Delhi District Court
Cbi vs . Manish Sharma Etc. (Charge Sheet No. 2) on 19 July, 2016
Criminal Revision No.29 /15
Ashok Kaushik
Versus
CBI CC no.3/1
RC No. 2172012 A0003/ACU-VI
CBI Vs. Manish Sharma etc. (charge sheet no. 2)
19.07.2016
Pre: Ld. Counsel for the revisionist.
Ms. Shampa Tikait, Spl. PP for CBI.
Due to heavy rush of work no time left.
Now, case be fixed for order on 29.07.2016.
(Raj Kapoor)
ASJ-03/PHC/NDD/19.07.2016
29.07.2016
Pre: Ld. Counsel for the revisionist.
Ms. Shampa Tikait, Spl. PP for CBI.
File perused, vide separate detailed order placed along side in
the file, the revision petition is dismissed. Accordingly, the revision
petition stands disposed of. Parties are directed to appear before ld.
Trial Court on 23.08.2016. Trial Court record, if any, be sent back with a
copy of the order. Revision petition/ proceedings be consigned to record
room.
(RAJ KAPOOR)
ADDITIONAL SESSIONS JUDGE-03
PATIALA HOUSE COURTS NEW DELHI
29.07.2016
1
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS
JUDGE - 03 : PATIALA HOUSE COURTS:
NEW DELHI
Criminal Revision No.29 /15
Ashok Kaushik
s/o Ramesh Chand Kaushik
r/o Village Memoodpur,
PO Ristal, PS Loni,
Distt. Ghaziabad, UP.
.......Revisionist
Versus
CBI
CC no.3/1
RC No. 2172012 A0003/ACU-VI
CBI Vs. Manish Sharma etc. (charge sheet no. 2)
........Respondent
29.07.2016
ORDER:
1. This revision petition is directed against the order dated 06.01.2015 passed by Ld. ACMM (hereafter referred as impugned order) whereby ld. Trial Court ordered to frame charge against the revisionist for the offences u/s 419/420/384/468/170/120-B IPC and accordingly charge was framed vide order dated 06.01.2015.
2. Briefly facts of the case as per prosecution story are that revisionist along with other co-accused persons hatched a conspiracy to conduct an illegal and unauthorized search on the premises of one S.M. Jain in order to obtain illegal gratification. It is alleged that in pursuant to the conspiracy illegal raid was conducted at the premises of S.M. Jain on 28.04.2012 by Manish Sharma, Shiv Charan, Amit Kumar Srivastava and Anil Choudhary while impersonating themselves as officials of Enforcement Department. During the raid certain documents were 2 seized and a redemption memo was prepared to make the raid seem genuine. At the time of raid brother of accused Ashok Kaushik namely Parveen Kaushik (since deceased) who was already working with S.M. Jain as Sales Executive and who in fact had provided the details of business of S.M. Jain to the other conspirator came there and assured S.M. Jain that the raiding party members were known to him and he can get the matter resolved. S.M. Jain was forced to pay Rs.4 lacs in return of documents seized by above conspirators/ impersonating ED Officials. The amount so collected was divided between Parveen Kaushik and Manish Sharma. Here again the mobile phones of accused persons were put on surveillance and recorded conversations reveal the manner in which the conspiracy was hatched between the accused persons. The material upon which the CBI is relying on consist of the recorded telephonic conversations along with the report of the CFSL regarding the voice samples, statement u/s 164 Cr.P.C. of complainant Sh. S.M. Jain apart from other public witnesses. In fact the statement u/s 164 Cr.P.C. coupled with transcripts of the recorded conversations as highlighted in the charge sheet are sufficient to prima facie frame the charges against the accused persons as at this stage the court is not to hold a mini trial and weigh the proposed evidence of the prosecution.
3. The revisionist along with co-accused persons had no authority whatsoever to conduct a raid at the premises of Sh. S.M. Jain and to remove the DVR and the documents from his premises. Prima facie 3 there was sufficient intention to extort money from him/cheat him and induce him to part with his hard earned money. The conspiracy was hatched by all the accused persons wherein they had their specific role. The transcripts of the recorded conversations particularly 27.03.2012, 28.03.2012, 03.04.2012, 05.04.2012, 16.04.2012, 21.04.2014 22.04.2012, 24.04.2012, 27.04.2012, 30.04.2012 etc. disclosed the role of the accused persons and how the conspiracy was given birth to. Some became member of raiding team and the others assumed the role of middle men to negotiate the deal on behalf of the complainant with the raiding team and the remaining collected the amount for disbursement amongst the conspirators.
