Delhi District Court
Rajyagor vs . " (1971) 12 Glr 167: on 28 May, 2012
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No. 58/11
R.C. No. 35(A)/91
Case I.D No. 02401R0078232001
Central Bureau of Investigation
Versus
1. Shri Brijendera Narain
S/o Shri Tara Chand Dixit,
R/o Flat No. 351, Neelkanth Apartments,
Sector 62, Noida.
2. Shri Rakesh Ahuja
Son Late Darshan Ahuja,
R/o 75/6, Radhey Puri,
Delhi. (now expired)
Date of Institution : 01.03.1996
Date of reserving Judgment : 27.04.2012
Date of Pronouncement : 28.05.2012
JUDGEMENT
Preliminary The Accused No. 1 Sh. Brijendera Narain was sent for trial along with Accused No.2 Rakesh Ahuja under section 120 B IPC CC No. 58/2011 1 of 50 read with section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1998 and sections 467 and 471 IPC and for having committed substantial offences under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 and section 467/471 IPC.
Introduction of Accused and allegation against them in brief
2. Accused No.1 is the Assistant Accounts officer working with MTNL and the Accused No. 2 Shri Rakesh Ahuja (deceased) is subscriber of three telephone numbers 3314566, 3324638 and 3320115. The allegation against them is, they had pursuant to a conspiracy manipulated the records resulting in the wrongful loss to the MTNL to the tune of Rs. 76,487/ and corresponding gain to the Accused No. 2 Understanding the process which was manipulated
3. The case relates to the year in 198889. At that point of time, as it appears computerization had though started as far as CC No. 58/2011 2 of 50 the billing was concerned, but the entire process was still not computerized and there were things which were still required to be done manually.
4. The process which was allegedly exploited by the Accused No. 1 for causing gain to the Accused No. 2 has been reproduced in the ChargeSheet like this:
" .... MTNL has computerised system for billing of telephone bills. The computerized bills are sent to the subscriber for payment. If the particulars of date of bill, cycle, telephone no. and the amount of bill paid by the subscriber differ from those mentioned in the computer record, the computer shows the amount as unaccounted and also gives a reference number to each unaccounted amount subsequently. The dealing hand in the Accounts Section verifies the print out of each unaccounted amount by referring to original records like billing register and the adjustment of unaccounted funds are made by giving the reference number in the input form 30C. The particulars in the input forms 30C are filled in by the dealing Assists. checked by the Junior Accounts Officers and the Assist. Accounts Officers with reference to original record and reviewed/ approved by the Accounts Officers."
CC No. 58/2011 3 of 50 Manipulation by Accused No. 1 in favour of Accused No. 2
5. The accused No. 1 allegedly manipulated the Input Forms 30 C. He instead of adjusting the unaccounted funds as against the rightful subscriber adjusted the same as against the outstanding bills of Accused No. 2 relating to above three numbers. The details of the same in the tabulated form read as under:
S. No. 30 C Amount Billing cycle/ Ref. Ref. No. alotted No Form and the of Telephone of No. to telephone period/ of the adjustm A2 used No. / name of relevant ent subscriber entry
1. 331/30C/14 9,160 3314566 275654 Cimmco (Print out No. (Billing cycle - International, ECCE 8467 for May, 01.04.1987) House. K,G, Marg,
88) New Delhi Entry at T. No. 3314566 Sl. No. 35
2. 331/30C/14 8,125 3314566 304998 LIC of India, Jeevan (Print out No. (Billing cycle - Prkash Building, 25, 8467 for May, 1.12.1987) K.G. Marg, New
88) Delhi.
Entry at T. No. 3314970
Sl. No. 38
3. 331/30C/30 8,782 3314566 272401 Central India
(Print out No. (Billing cycle - Manufacuring Co.
8493 for Dec, 1.2.1987) Ltd., 4D, Vandana
88) Entry at Building, Tolstoy
Sl. No. 25 Magar, New Delhi.
T. No. 3314342
CC No. 58/2011 4 of 50
4. 331/30C/30 8,233 3314566 275654 Cimmco
(Print out No. (Billing cycle - International, ECCE
8493 for Dec, 1.8.1987) House. K,G, Marg,
88) Entry at New Delhi
Sl. No. 38 T. No. 3314381
5. 331/30C/31 1,416 3314566 555052 Straw Products Ltd.
(Print out No. (Billing cycle - Link House,
3373 for Jan, 1.2.1988) Bahadurshah Zafar
89) Entry at Marg, New Delhi.
Sl. No. 30 T. No. 3312306
6. 331/30C/31 7,017 3314566 334474 LIC of India, Jeevan
(Print out No. (Billing cycle Prkash Building, 25,
3373 for Jan, -01.10.1988) K.G. Marg, New
88) Entry at Delhi.
Sl. No. 36 T. No. 3314260
7. 332/30C/19 3,118 3320115 344872 Delhi Safe Deposits
(Print out No. (Billing Cycle - Co. Ltd., 80,
3376 for Feb. 01.05.1988) Janpath,
89) Entry at New Delhi.
Sl. No. 25 T. No. 3320084
8. 332/30C/19 10,531 3324638 335470 M/s CITOH & Co.
