.5) in the name of Ms.Reena with same personal particulars but different photograph and signatures.
3.3.4 She was also shown a personal particular form annexed with the verification report of special branch of Delhi Police (D.18) in the name of Reena with same personal particulars and after seeing the photographs appearing at point A on that personal particular form , she identified that it is the photograph of Reena. The said personal particular form has been marked Ex.PW.3/A. 3.3.5 After seeing the passport No.E6067924 dated 05.08.03 in the name of Reena with same personal particulars she CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.20 of 191stated that the photograph affixed at point A on this passport (D.9) is not of Reena. This was the first additional passport booklet which was got issued vide the passport file Ex.PW1/A. 3.3.6 She also deposed that the said house No.18D, Pocket A, Dilshad Garden, Delhi was sold by Janki Dass and Ram Devi Khanna after one year when they left India. 3.3.7 During her cross examination by ld.counsel for accused Harbhajan Yadav (A.2) she admitted that the photograph impressions at points A and B in Mark PW.3/X (D2) are black but volunteered that she can recognize from the face that the photo is that of Reena. She deposed that she could not tell if the photo impression appearing at point A & B on mark PW.3/X is the photo CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.21 of 191impression of the photo at point A in Ex.PW.3/A. Thus, it appears that accused Harbhajan Yadav has tried to suggest that the photographs appearing on the application for issuance of original passport in 1999 is the correct photograph of Ms. Reena, appearing on Ex.PW.3/A, which is personal particular form of Ms.Reena, on which her photograph affixed for police verification vide Ex.PW.14/A = Ex.PW.16/B (D.18), which is also the case of CBI.
3.4 PW.4 Ms.Sarita has also deposed about the identity of Ms.Reena whom she knew as Raveena and during cross examination by ld.Public Prosecutor she has stated that she did not know if original name of Raveena was Reena. She identified the proforma for enquiry in passport verification cases CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.22 of 191annexed with police verification report (D.18) and identified her signatures thereon at point A as witness. Proforma for enquiry was accordingly marked as Ex.PW.4/A through which she has certified the particulars of Raveena @ Reena. 3.5 PW.5 Sh.S.C.Tyagi is witness of specimen handwritings/signatures from S63 to S.70 of accused Pankaj Chaturvedi which have been proved as Ex.PW.5/A.1 to A.8. 3.6 PW.6 Sh.Gur Partap Singh is witness of the specimen handwritings/signatures of accused Naieem Safi from S. 1 to S.15 (D.22) which have been proved as Ex.PW.6/A.1 to A.15.
3.7.1 PW.7 Sh.Raj Singh is Suptd. of RPO, New Delhi
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and he stated that he can identify accused public servants in this case. When he was shown passport file bearing No.A039354/98 of Ms.Reena mark PW.3/X he proved the documents in the file and stated that the passport was granted by Sh.Om Parkash, whose signatures he identified at point C on the scanned office copy of passport application form mark PW.3/X. He deposed that passport bearing No.A 6837991 dated 20.01.99 was issued in her name which was dispatched, vide dispatch No.7649 dated 28.01.99 as appearing at point D on mark PW.3/X. 3.7.2 On being shown passport file bearing No.T9167/03 Ex.PW.1/A in the name of Ms.Reena, with the same personal particulars he stated that Ms.Reena had applied for issuance of additional passport booklet, vide an application dated CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.24 of 19131.07.03 under Tatkal scheme. She had enclosed attested copy of her passport bearing No.A6837991 dated 20.01.99 and the passport was issued by Sh.P.K.Kapoor (since expired). He clarified on a court question that the date given for delivery of passport is generally known as promise date.
3.7.3 He was shown passport file bearing No.006833 dated 21.04.04, Ex.PW.1/B in which the passport application registration form of Ms.Reena is at page no.2 wherein old passport No.A 6837991 dated 20.01.99 issued by RPO, Delhi is mentioned. The fact is also mentioned in her application at page 10 of the file Ex.PW.1/B. He identified the signatures of accused Bibianus Toppo (A.1) at point A on page no.10 of Ex.PW.1/B and also stated that vide an endorsement at point A2 on page 10 of Ex.PW.1/B, CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.25 of 191Bibianus Toppo had promised that the passport will be ready by 23.04.04. He deposed that application was processed by Harbhajan Yadav, vide endorsement at point A.1 at page 4 of Ex.PW.1/B and the passport was issued by accused Bibianus Toppo, vide his signatures at point A at page no.4 of Ex.PW.1/B. He deposed that Ms.Reena had enclosed photo copy of passport No.A6837991 dated 20.01.99 instead of copy of additional passport booklet and that she had not mentioned about the issuance of additional passport booklet in her name. 3.7.4 He also stated that original passport is cancelled at the time of issuance of additional passport booklet or reissue of passport. He was also shown passport application registration form file No.Y432 dated 18.06.04, vide which Reena had CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.26 of 191requested for issuance of additional passport booklet on Tatkal basis vide her application at page no.5 of Ex.PW.1/C on which he identified signatures of Bibianus Toppo (A.1) at point A, who promised to issue the passport for 18.06.04, vide endorsement at point A.1 on page no.5 of Ex.PW.1/C. He deposed that additional passport booklet was issued under the orders of Bibianus Toppo (A.1), vide his signatures at point A on page 4 of Ex.PW.1/C and on the basis of said application Ms.Reena was issued passport No.8915831 dated 18.06.04. He stated that in the passport application registration form as Ex.PW.1/C. Ms.Reena had again enclosed photocopy of passport No.A6867991 dated 20.01.99 and did not intimate regarding issuance of additional passport booklet, already issued in her name.
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3.8 PW.8 Sh.Pardeep Kumar Chawla is Director of
M/s Kanu Travel Care Pvt. Ltd. and accused Anil Dhawan was working as Office Assistant in the said company. He had identified specimen writing of Anil Dhawan on Ex.PW.8/A.1 to A.19. 3.9.1 PW.9 Sh.Puran Chand is another official of RPO, Delhi who used to scan the file after receiving the same from tagging Section. He stated that after seeing the file number on the cash receipt, he used to enter the file number in the computer in order to find out the name of the applicant and if the name of the applicant is found in the system, the photographs and the signatures of the applicant on the passport application registration form is scanned by him and put on the computer and it is saved therein against the name of the respective applicant. He stated CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.28 of 191that his employee code number is P514 and from his P number, he could know whether in particular file, scanning work was done by him. He confirmed that he had scanned file No.T6833 already Ex.PW.1/B dated 21.04.04 and file No.Y432 dated 18.06.04 already Ex.PW.1/C. He said that after scanning the file i.e. application registration form, he used to send the file to Index/HIT section in order to retain the records of the passport office. 3.9.2 During cross examination by Ld. counsel for accused No.1 Bibianus Toppo, after seeing the computer record of RPO, New Delhi pertaining to application of Ms.Reena bearing file No.T6833/04 (part of D.15), Ex.PW.9/DA bearing his name at point B, he said that it reflects his name and P number because he had done scanning work in this case.
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3.10.1 PW10/Suman Kumar Sehgal is Superintendent
in RPO, Delhi who, while working in Printing Section of RPO, Delhi used to allot passport number on the basis of the file which was granted by PRO/PIA in passport file, Ex.PW1/A (D3). He identified signatures of Sh. P K Kapoor, Grant Officer at point A in file Ex.PW1/A (D3). He also identified signature of Grant Officer/Bibianus Toppo (A1) at points A in files Ex.PW1/C (D5) and Ex.PW1/B (D4).
3.10.2 He deposed that while working in Printing Section he used to allot the passport numbers on the basis of grant order in the file which was issued by PIA/PRO and said that thereafter the passports were printed in accordance with the CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.30 of 191details mentioned in the concerned files. He clarified that he used to deal with date case and promise case files and stated that date case/promised case means those file in which passport granting officer had given a date for issuance of passport, according to which the passports are timely prepared. He said that after allotment of passport numbers, the booklets were sent to Printing Section.
3.10.3 He identified that passport numbers were alloted in files, Ex.PW1/B, Ex.PW1/C and Ex.PW1/A in his handwriting at point X. He deposed that during the process of allotting the passport number in the files, he used to see the signatures of Granting Officer only and that it was not his duty to check the entries in application form and enclosures of the application, which CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.31 of 191was the duty of the Granting officer to check with the help of dealing assistants. He deposed that PIA/PRO is also required to cross check the application and enclosures before signing the file or before passing the orders for grant of passport. 3.10.4 During his crossexamination by ld.counsel for accused/Bibianus Toppo (A1), he said that he used to deal around 400500 files per day and admitted that there was heavy work load in passport office. He said that the passport numbers can not be allotted without use of computer as the passport numbers are already fed in the computer. He also admitted that by year 2003 Index Section was closed and he was transferred to Printing Section and became Superintendent in the year 2008.
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3.11.1 PW11/Amit Kumar Sharma worked with RPO,
Delhi upto 2006 with employee code as P735, has deposed that while working in Passport Printing Section of RPO, Delhi, he used to receive files with passport numbers mentioned thereon and after receiving the files, Ex.PW1/B and Ex.PW1/C with passport numbers mentioned thereon at point X, he had fed the passport numbers in the computers and then the passport numbers were printed on the passport booklet and after printing the passport the same was sent for pasting, lamination, stamping and signature of the concerned department.
3.11.2 After seeing Ex.PW9/DB and Ex.PW9/DA, he said that he had performed his duties of printing in respect of files, Ex.PW1/B and Ex.PW1/C and after doing that they were sent to CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.33 of 191concerned department for pasting, lamination and signature. 3.11.3 During crossexamination by ld.counsel for accused/Bibianus Toppo (A1), he admitted that the number of files pertaining to issue of additional booklet and miscellaneous services were very high and said that generally the files pertaining to issue of additional passport booklet used to be more than 150 per day. He also stated that previous passport files did not used to come attached with current file for issuance of additional passport booklets.
3.12 PW12/Jeevan Singh, who worked in RPO, Delhi upto 2007 has deposed that he had scanned file Ex.PW1/A and computerized duty chart in this respect is Ex.PW12/A where his CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.34 of 191name is reflected. He said that after scanning these files, the same were sent to concerned section i.e. Detail Entry Section for further action. He also admitted a suggestion during cross examination by ld.counsel for accused/Bibianus Toppo (A1) that previous passport file was not used to accompany or attached with the present application for issuance of additional passport booklet and also admitted that there was heavy work load and pressure in RPO, Delhi.
3.13 PW13/R Swaminathan, Ambassador of Indian at Egypt, Cairo, who was earlier posted at Jt.Secretary, CPV (Consular Passport Visas) and Chief Passport officer, Ministry of External Affairs, New Delhi, has proved the sanction order dated 18.03.08 for prosecution of public servants issued u/s 19(1)(c) of CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.35 of 191PC Act, 1988 as Ex.PW13/A. He also proved another sanction order dated 23.06.08 granting sanction for prosecution of private accused persons u/s 15 of Passport Act, 1967 for commission of offence u/s 12 of Passport Act as Ex.PW13/B. 3.14.1 PW14/Smt.Geeta has deposed on the same lines as PW3 and PW4, who knew Reena @ Raveena residing opposite her house at H.No.18D, Pocket A, Dilshad Garden, Delhi and identified impression of photograph of Reena at Mark PW3/X (D2) and her photograph at Ex.PW3/A (D18). She also deposed that photograph of the ladies affixed in the application forms for issue of additional passport booklets in Ex.PW1/A (D3), Ex.PW1/B (D4) and Ex.PW1/C (D5) are not of Reena @ Raveena.
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3.14.2 During her crossexamination by ld.counsel for
accused/Harbhajan Yadav (A2), she said that she knew name of the lady in photograph at point A in Ex.PW3/A as Raveena as was called by everybody in her house and said that she does not know any other name of Raveena whose photograph was affixed at point A on Ex.PW3/A. 3.15.1 PW15/S P Kothari is Superintendent of RPO, Delhi, who has deposed regarding the procedure followed for issuance of the passport and additional passport booklets. 3.15.2 As regards procedure of additional passport booklets, he said that it can be issued to the existing CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.37 of 191passport holders on the basis of existing passport with same personal particulars and said that additional passport booklet can be issued if the pages in the old passport are full and in case of change of name of passport holder.
3.15.3 He said that prior to year 2001, the passports were issued by manual writing but thereafter particulars on the passports are printed. He deposed that for issuance of additional passport booklet, the applicant is required to furnish a self attested photocopies of first two pages and last two pages of existing passport where the particulars of applicant are entered and he has to fill up passport application form along with application form for miscellaneous services and has to paste two photograph i.e one of the passport application registration form and another on CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.38 of 191miscellaneous service form.
3.15.4 He said that there was a circular issued in the year 2003 by Ministry of External Affairs, wherein it was made clear that additional passport booklet should be issued on the same day or maximum within 3 to 5 days without charging any additional fee under Tatkal scheme. He said that earlier a fee of Rs.1,500/ used to be charged for issue of additional passport booklet but the same was discontinued after the issuance of aforesaid circular on 26.05.03 and said that the applicant is required to pay a nominal fee of Rs.500/ for each additional passport booklet and the expiry of new additional booklet would be the same which is mentioned in the old passport. He further deposed that applicant is also required to submit photocopy of the CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.39 of 191old passport duly self attested by him at the time of filing application for additional passport booklet. He clarified that for issuance of first passport booklet, the applicant is required to furnish photocopy of original existing passport and for issue of second passport booklet, self attested photocopy of first additional passport booklet is required to be submitted with the application form and for issue of third additional passport booklet, the applicant is required to furnish self attested photocopy of second additional passport booklet. He also clarified that self attested copies of original passport is not required in such cases because all the particulars of original passport are entered in the existing additional passport booklet.
3.15.5 He said that signing authority of the passport is
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known as PIA (Passport Issuing Authority), PRO (Public Relation Officer) or Superintendent of the passport office and they are not required to go through the entire passport file in order to ensure that the details of previous passport are available in the file. 3.15.6 He proved circular dated 25.11.97 and 24.06.97 issued by Ministry of External Affairs as Ex.PW15/A & B and said that as per circular dated 25.11.97, Ex.PW15/A, the additional booklet must have endorsement to the effect that holder of passport has previously traveled on earlier passport number along with its date and place of issuance in case of passport holder is holding any VISA.
