Delhi District Court
State vs . Bankim Chandu Lal Modi & Ors on 5 July, 2018
IN THE COURT OF MM08 (CENTRAL DISTRICT)
TIS HAZARI COURTS COMPLEX, DELHI.
Presiding Officer: Dinesh Kumar, DJS.
IN THE MATTER OF :
State Vs. Bankim Chandu Lal Modi & Ors
FIR No. 297/1997
PS : Hauz Qazi
U/s 420/468/471/120B IPC & 142 & 143 IR Act
Date of Institution : 23.07.1999
Date of reserving of order : 29.05.2018
Date of Judgment : 05.07.2018
J U D G M E N T
1. Serial No. of the case : 295688/16
2. Name of the Complainant : Sh. Hem Chand, CTI Railway
Board
3. Date of incident : 27.09.1997
4. Name of accused persons :
1.Bankim Chandu Lal Modi S/o Sh.
Chandu Lal Jamuna Das Modi, R/o 1462/A, Pandit Gali, Sarangpur, Ahmedabad, Gujrat
2. Rajni Bhai @ Rajni Kant S/o Sh.
Chuni Bhai Modi R/o 214, Ghee Khante Road, Near Post Office, Ahmedabad, Gujrat
3. Atul Kumar S/o Sh. Rashik Lal Shah, R/o Purani Niwas, First Floor, Opposite Kokoria Pole, Saranpur, Ahmedabad FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 1 of 27 PS : Hauz Qazi
4. Vijay Shankar Bhatnagar S/o Late R.S. Lal Bhatnagar, R/o H No.131, Gali Batasan, Chawri Bazar, Delhi 06
5. Offence for which chargesheet has been filed : Section 420/468/471 IPC and Section 142 & 143 IR Act.
6. Offence for which charge has been framed : Section 420/471/120B IPC and Section 143 IR Act.
7. Plea of accused : Not guilty
8. Final Order : Acquittal
9. Date of Judgment : 05.07.2018 Present : Sh. Santosh Kumar, Ld. APP for the State.
Sh. R.C. Chopra, learned counsel for accused Vijay Shankar.
Sh. Ravinder Singh, learned counsel for accused Bankim Chandu Lal Modi, Rajni Bhai @ Rajni Kant and Atul Kumar.
BRIEF REASONS FOR ORDER:
1. Mr. Bankim Chandulal Modi, Mr. Rajni Bhai @ Rajnikant, Mr. Atul Kumar, and Mr. Vijay Shankar Bhatnagar, the accused persons herein, have been charged for committing offences punishable under Section 420/471 read with Section 120 B, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC"). Accused Vijay Shankar Bhatnagar has also been charged for committing offence punishable under Section 143, the Indian Railways Act, 1989 (hereinafter referred to as IR Act).FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 2 of 27
PS : Hauz Qazi
2. The facts of the case, as disclosed in the chargesheet are that on 27.09.1997 a CTC Squad of Indian Railways had conducted a surprise checking in Train No.2472, Swaraj Express, traveling between Jammu and Mumbai, for the purpose of finding out passengers who were traveling by way of tickets bought from persons who were involved in black marketing of tickets and also to find out passengers who were traveling in the train without ticket. The surprise checking was conducted by TTE namely Sh.R.K. Purohit and Sh. Jagdish Prasad. On checking they found that accused persons named Bankim Chadu Lal Modi, Rajni Bhai @ Rajni Kant and Atul Kumar were traveling in Coach No.S3 of aforesaid train upon the tickets which were issued against emergency quota. During inquiry, it was found that the said tickets were provided on the recommendation of Member of Parliament namely Sh. Raju Bhai Parmar. During inquiry it came to knowledge that the said letter was never issued by him. The accused persons had told the checking party that the said tickets were arranged through one travel agency namely 'Vijay Tours and Travels' having its office at Chawri Bazar, Hauz Qazi. On inquiry, it was found that the said agency was not authorized by the Indian Railways.
Thereafter, one complaint was made to SHO, Hauz Qazi. On the basis of the complaint, present FIR was registered. After investigation chargesheet was filed and the accused were charge sheeted for the offences punishable under Section 420/468/471, IPC and Section 142 & 143, IR Act.
FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 3 of 27PS : Hauz Qazi
3. After perusing the record, cognizance was taken by the Ld. Predecessor and summons were issued to the accused. Accused persons appeared in the Court. Compliance of Section 207, Criminal Procedure Code, 1973 (hereinafter referred to as 'Cr.P.C.) was done. After hearing the parties, charge for the offences punishable under Section Section 420/471/120B, IPC was framed against all the four accused persons. Charge for the offence punishable Section 143, IR Act was also framed against accused Vijay Shankar Bhatnagar. The accused persons pleaded not guilty and claimed trial.