(Print out No. (Billing Cycle - Ltd., New Delhi
3376 for Nov. 01.07.1988 House, 27,
89) Entry at Barakhamba Road,
Sl. No. 46. New Delhi.
T. No. 3324034
9. 332/30C/20 20,105 3324638 337356 K.C. Thapar & Bors.
(Print out No. (Billing cycle Thapar House,
3377 for Feb. 01.09.88) Janpath
89) Entry at Sl. New Delhi.
No. 95. T. No. 3328238
6. As far as the adjustment in favor of telephone number 3326985 is concerned it submitted in the chargesheet that this number belongs to one M/s Goodwill Paint Industries, the investigation could not establish connivance of any person of CC No. 58/2011 5 of 50 this firm with the accused No. 1 to say that the adjustment was fraudulent.
Abatement of Proceedings against Accused No. 2
7. The Accused No. 2 during the Course of the trial had expired and the proceedings against him stood abated on 06.03.2002.
Charge
8. On the basis of the allegations, the Charge was framed against the Accused No. 1 for offence punishable under section 120B IPC read with section 467,471 IPC and also read with section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 467 IPC, 471 IPC and under section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
9. The Accused No. 1 had pleaded not guilty and claimed trial.
CC No. 58/2011 6 of 50 Prosecution Evidence
10. During the course of the trial the prosecution examined in all 21 witnesses.
PW 1
11. Witness PW 1 is the Vigilance officer of MTNL. He had sent a letter to the investigating officer Shri T K Ghosh Ex PW1/A . Along with this letter he had sent copies of vigilance reports dated 22/11/90 and 12/11/90 with documents. These documents had been collectively exhibited as Ex PW1/B1 to B/21. In one of the vigilance report there is an allegation that the Accused No. 1 had prepared all the Input Forms 30C relating to the fake adjustment of Bills as against the four telephone numbers (out of these four, three numbers belong to the accused No. 2). It is also, interalia, stated that the Accused No. 1 had given in writing that he had prepared the said Input Forms.
CC No. 58/2011 7 of 50 PW2
12. Witness PW2 is an LDC working in office of AM (TRA) MTNL. He had deposed that as per the seizure memo Ex. PW2/A he had handed over the documents Ex PW2/B1 to B9 [Original Unaccounted payment list of ref. Nos. 272401; 275654;304998;334974;555052;335470;337356;344872 and photocopy 352943]; PW2/C1 to C6 [Input Form 30C bearing printed no. 8467;8493;3376;3377;3390 and 3373]; PW2/D to PW2/S [Attendance Registers for 01/01/88 to 31/05/88, 01/11/88 to 31/12/88 of KBN CDX and 01/12/88 to 31/01/89 of JP CDX/KBN - Bill Bundles of Level 3314 for the months 2/87,4/87,6/87,8/87,2/88,4/88,6/88,8/88 and 10/88; Bill Bundles of Level 3324 for the months 7/88 and 9/88 and of Level 3320 for the month 5/88 and of Level 3326 for the month 7/88] . PW3
13. Witness PW3 is Sh Jagdeep Singh Soni posted as AAO (TR) at Khushid Lal Bhavan, MTNL. This witness had identified CC No. 58/2011 8 of 50 the signatures of Sh. B R Dasur on Ex PW2/C1 ( Form 30 C for the month 5/88) at point A. PW4
14. Witness PW4 Sh N C Goyal, posted as JAO under AO ( TR) central, Khursheed Lal Bhavan had deposed that during the period 88/89, Sh. B R Dasur was the AO and the Accused No. 1 was AAO or JAO, whereas Sh. P K Bhardwaj was the Dealing Assistant. According to him Sh. S S Baweja was also Accounts Officer at that time. He had deposed that he was not in a position to identify their signatures because he had never worked with them. He had still stated that he would try to identify their signatures if shown to him. He identified the signature of Sh Dasur appearing at point A on Ex PW2/C1 by saying that he could identify his signatures as he used to receive order under his initials. He had identified the signatures of Sh. Baweja at point A and that of Sh. Bhardwaj at point C (same as Q4). According to prosecution apparently these signatures were that of Accused No. 1. He was crossexamined CC No. 58/2011 9 of 50 on this question on behalf of CBI. In the crossexamination he had deposed that possibly the said signatures are that of the Accused No.1.
PW 5
15. PW5 Sh K Murli was posted as Accounts Officer (TBS), office of CGM (Telephones) at Khursheed Lal Bhavan in the year 19931994. He had referred to different entries in PW2/C1 and PW2/C2 wherein the adjustment had not been made against the bill against which unaccounted amount had been shown and reference number generated. He had also made reference to one bill relating to telephone no. 3314342 and also to the list of unaccounted payments specially relating to the reference no. 272401, 304998 and 334474. PW6
16. Witness PW6 Sh. Dilawar Singh Rawat had deposed that he was working as Accountant during 1983 to 1993 with M/s CC No. 58/2011 10 of 50 Goodwill Paints Industries. Sh. R.D Sharma was the Manager of the said firm at that time. He had also informed that the telephone no.3326985 was installed in the premises of M/s Goodwill Paints Industries. He had identified the seizure memo Ex.PW6/A by which Sh. R.D Sharma had handed over four paid telephone bills and certified xerox copy of the ledger pertaining to the above telephone and telephone expenses to the CBI. He had also identified the four bills and the xerox copies of the ledger as Ex.PW6/B1 to B4 and Ex.PW6/B5 & Ex.PW6/B6.