4. Ld. Trial Court after perusal of the case file and material available on record passed the impugned order dated 06.01.2015 observing that:-
"Different individuals who hatch a conspiracy which is often given birth to in secrecy have different roles nonetheless they are equally responsible/ liable for the role of the other individual being coconspirators whether their role is active or dormant. Prima facie in the given case Sh. S.M. Jain was forced to/cheated to part with his hard earned money and other valuable securities. No doubt the DVR was not recovered but non recovery of the same is not always fatal to the prosecution. Furthermore this is not the stage to go into those issues/aspects. Similarly, non recovery of money from the other accused persons is also not fatal to the prosecution. It is sufficient at this stage that out of cheated amount of Rs.4 lacs, Rs. 3 lacs were recovered from co-conspirator Parveen Kaushik (deceased) and Rs. 25,000/ from other conspirator namely Manish Sharma. As far as tampering with the redemption memo is concerned same does not absolve the accused of their liability. They cannot at this stage 4 wash off their hands from the above redemption memo prepared to give effect to the conspiracy merely because the complainant tampered with the same more so when the complainant did not hide the said factum. Nonetheless all these issues are matter of trial and not to be meticulously gone into at the time of consideration of charge. Regarding certificate u/s 65B Evidence Act, in my opinion it is only for the purpose of corroboration. As already discussed above statement u/s 164 Cr.P.C. of the complainant is sufficient as on now to frame the charges against the accused persons.
Regarding section 170 IPC it is not disputed that Shiv Charan and Amit Kumar Srivastava were not holding any post in the Enforcement Department and in fact were employed with Central Board of Excise and Customs, New Delhi, Office of Central Excise, Jaipur This is sufficient for the purpose for section 170 IPC. As far as two charge sheets are concerned, section 219 and 220 Cr.P.C. takes care of the same and I find no illegality or much least any irregularity. Furthermore the cases are segregated for the purpose of trial. Accordingly, charges have been framed separately against the accused persons to which they have pleaded not guilty and claimed trial. "
Feeling aggrieved with the impugned order dt. 06.01.2015 and charge ld. counsel for the revisionist filed this revision petition.
5. Arguments were heard. During the course of arguments Ld. Counsel for the revisionist submitted that a bare perusal of the aforesaid FIR as well as the charge sheets filed by the Respondent, it is clear cut case of the Petitioner/revisionist to be discharged from the aforesaid offences as there is no role of the Petitioner/revisionist in the entire story cooked up by the prosecution. Not only this, there is not a single documentary evidence to establish the role and involvement of the Petitioner /revisionist of any kind in the alleged FIR as well as charge sheets. It is 5 pertinent to mention here that the name of the revisionist is neither in the FIR nor in the charge sheet and later on in the supplementary charges, the name of the revisionist has been falsely impleaded. As per the alleged story of prosecution, it is admitted fact by the prosecution that the alleged telephone does not belong to the revisionist/ Petitioner from which the alleged communications had been communicated and the voice of the revisionist/Petitioner is totally different from the actual caller and the authenticity of the agency from where the spectrograph test was conducted is also doubtful. Ld. Counsel for the revisionist again submitted that the identifier has no prior introduction of any kind of clue about the identity of revisionist at all. He again submitted that there is no provision in the Code of Criminal Procedure that two charge sheets could be filed simultaneously in one FIR and section 219/200 of Cr.P.C. talks about only the provisions of supplementary charge sheets, therefore, the investigation carried out by the Respondent is illegal and void-ab-initio as there is no provision in the law. The Ld. Trial Court had failed to appreciate the contentions of the revisionist and outrightly on the basis of assumption framed the charge against the accused persons vide order dated 06.01.2015 and liable to be set aside. In the entire statement of Complainant Sh. S.M. Jain, the complainant did not mentioned the name of the revisionist i.e. Ashok Khaushik at any point of time. It is admitted fact of the prosecution that revisionist was neither present at the time of committing of alleged offence nor anything had been recovered from the revisionist Ashok Khaushik. It is also admitted facts of the prosecution that the telephone which alleged to be used for 6 conversation belongs to the elder brother Praveen Khaushik (deceased) and no phone belonging to revisionist was ever tapped. It is also submitted by the counsel for the revisionist Ashok Kaushik that there are clear discrepancies in the investigation of CBI, that on the one hand prosecution stated that Praveen Khaushik (deceased) elder brother introducing revisionist to Manish Sharma which is more specifically mentioned in Para No.17.3 of supplementary charge sheet it is evident that Praveen Sharma (deceased) had direct excess and link with Manish Sharma and in the another supplementary charge sheet moulding the same facts by stating that revisionist is known to Manish Sharma for last 3 years in Para No. 17.2. From the above said fact it is crystal clear that the CBI had not duly established his case and till date the CBI have not confirmed about the association of alleged offence because it is a true fact that revisionist have no role of any kind in the alleged offence and duly being dragged being the brother of Praveen Kaushik (deceased).