3.15.7 He said that it has been directed vide circular
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dated 25.11.97, Ex.PW15/A that in case of subsequent passport booklet, detail of the original passport as well as the previous additional booklet may be given.
3.15.8 He said that vide circular dated 24.06.97, Ex.PW15/B, it has been specifically directed to the Passport Office that the old passport should be cancelled and returned to the holder and suitable endorsement regarding old passport is made in the new additional booklet.
3.15.9 He identified that in scanned passport file no.A039354/98 in the name of Reena already Mark PW3/X at page 5 of the file, passport was ordered to be granted by Sh.Om Prakash, the then PRO, whose writing and signatures he identified CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.42 of 191at point C as he had worked with him for a considerable time. 3.15.10 As regards passport file, Ex.PW1/B pertaining to grant of additional passport in the name of Reena, he deposed that he had handed over the same to CBI during investigation and had signed on each page of the file at point C. After seeing the file he said that it was processed by accused/Harbhajan Yadav (A2), the then LDC and he identified his initial and endorsement at point A1, vide which he had written 'may issue additional booklet valid upto 19.01.09 ECR observation of old passport C & R.' He said that this endorsement was made on 22.04.04 by accused/Harbhajan Yadav (A2). He identified initial of accused/Bibianus Toppo (A1) in green ink at point C on internal page Ex.PW14/E and said that accused/Harbhajan Yadav had CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.43 of 191marked the file to PRO, who had subsequently ordered for issuance of additional passport booklet, vide his endorsement at point A on 23.04.04.
3.15.11 The proforma of stamps of RPO appearing at page no.3 which is separately marked Ex.PW14/A in the file no.T6833/04 describe the cancelled and returned old passport number along with space for signatures of counter clerk along with receiving of old passport with space for signatures of applicant, was shown to the witness and witness said that it bears signature of applicant only and the signature of counter clerk ought to be there. He said that the file does not have any remark/endorsement of HIT Section. He was similarly shown other file, Ex.PW1/A which was granted by Sh.P K Kapoor, then CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.44 of 191PRO (since expired) with similar remarks and performance of work by accused/Harbhajan Yadav (A2) on it and file Ex.PW1/C and Ex.PW1/A with the difference that the same were granted by accused/Bibianus Toppo (A1) but similarly dealt by accused/Harbhajan Yadav (A2).
3.15.12 Besides, he had also proved that he had handed over passport booklet bearing no.E6067924, Ex.PW14/L in the name of Reena to CBI along with copies of circulars and notifications. He said that computerized print out of status of applicant Reena having file nos.DLHA03935498, DLHT00916703, DLHT00683304 and DLHY00043204, were handed over to CBI during investigation. He said that these computerized print outs of files of Reena were taken from NIC CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.45 of 191National Informatic Centre) which all bear his signatures/initials at point A and the computerized print out of status of applicant as obtained from NIC bear his stamp and initial at point A. The four pages of print outs are Ex.PW15/C, D, E & F. He said that name of the officials who had discharged their duties during the processing of a particular file for issuance of passport, renewal, additional booklet is used to be stored in the computers of the concerned RPO office. He proved various duties performed by the officials of RPO, Delhi in relation to the files of the present case. 3.15.13 After seeing the print out of data retrieved from the RPO office, Ex.PW15/C to F, he said that if the file number as mentioned in these exhibits is fed in the computer and it is clicked the computer would show the data at its screen. He said that CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.46 of 191Ex.PW15/C does not show any photograph but Ex.PW15/D to F shows the photographs of the passport holders whose names have been mentioned as Reena in all the three print outs of the computer and all the photographs are having different photographs of the passport holders although name, parentage and other particulars are same.
3.15.14 He said that file of particular passport application goes to PIA firstly for taking promise date after the counter clerk check the application and for the second and last time it goes to PIA for grant order after checking and processing is done by all the concerned officials. He said while passing grant order the PIA checks whether the HIT section has made any adverse remarks in the space provided and he also checks the particulars mentioned CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.47 of 191in the existing passport.
3.15.15 He deposed that computers were introduced in the passport office in the year 2001 and the facility of looking in the computer data was made available to all the officials/officers of passport office, Delhi in the year 2001. He said that status of passport applications of previous as well as present, is available on all the terminals of the computers in RPO office since 2001. 3.15.16 He said that request letter used to be received in every case where there was an urgency shown by the applicant for issuance of fresh or additional passport booklet and said that for issuance of passport under Tatkal scheme, such a request is must. He also deposed that in case of issuance of passport under CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.48 of 191Tatkal scheme the separate request is received along with application itself and PIA does not take signature of the applicant nd on the request letter in his presence and the 2 signature of the applicant, is as is appearing at point Q217 on page 10 of passport file, Ex.PW1/A, is obtained by counter clerk when the application for issuance of passport is checked by said counter clerk and the PIA signs on this request letter when he gives promise date. He nd said that the 2 signature as appearing on Q217 is taken by counter clerk on the stamp which is by way of an undertaking by the applicant i.e. ' I undertake to complete to complete all the formalities/documentation before issue of passport' and on this request letter the promise date is given as 05.08.03 at point P1 and signature appearing at point A with date as 31.07.03. The nd request letter is of 31.07.03 and the 2 signature which is CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.49 of 191appearing at Q217 is also of 31.07.03. Photocopy of disclosure memo of accused/Hemant Gandhi has been marked as Ex.PW15/X6 and photocopy of recovery memo has been marked as Ex.PW15/X7. He was also crossexamined by ld.Public Prosecutor with the leave of the court and subsequently he was recalled for his further examination on an application u/s 311 Cr.PC and has proved a certificate u/s 65B of Evidence Act as Ex.PW15/Y. Said certificate has been issued by him in respect of scanned copy of passport file no.E039354 dated 12.11.98 in the name of Reena, scanned copy of which was proved as Ex.PW15/Y1 and deposed that one more scanned copy of the same passport of Reena is already on court record as Mark PW3/X (D2) and the same was marked as PW15/Y3.
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3.15.17 During crossexamination by ld.counsel for
accused/Bibianus Toppo (A1) he deposed that counter clerk used to affix cancelled and returned stamp on the application form for miscellaneous services. The purpose of which was to ensure that old passport is returned to the applicant so that he or she will not dispute later on that his or her cancelled passport was not returned to him or her. He also deposed that filling the number of cancelled passport and putting the initial by the counter clerk in the space provided in the stamp was not in practice in the relevant period. He admitted that details of the existing passport which is enclosed with the application is already mentioned by the applicant in column 4 of the application for miscellaneous services and in the present case also in additional passport files already Ex.PW12/B and Ex.PW1/C and the counter clerk had put the CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.51 of 191cancelled and returned stamp at point X6 and taken the signatures of the applicant at points Q222 and Q234 respectively to indicate that he has performed his respective duty at the counter.
3.15.18 He also deposed that counter clerk also used to put the undertaking stamp on the request letter submitted with the application for additional passport booklet and that the counter clerk also used to take the signatures of the applicant in the space provided in stamp.
3.15.19 After seeing the passport files Ex.PW1/C and Ex.PW1/C, he deposed that in both these files undertaking stamps and the signatures of the applicant are available and in CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.52 of 191both these files all those stamps which the counter clerk was required to affix at the counter, are available. He also admitted that these two files are complete in all respects and required enclosures are enclosed with them.
3.15.20 He admitted that PIA was required to provide the additional passport services to the applicant on the same day or maximum 3 to 5 days as per instructions of Ministry of External Affairs.
3.15.21 He admitted that as per procedure the previous passport file of the applicant was not sent for the perusal of PIA who is dealing with additional passport booklet.
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3.15.22 He also admitted that PIA did not have the facility
in his computer to see the photographs, signatures and old reference of the applicant and there was no machine or instrument which was provided to the PIA to detect the genuine or forged passport or the correctness of the enclosed copy of the previous passport.
3.15.23 He deposed that all the applications for issuance of additional passport booklets are sent for HIT checking and if the HIT Section found any discrepancy or irregularity, they were required to mention the same in the space provided for official use in the file. He admitted that in the files, Ex.PW1/B and Ex.PW1/C, in the space provided for official use, there is no adverse remark/report by HIT Section. He stated that if HIT CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.54 of 191Section makes no adverse remarks and leaves the space for official use blank, then it is presumed that the HIT is clear. He volunteered that without the clearance of HIT Section, passport can not be made and if HIT is not clear then the computer will not generate the passport number in the passport allotment section. He admitted that clearance by the HIT Section is not indicated in the file and only the entries in the computer are made regarding clearance of HIT. He admitted that if the counter clerk/dealing assistant and/or HIT Section or any other section of the RPO, Delhi makes any adverse remarks in any file then the further progress of that file will be stopped and file will be kept for clarification and in other cases where there is positive report/recommendation of the counter clerk/dealing assistant to issue the passport and no adverse remark of the HIT Section or CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.55 of 191any other section then PIA in routine manner can issue the passport.
3.15.24 He admitted that there used to be heavy workload on PIA, who used to receive 100150 applications each for miscellaneous services and for additional passport booklets and was required to render services within same day. 3.15.25 During crossexamination by ld.counsel for accused/Harbhajan Yadav (A2), he after seeing file Ex.PW1/A, Ex.PW1/B and Ex.PW1/C said that the copies of all the documents are there with the application form which the counter clerk is required to check and they are complete with respect to the application form for issuance of additional passport booklets.
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3.15.26 He also deposed that most of the times the
counter clerk in the afternoon session works as the dealing assistant to the concerned PIA (Passport Issuing Authority) and the duty of the dealing assistant was to put up the file to the concerned PIA for grant of passport. There is no adverse remark from the HIT Section on the passport files. He deposed that at point B on page4 already Ex.PW25/A, where it is written as "may issue additional passport booklet valid upto 19.01.09 ECROBS old PPT C & R", same has been written by the dealing Assistant/counter clerkHarbhajan Yadav (A2) when he was performing duties as counter clerk or at the stage when he was doing duty of dealing assistant in the post lunch session. Same was his answer with respect to other two files i.e. Ex.PW1/B and CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.57 of 191Ex.PW1/C. 3.15.27 He deposed that it was not mandatory that the applicant always deposits the application form in person and he could authorize any person to deposit his application form on his behalf.
3.15.28 He also deposed that old file was never accompanied with the application for additional passport booklet at the counter with the counter clerk or in the post lunch session with the dealing Assistant.
3.15.29 During his crossexamination by ld.counsel for accused/Ram Chander (A3), he deposed that he had handed CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.58 of 191over the document Ex.PW15/X3 (D10) to CBI which bear his signature at point A. He deposed that in the year 2002, the photograph of the applicant was not reflected in the computer system but he could not say if in year 2003 the photograph of the passport holder/previous applicant of passport was available at the computer system for verification and volunteered that office of NIC could be in better position to tell all these facts as it is the duty of NIC to maintain data base in the computer system of RPO. 3.15.30 During his crossexamination by ld.counsel for accused/G D Joshi (A4) and R S Rawat (A5), he deposed that delivery of the passport could be made to the applicant as well as his authorized representative. He admitted that there is no designated post of the official who has to deliver the passport and CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.59 of 191volunteered that the official who is assigned the duty for delivering passport, deliver the same. He stated that there is no record maintained in RPO, Delhi to show as to who was the official on duty on a particular day to deliver the passports. He stated that from judicial record, he could not find any document or endorsement to show that the delivery of passport in this case was made by accused/G.D.Joshi (A4) and R.S.Rawat (A5). 3.16 PW16/Sumer Singh is ACP of Delhi Police, has deposed about the procedure regarding verification of antecedents of the applicant for issuance of passport. He proved that the enquiry in passport verification case in the name of Reena d/o Janki Dass Khanna received from RPO, Delhi, after verification done by ASIMange Ram of Special Branch whose verification CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.60 of 191report is Ex.PW16/A. He was not crossexamined by any of the accused persons.
3.17 PW17/Suman Jyoti has proved that scanned copy of passport application form already mark PW.3/X in the name of Reena d/o Janki Dass Khanna in file No.A039354, his writing is appearing at point A which denotes that the passport number issued to the applicant bearing No.A6837991. She also identified her initial at the stamp at point B which denotes that she had written the detail of applicant in the original passport booklet. She deposed after seeing file Nos.T006833 of 2004, T009167 of 2003 and Y000432 of 2004 pertaining to passport application registration forms, all in respect of Reena d/o Janki Dass Khanna, said that these documents were submitted along with photo copy CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.61 of 191of previous passport of Reena but these photocopies annexed aforesaid three application forms do not bear her writing. She was also not crossexamined by any of the accused persons. 3.18 PW18/Samresh Magon has proved specimen signatures from S48 to S62 of accused/Amit Khatri as Ex.PW18/A (D25) but he could not identify accused/Amit Khatri. 3.19 PW19/Yogesh Kumar Kaushal has proved specimen signatures from S36 to S47 of Ms.Shweta Dhawan as Ex.PW19/A and stated that he along with Sh.Puran Singh of his office become witness such writings. He was not crossexamined by any of the accused persons.
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3.20.1 PW20/Gurinder Singh Walia has deposed that
he is running a travelling agency in the name and Style Jas Air at 7/60, South Patel Nagar, First Floor, New Delhi which is a partnership firm running since 2002. He deposed that prior to this, he was running a company under the name and style of Kanu Travels Care Pvt. Ltd since 1991 in which he was one of the directors. He deposed that accused/Anil Dhawan was his employee when he was running the company Kanu Travels and after closure of that company when he opened new firm in the name & style of Jas Air and he took him (Anil Dhawan) in employment of his firm/Jas Air which is into the business of issuing domestic as well as International Air Tickets and provide assistance in getting visa and issuance of passports. He deposed that Anil Dhawan used to deliver the tickets to the clients, collect CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.63 of 191the payments and used to go to the embassies and passport office for getting visa and passports for the clients which was part of his employment. He also deposed that Anil Dhawan used to make entries in the day book with regard to the payment received and then deposited in the bank and he also used to fill up passport forms as well as visa forms.
3.20.2 He deposed that he can identify the handwriting of Anil Dhawan as he had worked very long with him till year 2004 when raid was conducted by CBI.