He had further informed that he also had handed over the documents to CBI mentioned in the seizure memo viz Ex.PW6/C1; a letter from the Chief Accounts Officer, MTNL to M/s Goodwill Paints Industries receiving the payment of Rs. 17,386/; Ex.PW6/C2 duplicate bill for the said amount which was paid; and PW6/C3 a receipt for the payment of Rs.100/ as reconnection charges.
PW7
17. Witness PW7 Lt. Col. H.S Bisht was the Manager of M/s Straw Products Ltd. at the relevant time. He had deposed that CC No. 58/2011 11 of 50 he had handed over to CBI a letter Ex.PW7/A signed by Sh. K.P Khetan, the then General Manager of the Company along with the true photocopy of telephone bill paid for the billing cycle 10.4.1988 pertaining to telephone no.3312306, Ex.PW7/B. PW8
18. Witness PW8 Sh. Ripu Daman Sharma who was working as Manager of M/s Goodwill Paints Industries had identified the signatures on the seizure memo Ex.PW6/A. He had deposed that vide the said seizure memo he had handed over four bills Ex.PW6/B1 to B4 pertaining to telephone no.3326985 and certified xerox copy of ledger sheet Ex.PW6/B5 and Ex.PW6/B6 after attesting the same.
PW9
19. Witness PW9 Sh. R.C Rastogi who was working as Member (Finance) Telecom Commission, Government of India from 1993 to November, 1994 had deposed that the accused CC No. 58/2011 12 of 50 was working as Jr. Accounts Officer in MTNL. He was competent to remove him from service. He had accorded sanction Ex.PW9/A for his prosecution after examining all the material including the FIR and statement of witnesses etc after applying his mind to the facts of the case. He had clarified that at the time of the commission of the offence the accused was working as Jr. Accounts Officer and at the time of the according of sanction he was working as Assistant Accounts Officer. PW10
20. Witness PW10 Sh. Tulsi Ram was examined by the prosecution to inform the Court as to how the entire process of the generation of unaccounted payments and its subsequent adjustment works. He had deposed that from June 1988 to July 1993 he had been working as Assistant Accounts Officer/Accounts Officer in Telephone Revenue Office II, MTNL, New Delhi. He was working in the Input Section and used to feed the data of new telephone connections in the computer and was also dealing with the log book. He had given the entire CC No. 58/2011 13 of 50 procedure in the following words :
"First the bill is prepared by computer which contained telephone number, category code, class code, name and address of subscriber, call period, opening and closing meter reading, net calls and amount to be paid by the subscriber. The bill is prepared in duplicate in Consumer Section. One copy is sent to subscriber and another copy is sent to TRA Section for record. Subscriber paids the bill against the receipt. Official working on the Counter where the bill is paid, the detail of the bill and the payment received by him, in the Computer. Payment list is generated from the computer and sent to TRA Section on 10th, 20th and 30th day of the month. Payment lists are prepared of two types, one is for accounted payment and another for unaccounted payment.
Dealing Assistant in TRA Section checks unaccounted payment list with outstanding bills and thereafter correct the data. At the time of generating the unaccounted payment list, reference number is given by the computer against each bill/outstanding payment. The Dealing Assistant in TRA Cordex Section fills Section 30 C which is checked by Section CC No. 58/2011 14 of 50 Supervisor, Junior Accounts Officer and Accounts Officer of Cordex Section. The Dealing Assistant also put signatures in token of that he has prepared the list"
PW11
21. Witness PW11 Sh. E. Dean who was working as custodian with M/s Delhi Safe Deposit Co. Ltd. identified certified photocopy of the telephone bill Ex. PW11/A of telephone no. 3320084 in the name of the company which had been duly certified by him. He had also deposed that the company had paid this bill i.e. Rs. 3078 to MTNL. PW12
22. Witness PW12 Sh. Arun Kumar Kak who was working as Manager (Personnel and Administration) in the year 1993 with M/s Karam Chand Thapar and Bros. Ltd. had deposed that telephone no.3328238 was one of the telephone numbers CC No. 58/2011 15 of 50 attached to EPABX of the company. He had provided the details to CBI with regard to the payment of the bill relating to the said telephone bill of the bill cycle 1.4.98 by the letter dated 28.10.93 Ex.PW12/A. He had further deposed that the payment of the said bill was made by cheque for the sum of Rs. 1,20,436/. This payment included the payment of Rs.43,594/ in respect of the billing cycle 1.4.88. This cheque according to him was cleared by the bank on 21.9.1988.