4. The prosecution has examined as many as 14 witnesses to prove its case against the accused.
5. PW1/Hem Chand/CTI is the complainant. He has deposed that in the year 1997, he was posted as CTI at Railway Bhawan, New Delhi. The incident was reported to him on 27/28 09.1997. He had made a written complaint to SHO, PS Hauz Qazi on 30.09.1997, which is Ex. PW1/A (running into 2 pages). He has deposed that on 27.09.1997, in Train No.2472, Swaraj Express, which was traveling between Jammu and Mumbai, CTC Squad conducted a surprise checking for purpose of finding out passengers who were traveling by way of ticket bought from persons who were involved in black marketing of tickets and also to find out passengers who were traveling in the train without ticket. The surprise checking was conducted by TTE namely Sh.R.K. Purohit and Sh. Jagdish Prasad. On checking they found that three FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 4 of 27 PS : Hauz Qazi passengers namely Rajni Kant and two other passengers whose names he did not remember were traveling in Coach No.S3 of aforesaid train upon the tickets which were issued against emergency quota. During interrogation, it had come in knowledge that they had paid excess amount to the person who got the tickets issued to them against the said quota. The tickets cost Rs.720/, however, they had paid more than Rs.1000/ for each ticket. A written complaint in this regard was made by the said TTE to Railway Board. During further inquiry, it was revealed that the said tickets were provided on the recommendation of Member of Parliament namely Sh. Raju Bhai Parmar. The copy of recommendation, which was received by using the name of Sh. Raju Bhai Parmar is marked as Mark X. During the inquiry, the MP had told that the said letter was never issued by him. The reply of MP is marked Y. PW1 has also deposed that accused persons had told the checking party that the said tickets were arranged through one travel agency namely 'Vijay Tours and Travels' having its office at Chawri Bazar, Hauz Qazi. On 30.09.1997, a raid was conducted by the police officers in the presence of Railway Officials at the Office of Vijay Tours and Travels and several documents were seized including employees register, requisition slip, envelops, telephone diary with number. Copy of requisition slips and relevant record in this regard by which tickets were booked for the said passengers were recovered. It was also revealed that the phone number which was used by the office was in the name of M/s Amit FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 5 of 27 PS : Hauz Qazi Tour and Travels. The police had seized the documents in his presence. The witness identified the brochure of Vijay Travels, which is Ex.P1, the envelop is Ex. P2. I card of Deep Narayan is Ex. P3. He had made a written complaint to the police, which is Ex. PW1/A. It was revealed during inquiry that the accused was working by using name of M/s Amit Tour and Travels, which was an authorized tour agency and the accused had charged excess amount from the passengers for the purpose of booking of tickets.
6. PW2 Sh. R. K. Purohit is the member of Checking Squad. He has deposed that the incident happened in the night of 2627.09.1997. He was the TTE, Central Checking Squad Railway Board. On that night, he was instructed to check the train No. 2427 Swaraj Express. He boarded in the train at NDRS. During checking, he found that berth no. 25,26,27 S3 coach were reserved through VIP Quota ( HQ). He asked from accused persons as to how they got the VIP tickets on which all the three replied that they had managed the same from some agent i.e.,Vijay Tour & Travels, Batasharwali Gali, Delhi. They had told PW2 that they had got the ticket for the consideration amount of more than Rs.200/ to Rs.300/ from the ticket amount which was around Rs.1020/ or Rs.1080/. The exact ticket amount should have been around Rs.720/. Thereafter, accused alongwith his aforesaid coassociates were taken to pantry car. He had recorded statement of accused persons, which was written by them in their handwriting. Their statement is Ex. PW2/A. Thereafter, one visiting card of FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 6 of 27 PS : Hauz Qazi V.S.Bhatnagar and one envelop bearing the handwritten contents were taken into possession. Their aforesaid traveling tickets were also taken into possession for verification and all the accused were given free travel tickets for their respective destinations. On 28.09.1997, he alongwith railway officials went to Railway Ministry for verification of aforesaid ticket where it was informed that the said tickets were allotted on the VIP Quota against the letter head of Sh. Raju Bhai Parmar, Member of Rajya Sabha. During the Course of inquiry Sh. Raju Bhai Parmar had denied any writing for issuance of aforesaid letter upon which the said tickets were confirmed. The copies of three EFT, which were issued for traveling of the accused are marked Mark X as original EFT were given to passengers for travelling in train. On 30.09.1997, a raid was conducted at H. No.131, Gali Batashthan Chawri Bazar, Delhi06 and his coassociate namely V.S. Bhatngar met the raiding party. Several documents purporting to one Amit Tour and Travels were recovered vide memo Ex.PW2/B. Several documents were produced by CTI (Railway Board) namely Hem Chand and IO had seized those documents as Ex.P1, Ex.PW2/A, Ex.P2, Ex.P3, marked DA, Mark Y and Mark P4. He had also signed upon complaint Ex.PW2/A.