3.20.3 After seeing file, Ex.PW1/B (D4) in the name of Reena, he identified handwriting of Anil Dhawan on the passport application registration form encircled in RED, Q220 which is CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.64 of 191already Ex.PW14/D, Q223, Q224 & Q.226 on document already exhibited as EX.PW14/E. However, he was not sure about writing at Q.225 which is signature in the name of Reena on document Ex.PW.14/E. He was also not sure who had signed at point Q.230 on document Ex.PW.20/A (D.4 page 10). 3.20.4 He was shown file Ex.PW1/C (D5) in the name of Reena and he identified handwriting of Anil Dhawan on the passport application registration form encircled in RED at Q232 on document Ex.PW14/A. He also identified handwriting of Anil Dhawan at points Q235, Q236 & Q238 on document already Ex.PW14/B. He also identified writings of Anil Dhawan at Q240 on request letter, Ex.PW.20/B (D.5, page 5).
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3.20.5 As regards signature in the name of Reena at
point Q.231 on Ex.PW.14/A, it appears to be written by Anil
Dhawan but he was not sure about it. He deposed that the writing portion on Q.233 on Ex.PW.14/B was written by Anil Dhawan and signature as Reena below it appears to be in his handwriting but he was not sure about it.
3.20.6 As regards signatures as Reena at points Q.234, Q.237 & Q.239 on Ex.PW.14/B, he said that they appear to be written by Anil Dhawan but he was not sure about it. After seeing the signatures as Reena at point Q.241 & Q.242 on Ex.PW.20/B, he said that same appears to be written by Anil Dhawan but he was not sure about it.
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3.20.7 When he was shown original delivery register of
the passport for the period 01.04.04 to 09.07.04, true photocopy of the same is Ex.PW.20/C,he identified writing at point Q.18 on said page which is of Anil Dhawan and said writing was marked from point A to A on Ex.PW.20/C. He could not identify writing at point Q.16 on the copy of original delivery register, Ex.PW.20/D, even after seen original in CC No.74/08.
3.20.8 On being shown, the original delivery register for the period 02.01.03 to 11.09.03 (D.46) which register is available in CC No.25/09 in original and the copy of the relevant page is Ex.PW20/E, he said that writing at point Q.3 from point A to A on said page which is of Anil Dhawan but he could not identify the writing from point B to B on the same page with certainty, although CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.67 of 191he stated that it appears to be in the handwriting of Anil Dhawan. 3.20.9 He was shown original day book available in CC No.08/12, photocopy of 9 pages of which is Ex.PW25/C. After seeing the same, he said that this day book was written by him as well as his employee/Anil Dhawan and all pages of the day book, Ex.PW.25/C are written in the handwriting of Anil Dhawan. The passport application of Ms.Kanu Priya Gombar available in CC No. 08/12 was also shown to him and he proved a copy thereof as Ex.PW.25/C1 identifying that portion encircled in A.18, A.19, A.20 & A.21 on Ex.PW.25/C1, are in the handwriting of Anil Dhawan and immigration application of Ms.Padmini Malpani available in original in CC No.08/12 had also shown to him, copy of which was marked as Ex.PW25/C1 in this case, on which he had identified CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.68 of 191the writings of Anil Dhawan at portions encircled in A.22 & A.23 on Ex.PW.25/C1.
3.20.10 He was crossexamined by ld.counsel for accused/Anil Dhawan (A6) and Naieem Saifi (A8) and during his crossexamination, he said that he had not provided any proof to the CBI that Anil Dhawan was working as employee in his firm. However, he volunteered that he used to pay salary to Anil Dhawan through cheque. He said that he had no other staff except Anil Dhawan. He admitted that he used to prepare tickets on his own and in case he is not there, Anil Dhawan used to do all work for running his business. To a specific question, he replied that usually Anil Dhawan used to do all this filling of form etc. on his own but some times he used to fill up forms in his presence CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.69 of 191also. He admitted that all the forms which have been shown to him in the court were not filled in his presence. A copy of search list prepared for search conducted by CBI at the house of Sh.Gurinder Singh Walia has been put to him as Ex.PW20/DA, in which he was shown that entry no.11 of the search list specifies the seizure of his day book. He admitted that this day book also contains his own handwriting. The original of the said day book was shown available in another CC No.08/12 pending trial in this court.
3.21.1 PW21/Smt.Mithlesh Soorma is yet another witness of verification in respect of original passport issued in the name of Reena in 1999. She has stated that she along with her family used to reside at 17/C, Pocket A, Dilshad Garden, Delhi CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.70 of 191since 1992 and she knew Ms.Reena as she was residing with her family at H.No.18D, Pocket A, Dilshad Garden, Delhi and they were using the same staircase.
3.21.2 She stated that Reena was also called by the name of Raveena. She was also shown the file regarding issuance of additional passport booklet, Ex.PW1/A (D3), Ex.PW1/B (D4) and Ex.PW1/C (D5) and after seeing the photograph appearing thereon she stated that the person who is appearing in these photograph is not Reena. She was also shown file Ex.PW3/X (D2) which is scanned file where she has identified address of Reena @ Raveena. She has also identified photo copy of ration card annexed with this application.
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3.21.3 She was also shown proforma of enquiry in
passport verification cases Ex.PW.14/K = Ex.PW.16/B (D.18), the internal page no.3 of which is Ex.PW.4/A and she identified that her handwriting is appearing at point B as witness and she said that Reena @ Raveena wanted to go abroad for treatment of her younger brother who was abnormal. She was also shown personal particular form at internal page no.6, Ex.PW.3/A and she identified photograph of Reena @ Raveena at point A thereon. She was not crossexamined by any of the accused persons and thus her testimony is not disputed.
3.22.1 PW22/Ajay Gautam is Scientist, Gr.C, who was posted at RPO, Delhi. He deposed that during his posting with RPO, Delhi, he was responsible for operational support and CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.72 of 191maintenance of passport server. He said that scanning of the photographs and signatures of the passport applicants was started in RPO, Delhi in May, 2000 and HIT checking system for seeing the signature and photograph along with details of the previous applicants and old details of passports already issued, on the computer system of RPO Delhi was started in August, 2002. He said that in August, 2002 only one computer (PC) was provided at HIT Section for HIT checking of TATKAL cases and in April, 2004, all PCs in HIT Section were provided with the facility of seeing the photograph, signatures and other details of the old passport holders and applicants.
3.22.2 He also proved computer generated sheets, Ex.PW15/G, Ex.PW12/A, Ex.PW9/DA and Ex.PW9/DB and said CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.73 of 191that these are correct copies generated from the computer directly and he had provided the same to Sh.I M Sabharwal, Superintendent for handing over the same to CBI. He also proved a certificate u/s 65B of Indian Evidence Act (D19) and said that the same is correct copy of the certificate given by him and the same has been proved as Ex.PW22/A. 3.22.3 He proved the computer processing sheet, Ex.PW15/G (D15/1) showing that passport no.A6837991 was issued in the name of Reena on 12.11.98, registration of which was done by Sh.T R Sachdeva, detail entry was done by Ms.Mamta, file was granted by Sh.Om Parkash on 18.01.99, passport was printed by Mrs.Suman Jyoti on 20.01.99 and dispatched by Sh.Sher Singh on 28.01.99.
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3.22.4 After seeing Ex.PW12/A (D15/1) which is
computer processing sheet in respect of passport no.E6067924 issued in the name of Reena, its registration was done by Sh.G D Joshi on 31.07.03, scanning was done by Sh.Jeevan Singh, detail entry was done by Sh.Tara Dutt, passport allotment was done by Sh.S K Sehgal on 05.08.03, file was granted by late P K Kapoor on 05.08.03 and the passport was promised by late P K Kapoor on 05.08.03.
3.22.5 After seeing Ex.PW9/DA (D15/1) which is computer processing sheet in respect of passport no.E8585349 was issued in the name of Reena, that its registration was done by Sh.R S Rawat on 21.04.04, scanning was done by Sh.Puran CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.75 of 191Chand on 22.04.04, detail entry was done by Sh.Tara Dutt on 22.04.04, HIT Check was done by Sh.Ram Chander on 23.04.04, file was granted by Sh.Bibianus Toppo on 23.04.04 and file was promised by Sh.Bibianus Toppo on 23.04.04 by using their log in IDs.
3.22.6 After seeing Ex.PW9/DB (D15/1) which is computer processing sheet in respect of passport no.E8915831 issued in the name of Reena. Its registration was done by Sh.R S Rawat, scanning was done by Sh.Puran Chand, detail entry was done by Sh.Tara Dutt, HIT Check was done by Sh.Ram Chander on 18.06.04, file was granted by Sh.Bibianus Toppo on 18.06.04 and he promised the passport by using their log in IDs.
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3.22.7 During his crossexamination by ld.counsel for
accused/Bibianus Toppo (A1), he stated that only HIT Section of RPO Delhi had the facility to check the photograph, signature of the applicant and previous passport details. He said that HIT suspected list generated by the server was never sent to the PIA. He admitted that in the relevant year there was no facility with PIA to verify the photograph, signature and old references of the applicant and this facility was provided to PIA/Superintendent from October, 2006. He said that in the present case three additional passport booklets were issued as the HIT Check was done and the same were cleared. He also clarified that unless HIT is clear the passport number can not be generated by Passport Allotment Section and if the official sitting in Passport Allotment Section tries to generate the passport number and HIT is not clear the CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.77 of 191computer will show a remark that HIT is not clear. He also admitted that like HIT check without the clearance of PAC (Prior Approval Category) passport number can not be generated. 3.22.8 To a specific question put by ld.counsel for accused/Ram Chander (A3), he stated that in the HIT Section, one PC was made available since August, 2002 with facility to see the signatures and photograph with details of old passport issued by RPO but he could not say if Ram Chander was not working on the said PC when he cleared the HIT. However, he stated that April, 2004 onwards all the PCs in HIT Section were having this facility. He also stated that when employee who happens to be on leave, has disclosed his login ID and password to some other colleague, it is possible that the person knowing his login ID and CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.78 of 191password, may clear HIT by using the same.
3.23 PW23/Gopesh Chand Chatturvedi is father of accused/Pankaj Chatturvedi, who has identified him in the court. 3.24 PW24/Bhagat Ram is FSO, circle no.63, Seemapuri, New Delhi, has verified the genuineness of scanned copy of ration card bearing no.449574 mark Ex.PW7/X (Page no.7 of D2). He was also not crossexamined.
3.25 PW25/B A Vaid is Handwriting Expert working as Government Examiner of Questioned Documents (GEQD), Shimla, who had examined documents in this case and given his report. Besides, proving the documents examined and compared CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.79 of 191by him he proved his opinion report as Ex.PW25/D, which is originally available in CC No.24/09 pending in this court. The reasons for opinion has been proved as Ex.PW25/E. He was crossexamined by ld.counsel for accused/Anil Dhawan (A6) and Naieem Saifi (A8) and Harbhajan Yadav (A2) but nothing material came out in his crossexamination.
3.26.1 PW26/I M Sabharwal is Assistant Passport Officer has also been examined with respect to proof of certain documents which he had supplied to CBI.
3.26.2 During his crossexamination by ld.counsel for accused/Bibianus Toppo (A1), he admitted that whenever an application for additional booklet was made to the passport office, CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.80 of 191the previous passport file was not sent for the perusal of PIA. He also admitted that work load and work pressure was very heavy in RPO, Delhi and under such circumstances it was not possible for PIA to go through the file throughly and oversight was possible. 3.26.3 During his crossexamination by ld.counsel for accused/G D Joshi (A4) and R S Rawat (A5), he stated that name of the official who had delivered the passport in this case, is not mentioned in the documents proved by him in the court and there was no designated post in RPO, Delhi for delivering the passports. He also deposed that names of G D Joshi and R S Rawat as officials delivering the passports are not mentioned in any of the print outs. He admitted that delivery of passport was used to be a team work and any member of the team could deliver CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.81 of 191the passport. He admitted that in delivery register, name of the official, who had delivered the passport, is not mentioned. 3.27.1 PW27/R K Aggarwal, SP, CBI then posted as DSP and additional SP in SCII Branch of CBI, New Delhi has proved that during investigation of passport fraud case vide RC Nos.2 to 4(A)/04/SCII/New Delhi, certain passports and other incriminating documents were recovered u/s 27 of Evidence Act at the instance of accused/Hemant Gandhi and during investigation of the case, some passports were handed over by him to Sh.A K Tripathi, Inspector, CBI, who is IO of this case through handing over/taking over memos as the same were required by him in this case.
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3.27.2 He proved the receipt memo dated 03.02.05,
original of the same is available in CC No.24/09, Ex.PW27/A (D6) for handing over the documents to Sh.A K Tripathi vide memo, Ex.PW3/X. 3.27.3 He stated that he had also handed over passport no.E6067924 dated 05.08.03 in the name of Ms.Reena to IO of the case/Sh.A K Tripathi vide memo Ex.PW27/A and same was marked Ex.PW27/B. Said passport was handed over by him to Sh.A K Tripathi, IO of the case vide Ex.PW14/L. 3.28 PW28/Sh.A K Tripathi has been examined as IO of the case, who has proved entire investigation of the case including FIR of the case as Ex.PW28/A (D1).
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors. Page No.83 of 191 4.1 Entire evidence was put to accused persons u/s 313 Cr.PC which has been denied by them. Accused/Bibianus
Toppo (A1) has stated that he has not committed any offence and allegations of conspiracy made against him are false and incorrect.
4.2 Accused/Harbhajan Yadav (A2) besides denying incriminating material said that during relevant period, counter clerk was not having the facility in the computer to see the photograph and signature and old references of the applicant and he was not having any instrument or machine to detect the correct enclosures of previous passport. He stated that during relevant period, he used to work as counter clerk in morning session and CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.84 of 191had to work as dealing assistant in post lunch session and the work load was too much and services were required to be rendered within a short time period and that he has been falsely implicated in this case.
4.3 Accused/Ram Chander (A3) besides denying entire incriminating material against him, has stated that he has been falsely implicated by CBI and witnesses were interested and planted by CBI for strengthening their false case. 4.4 Accused/G D Joshi (A4) and R S Rawat (A5) have also denied entire incriminating material against them and stated that no one had deposed that they had delivered the passports in question.
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4.5 Accused/Anil Dhawan (A6) has denied
incriminating evidence put to him and stated that he has been falsely implicated by CBI to save witness/Gurinder Singh Walia from whose possession incriminating documents i.e. foreign currency, blank letter head and passport of his partner's daughter etc were recovered by CBI, who was promised by CBI officials that he would be let off if he deposed as per wishes of CBI. He stated that he was called by CBI and made accused by leaving Gurinder Singh Walia as per promise made by CBI. He also stated that he was just a poor employee of Gurinder Singh Walia and has been made a scapegoat by him.