PW 13
23. Witness PW 13 Sh. G. N. Sharma deposed about the files relating to no. 3314566 and phone 3320115 of Rakesh Ahuja handed over to CBI. These files, interalia, have the details of correspondence and note sheets showing as to how the Accused No. 2 had cleared the outstanding dues as against the said bills after the fraud had been discovered. PW14
24. Witness PW14 Sh. Rajendra Kumar posted as JTO (Vigilance) in MTNL Kursheed Lal Bhawan had deposed that he CC No. 58/2011 16 of 50 had handed over the history sheets Ex PW14/A1 to Ex PW14/A2 of four numbers (3324638 & 3320115 and 3314566 & 3326985) in favour of which the adjustment had been made signed by one R D Sharma the then AE, FRS Kidwai Bhawan Telephone Exchange. These documents had been seized by the investigating officer vide seizure memo Ex PW 14/B. PW 15
25. Witness PW 15 Shri Mohinder Singh is a handwriting expert. Sum total of his testimony is that according to his report he could connect the Accused no. 1 only with one initial on Ex PW2/C1 (Form 30C of the month of May 1988) and not even the figures entered in this Form or any other Input Form. PW16
26. Witness PW16 Sh. Ashok Kumar Bhatt is the Accounts Officer who was working in TRA branch since September 2000. He had identified the letter dated 19/12/88 written by the Chief CC No. 58/2011 17 of 50 Accounts Officer ( TR HQ) to Chief Accounts Officer ( Central) Shri K Rama Murthy. It is photocopy of the letter. In this letter interalia the attention of the chief accounts Officer (Central) was drawn to the fact that it had been observed that during the months from July to October 1988 there had been abnormal increase of mistakes other then punching in unaccounted items, and the request was made for issuing suitable instructions to all concerned for filling the data timely and correctly after ensuring hundred percent checking at the JAO ( TR) Level. Although in his examination one instruction manual regarding telephone billing and accounting system was put to him but he had not identified the same and had deposed that he had not come across any such a manual during official work. PW17
27. Witness PW17 Sh. V. K. Sharma who was working as Manager (Administration) with M/s CIMMCO International had deposed that he had sent reply dated 28.10.1993 Ex.PW17/1 to CC No. 58/2011 18 of 50 CBI in response to a letter received from CBI in respect of the telephone no.3314381 of CIMMCO International. Along with the said letter the photocopy of the telephone bill Ex.PW17/1 for a sum of Rs.39933.20 was also appended. According to the witness the actual bill was for Rs.41305. There was, however, a rebate of Rs.1378/ which was given to the company. After subtracting the said rebate the remaining amount of Rs. 39933.20 was paid on 16.7.1987. He had also identified one slip Ex.PW17/2 appended with the letter Ex.PW17/1 in the hand writing of Sh. R. K. Khandelwal, Accounts Officer of the Company.
PW18
28. Witness PW18 Ramesh Kumar is one of the Investigating Officer in this case. He had deposed that the investigation of this case was entrusted to him in May, 1993. He investigated this case till October/November 1994 and after his transfer the investigation was handed over to DSP Sh. P.C Sharma.
CC No. 58/2011 19 of 50
29. According to his testimony during the course of investigation he had seized various documents referred to in his testimony and also recorded statements of witnesses. He had also deposed that during the course of the investigation he had collected the sanction order Ex.PW9/A for the prosecution of the accused from Sh. R. C. Rastogi, Member (Finance) and Secretary to the Government of India, Telecom Commission. PW19
30. Witness PW19 Sh. S. B. Sinha is also one of the Investigating Officer in this case. He deposed that investigation of this case was remained with him for a very brief period of time and during that period he had examined two witnesses, namely, Sh. Ripu Daman Sharma and Sh. Dilawar Singh Rawat and also collected some documents.
PW20
31. Witness PW 20 Sh. Ram Prakash Sharma had merely CC No. 58/2011 20 of 50 stated that he was posted as Chief Accounts Officer during the period 1993 to January, 1996 in the MTNL and he did not remember if there was any letter received in his Section from CBI.
32. In the crossexamination, this witness, however, had stated that the signatures appearing on the Input form 30C Ex.PW2/C1 at point Q4 did not appear to be that of the accused. He had also stated with regard to Input form Ex. PW2/C5 that it was signed after the Dealing Assistant, by the Accounts Officer and not by any Jr. Accounts Officer in between. Since the witness had added some new facts in the crossexamination he was allowed to be reexamined by the Ld. PP for CBI by the Court.
33. In the reexamination he had clarified that the procedure for the preparation of Input form was that it used to be prepared by the Dealing Assistant and thereafter used to be checked by Jr. Accounts Officer and thereafter rechecked by the Accounts CC No. 58/2011 21 of 50 Officer for his satisfaction under the over all supervision of the Chief Accounts Officer. He had denied the suggestion that the accused Brijendra Narain had never worked under him. PW21
34. Witness PW21 Sh. P.C Sharma is one another Investigating Officer. This witness had deposed that after the transfer of Inspector Ramesh Kumar, he was made the holding I.O of this case. At the time when he received the investigation, the sanction for prosecution was awaited. After the receipt of sanction for prosecution, he had filed the charge sheet in the Court.
Statement under section 313 of the Code of Criminal Procedure, 1973
35. All the incriminating evidence which had come on record was put to him and his statement under section 313 had been recorded.
CC No. 58/2011 22 of 50 Defence Evidence
36. Accused had examined three witnesses in his defence. DW1
37. The witness DW1 Sh Ramesh Chander Sharma Retried as Dy General Manger had deposed that he was working as Junior Accounts officer in the year 1991. He had deposed that signature appearing at point X1 (same as Q4) did not appear to be of the Accused no. 1.