6. Ld. counsel for the revisionist Ashok Kaushik again submitted that the present charge sheet had been filed by the Respondent for the offence under section 120B, read with 170 IPC and section 511 read with 384, 419 & 420 IPC but it is clear case of discharge as mentioned above that there is no role of revisionist for attempting of alleged offences of cheating or extortion of money. There is no recovery from the revisionist in the alleged investigation by the Respondent. Till date alleged telephone has not been seized by the Respondent. It is also argued and submitted that the Ld. Trial court failed to appreciate that 7 though there is no recovery of DVR or 99 memos which are alleged in the prosecution stories from anyone in the alleged offence and it was also overlooked by the learned trial court that there is a tempering with the redemption memo therefore investigation carried out by the CBI not according to the 65B of the Indian Evidence Act.
7. Ld. counsel for the revisionist again submitted that Ld. Trial Court has failed to appreciate that there is no prima facie offence has been committed and Ld. Trial Court before framing the charge must have to consider the broad probability of the case as well as the total effect of the evidence and the documents produced before the court and must have to see the evidence on record before framing of charge. The revisionist replied upon the judgment passed by our own Apex Court reported as AIR 1979 (SC) 366 titled as Union of India Vs. Prafulla Kumar & Another wherein it has been held that :-
"The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the judge is satisfied that the evidence produced before him while giving rise suspicion against the accused, he will be fully within his right to discharge the accused.
In exercising his jurisdiction under section 227 the judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducted a trial".8
8. The revisionist replied upon the judgment passed by our own Apex Court reported as AIR 1982 (SC) 1043 titled as Mahabir Prasad Verma Vs. Dr. Surinder Kaur wherein it has been held that:-
"Tape-recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape-recorded conversation is indeed no proper evidence and cannot be relied upon".
9. The revisionist replied upon the judgment passed by Hon'ble High Court of Delhi in the matter titled as Sanjeev Saxena Vs. State (NCT of Delhi) wherein the Hon'ble Court has held that:-
".....at the time of framing of the charge the probative value of material on record cannot be gone into and the material brought on record by the prosecution has to be accepted as true at that stage, however, the court must before framing a charge, apply the judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. The court cannot act merely as a post office or mouthpiece of prosecution, but has to consider the board probabilities of the case, the total effect of the evidence and the documents produced before the court. Undoubtedly, the court is not expected to make a roving and fishing inquiry into the weigh the evidence as if he was conducting a trial. However, the court does possess the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out."
On these grounds ld. Counsel for the revisionist submitted that impugned order be set aside.
10.Contrary to it, Ld. PP for CBI submitted that in the connected CC No. 3/1 revision petition filed by Co-accused Shiv Charan against the charge has already been dismissed vide order dated 10.05.2016 by the Hon'ble High Court. Ld. PP for CBI has also filed a copy of the notification vide which the Department of Personnel of CBI has been shown under the 9 Ministry of Home Affairs. On these ground ld. PP for CBI submitted that revision petition is liable to be dismissed.
11.I have given careful consideration to the submissions of ld. counsel for the revisionist and ld. Counsel for CBI as well. It is well settled proposition of law that to arrive at a prima facie view for the purpose of framing of charge is exclusive domain of ld. Trial Court yet this court has limited jurisdiction to enter into the discretionary area of ld. Trial court on the grounds of propriety and correctness. In the present case, since name of the revisionist has come on record in the statement recorded u/s 164 Cr. PC and voice has also been alleged found 'probable' in the CFSL report. I have also perused the Hon'ble High Court order dated 10.05.2016, vide which the revision petition of co- accused Shiv Charan was dismissed observing that:-
".....................In view of the given facts and circumstances, I do not find any illegality or ambiguity in the order dated 06.01.2015 passed by the Trial Court and the order dated 08.04.2015 passed by the Revisional Court upholding the order of the Trial Court so as to call for interference by this court......."
12.Further, perusal of the case file reveals that there are two charge sheets i.e. charge sheet no.1 and charge sheet no.2 in one case RC No. 2172012 A0003/ACU-VI have been filed for the offences u/s 120- B/ 419/ 420/ 384/ 511/ 170 IPC against revisionist Ashok Raj Arora and for the offences u/s 120-B/ 419/ 420/ 384/ 511 IPC against other co-accused Ashok Kaushik in charge sheet no.1 and for the offences u/s u/s 419/ 420/ 384/ 468/ 170/ 120-B IPC in charge sheet no.2. Separate two charges have been framed against each charge sheet in 10 one case. To my view charge could have been framed head-wise but the framing of separate of charge against each charge challan do not impact the element of illegality but irregularity. In light of these facts and circumstances, I do not find any merit in the contentions of ld. Counsel for the revisionist to set aside the impugned order dated 06.01.2015. Besides, Hon'ble High Court has already dismissed the revision petition of co-accused Shiv Charan, which was filed against impugned order dated 06.01.2015, vide Hon'ble High Court order dated 10.05.2016. Thus, revision petition is dismissed. Accordingly, the revision petition stands disposed of. Parties are directed to appear before ld. Trial Court on 23.08.2016. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 29.07.2016 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI 11