4.6 Accused Pankaj Chatturvedi, Naieem Saifi (A8)
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and Amit Khatri have similarly denied incriminating evidence levelled against them and stated that they are innocent and falsely implicated by CBI.
4.7 None of the accused persons led defence evidence despite opportunity granted, except exhibition of two documents by ld.counsel for accused/ Bibianus Toppo (A.1), which are certified copy, taken from court record as Ex.D1 and D2. 4.8 I have heard ld.Public Prosecutor for CBI and ld.counsels for the accused persons and perused the records carefully.
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SANCTION FOR PROSECUTION OF ACCUSED PERSONS
5.1 The sanction for prosecution of accused public
servants u/s 19 of P.C. Act and sanction of private accused persons u/s 15 of Passports Act, 1967 were placed on record with charge sheet by the CBI. The sanction for prosecution of public servants u/s 19 of P.C.Act has been proved as Ex.PW.13/A and sanction for prosecution of private accused persons u/s 15 of Passports Act has been proved as Ex.PW.13/B by examining Sh.R Swaminathan (PW13).
5.2 It has been submitted by Ld. Counsel for accused Bibianus Toppo (A.1) that sanction for prosecution of accused Bibianus Toppo (A.1) who worked with RPO, New Delhi as Passport Issuing Authority (PIA) is not proper and hence his CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.88 of 191prosecution in this case is void abinitio. He has submitted that sanctioning authority did not apply its mind and hence sanction for prosecution is unlawful due to non application of mind by the sanctioning authority. He has also submitted that only an officer of the rank of Additional Secretary of Ministry of External Affairs, was empowered to pass a sanction order u/s 19 of PC Act in respect of accused Bibianus Toppo (A.1) who was of the rank of Supdt., in Passport Office and hence PW.13 Sh.R.Swaminathan, Joint Secretary, then working as CPV & CPO was not authorized to grant sanction for prosecution of accused Bibianus Toppo (A.1). 5.3 When Sh.R.Swaminathan was examined as PW. 13, he clarified that authority for sanction of prosecution u/s 19 of P.C.Act in respect of Bibianus Toppo, the then Suptd., was vested CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.89 of 191with Additional Secretary (Administration & CPV), who was competent to accord sanction for his prosecution and accordingly his approval was obtained. He has deposed that entire file including the statements of witnesses, investigation report and copies of documents were forwarded to AS (AD) & CPV for his perusal and necessary action and on receipt of his approval on the file, he (PW13) had signed the sanction order Ex.PW.13/A. 5.4 Accused Bibianus Toppo was given full opportunity to cross examine PW13 and if at all he had any doubt regarding nonexistence of any such sanction on the file by AS (AD) & CPV, who was competent to grant sanction for his prosecution, he could call for the records from the Ministry of External Affairs to show to the contrary. Sanction order Ex.PW.
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.90 of 19113/A is an exhaustive order which itself speaks as to what documents were seen by sanctioning authority and under what circumstances the sanction for prosecution of accused public servants has been given. Accordingly, I find that the same is well reasoned order which reflects that the sanction has been granted by the authority competent to pass such an order after due application of his mind.
5.5 The sanction order u/s 15 of Passport Act, 1967 has been proved by Sh.R.Swaminathan as Ex.PW.13/B and in respect of this sanction order he was competent authority. The sanction for prosecution u/s 15 of Passport Act speaks of the reason for grant of sanction that three additional passport booklets, in the name of Ms.Reena having photographs of different CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.91 of 191persons with similar personal particulars as of original passport holder named Ms.Reena, in order to facilitate other persons to travel abroad or for making attempts to travel abroad on forged travel documents, were obtained by accused Anil Dhawan, Naieem Safi, Amit Kumar Khatri and Pankaj Chaturvedi, knowingly in conspiracy with officials of RPO, Delhi. There is no infirmity or illegality in this order also which is a reasoned order based on the documents produced before competent authority. I accordingly hold that the sanction for prosecution of accused persons u/s 19 of PC Act and u/s 15 of Passport Act has been duly accorded by competent authority.
5.6 Now I proceed to discuss and examine the role of accused persons in the light of evidence available against each of CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.92 of 191them.
ROLE OF ACCUSED NO.1 BIBIANUS TOPPO 6.0 It has been submitted by ld.Public Prosecutor for CBI that accused Bibianus Toppo was posted as Suptd. in the office of RPO, New Delhi and was Passport Issuing Authority (PIA) and it was he who had forged the passports by signing as PIA whereby two passport booklets vide passport applications in the files Ex.PW.1/B & 1/C were issued in the name of Ms.Reena with photographs of two different ladies although the other particulars of the lady Ms.Reena were same on the basis of which the original passport was issued to her in file Ex.PW.15/Y.3 = Mark PW.3/X (D2).
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6.1 She has submitted that the duty of accused
Bibianus Toppo as PIA was to cross check the entire facts mentioned in the applications Ex.PW.1/B & 1/C and then grant passport but he signed the passport booklets without taking such care. She has also drawn attention of the court to the fact that PW.7 Raj Singh has identified accused Bibianus Toppo and other public servants who had dealt with the matter of issuance of passports in file Ex.PW.1/A, 1/B & 1/C. She has submitted that the act of accused Bibianus Toppo was intentional act in issuing two additional passport booklets in file Ex.PW.1/B & 1/C with different photographs of the ladies which were not of actual Ms.Reena,to his knowledge.
6.2 Ld.Public Prosecutor has then submitted that
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although identity of ladies whose photographs are affixed on the passport applications for additional booklets in the files Ex.PW.1/A, 1/B & 1/C are not established but PW.3/Smt.Uma Kapoor, PW. 4/Ms.Sarita, PW14/Smt.Geeta and PW21/Smt.Mithlesh Soorma have sufficiently proved that the photographs affixed on these application forms, on the basis of which additional passport booklets were issued, are not of Ms.Reena whose personal particulars are given in these application forms as also the original passport which was issued to her in the file Ex.PW.15/Y.3 = Mark PW.3/X. Ld.Public Prosecutor has drawn attention of the court to section 15 of the Indian Evidence Act and submitted that when there is a question before the court that whether the act was accidental or intentional, or done with particular knowledge or intention, the fact that such act forms part of a series of similar CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.95 of 191occurrence, in each of which the person doing the act was concerned, is relevant. The legal position as argued by ld.Public Prosecutor cannot be faltered with as accused Bibianus Toppo has granted and signed the additional passport booklets in files Ex.PW. 1/B & 1/C. But mere this fact does not lead to the conclusion that he had done this intentionally or with knowledge that the two additional passport booklets were being got issued with the photographs of impostors and not of Ms.Reena.It is even the case of the prosecution that in the file Ex.PW1/A,vide which 1st additional booklet was issued,PIA was one MR.P.K.Kapoor and not accused Bibianus Toppo.This fact also raises adoubt as to whether there was lack or failure of system and procedure which was used by unscrupulous staff and private persons,irrespective of the fact as to who was PIA.
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6.3 The ld.Defence Counsel has taken the court
through the evidence recorded in this case to support his claim that accused Bibianus Toppo is innocent. He has submitted that PIAs were not having the facilities in their computer to see the photographs, signatures and old references of the applicants. He has further submitted that alongwith the file for issuance of additional passport booklet, the previous passport file of the applicant was not sent for perusal of PIA and the PIA was not having any instrument or machine to detect whether the correct enclosures of the previous passport, have been placed with the passport application for issuance of additional passport booklet.
6.4 He has drawn attention of the court to the
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statement of PW.7 Raj Singh who had also worked as PIA in RPO, New Delhi. Sh.Raj Singh has stated during his cross examination that 'as per the procedure the previous passport file of the applicant was not sent for perusal of PIA who is dealing with additional passport booklet. In the relevant period PIAs did not have the facility in their computer to see the photograph and signatures and old references of the applicant. No instrument or machine was provided to PIA to detect the genuine or forged passport. Similarly no instrument or machine was provided to PIA to detect the correct enclosures of previous passport. The promise date or delivery date given by PIA is subject to clearance of HIT Section. If the HIT Section find any discrepancy or irregularity they were required to mention the same in space provided for office use in the file.' CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.98 of 1916.5 He has then drawn attention of the court towards statement of PW.15 Sh.S.P.Kothari who had worked as Supdt. and PIA in RPO, New Delhi. He has stated during his cross examination that 'it is correct that as per the procedure the previous passport file of the applicant was not sent for perusal of PIA who is dealing with with additional passport booklets. It is correct that in the relevant period the PIA was not having the facility to see the photographs and signatures and old references of the applicant. No instrument or machine was provided to PIA to detect the genuine or forged passport booklet. It is further correct that no instrument or machine was provided to PIA to detect the correctness of enclosures of previous passport booklet.' CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.99 of 1916.6 Sh.S P Kothari has admitted that the applications for issuance of additional passport booklets are sent for HIT checking and if HIT Section found any discrepancy or irregularity they were required to mention the same in the space provided for official use in the file and that there is no adverse remark made by HIT Section in file Ex.PW.1/B & 1/C. He has also clarified that without clearance of HIT Section, passport cannot be made and if the HIT is not clear then the computer will not generate the passport number in the passport allotment section. He also stated that clearance by HIT Section is not indicated in the file and only the entries in the computer are made regarding clearance of HIT. 6.7 Then the ld.defence counsel has drawn attention of the court towards statement of PW.22/Sh.Ajay Gautam, who CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.100 of 191also deposed during his cross examination that only HIT Section of RPO, New Delhi had the facility to check the photograph and signatures of the applicant and previous passport details and the HIT suspected list generated by the server was never sent to PIA. He admitted that in the relevant year there was no facility with PIA to verify the photograph, signatures and old references of the applicant. He stated that this facility was provided to PIA/Suptd. from October, 2006. It is also deposed by him that in the present case three additional passport booklets were issued as the HIT check was done and the same was clear. He also stated that unless HIT is clear, the passport number cannot be generated by Passport Allotment section and if the official sitting in passport allotment section tries to generate the passport number and HIT is not clear, the computer will show a remark that HIT is not clear.
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6.8 He has also drawn attention of the court to the
statement of PW.7 Raj Singh to the fact that a passport file is sent to PIA only when it is complete and a discrepant file is rejected at the counter itself. PW.7 Raj Singh has also stated that where a promise date is given, it means that the passport will be delivered on that particular day which is given by PIA subject to clearance given by Hit Section and completion of other formalities. 6.9 Ld.counsel has drawn attention of the court towards files Ex.PW.1/B & 1/C visavis testimony of PW.7 Raj Singh & PW.15 S.P.Kothari to the effect that all the relevant stamps i.e.Tatkal fee stamp, cancellation and return stamp and undertaking stamp were affixed on the applications for issuance of CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.102 of 191additional passport booklets in file Ex.PW.1/B & 1/C and they were complete in all respect. He has also drawn attention of the court towards statement of PW.7 Raj Singh & PW.15 S.P.Kothari to the effect that the promise date was correctly given in the files Ex.PW. 1/B & 1/C by accused Bibianus Toppo as per the time frame given by Ministry of External Affairs vide its guidelines/circulars. 6.10 Ld.Counsel for accused has submitted that as per practice and procedure followed in RPO, New Delhi, during the relevant period, at the stage of passing grant order, when there is positive report/recommendation of counter clerk/Dealing Assistant to issue the passport and no adverse remark has been made by HIT Section or any other section, then PIA, in a routine manner, will issue the passport. He has drawn attention of the court CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.103 of 191towards the file Ex.PW.1/B & 1/C to show that there is no adverse remark in the space provided 'for official use' in any of these files, hence accused Bibianus Toppo, acting as PIA at that time, took the file as complete in all respects and passed grant order as there was nothing to doubt his subordinate staff.
6.11 He has drawn attention of the court towards the testimony of PW.7 Raj Singh, PW.15 S.P.Kothari and PW.26 I.M.Sabharwal to the effect that they have testified that the work load of PIAs used to be very high and it was not possible for PIAs to go through the file thoroughly and as such due to the lack of time with PIA, the mistake was very much possible, but it was not an intentional act on his part.
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6.12 He has submitted that as per deposition of PW.7
Raj Singh, PW.15 S.P.Kothari and PW.26 I.M.Sabharwal vide circulars issued by Ministry of External Affairs, Ex.PW.13/DA, 13/DB, 13/DC, PIAs were directed to provide additional passport booklets and miscellaneous services to the applicants within maximum 3 to 5 days. He has submitted that besides these two files, Ex.PW1/B and Ex.PW1/C which do not disclose any unfair act on the part of accused Bibianus Toppo, there is no material on record to connect accused Bibianus Toppo to any other act giving rise to inference of his involvement in conspiracy of any kind in issuance of additional passport booklets in the name of Ms.Reena with different photographs.
6.13 Ld.Public Prosecutor has relied upon testimony
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of PW.9 Puran Chand who has deposed that 'it was not his duty to check the entries in the application form and enclosures of the application while allotting passport number in the files, which was the duty of granting officer to do so with the help of Dealing Assistant.' He has deposed that PIA/PRO is also required to cross check the application and enclosures before signing the file or before passing the order for grant of passports. In fact from testimony ofPW.9 Puran Chand,it is not clear,as to whether he ever worked as PIA during relevant period, whereas PW.7 Raj Singh, PW.15 S.P.Kothari & PW.26 I.M.Sabharwal had worked as Suptd. and PIA in RPO,New Delhi during the relevant period, who have categorically stated that the files of previous passport application did not use to accompany the file for issuance of additional passport booklet and that the PIA, during the relevant CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.106 of 191time i.e. prior to 2006 had no facility to see the photographs, signatures and details of previous passport applications.Hence it would not be appropriate to conclude that PIA/PRO could cross check the applications and enclosures with the details of the applicant as available in the file vide which original passport was issued. In fact non of the witnesses,as examined by CBI, could say that there was any lapse on the part of Bibianus Toppo,to draw an inference of intention, knowledge or motive on his part. Rather,it has been established that the burden of work on PIAs was so high that it was practically impossible for them to cross check,verify and thoroughly see the file before passing grant order. Under such circumstances he was left with no other option but to depend on his subordinates who processed the files.