DW2
38. The Witness DW2 Sh R. B. Mittal Rtd Chief Accounts Officer had explained the process by which 'unaccounted money' is adjusted in the concerned account. DW 3
39. Witness DW3 Shri Abdul Rashid posted as Chief Accounts Officer in the office of General Manager, Central at CC No. 58/2011 23 of 50 CGO Complex was also examined by the Accused to explain the procedure to the Court with regard to the "adjustments" of "unaccounted payments". From his general experience he has described before the Court as to how the entire process works. Submission of arguments
40. I have heard Ld Public Prosecutor of CBI and also the Ld Defence Counsel and have gone through the record of the case. Discussion
41. This entire case hinges on only one assertion that on the input form ExPW2/C1 at point Q4 is in the initial of the Accused No.1. This is the only basis of saying that the Accused had dishonestly made adjustments of the unaccounted payment (relating to some other telephone numbers) against the telephone bills of the Accused No. 2, thereby causing wrongful loss to the MTNL and corresponding wrongful gain to the Accused No. 2. This also is the only evidence to say that the CC No. 58/2011 24 of 50 Accused no. 1 had entered into a criminal conspiracy with the Accused No. 2 to commit the offences under section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act and Section 467/471 IPC. The necessary corollary would be that if the prosecution fails to establish this fact, none of the charges would stick against the Accused No. 1.
(There are six Input Forms in this case Ex PW2/C1 to Ex PW2/C6. There is no evidence led by the prosecution to prove that initials on the input forms other then the input form Ex PW2/C1 belongs to the Accused No.1. The handwriting expert too has also failed to connect inputs forms other then Ex PW2/C1 with the Accused) Whether there is evidence to connect the Accused no. 1 with initials appearing at Q4 on Input Form Ex. PW2/C1 .
42. There are two witnesses examined to prove this fact. First witness is one Sh. N C Goyal who claimed to have seen the writing and signatures/initials of the Accused No. 1 and, therefore, was in a position to identify his initials on the Input Forms. The other witness is the handwriting expert who had CC No. 58/2011 25 of 50 only connected the initials of the Accused with the input Form Ex PW2/C1 appearing at Q4 and none else.
43. Witness Sh N. C. Goyal, as has been noted above, had been examined as PW4. This witness in the examination in chief had identified this so called initials of Accused No. 1 as that of dealing hand Mr. Bhardwaj. In the crossexamination, however, by the Ld. Prosecutor of CBI he had at best stated "I cannot say with certainty that signature at point C (same as Q4) are of the Accused but possibly they are of the Accused." That is to say, as far as his testimony is concerned it is completely unreliable to reach the conclusion that initials which according to the prosecution are that of the Accused No. 1, are actually of the Accused No. 1. As far as the initials on the other Input Forms are concerned there was no question put to this witness for identifying the initials of Accused No.1 on them.
44. Not just that one of the witnesses of the prosecution PW20 Shri Ram Prakash retired Assistant Director General, who was CC No. 58/2011 26 of 50 as far the prosecution is concerned, was not a witness to prove this fact; he, however, had during the crossexamination deposed that he had worked as Chief Accounts Officer during the period 1993 to 1996 and the Accused had worked under him. He was categorical in his statement that the initials in question were not of the Accused No.1. He deposed " I know accused, who is now present in Court and he had worked under me as Junior Accounts Officer." He had after seeing the initials of Accused No. 1 on the said document had stated "I have seen Q4 appearing on Ex PW2/C1 but the same do not appear to be initials of the Accused." This witness was reexamined by the Ld Public Prosecutor but I find nothing in his crossexamination to shake his testimony in this regard.
45. Accused also examined witnesses in his defence DW1 one Ramesh Chandra Sharma Retired Dy. General Manager of MTNL. He had deposed that in the year 1991 he was posted as Junior Accounts officer, he was in a position to identify the initials of the Accused No. 1 and according to him the initials CC No. 58/2011 27 of 50 appearing at point X (same as Q4) was not that of the Accused No. 1. There is nothing as such striking in his testimony which may lead to disbelieving his testimony.
46. The testimony of both PW20 and DW1 are relevant under 1 section 46 of the Evidence Act as they are destructive of the opinion of the handwriting expert.
47. As is commonly said handwriting analysis because of its highly subjective character, is very vulnerable to context effects such as expectation and suggestion. It may acceptable in evidence and not be treated like the testimony of an accomplice but could it still needs to approach it with caution. In AIR 1980 1 46. Facts bearing upon opinions of experts. Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinion of experts, when such opinions are relevant.
Illustrations
(a) The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that person, exhibited certain symptoms which experts affirm or deny to be the symptoms of that poison, is relevant.
(b)The question is, whether an obstruction to a harbour is caused by a certain seawall. The fact that other harbours similarly situated in other respects, but where there were no such seawalls began to be obstructed at about the same time, is relevant.
CC No. 58/2011 28 of 50 SUPREME COURT 531 "Murarilal v. State of M.P." this what the Hon'ble Supreme Court had laid down:
"6. Expert testimony is made relevant by S. 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like Illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S. 3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we act on artificial CC No. 58/2011 29 of 50 standard of proof not warranted by the provisions of the Act. Further, under S. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinion of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need to no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it."