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6.14 Ld.defence counsel for accused/Bibianus Toppo
(A1) has rightly relied upon judgment of Shudhdeo Jha Utpal Vs. State of Bihar, AIR 1957 SC 466 in which when it was contended by accused that he did not consciously make a false representation and, in accordance with practice obtaining, signed the applications placed before him by his subordinate staff as a matter of routine, and, therefore, under the said circumstance no culpability should be attached to his action because he had not done it with any criminal indent. Supreme Court had held, "taking, into consideration fact of the ordinary run of official business in concerns like once in which the accused was the General Manager, the prosecution has not been able to prove that he appended his signatures on the applications knowing or having reasons to believe that the contents contained therein were false.
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Page No.108 of 191It is the duty of the prosecution to prove affirmatively that the accused knew that the representations made are false and not in the absence of circumstances from which it can be gathered that any such knowledge can be imputed to the accused. It is a case in which benefit of reasonable doubt should be given to the accused." (Para 7 of judgment).
6.15 During crossexamination of PW15/S P Kothari, ld.defence counsel for accused/Bibianus Toppo (A1) had put to him the certified copies of additional passport booklet issued in the name of Sh.Jagbir Singh Dua as Ex.PW10/DA in which grant order was passed by Sh.Y K Kaushal, the then PIA. The applicant had enclosed copy of his previous passport booklet no.Z041532 and on the basis of this application, the applicant was issued CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.109 of 191additional passport booklet no.E3946952. He admitted that if the applicant in future, after this application, applied for another additional passport booklet, then he had to enclose the copy of passport no.E3946952. He was then shown certified copy of passport file for issuance of another additional passport booklet in the name of Sh.Jagbir Singh Dua in file no.T6465/G4, marked Ex.PW10/DB and he deposed after seeing the same that applicant had enclosed copy of his earlier passport no.Z041532 and in this file delivery date was given by PWS P Kothari himself and the grant order was passed by accused/Bibianus Toppo, the then PIA. After seeing both the certified copies of file, Ex.PW10/DA and Ex.PW10/DB, he (PWS P Kothari) clarified that applicant had enclosed the copy of passport booklet bearing no.Z041532 in both these files. Then he also admitted that as CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.110 of 191PIA, there is no fault on his part when he had given promise date in additional passport file, Ex.PW10/DB because due to lack of any instrument or machine or computer facility, he was not aware that the applicant had again enclosed copy of the same passport. He admitted that no departmental enquiry is going on against him with respect to the file Ex.PW10/DB.
6.16 Similarly, he proved the certified copies of additional passport files in the name of Sh.Vinod Kumar Gupta as Ex.PW15/DA in which the promise date and grant orders were passed by Sh.U S Lingwal and Sh.U S Lingwal had signed the passport. He was then shown the certified copy of the additional passport booklet issued in the name of Sh.Vinod Kumar Gupta, Ex.PW15/DB in which the promise date was given by Sh.P K CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.111 of 191Kapoor and grant orders were passed by Sh.U S Lingwal and passport was signed by him (S P Kothari) under similar circumstances, but no action was taken against any of them. 6.17 Similar is the case of issuance of passport booklets in the name of Ms.Alka Gupta, certified copy of the files in respect of which are Ex.PW15/DC and Ex.PW15/DD in which Sh.U S Lingwal and Sh.P K Kapoor had passed the grant order under similar circumstances. He admitted that no departmental enquiry was initiated against Sh.U S Lingwal. He was confronted with certified copies of other passport files in which additional passport booklets have been issued to other persons in which similar mistakes has been done by different officers working as PIA in RPO, New Delhi, but they were not proceeded by the CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.112 of 191department or prosecuted for their lapses.
6.18 In this respect, ld.defence counsel has rightly relied upon judgment of Hon'ble Supreme Court in State of Madhya Pradesh Vs. Sheetla Sahai, (2009 Cri.LJ 4436) to submit that the doctrine of party applies to accused/Bibianus Toppo (A1) as his acts were similar to other PIAs, who did similar mistakes under the similar circumstances when they believed on the noting given by the counter clerk/dealing assistant and clearance of HIT by concerned official in HIT Section and thereby additional passport booklets were issued.
6.19 The Hon'ble Supreme Court has observed in Sheetla Sahai's case as under: CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.113 of 191
56. It is also interesting to notice that the prosecution had proceeded against the officials in a pick and choose manner. We may notice the following statements made in the counteraffidavit which had not been denied or disputed to show that not only those accused who wee in office for a very short time but also those who had retired long back before the file was moved for the purpose of obtaining clearance for payment of additional amount from the Government, viz., M N Nadkarni who worked as Chief Engineer till 24.03.1987 and S W Mohogaonkar, Superintending Engineer who worked till 19.06.1989 have been made accused but, on other other hand, those who were one way or the other connected with the decision, viz., Sh.J R Malhotra and Mr.R D Nanhoria have not been proceeded at all. We fail to understand on what basis such a discrimination was made.
6.20 In Soma Chakravarthy (supra), whereupon strong reliance has been placed by Mr.Tulsi, this court opined"
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.114 of 191
23.In a case of this nature, the learned Special Judge also should have considered the question having regard to the "doctrine of party" in mind. An accused similarly situated has not been proceeded against only because, the departmental proceedings ended in his favour. Whether an accused before him although stands on a similar footing despite he having not been departmentally proceeded against or had not been completely exonerated also required to be considered. If exoneration in a departmental proceeding is the basis for not framing a charge against an accused person who is said to be similarly situated, the question which requires a further consideration was as to whether the applicant before it was similarly situated or not and/or whether the exonerated officer in the departmental proceeding also faced same charges including the charge of being a party to the larger conspiracy.
6.21 In my opinion, the doctrine of party squarely applies to accused/Bibianus Toppo (A1) in the facts and CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.115 of 191circumstances as elicited by accused during crossexamination of PWS P Kothari.
6.22 Thus, the evidence on record, as discussed above, does not lead to a conclusion that accused Bibianus Toppo (A.1)was in league with other accused persons or had intentionally/ knowingly passed grant order/ signed the passport booklets in the files Ex.PW.1/B & 1/C with different photographs and signatures of ladies than as available in the original application of Ms.Reena in file Ex.PW15/Y3=Mark PW3/X (D2). I accordingly hold that he deserves the benefit of doubt in this case and liable to be acquitted.
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.116 of 191
ROLE OF ACCUSED No.2 - HARBHAJAN YADAV
7.1 Accused/Harbhajan Yadav (A2) UDC working in
RPO, New Delhi had processed all the three files for issuance of additional passport booklets in this case which are Ex.PW1/A, Ex.PW1/B and Ex.PW1/C. He was working as counter clerk and dealing assistant and as such had dealt with all these files in the RPO and had recommended for issuance of additional passport booklets.
7.2 As emerged from evidence on record, the process followed by Passport office for applying additional passport booklet was that while applying for first additional passport booklet, the applicant was required to submit the original passport issued to him/her at the counter which was required to be CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.117 of 191cancelled and returned to him/her by retaining a photocopy thereof with the application. When he/she applied for second additional passport booklet, he/she was required to annex photocopy of the first additional passport booklet with her application and the original thereof was required to be cancelled and returned to him/her by the counter clerk at the counter after verifying the photocopy thereof as enclosed with the application. Likewise, when applicant applied for third additional passport booklet, the counter clerk was required to ensure that just preceding passport booklet i.e. second passport booklet, is cancelled and returned by him to the applicant and a copy thereof is retained with the passport application form for third additional passport booklet.
7.3 In this case the copy of passport booklet which
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.118 of 191
has been retained with the applications for issuance of first, second and third additional passport booklets in files Ex.PW1/A, B & C are those of the original passport in the name of applicant/Reena (by changing the photograph every time as of the impostor) which was issued to her in the file, Ex.PW15/Y3=Mark PW3/X (D2). It has been proved and even otherwise not disputed by accused/Harbhajan Yadav that he had dealt with and put up the files Ex.PW1/A, B & C as counter clerk and dealing assistant.
7.4 Ld.Public Prosecutor for CBI has submitted that accused/Harbhajan Yadav (A2) is one of the main accused in this case who had initiated the process for issuance of three additional passport booklets to fake persons with different photographs in the CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.119 of 191name of Reena as he had accepted the applications at the counter as presented by private accused persons who are all male persons having signed in the name of a lady and that he deliberately did not ensure that the original passport was actually canceled and returned at the counter when additional passport booklet was applied for first time so as to ensure that the same passport is not used for getting issued additional booklets again and again and that he fraudulently put up notes to this effect and had recommended for issuance of additional passport booklets thrice in the name of Reena with photographs of three different ladies.
7.5 On the other hand, ld.counsel for accused/Harbhajan Yadav (A2) has submitted that CBI has falsely CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.120 of 191implicated accused/Harbhajan Yadav (A2) and has in fact made every official of RPO office, New Delhi as accused in this case, who had even dealt with any of these files. He has submitted that no discrepancy in the processing of the files has been pointed out by the witnesses examined by CBI in this case and that it was possible that accused/Harbhajan Yadav (A2) would have every time innocently cancelled and returned forged passports produced before him at the counter, being unaware of the forgery, in accepting the applications for additional passport booklets and recommending the same for issuance, in due course. 7.6 He has submitted that anybody could file an application for additional passport booklet and it was not necessary that the applicant herself appears for making an CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.121 of 191application for issuance of additional passport booklet. He has also submitted that authorization letter was not required for making an application for additional passport booklet by a representative of the applicant.
7.7 Let us see as to what evidence is available on record and whether the CBI has been able to substantiate the charge against accused/Harbhajan Yadav (A2). 7.8 PW7/Raj Singh has been examined by CBI, who had worked with RPO, New Delhi for considerable long time with accused and accordingly was able to prove the handwriting and signatures of accused officials of RPO, New Delhi. He has proved that a passport bearing no.A6837991 dated 20.01.99 was issued CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.122 of 191in the name of Reena on the basis of her application Mark PW3/X (Ex.PW15/Y3) with which a scanned copy of her ration card is placed as Mark PW7/X and scanned copy of an affidavit as Mark PW7/X1. The said passport was granted by Sh.Om Prakash, the then PIA.
7.9 He has then proved that in the passport file, Ex.PW1/A, which relates to issuance of additional passport booklet in the name of Reena, she had applied, vide her application dated 31.07.03, for additional passport booklet under Tatkal scheme as she was proceeding to Germany for training purpose. With this application, she had enclosed self attested copy of her passport bearing no.A6837991 dated 20.01.99 and this additional passport booklet was issued by Sh.P K Kapoor CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.123 of 191(since expired).
7.10 Similarly, he has proved that the passport application form of Reena for additional passport booklet in the file, Ex.PW1/B, was issued on 23.04.04 which was processed by accused/Harbhajan Yadav (A2), vide his endorsement at point A1 at page no.4 of Ex.PW1/B where he has recommended "may issue additional booklet valid upto 19.01.09 ECR OBS Old PPT C & R" and signed on the said note on 02.04.04. With this application, a copy of passport no.A6837991 is enclosed which is mark PW14/F with same personal particulars of Reena as in Ex.PW15/Y3=Mark PW3/X (D2) but the impression of photograph at point A on Mark PW14/F is the same which is affixed at point A at Ex.PW14/D (internal page 2 of Ex.PW1/B).
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.124 of 191
7.11 Similar is his testimony with respect to issuance
of additional passport booklet for third time in the name of Reena vide passport file Ex.PW1/C. He also deposed that Reena had enclosed copy of passport bearing no.A6837991 dated 10.01.99 instead of copy of additional passport booklet and she had not mentioned about issuance of earlier additional passport booklet in her name. He stated the original passport is cancelled at the time of issuance of additional passport booklet or reissue of a passport.
7.12 During his crossexamination, PW7/Raj Singh has deposed that basic purpose of stamp put by counter clerk showing "cancelled and returned old PPT No....." was only to CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.125 of 191procure the signature of the applicant so that in future the applicant shall not dispute that the passport office has not returned the passport to the applicant. He admitted that it was not necessary to fill the passport number and below the same signature of the counter clerk, was also not necessary. He admitted that since old passport number is also mentioned on the back side of page no.3 and its copy is annexed to the application form, therefore, there was no need of repeating the old passport number at point 'DX' in Ex.PW1/A. When the court had asked from the witness that when the stamp mentioned that 'the old passport number..... has been cancelled and returned' then what was the basis for him deposing that filling of passport number, which was cancelled and returned, is not mandatory to be filled by the counter clerk or affix his signatures at the space provided in CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.126 of 191the stamp, he said that due to heavy rush, counter clerk did not use to sign the column and fill the passport number therein. 7.13 Thus from the testimony of PW7/Raj Singh, it transpired that due to rush of work a practice had been started by the counter clerks whereby the counter clerk did not use to sign on the space provided in the stamp and not used to write the passport number in the space provided in the same stamp for the reason that on the back side of the same application form, old passport number was already used to be mentioned. However, the admitted position is that accused/Harbhajan Yadav (A2) working as counter clerk was required to verify the copy of old passport annexed with the application form for additional passport booklet with original thereof,then cancel the old passport by writing/putting CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.127 of 191across stamp of 'cancelled and returned' on the previous passport booklet to that effect. Obviously he had not done so otherwise it was not possible that the original passport booklet which was purportedly cancelled and returned by him at the counter at the time of accepting and processing the application form for first additional passport booklet in Ex.PW1/A, could have been utilized again and again when two subsequent applications for issuance of additional passport booklets for second time and third time were accepted by him at the counter and processed in the passport files, Ex.PW1/B and Ex.PW1/C. 7.14 The copies of the original passport enclosed with passport applications in files Ex.PW1/A, Ex.PW1/B and Ex.PW1/C clearly show that the photographs of the lady Reena, CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.128 of 191as affixed (photo impressions) while issuing original passport to her in the file Ex.PW15/Y3=Mark PW3/X and as available at point A on her personal particular form, Ex.PW3/A (D18) did not at all match with the photographs affixed on the passport application forms and impression of photograph available on the copies of her passports annexed to the applications in all these three files, Ex.PW1/A, Ex.PW1/B and Ex.PW1/C which all were received at the counter and then processed by accused/Harbhajan Yadav (A2) as counter clerk/dealing assistant. Once it has been proved that the copy of the same passport in the name of Ms.Reena bearing number 6837991 (with photograph impressions of different ladies) which was issued in file Ex.PW15/Y3=Mark PW3/X (D2) has been used for issuance three passport booklets in files Ex.PW1/B, C & D, which was not at all possible had CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.129 of 191accused Harbhajan Yadav seen and cancelled the passport number 6837991, the only inference which can be drawn is that he had not seen the original passport number 6837991( issued to Ms.Reena in file Ex.PW15/Y3)or cancelled the same obviously for oblique motives and in conspiracy with others involved in cheating. 7.15 PW3/Smt.Uma Kapoor has deposed regarding identity/verification of Ms.Reena, who is her relative. She had also proved verification application, on which original photograph of Reena is affixed at point A as Ex.PW3/A which is personal particular form of Reena verified by the police at the time when the original passport was issued to her on the basis of verification report, Ex.PW16/B=PW14/K (D18).
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.130 of 191
7.16 PW4/Ms.Sarita, who is one of the attesting
witnesses of the verification report given by the police at the time of issuance of original passport in the name of Reena, was shown documents in files Ex.PW1/A, Ex.PW1/B and ExPW1/C and her attention was invited to the photographs of the ladies affixed on these passport applications, she said that she can not identify those ladies and those photographs are not of Reena @ Raveena. 7.17 PW14/Geeta, who is yet another witnesses to the verification done by police in respect of issuance of passport vide application Mark PW3/X=Ex.PW15/Y3 (D2), has stated that impression of photographs affixed at points A & B on Mark PW3/X are the photographs of Reena @ Raveena in respect of whom she had become witness for verification but the photograph at points A CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.131 of 191on Ex.PW14/D and Mark PW14/F are not of said Reena @ Raveena.
7.18 As per the handwriting expert's opinion, Ex.PW25/D, it was accused/Amit Khatri (A10), who had filled up the passport application form in the file, Ex.PW1/A, on which accused/Pankaj Chatturvedi (A7) had signed as Reena. 7.19 Similarly, in the file Ex.PW1/B, the request letter for issuance of passport booklet has been proved by GEQD as having been written by Ms.Shweta Dhawan (since discharged), who is wife of accused/Anil Dhawan the passport application form has been signed by accused/Naieem Saifi (A8). AS per GEQD opinion on file Ex.PW1/C, it was accused/Anil Dhawan (A6), who CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.132 of 191
had signed on the file in the name of Reena. Had accused/Harbhajan Yadav (A2) not been colluding with private accused persons, he would not have obtained signatures of male persons in place of a lady named Reena (see discussion in para nos.10&11 infra).
7.20 It has been deposed by PW7/Raj Singh during his crossexamination that it was not mandatory that the applicant always deposits the application form for additional passport booklet in person and the person could authorize any person to deposit his/her application form on his/her behalf with authorization letter. However, there is no authorization letter on any of these files.
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.133 of 191
7.21 Ld.counsel for accused/Harbhajan Yadav (A2)
has submitted that it was not always necessary that the authorization must be by way of written representation or letter and it could be oral as well, whereas during crossexamination PW7/Raj Singh had specifically deposed that the applicant could authorize any person to deposit his/her application form on his/her behalf with authorization letter.
7.22 Thus, it is proved that if the passport applicant does not appear in person in the passport office to deposit her/his passport application at the counter, she/he was required to authorize her/his representative to do so in writing and then only her application for additional passport booklet could be accepted at the counter, which is not available in any of these three files, CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.134 of 191Ex.PW1/A, B & C,which all were accepted by accused Harbhajan Yadav at the counter.
7.23 It is significant to note that Passport Issuing Authority (PIA) in file, Ex.PW1/A was Sh.P K Kapoor and in files Ex.PW1/B and Ex.PW1/C, PIA was Sh.Bibianus Toppo (A1). Thus, whereas PIAs were different, the counter clerk/dealing assistant for all these files was accused/Harbhajan Yadav (A2), in which additional passport booklets have been issued in the name of Reena with same personal particulars but different photographs and signatures. This fact also becomes relevant for determining complicity of accused/Harbhajan Yadav (A2) under Section 15 of Evidence Act.
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.135 of 191
7.24 Thus, I find that accused/Harbhajan Yadav (A2)
was a common and most crucial link in all these three cases for issuance of additional passport booklet and whereas any participation on the part of accused/Bibianus Toppo (A1) is doubtful, there is no doubt regarding the role of accused/Harbhajan Yadav (A2), who had played vital role in issuance of three passport booklets in the name of Ms.Reena with different photographs of three ladies.
7.25 PW15/S P Kothari has also confirmed the same facts which have been deposed by PW7/Raj Singh regarding processing of these files, Ex.PW1/A, Ex.PW1/B and Ex.PW1/C. During crossexamination by ld.counsel for accused/Harbhajan Yadav (A2), he had stated after seeing Ex.PW1/A, Ex.PW1/B CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.136 of 191and Ex.PW1/C that copies of all documents are there with the application form which the counter clerk was required to check and they were complete with respect to the application form for issuance of additional passport booklet. He also deposed that most of the times counter clerk in the afternoon session worked as dealing assistant to the concerned PIA and as dealing assistant, he was to put up the file to concerned PIA for grant of passport. 7.26 On the basis of this testimony, ld.defence counsel for accused/Harbhajan Yadav (A2) has submitted that accused/Harbhajan Yadav (A2) had done his prescribed duty and did not commit any wrong in processing of the application forms for issuance of additional passport booklets, Ex.PW1/A, Ex.PW1/B and Ex.PW1/C. CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.137 of 1917.27 We have already seen from evidence on record, as discussed above, that the issuance of additional passport booklets in Ex.PW1/A, Ex.PW1/B and Ex.PW1/C, was not at all possible without involvement of accused/Harbhajan Yadav (A2), who had accepted the application forms at the counter enclosing with it copy of the same previous passport with different photographs of the ladies all three times. It was he who had put up notes to PIAs on all three occasions, recommending issuance of additional passport booklets. Under such circumstances, the statement of PW15/S P Kothari that the files were complete as the required enclosures for issuance of additional passport booklets were there with the application forms, does not lead to any inference/presumption of innocence on the part of CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.138 of 191accused/Harbhajan Yadav (A2). (Also see discussion in para 10 infra).
7.28 In view of my above findings, I hold that prosecution has successfully proved its case against accused/Harbhajan Yadav (A2) beyond any reasonable doubt. ROLE OF ACCUSED RAM CHANDER (A.3) 8.1 It is alleged against accused Ram Chander that while working as LDC in HIT Section of RPO, New Delhi during the relevant period, he had cleared passport file Nos.T6833 dated 21.04.04 (Ex.PW.1/B) and Y432 dated 18.06.04 (Ex.PW.1/C) of Reena in HIT Section without pointing out about the issue of CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.139 of 191earlier passport/additional passport booklet in the same name. However, it could not be established as to who had cleared the HIT in passport file No.9167 dated 31.07.03 (Ex.PW.1/A). In the HIT Section there is facility in the computer system that the signatures and photographs of the earlier passport holder could be seen clearly and in case of any dissimilarity it was required to be pointed out by the official working in HIT Section. Accused Ram Chander who was working in HIT Section during the relevant period had not carried out this exercise which was intentional and thereby additional passport booklets were issued in favour of fictitious persons with different photographs and signatures than of the original allottee of the passport.
8.2 Ld. Counsel for accused Ram Chander has
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.140 of 191
submitted that there is no circular of the Ministry of External Affairs/Passport department to the effect as to which work was to be done first while issuing additional passport booklet and therefore, it cannot be said that issuance of additional passport booklet was based on a prerequisite of clearance of passport file by the HIT Section. He has also submitted that it is possible that some other official of RPO, New Delhi could have cleared HIT in files Ex.PW1/B and Ex.PW1/C instead of accused Ram Chander. We will see these arguments in the light of evidence available on record.
8.3 PW.15 Sh.S.P.Kothari, who worked as Suptd. in RPO, New Delhi, has deposed that during investigation he had handed over certain documents to CBI including computerized CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.141 of 191printouts of status of applicant, namely, Reena bearing file Nos. DLHA 03935498, DLHT 00916703, DLHT 00683304 and DLHY 00043204. He stated that these computerized printouts were taken from National Informatic Center (NIC) and the same have been proved as Ex.PW.15/C, 15/D, 15/E & 15/F (D.16) and these are under the heading of Passport Information Services On Net (PISON). He clarified that file number mentioned in these printouts denote the file number of the applicant's file processed by RPO, New Delhi for issuance of passport/additional passport booklet and the last two digits of the said passport file in computer print out denote the year when the file was processed in RPO New Delhi.
8.4 He proved the list of the names of officials who
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.142 of 191
discharged their duty during the processing of the particular files for issuance of passport/additional passport booklets as stored in computer system of RPO, New Delhi. The printout Ex.PW.15/G is with respect to passport No.A6837991 issued in file Mark PW.3/X = Ex.PW.15/Y3 (D.2), Ex.PW12/A is with respect to passport booklet No.E6067924 issued in passport file Ex.PW.1/A, Ex.PW. 9/DA is with respect to passport booklet No.E8585349 issued in file Ex.PW.1/B and Ex.PW.9/DB is in respect to passport booklet No.E8915831 issued in file Ex.PW.1/C. 8.5 These computer printouts are showing name of Ram Chander as the official who had cleared HIT in the files Ex.PW.1/A and PW.1/B. The PISON in respect of both these files have been proved as Ex.PW.15/E & 15/F showing the impression CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.143 of 191of photographs and signatures of different ladies in the name of Ms.Reena, than which is available in Ex.PW.15/D and which is available in file of first passport of Reena Ex.15/Y3(D2) and personal particular form Ex.3/A(D18) with the same name and particulars.
8.6 PW. S.P.Kothari has deposed that HIT was checked by Ram Chander in respect of passport booklet issued on the basis of Ex.PW.1/B & 1/C as is clear from Ex.PW.9/DA & DB. He has clarified that Ex.PW.15/C to F are the print out of data retrieved from the computer of RPO, New Delhi by NIC. He also clarified that if the file number as mentioned in these exhibits is fed in the computer and it is clicked the computer will show the data in the screen. He said that Ex.PW.15/C does not show any CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.144 of 191photograph but Ex.PW.15/D to F show the photographs of the passport holder whose name has been mentioned as Reena in all the three computer printouts. He also deposed that all the photographs in these three printouts are having three different photographs of the passport holders although name, parentage and other particulars are same.
8.7 Sh.S P Kothari has deposed that the file of particular passport applicant goes to PIA firstly for taking promise date after the counter clerk checks the application and for the second and last time it goes to PIA for grant order after checking and processing is done by all the concerned officials and while passing grant order the PIA checks if the HIT section made any adverse remark in the space provided for the same and he also CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.145 of 191checks the particulars mentioned in the existing passport. The computer system was introduced in passport office in 2001 and the facility for looking computer data was made to all the officials in the year 2001. He clarified that status of passport applications , previous as well as present, is available on all the terminals of the computer in RPO office since 2001. He deposed that he worked on computer in RPO and found that the data pertaining to registration of the previous passport applications such as name, father's name, date of birth, address of the applicant who had previously applied for passport, were also available as fed by NIC. 8.8 During his cross examination by ld.counsel for accused Bibianus Toppo (A.1), Sh.S P Kothari has clarified that 'all the applications for issuance of additional passport booklets are CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.146 of 191sent for HIT Checking. If the HIT Section find any discrepancy or irregularity they were required to mention the same in the space provided for official use in the file. In these files Ex.PW.1/B & 1/C there is space for official use but in that there is no adverse remark/report by HIT. If the HIT Section made no remarks and leaves the space for official use blank then it is presumed that HIT is clear. Vol. without a clearance of Hit section, passport cannot be made. If the HIT is not clear then the computer will not generate the passport number in passport allotment section. The clearance of HIT is not indicated in the file. Only the entries in the computer are made regarding clearance of HIT. If the counter clerk/dealing Assistant and/or HIT Section or any other section of RPO, New Delhi makes any adverse remarks in any file then further progress of the file will stop and file will be kept for CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.147 of 191clarification. In other cases where there is positive report/opinion of the counter clerk/Dealing Assistant to issue the passport and no adverse remark of HIT or any other section then PIA in a routine manner can issue the passport.' 8.9 During his cross examination on behalf of accused Harbhajan Yadav (A.2), Sh.Kothari replied after seeing Ex.PW.1/A, 1/B & 1/C that there is no adverse remark from HIT section on these passport files. In cross examination on behalf of accused Ram Chander, he had replied that in the year 2002 the photograph of the applicant was not reflected in the computer system but he could not say if in year 2003 the photograph of passport holder/previous applicant of passport was available at the computer system for verification. He then volunteered that office CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.148 of 191of NIC could be in better position to tell all these facts as it was the duty of NIC to maintain database in the computer system of RPO. 8.10 When the NIC official Sh.Ajay Gautam has been examined as PW.22, he has deposed that while posted in RPO, New Delhi, he was responsible for operational support and maintenance of passport server and that the scanning of the photographs and signatures of the passport applications started in RPO, Delhi in May, 2000. He deposed that HIT Checking system for seeing the signatures and photographs alongwith details of previous applicant and old details of the passports already issued, was started on the computer system of RPO, Delhi in August, 2002. He also clarified that in August, 2002 only one computer (PC) was provided to HIT Section for HIT checking of Tatkal cases CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.149 of 191and in April, 2004 all PCs in HIT Section were provided with the facility of seeing the photographs and signatures and other details of the old passport holders and the applicants. 8.11 HIT in respect of additional passport booklet issued in the name of Reena for second time was cleared in HIT Section on 23.04.04 as per Ex.PW.9/DA and HIT in respect of additional passport booklet issued in the same name for the third time was cleared on 18.06.04 as is shown from Ex.PW.9/DB. HIT in both these files was cleared by accused Ram Chander with his user No.P495.
8.12 Sh.Gautam has deposed that the computer generated print outs Ex.PW.15/G, Ex.PW.12/A, Ex.PW.9/DA & CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.150 of 191Ex.PW.9/DB were provided by him to Sh.I.M.Sabharwal containing the details of officials who dealt with particular passport files. He proved their correctness as also the certificate given by him u/s 65 B of Indian Evidence Act (D.19) as Ex.PW.22/A. He also proved contents of Ex.PW.9/DA & DB interalia with other details. He deposed that Hit check was done by accused Ram Chander in these two files on 23.04.04 & 18.06.04 respectively by using his Login ID P495.