CC No. 58/2011 30 of 50
48. Further in the same judgment it was concluded:
"11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt. the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted."
CC No. 58/2011 31 of 50
49. The testimony of the handwriting expert PW15 is all the more required to be examined with the caution to be accepted in the wake of the testimony of the witnesses PW4, PW20 and DW1. I am of the considered view that it would not be safe to accept the opinion of the handwriting expert standalone to jump to the conclusion that the initials appearing on the input form Ex PW2/C1 is that of the Accused No.1. As has already been noted above this is the only incriminating evidence led against the Accused . The prosecution has not even cared to examine or cite even the persons as witnesses whose signatures/ initials appear on this document.
50. There is another factor which one may also take into account. This report of the handwriting expert is not worthy of any credit as it is not backed by reasons. His handwriting report Ex PW 15/B1 reads as follows:
" The further documents of this case have been carefully and thoroughly examined.
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2. The person who wrote the blue enclosed writings and signatures stamped and marked S13 to S18 and A1 to A8 also wrote the red enclosed signature similarly stamped and marked Q4.
3. It has not been possible to express any definite opinion on rest of the items on the basis of material supplied."
51. During the course of his examination the witness had tried to push through the reasons Ex PW15/B2 on which his opinion was based, which was rightly opposed by the Ld Defence Counsel. One may note after all evidence of an expert is an 'opinion evidence' based on scientific observations; an opinion without reasons would be to the say the least would be meaning less not unworthy of any credit. It would like a prediction of a soothsayer. It may further be noted that "opinion" itself is a 1 relevant fact under section 51 of the Evidence Act. This document Ex PW15/B2 stating reasons was neither filed or relied upon by the prosecution nor supplied to the Accused No. 1 51. Grounds of opinion, when relevant. Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.
CC No. 58/2011 33 of 50 1 under section 207 of the Code. It would be unfair to the Accused No. 1 if this document is allowed to be read in evidence now. I would like to reproduce here from the Judgment of Hon'ble Gujarat High Court in the case "Himatlal Ratilal Rajyagor Vs. " (1971) 12 GLR 167:
"It is not that his opinion can be exhibited as in case of some other opinions etc. contemplated in Section 545 of the Criminal Procedure Code and it has, therefore, to be proved. The expert opinion has, therefore, to be proved. The expert has, therefore, to be examined and he would have to state before the Court his grounds for such an opinion. Those grounds should, therefore, be supplied to the accused if they are sent by him to the investigating officer and that would be in the nature of a statement obtained from him as it were under Section 162 of the Criminal Procedure Code. Besides, the opinion becomes relevant in any such case under Section 45 of the Indian Evidence Act. At the same time, Section 51 of the Evidence Act provides that whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant. In other CC No. 58/2011 34 of 50 words, the grounds on which any such opinion is based and the opinion which he ultimately gives are both relevant in any such inquiry and if the prosecution were to rely upon any such opinion as a piece of evidence against the accused in any Criminal trial, that has to be supplied to the accused under Section 173(4) of the Code. If the grounds are not supplied, the accused would not be able to know on what basis such an opinion was arrived at. He would be put to disadvantage in his defence, and fairness in a criminal trial demands that they have to be supplied to the accused."
52. I am, therefore, not inclined to read the document Ex PW 15/B2 in evidence giving the reasons for the opinion in Ex PW15/B2. This is irrespective of the fact that I find the reasons also of very general nature plus it cannot be made out from this document what kind of scientific tools had been employed to reach such conclusions.
53. The result, therefore, would be that opinion given by the handwriting expert PW15 by way Ex PW15/B1 would of little use CC No. 58/2011 35 of 50 in reaching the conclusion that the initials appearing on Ex PW2/C1 at point Q4 are that of the Accused No.1
54. There is another fact I would like to bring in here. The prosecution has placed on record one vigilance report of MTNL which is not signed by anyone. This report was referred in the testimony of the witness PW1, Vigilance officer of MTNL, who had forwarded this report to CBI on the direction of his Director.
rd In this report Ex PW1/B1( last para 3 page) it is stated "...........Shri Brijendra Narain AAO when interrogated, admitted in writing that he prepared the above mentioned IP forms and also signed as JAO as checked by, the detail of unaccounted item showing the T No. , Name address date of Bill paid etc., the amount as well as detail of adjustment done are attached in annexure IV." There is absolutely no reason given why the investigating officer did not collect this letter of the Accused from his department.
55. In any case on the basis of the evidence which has come on record and discussion above it can be said without any doubt CC No. 58/2011 36 of 50 that the prosecution has failed to establish that the initials on Ex PW2/C1 is that of the Accused.
Even if it is assumed that the initials on this document is of the Accused No.1 that would still not prove the case against the Accused No.1.
56. I am not looking at the other input forms accept Ex PW2/C1 as that is the only one in reckoning for establishing the case against the Accused.
57. The case of the prosecution, as narrated in the charge sheet is that it was not the job of the Accused to prepare the input form but of the dealing hand. The job of the Accused was to crossverify the same. It is stated wherein:
"The dealing hand in the accounts section verifies the print out of each unaccounted amount by referring to original records like billing register and the adjustment of unaccounted funds are made by giving the CC No. 58/2011 37 of 50 reference number in the input form 30C. The particulars in the input forms 30C are filled in by the dealing Assists. checked by the junior Accounts Officers and the Assist. Accounts Officers with reference to original record and reviewed/ approved by the Accounts officers."
58. This fact has come also in the statement of witnesses examined by the prosecution.
59. Witness PW2 Bhajan Lal who posted as LDC in the year 1991 in AM (TRA) and had handed over all the important documents to the CBI officials in the crossexamination had stated "Form Input30C used to be filled by Dealing Assistant on the direction of Mr. Dasur on the basis of entries made in a register. This form was not used to be filled by Junior Accounts Officer, and Assistant Accounts Officer. They only used to sign the form".
60. Witness PW 4 had deposed "Dealing man used to prepare form input 30C and the same used to be checked by the AO finally".
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61. In the reexamination by the Ld Public Prosecutor witness PW 20 Shri Ram Prakash sharma had deposed about the procedure as follows: " Procedure for preparation of Input Form 30 C was that it used to be prepared by the Dealing Assistant thereafter, it used to checked by the Junior accounts Officer and thereafter used to be rechecked by the Accounts Officer for his satisfaction. Over all supervision was of Chief Accounts Officer." This person it may be noted was Chief Accounts Officer during the period 1993 to 1996 in the MTNL.
62. The bare examination of the Input Form Ex PW2/C1 would show that it bears the signatures one P K Bhardwaj, the place where it is mentioned "Prepared by". It also has the signatures of the Accounts Officer Sh. B R Dasoor as identified by the witness PW3. It is not hard to discover that P K Bhardwaj is the dealing assistant. This conclusion is also consistent with the procedure narrated by the witnesses that it was the dealing assistant who was supposed to prepare the Input Form 30 C. It CC No. 58/2011 39 of 50 is no body's case that the dealing assistant was under any pressure or under any influence from any quarter or from the Accused No.1 to prepare the said statement as he did giving adjustments of unaccounted payments in favour of the Accused No. 2 illegally. Shri P K Bhardwaj has not been cited as a witness in this case. Since Shri Bhardwaj is not an accused in this case, it can be said in preparing the Input Form Ex PW 2/C1 he did not commit any criminal offence meaning thereby it can be a case of some honest mistake or at best of negligence on the part of Shri P K Bhardwaj. If it is so, the case against the Accused No.1 can be only of improper or lack of supervision as he did not diligently crosscheck that the entries in the Input Form Ex PW 2/C1 were wrong. This by itself is not a criminal offfence.
Withholding of best evidence drawing adverse inference against the case of the Prosecution
63. As has already been noted above the input form Ex PW2/C1 bears the signatures of Shri Dasoor and also that of CC No. 58/2011 40 of 50 Shri P K Bhardwaj. There testimony would have been the best evidence to show that it was the Accused No. 1 who was responsible for the manipulation of those entries as the documents in question bear their signatures as well, besides the so called initials of the Accused No. 1. There is absolutely no reason given why they have not even been cited as witnesses in this case.
64. There was a question put to the investigating officer specifically in this respect. I would like to reproduce the question and answer given be him. The same reads as follows:
"Question : I put it to you that in Ex.PW2/C1, "INPUT FORM 30C" bearing no.8467 the particulars were filled up/prepared by dealing assistant and signatures of the said dealing assistant along with the date appear at encircled point P. Answer : After seeing Ex.PW2/C1, I state that it shows signatures with date at the said encircled point P under the printed words "Prepared by"
but I cannot say whether the particulars had CC No. 58/2011 41 of 50 been filled up by dealing assistant himself or through someone else. As per the report of the hand writing expert, entries marked at Q1 and Q2 at points A and B thereof on Ex.PW2/C2 are in the hand writing of the accused. (Underlined portion factually not correct)
65. He had continued:
Ex.PW2/C1 also shows that as per the endorsement appearing at point encircled Q3 and marked as A, it was "Checked by" by the accounts officer whose signatures/initials appear there. I do not orally remember whether I had made enquiries from the concerned dealing assistant pertaining to Ex.PW2/C1 or not. Vol. I had made enquiries from many MTNL staff members. It is wrong to suggest that I intentionally did not make any enquiries from the dealing assistant Shri P.K Bhardwaj pertaining to Ex.PW2/C1 and intentionally falsely implicated the accused".
66. The above part of his testimony would show that he did not even consider it necessary to crosscheck the facts from the concerned dealing assistant ( P K Bhardwaj) whose signature appeared on the input form Ex PW2/C1.
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67. This Input Form Ex PW2/C1, as has already been stated above, also bears some other initials at point Q3 on this Form. This initial was identified by the witness PW 3 as that of Sh B R Dasoor. He had stated' "I have seen the Input form30C which is Ex. PW2/C1 which bears the signature of Sh. B.R Dasoor at point A. (point A is the same as Q3)". When the investigating officer was quizzed on this aspect in the cross examination he had deposed " I have seen INPUT FORM 30C No.8467 Ex.PW2/C1 and state that there are initials of someone after deleting the words "AO" printed on it. During the course of investigation I had enquired from the concerned Accounts Officer whose initials were those but at this stage, I do not remember the name of the said Accounts Officer nor do I remember whether I had recorded statement of the said officer or not. Vol. I had interrogated the said person. I do not want to consult my case diary for the purpose of ascertaining the name of the Accounts Officer from whom I had enquired about the initials Q3 appearing on Ex.PW2/C/1. It is wrong to suggest that I do CC No. 58/2011 43 of 50 not want to consult the case diary since I want to hide the truth. It is also wrong to suggest that in fact, the true offenders were those persons and that is why I do not want to consult the case diary. It is wrong to suggest that accused has been falsely implicated in this case. At this stage I cannot say that the person who had put his initials at point Q3 on Ex.PW2/C1 was not the concerned Accounts Officer of the accused."