8.13 During his cross examination by Ld. Counsel for accused Bibianus Toppo he had clarified that only Hit section of RPO, New Delhi had the facility to check the photograph, signatures of the applicant and previous passport details. He said, 'in the present case three additional passport booklets were issued CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.151 of 191as HIT check was done and the same was clear whereas if the HIT is not clear the passport number cannot be generated by the passport allotment section. If the official sitting in passport allotment section tries to generate the passport number and HIT is not clear, the computer will show the remark that HIT is not clear. 8.14 During his cross examination by accused Ram Chander, Sh.Gautam has clarified that one PC was made available in HIT Section since August, 2002 with facility to see the photographs and signatures with the details of old passport issued by RPO, New Delhi but he could not say if Ram Chander was not working in said PC when he cleared the HIT. He clarified that since April, 2004 all the PCs in RPO, New Delhi were having this facility.
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8.15 It is remarkable to note that in this case HIT was
rd
cleared by accused Ram Chander in HIT Section on 23 April, th 2004 and 18 June, 2004 in respect of additional passport booklets issued in files Ex.PW.1/B & 1/C as is shown in Ex.PW. 9/DA & DB. Hence, it is established that HIT was cleared in this case when all the PCs in HIT Section were already provided with the facility to see the signatures, photographs and other details of previous applicants and passports issued by RPO, New Delhi. Even during the period when only one PC in Hit Section was provided with the facility of viewing the photograph and signatures of previous passport applicants, every official clearing the HIT in any particular passport file was supposed to check the HIT after verifying the facts, photograph and signatures of the applicants CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.153 of 191from the PC in which the facility of viewing the photographs and signatures of previous passport applicants was made available since 2002. Thus, no official can be permitted to plead that CBI has not proved as to on which of the computers of HIT Section, accused was working at that time. Once, it is proved that HIT was cleared by him in a particular passport file, the onus shifted on him to prove that he had no access to that computer system on which the facility of viewing the photographs and signatures alongwith details of previous passport applicants was available. However, this issue does not arise in the present case as it has been proved that HIT was cleared by accused Ram Chander during the period when all the computers in HIT Section had the facility to see and verify the photographs, signatures and other details of the previous passport applicants.
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8.16 Then on next issue Sh.Gautam has clarified is
that if the employee, who happens to be on leave, had disclosed his Login ID and password to some other colleague it was possible that the person knowing his Login ID and password may clear HIT by using the same. In this respect I find that no plea has been taken by accused Ram Chander that he had disclosed his Login ID & password to some other employee of RPO, New Delhi, who might have cleared the HIT, and if so, he was required to tell the name of that official of RPO, New Delhi and prove his defence. 8.17 It is worthwhile to mention that during statement u/s 313 Cr.PC accused Ram Chander,when he was put the evidence about checking of Hit by him as per Ex.PW.9/DA & DB CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.155 of 191he simply denied it as incorrect without pleading any defence. He has not pleaded his defence at any stage that HIT had been cleared by some other employee by using his Login ID and Password. Hence the submission of Ld. Defence counsel, at this stage, that some other official would have cleared the HIT by using Login ID and password of accused Ram Chander in the files Ex.PW.1/B & 1/C, is not tenable.
8.18 It has been proved beyond reasonable doubt that clearing of HIT by accused Ram Chander in respect of files Ex.PW.1/B & 1/C for issuance of additional passport booklets in the name of Ms.Reena with same personal particulars for the second time and third time was done by him due to which additional passport booklet for second time and third time with CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.156 of 191different photographs and signatures were got issued in that name. This shows that accused Ram Chander abused his official position with ulterior motive due to which two additional passport booklets, being a valuable thing, were fraudulently got issued in the name of Reena with photographs of unknown ladies. It was obviously done by him in pursuance of conspiracy and furtherance of goal set by Harbhajan Yadav,who was clearly in league with accused Anil Dhawan(A6) (also see discussion in para 7 and
10).His malafide and ulterior motive is apparent from his misdeeds. He is accordingly found guilty of the offcences charged against him.
ROLE OF ACCUSED G.D.JOSHI (A.4) AND R.S.RAWAT (A.5) 9.1 As regards accused G.D.Joshi and R.S.Rawat, CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.157 of 191the allegations against them are that while working in RPO, New Delhi, they had delivered three additional passport booklets issued in the name of Ms.Reena in file Ex.PW.1/A, 1/B & 1/C to accused Anil Dhawan, Pankaj & Naieem Safi.
9.2 Ld. Public Prosecutor has submitted that the passports were delivered to accused Anil Dhawan, Pankaj and Naieem Safi whose writings and signatures are appearing at the passport delivery register and on respective passport applications and thus all recipients are male persons who signed as Reena which was made possible only because accused G.D.Joshi and R.S.Rawat had colluded with these private persons in order to deliver additional passport booklets in the files Ex.PW.1/A, 1/B & 1/C (D.3 to D.5).
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
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9.3 On the other hand ld.counsel for accused
persons has submitted that the delivery of the additional passport booklet has not been done by G.D.Joshi and R.S.Rawat and even in work done chart Ex.PW.15/G, Ex.PW.12/A, Ex.PW.9/DA & Ex.PW.9/DB it is not mentioned as to who has delivered the passports at the counter and only names of accused G D Joshi and R S Rawat have been mentioned as officials who done registration of applications. He has also drawn attention of the court to the testimony of PW. Raj Singh & PW S.P.Kothari who are the officials of RPO, New Delhi, to show that none of them have said that any of the additional passport booklets were delivered by accused G.D.Joshi and R.S.Rawat in this case and that there is no document or record to evince that passports have been delivered CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.159 of 191by them.
9.4 PW.7 Raj Singh has admitted that the delivery of passport means delivery of granted passport or additional passport booklet to the holder of the passport and or his authorized representative; that there is no designated post in RPO, New Delhi who has to deliver the passport; that any officials of the passport office could deliver the passport; that there is no record of the fact as to which officer has delivered which of the passport to the passport holder or his authorized representative on particular day; that the official deputed by the Suptd. (Administration) used to deliver the passport and that at times it was a team work as any of the official could deliver the passport against proper acknowledgment. He has stated that there is no CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.160 of 191record on the whole file to show that on those particular days, accused G.D.Joshi and R.S.Rawat had delivered passports in this case.
9.5 PW.15 Sh.S.P.Kothari, who also worked as Suptd. (Administration) in RPO, New Delhi also affirmed the same position as deposed by Raj Singh. PW.26 Sh.I.M.Sabharwal who worked in RPO as Suptd., has also admitted that name of officials who delivered the passport in this case, is not mentioned on the documents proved by him and that there was no designated post in RPO, New Delhi for delivery of passports. He also admitted that in the printouts of work done, names of G.D.Joshi and R.S.Rawat as the officials who delivered the passports, are not mentioned. He also admitted that the delivery of passport used to be a team CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.161 of 191work and any member of team could deliver the passport. He also admitted that in the passport delivery register, name of the official who delivered the passport, is not mentioned. When IO of the case PW.28 Sh.A.K.Tripathi was cross examined by ld.counsel for accused G.D.Joshi and R.S.Rawat, he also could not point out any document on the basis of which he could say that accused G.D.Joshi and R.S.Rawat had delivered the passports in this case. He admitted that there are no disclosure statements of accused Anil Dhawan, Pankaj Chatturvedi & Naieem Safi to the effect that they disclosed names of the officials who had delivered passports to them.
9.6 Thus, from above discussion, it is clear that there is no evidence to show that accused G.D.Joshi and R.S.Rawat CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.162 of 191were involved in alleged conspiracy or delivery of additional passport booklets in the name of Ms.Reena to accused Anil Dhawan, Pankaj Chatturvedi & Naieem Safi or to any one else. Accordingly, they are held entitled to acquittal in this case. ROLE OF ACCUSED/ANIL DHAWAN (A.6) 10.1 It is alleged against accused Anil Dhawan that the request letter for obtaining the passport in the form of second additional passport booklet was written in the handwriting of his wife Ms.Shweta Dhawan (accused since discharged) and the passport applications for obtaining second and third additional passport booklets in the name of Ms.Reena were prepared and signed by him, who had also received delivery of third additional passport booklet by signing in the file and passport delivery CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.163 of 191register in the name of Reena.
10.2 The passport file for issuance of second additional passport booklet is Ex.PW.1/B (D.4). As per opinion of handwriting expert Ex.PW.25/D supported by reasons for opinion Ex.PW.25/E, the application form at portion Q.220 has been filled in the handwriting of accused Anil Dhawan and at the space provided for signature of applicant (Q.219), he signed as Reena. Page 2 of the passport application form for issuance of second additional passport booklet containing Q.219 & Q.220 is separately marked Ex.PW.14/B (internal page no.2 of Ex.PW.1/B). PW.20 Sh.G.S.Walia has also confirmed that the handwriting at point Q. 220 on Ex.PW.14/D is that of accused Anil Dhawan. As regards Q.222 which is signature in the name of Reena for receiving old CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.164 of 191passport after its cancellation, the handwriting expert has opined that the same signature has been made by accused Anil Dhawan. As regards the handwriting on the application form at portion Q. 223, the GEQD has opined that this is in the handwriting of accused Anil Dhawan which has also been confirmed by PW.20 Sh.G.S.Walia. This page of the passport application is separately marked Ex.PW.14/E (internal page no.3 of Ex.PW.1/B). 10.3 As regards handwriting on back side of this page of the passport application at Q.224 wherein the details of the passport already issued in the name of Reena is mentioned, the same has been opined by GEQD as written by accused Anil Dhawan which is also confirmed by PW.20 Sh.G.S.Walia. The handwriting expert and Sh.G.S.Walia have also confirmed that the CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.165 of 191handwriting at Q.226 is of accused Anil Dhawan. As regards signatures in the name of Reena at point Q.225 and Q.227, although the GEQD has confirmed that the same is in the handwriting of accused Anil Dhawan, PW.20 Sh.G.S.Walia was not sure about the same. The said page is separately Ex.PW. 25/A.7 (internal page no.4 of Ex.PW.1/B).
10.4 As regards hand written application the writing on the same at point Q.228 has been opined by GEQD to be of Smt.Shweta Dhawan wife of accused Anil Dhawan and as regards the signatures at point Q.229 and Q.230, he has opined that the same have been written in the name of Reena by accused Anil Dhawan. PW.20 Sh.G.S.Walia could not say with surety about the signatures at point Q.230. The said page No.10 is CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.166 of 191annexed with the application and is separately marked Ex.PW. 20/A (internal page no.10 of Ex.PW.1/B).
rd 10.5 As regards 3 additional passport booklet issued in the file Ex.PW.1/C (D.5), the handwriting expert has opined that the form at portion Q.232 has been filled by accused Anil Dhawan and he has also signed as Reena at point Q.231 on the application form which page has been separately marked Ex.PW.14/A (internal page 2 of Ex.PW.1/C). PW.20 Sh.G.S.Walia has also confirmed handwriting of accused Anil Dhawan on the form at point Q.232 and as regards signature of applicant in the name of Reena at point Q.231, he said that it appears to be in the handwriting of accused Anil Dhawan but he was not sure about the same.
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.167 of 191
10.6 As regards the writing at point Q.235 on the third
page of the application form separately marked Ex.PW.14/B (internal page no.3 of Ex.PW.1/C), the handwriting expert and Sh.G.S.Walia both have confirmed that the portion at Q.235 has been written by accused Anil Dhawan. As regards writing at point Q.233 'received passport' (acknowledging receipt of prepared passport booklet on 18.06.04) both the handwriting expert and PW.G.S.Walia have confirmed that it is in the handwriting of accused Anil Dhawan. With regard to the signature in the name of Reena below this, as per opinion of handwriting expert, it is in the handwriting of accused Anil Dhawan. However, Sh.G.S.Walia said that although the signature in the name of Reena appears to has been made by accused Anil Dhawan but he is not sure about the same. As regards signature as Reena at point Q.234 on the same CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.168 of 191page, below the stamp 'cancelled and returned old passport' and acknowledging receipt of the old cancelled passport in the name of Reena, the handwriting expert has confirmed that the same has been written by accused Anil Dhawan. This signature is obtained by counter clerk at the time when the old passport is produced before him for verification of copy thereof which was enclosed with the application form and for ensuring that the old passport has been cancelled so that the same may not be used again and again. Once, it is proved that accused/Harbhajan Yadav working as counter clerk obtained these signatures in the name of Reena from accused/Anil Dhawan, the criminal conspiracy between both of them stands proved as there could be no confusion to Harbhajan Yadav that accused/Anil Dhawan (a male person) is not lady Reena and if he represented that he was authorized by CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.169 of 191Reena, he was required to sign in his own name and not as Reena and produce his authority letter, which is not there with application. 10.7 Similarly on the back side of this page at point Q. 236 and at point Q.238 on internal page no.4 of the form, separately marked Ex.PW.25/A.8 (internal page no.4 of Ex.PW. 1/C), both the handwriting expert and Sh.G.S.Walia have confirmed that these entries have been written by accused Anil Dhawan. As regards the signatures in the name of Reena at point Q.237 & Q.239 on Ex.PW.25/A.8, the GEQD has confirmed that the same have been signed by accused Anil Dhawan in the name of Reena. On hand written application available at page no.5 of the passport application separately Ex.PW.20/B (internal page no. 5 of Ex.PW.1/C), handwriting expert and PW.Sh.G.S.Walia both CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.170 of 191have confirmed that this writing on this application in the portion encircled as Q.240 is of accused Anil Dhawan. Additionally, the opinion of handwriting expert has also confirmed that the signatures at point Q.241 & Q.242 in the name of Reena have been made by accused Anil Dhawan on this application. Q.242 is the signature in the name of applicant Reena on an stamp of undertaking which is affixed by the counter clerk (accused Harbhajan Yadav) at the counter which speaks "I undertake to complete all formalities/documentation before issue of passport." This proves that Harbhajan Yadav knowingly took signature of Anil Dhawan in the name of Reena on the stamp as affixed by him in the passport office at the counter, as he did while taking his signature at Q.234, discussed above.