68. It is apparent that the investigating officer had not recorded the statement of the officer who had initialed at point Q3. It is doubtful if he had even interrogated him. In any case his testimony was the best evidence to prove that input Form Ex PW2/C1 was prepared by Accused No1 or that it had signatures of Accused No1 at point Q4.
69. It was laid down by the Hon'ble Supreme Court in the case AIR 2010 SUPREME COURT 3813 "Musauddin Ahmed v. State of Assam" as follows:
CC No. 58/2011 44 of 50 "13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114, Illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors., AIR 1968 SC 1413)."
70. I, therefore, consider this case to be a fit case for drawing adverse inference against the case of Prosecution to say that if witnesses, namely, the dealing assistant Sh. P K Bhardwaj and Sh. Dasoor had been examined they would have gone against the case of the prosecution and established the innocence of the Accused No.1.
Examination of initials of the Accused on Ex PW2/C1 with the admitted signatures of the Accused by Court under section 73 of the Evidence Act.
71. Ld Public Prosecutor for CBI had made broadly three submissions to connect the Accused No. 1 with this case. One CC No. 58/2011 45 of 50 was the report the handwriting expert and second was the testimony of the witness PW4. I have already dealt with their testimonies. But just want to add one thing that the submission of Ld Public Prosecutor that according to witness PW 4 the signatures appearing at Q8, Q12,Q15 and Q21 ( questioned signatures on other Input Forms) resembled the signatures of Accused is factually not correct. As has already stated above as far as the initials on input form Ex PW2/C1 is concerned in the examinationinchief he had identified the initials at Q4 as that of Sh. P K Bhardwaj and not of the Accused No.1. In the cross examination by Ld Public Prosecutor he had at best stated that he was not in position to say with certainty that initials on Ex PW2/C1 were of the Accused No.1. Neither in the examination inchief nor in the crossexamination by the Ld Public Prosecutor nor in the crossexamination by the Ld Defence Counsel there was any reference made to Q8, Q12, Q15 and Q21.
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72. It is the third submission that the Court should itself examine the questioned signature which requires consideration.
73. It is true that the court is the final arbiter to take a decision in a given case that as to whether the disputed signature on a document belongs to the subject or not. It is, however, best when it is based on the basis of an opinion of an expert as in section 45 of the Evidence Act or on the basis of the evidence, of the persons who may have seen the writing and signing and being familiar with the handwriting of the person, as in section 47 of the Evidence Act. It is worst when it is based on his own opinion made by comparing the disputed and the admitted signature as it is based neither on scientific analysis nor on the first hand knowledge of the handwriting or signatures of the person concerned. If I were to rank 'opinion' of a Judge in relation to matters relating to handwriting and signatures his/her 'opinion' would stand at the last, for his position would not be better then that of a lay person. I am of the firm view in a case CC No. 58/2011 47 of 50 the 'opinion' of the Judge is that the disputed signatures belong to the subject then it would fructify into a decision only if it has other corroborative material to support more so in the case of criminal trial where it is required that the case against the Accused should be proved without reasonable doubt and also for the reason that in case of any other opinion under section 45 or section 47 the Accused has the liberty to crossexamine a witness to challenge the reason on which the conclusions were reached; he will, however, have no such opportunity in case of a Court forming such an opinion.
74. To repeat, there is no doubt that the Court has the powers to compare signatures or handwriting in a given case to reach the conclusion as to whether disputed signatures are of the 1 Accused or not but as laid down by the Hon'ble Supreme Court "As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that 1 AIR 1997 SUPREME COURT 3255 "Ajit Savant Majagavi v. State of Karnataka"
CC No. 58/2011 48 of 50 of the admitted signature or handwriting and in the event of slightest doubt, leave the matter to the wisdom of experts."
75. Even if I were to say that the initials on the ExPW2/C1 at point Q4 appear to be that of Accused No. 1, after comparing the initials on the attendance register Ex PW2/ F at A1 and A2. I would be extremely reluctant to say that said initials are of the Accused No.1, beyond reasonable doubt in the absence of any other material on the record both in terms of the total circumstances and also other evidence which has come on record to support this view.
Conclusions
76. It is a case of no evidence. There is no evidence in this case that the Accused no. 1 had committed the offence punishable under Section 120B read with Sections 461, 471 IPC and also read with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act or under Section 467, 471 IPC CC No. 58/2011 49 of 50 or under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. I am accordingly acquitting the accused No. 1 Brijendera Narain of the said offences. Announced in the Open Court ( L. K. GAUR ) on 28th May, 2012 Special Judge (CBI)9 `Central District, Delhi.
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