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.171 of 191
10.8 After seeing the passport delivery register in
respect of passport No.E8915831 in the name of Reena on 18.06.04 , the GEQD has confirmed that the same at point Q.18 has been written by accused Anil Dhawan. PW.20 Sh.G.S.Walia has also confirmed that the name of applicant Reena with passport No.E8915831 and signatures in the name of Reena from portion A to A has been written in the handwriting of accused Anil Dhawan. The said page is Ex.PW.20/C (D.21/2). As regards receiving of passport No.E8585349 issued in the file Ex.PW.1/B the handwriting expert and PW.20/Sh.G S Walia both could not opine about this handwriting. The said handwriting at point Q.16 & portion A to A in the page is separately Ex.PW.20/D (D.21/1).
10.9 Ld.counsel for accused Anil Dhawan has argued
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that accused Anil Dhawan has been falsely implicated by CBI in this case as there is no whisper of any monitory gain to accused Anil Dhawan in this case. We have already seen how the passport booklets have been got issued by accused/Anil Dhawan in the name of Reena by using photographs of different ladies so as to enable them to travel abroad. The passports are valuable things and hence there was no requirement of proving any other pecuniary advantage obtained by accused/Anil Dhawan in cheating the Regional Passport Office when it has been clearly proved that he had fraudulently induced RPO, Delhi for issuance and delivery of passport booklets for which he was not legally entitled.
10.10 It has also been agitated by ld.counsel that the
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Page No.173 of 191
original passport issued in the name of Ms.Reena could not be proved by CBI and the only averment of CBI in charge sheet is that Ms.Reena has gone abroad and therefore, she could not be examined in this case. In this respect, we have already seen that the identity of Ms.Reena to whom original passport was issued has already been fully established by the passport file, Ex.PW15/Y3=Mark PW3/X (D2) and her personal particular form, Ex.PW3/A (D18) besides the oral evidence of PWs 3, 4, 14 and 24 discussed above. Under such circumstances, non examination of Ms.Reena for the reasons explained by IO has no bearing on merits of the case.
10.11 He has also submitted that CBI could not establish any link of accused Anil Dhawan with other accused CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.174 of 191persons and none of the witnesses of CBI who were working in the office of RPO, New Delhi, during the relevant time, could say that they had seen accused Anil Dhawan visiting passport office for meeting accused public servants. We have already seen how accused Anil Dhawan had colluded with accused/Harbhajan Yadav whereby Harbhajan Yadav had accepted the documents signed by accused/Anil Dhawan for issuance of additional passport booklets. As Harbhajan Yadav (A2), being counter clerk, was himself in league with accused/Anil Dhawan, it was not possible to find any other employee of the passport office to prove that accused/Anil Dhawan used to visit RPO, Delhi. This was otherwise not required when the prosecution case is safely entrenched in documentary evidence. He has also submitted that TIP of accused Anil Dhawan was not got conducted by CBI from any of the witnesses. There CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.175 of 191was no requirement of TIP of accused/Anil Dhawan in the facts and circumstances of the case discussed above. 10.12 He has also submitted that PW.20 Sh.G.S.Walia cannot be relied upon as he has stated that his statement u/s 161 of Cr.PC was recorded by Mr.R.K.Aggarwal, DSP of CBI and not by Sh.A.K.TripathiIO of the case. During his crossexamination, PW.20 Sh.G.S.Walia did not say that any of the statement made by him u/s 161 of Cr.PC was incorrect or was not stated by him to the IO of the case during investigation. It is well settled position of law that lacunae on the part of IO in conducting investigation can not be said to have prejudiced the trial unless otherwise manifest from the record. When witness has not stated that anything in his statement u/s 161 Cr.PC was falsely recorded by CBI, it does not CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.176 of 191prejudice trial, even if he says that his statement was recorded by some other officer of CBI and not by Sh.A K Tripathi, who is IO of this case.
10.13 Ld. defence counsel has then argued that the specimen handwriting and signatures were obtained from accused without permission of the court, hence the same can not be admitted into evidence and accordingly the opinion of GEQD based on the same in respect of questioned documents, can not be relied upon. In this respect, he has relied upon the judgment of the Full Bench of Hon'ble Delhi High Court delivered in Sapan Haldar Vs. State, 191 (2012) DLT 225 (FB), wherein the Hon'ble Delhi High Court had laid down that an investigating officer, can not obtain handwriting sample or signature sample from a person CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.177 of 191accused of having committed an offence, which power was not available even to the courts prior to insertion of Section 311 A of Cr.PC and thus, in cases where the IO has obtained such samples without permission from the Magistrate the same was held to be inadmissible in evidence.
10.14 On the other hand, ld.Public Prosecutor has relied upon a judgment of Hon'ble Supreme Court in Ravinder Kumar Pal @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436 and a recent judgment of Hon'ble Supreme Court in Umesh Kumar Vs. State of Andhra Pradesh, 2013 IX AD (SC) 581 (decided on 06.09.13). Ld.Public Prosecutor has drawn attention of the court towards para no.27 of the judgment of Hon'ble Supreme Court in Umesh Kumar's case (supra), which is as CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.178 of 191under:
27.It is settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More so, the court must conclude that it is genuine and free from tampering or mutilation. This court repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India as acquiring the evidence by such methods was not the procedure established by law (Vide:Yusufalli Esmail Nagree Vs. The State of Maharashtra, AIR 1968 SC 147; Magraj Patodia Vs. R K Birla & Ors., 1970 (2) SCC 888; R M Malkani Vs. State of Maharashtra, AIR 1973 SC 157; Pooran Mal Vs. Director of Inspection, Income Tax, New Delhi & Ors, AIR 1974 SC 348 and State (NCT of Delhi) Vs. Navjot CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.179 of 191
Sandhu alias Afsan Guru, (2005) 11 SCC 600).
10.15 In this case I find that the opinion of GEQD is not only based on comparison with specimen handwritings of accused Anil Dhawan obtained by CBI during investigation of the case without permission of the court, but the same is also based on day book of Jas Air and passport/visa application already written by him during the course of his employment with firm of Sh.G S Walia. Those documents have been proved by PW.20 Sh.G.S.Walia, as accused Anil Dhawan was his employee who used to write the book and make entries during his employment with firm of Sh.G.S.Walia. Not only this, the writings on the documents relied upon by CBI have also been identified by Sh.G.S.Walia to bein the hand of accused Anil Dhawan which we CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.180 of 191have already seen in detail above. Thus, the GEQD opinion in this case is not based only on specimen writings of accused/Anil Dhawan obtained by IO from him during investigation of the case which may be inadmissible in evidence in view of judgment of Hon'ble High Court in Sapan Halder's case (supra). 10.16 Ld.counsel for accused Anil Dhawan has also submitted that the testimony of PW.20 Sh.G.S.Walia cannot be relied upon as he is interested witness who has got accused Anil Dhawan falsely implicated in this case in order to save himself as some incriminating documents like blank letter heads and foreign currencies were seized when his premises was raided by CBI during investigation. From testimony of PW.20 Sh.G.S.Walia, I find that wherever he has been able to clearly identify the CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.181 of 191handwritings of accused Anil Dhawan, he has deposed so, and wherever he has not been able to identify writings of accused Anil Dhawan, he has so stated before the court. At most of the places where the signatures have been made in the name of 'Reena' he has failed to clearly identify signatures having been made by accused Anil Dhawan in the name of Ms.Reena. This shows his fairness and impartiality. Thus I do not find any reason for discarding the testimony of Sh.G.S.Walia in this case, as it is truthful and inspires the confidence of the court. 10.17 Thus, it is quite clear from the testimony of PW. 20 Sh.G.S.Walia and PW.25 Sh.B.A.Vaidhandwriting expert (Govt. Examiner of Questioned Documents) that it was accused Anil Dhawan who had forged the copies of passport of Ms.Reena, CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.182 of 191enclosed the same with applications for additional booklets, written applications for additional passport booklets for which he also took help of his wife Smt.Shweta Dhawan (accused since discharged) and took delivery of passport booklets by signing in the name of Reena in collusion with accused/Harbhajan Yadav,who in turn had roped in accused Ram Chander, who cleared the two files in HIT.
ROLE OF ACCUSED/PANKAJ CHATTURVEDI (A7), NAIEEM SAIFI (A8) AND AMIT KUMAR KHATRI (A10) 11.1 The allegations against accused/Pankaj Chatturvedi is that he had made the signature in the name of Reena on the passport application for first additional passport booklet in her name and it was he who received passport no.E6067924 dated 05.08.03 issued in file, Ex.PW1/A by signing CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.183 of 191on the passport application at point Q206, Ex.PW14/H (internal page no.3 of Ex.PW1/A) and passport delivery register. The only evidence available against him is the GEQD opinion that it was him, who had received the passport by signing at point Q206 and also had signed a copy of previous passport booklet in the name of Reena for the purpose of its self attestation. 11.2 As regards entry about delivery of the said passport in the Delivery Register, a copy of which is Ex.PW20/E (D20), the GEQD could not give any opinion about the writing and signature at point Q3.
11.3 The role assigned to accused/Amit Kumar Khatri (A10) is that he had filled up the passport application form in the CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.184 of 191same file which is Ex.PW1/A and written at point Q205 on the first page of passport application form which is separately marked rd as Ex.PW14/G and at point Q208 on the 3 page of the application (separately Ex.PW14/H) and at point Q209 on the back side of the said application. This fact has been confirmed by GTEQD opinion but besides GEQD opinion about writing of these entries in the application, there is no other material or evidence to vouch this fact.
11.4 As regards accused/Naieem Saifi (A8), the role nd has been assigned to him is that in the application for 2 additional passport booklet, issued in the name of Reena bearing passport no.E8585349 in the passport file Ex.PW1/B (D4), he had received the passport booklet by signing at point Q221 on CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
Page No.185 of 19123.05.04 and also by signing the passport delivery register in this respect which is Ex.PW20/D. Whereas the GEQD had given opinion that the handwriting at point Q221 appearing on the passport application separately Ex.PW14/E (internal page no.3 of the file, Ex.PW1/B) for receiving the passport on 23.05.04, has been made by accused/Naieem Saifi, the GEQD could not opine about receiving of the same passport in the passport delivery register, Ex.PW20/D at point Q216.
11.5 Thus as against accused/Naieem Saifi also the only evidence is of handwriting expert's opinion that it was he who had received the passport by signing at point Q221 on Ex.PW14/E (D4).
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11.6 Now, the question is whether the court can
convict these three accused persons simply on the basis of opinion given by handwriting expert which is based only on specimen writings obtained from them by the IO during investigation of the case without prior permission of the court which, as per the judgment of Hon'ble High Court in Sapan Haldar's case (supra), is inadmissible in evidence. There is no other material at all to support the case of the CBI against them. 11.7 Ld.counsel for accused/Naieem Saifi has relied upon judgment of Hon'ble Delhi High Court in Sandeep Dixit Vs. State, 190 (2012) DLT 600, wherein the Hon'ble High Court observed and laid down as under: CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
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8. It has been submitted that the specimen handwriting of the petitioner were obtained during the course of investigation and sent to GEQD, Hyderabad, along with the aforesaid affidavits for expert opinion. It has been averred that the words "signed before me" and the date "19.07.1999" have been opined by the handwriting expert to be in the handwriting of the present petitioner. Admittedly, there is no independent witness of the prosecution who had seen the petitioner signing the said affidavits. It is settled proposition of law that expert opinion is not a conclusive proof of the validity of the handwriting or document in question in the absence of any independent corroboration. The report of handwriting expert is not included in the list of documents which can be accepted as valid evidence without examining the author as per the scheme of Section 293, Cr.PC. Even otherwise, the said specimen handwriting of the petitioner was obtained without the permission of the court by the investigating agency. In Ram Chandra Vs. State of Uttar Pradesh, AIR (1957) SC 381, 388, it is observed that "the expert evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. In Shashi Kumar Banerjee Vs. Subodh Kumar CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
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Banerjee, AIR (1964) SC 529, it is observed that acting on such evidence it is usual to see if it is corroborated either by clear, direct or by circumstantial evidence. In State of Gujarat Vs. Vinaya Chandra Chhota Lal Pathi, Criminal Appeal No.43 of 1964, it is held that "a court is competent to compare disputed writings of a person with others which are admitted or proved to be his writings. It may not be safe for a Court to record a finding about a person's writing in certain document merely on the basis of comparison, but a Court can itself compare the writings in order to appreciate properly the other evidence produced before it in that regard. The opinion of handwriting expert is also relevant in view of Section 45 of the Evidence Act but that too is not conclusive. It has also been held that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not."
9. Hence I am in agreement with the contention of the learned counsel for the petitioner that the learned ASJ has gravely erred in not appreciating the fact that the opinion of an expert under Section 45 of the Indian Evidence Act is merely CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
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an opinion and not a conclusive proof of the validity of the handwriting in question and the learned ASJ exceeded its jurisdiction by ordering the framing of charge against the petitioner merely on the report of the GEQD without corroboration.
11.8 In the facts & circumstances of this case when there is no evidence at all, except the opinion of handwriting expert in respect of certain writings to be that of accused/Naieem Saifi, Pankaj Chatturvedi and Amit Kumar Khatri, I find that same is not sufficient for recording a definite findings about these writings. Hence, for want of adequate and independent corroborative evidence, either direct or circumstantial, I afford benefit of doubt to accused/Naieem Saifi, Pankaj Chatturvedi and Amit Kumar Khatri and hold them entitled to acquittal.
11.9 In view of findings recorded above, I hold
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accused/Harbhajan Yadav (A2), Ram Chander (A3) and Anil Dhawan (A6) guilty of offence punishable under Section 120B r/w 419, 420, 468, 471 IPC, 13(2) r/w 13(1)(d) of PC Act, 1988 and 12(1)(b) of Passport Act, 1967. Besides, accused/Harbhajan Yadav and Ram Chander are held guilty of offence punishable u/s 13(2) r/w 13(1)(d) of PC Act, 1988 and accused Anil Dhawan is held guilty of offences punishable u/s 419, 420, 468, 471 r/w 468 IPC and Section 12(1)(b) of Passport Act, 1967. They are convicted accordingly. Accused/Bibianus toppo, G D Joshi, R S Rawat, Pankaj Chatturvedi, Naieem Saifi and Amit Kumar Khatri are acquitted.
Announced in the Open (R P PANDEY)
Court on 05.07.2014 Spl.Judge (PC Act)CBI01
Rohini Court:Delhi
CBI No.56/08 CBI Vs. Bibianus Toppo & Ors.
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