7. PW3 Sh. Arun Kumar Tripathi is the member of checking Squad. He has deposed similar to PW2.
8. PW4 Deep Narayan Tiwari is the employee of M/s Amit Travels. He has deposed that in year 1997, he was working in a FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 7 of 27 PS : Hauz Qazi travel agency namely Amit Travels as ticket booking purchaser and his coassociate accused Vijay Shankar Bhatnagar was the Manager of the said agency. On 26.09.1997, on the instruction of his co associate Vijay Shankar Bhatnagar, he had booked one ticket from the reservation counter of New Delhi Railway Station or Old Delhi Railway Station. While booking the aforesaid ticket, a reservation form was filled upon which the seal of the company was stamped and the I card number of the agent was also put on the same. He had handed over the ticket to his coassociate namely Vijay Shankar Bhatnagar after its booking. His Icard is Ex. P3. The reservation form is Ex. PW4/A (already Ex. DA) having seal of Amit Travel Agency and the ID card number of PW4 at point "A". The ticket which was booked on the basis of reservation form Ex.PW4/A is Ex. PW4/B.
9. PW5 HC Rajesh is the police official who had joined the investigation of this case with IO SI Yaspal Singh. He has deposed that he alongwith IO had gone to Ahmadabad during the investigation of this case and the IO had arrested accused Bankim Chandu Lal Modi. IO inquired from the accused and his disclosure statement was also recorded, which is Ex. PW5/B. IO also prepared the pointed out memo, which is Ex.PW5/C. IO also seized one pamphlet of Vijay Tour and Travels vide seizure memo Ex. PW5/D. During his crossexamination by learned APP the witness has stated that he had joined the investigation on 09.10.1997.
10. PW06 ASI Vijay Pal Singh had joined the investigation FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 8 of 27 PS : Hauz Qazi with IO on 30.09.1997. On that day, the IO had handed over him a rukka at H. No.131, Gali Batasan, Chawri Bazar, Delhi for registration of FIR. He went to PS and got registered the FIR and returned at the spot with the copy of FIR and original rukka and handed over the copy of FIR and rukka to IO.
11. PW7 Sh. Raju Bhai Parmar is the Ex. MP of Rajya Shabha. He has deposed that on 29.09.1997, he had visited the Rail Bhawan and checked the disputed recommendation letter Mark X. The letter was not issued by him and it did not bear his signature. He had made his endorsement upon the aforesaid letter, which is Ex.PW7/A from point A to A1.
12. PW8 Prahlad Kumar has deposed that he was appointed as Service Agent in Indian Railways and he was running the agency by the name and style of "Amit Travels". The aforesaid agency was awarded to him about 20 years ago. His coassociate Vijay Shankar Bhatnagar alongwith his father was running the aforesaid agency. He has admitted the document Ex. DB and Ex.DC by which agency in the name of Amit Travel was awarded to him by the Railways Authority. PW8 has also admitted the document Mark PW8/B, which is a photocopy of a document dated 29.03.1997.
13. PW9 Inspector Sunil Kumar Sharma is one of the IO. He has deposed that on 02.07.1998, further investigation of this case was marked to him. On 25.03.1999, he had arrested accused Rajni Bhai @ Rajnikant and Atul Kumar and prepared documents FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 9 of 27 PS : Hauz Qazi which are Ex. PW9/A and Ex. PW9/B. On 13.07.1999, he had interrogated accused Vijay Shankar Bhatnagar. Accused Vijay Shankar Bhatnagar had handed over him certain documents, which were seized vide seizure memo Ex. PW 9/E. The documents are Ex. DB, DC and Ex.P3. The next IO Inspector Dara Singh had obtained Specimen handwritings of all four accused in his presence. The documents are Ex.PW9/F (running into 13 pages).
14. PW10 ASI Virender Kumar has deposed that upon the instruction of IO Inspector Dara Singh, he had taken the sealed pullandas to CFSL, GEQT/Hyderabad vide RC No.33/21 and deposited all the pullandas there. He had also handed over receiving copy from CFSL to MHC (M).
15. PW11 IO/Inspector Dara Singh is one of the IO. He has deposed that on 07.11.2003, he had obtained specimen handwritings of all accused persons with the permission of the Court, which are Ex. PW9/F (running into 30 pages). The application which he had moved before the Court for obtaining permission for specimen handwriting is Ex. PW10/A. The aforesaid documents were sent to GEQD/Hyderabad for examination. He had obtained due permission from the Court and also obtained search warrants against accused Rajni Modi. He alongwith one police Constable reached Ahmedabad, Gujrat and obtained specimen handwriting of Rajni Modi. He had prepared document in this regard which is Ex. PW11/B. He had also obtained signatures of accused Rajni Modi on this document. He had also obtained FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 10 of 27 PS : Hauz Qazi signatures of two neighbors of accused Rajni Modi. He had also searched the premises and shops of accused Rajni Modi and seized one bill book as his admitted handwriting vide seizure memo Ex.PW11/C. The bill book is Mark Y2 (running into 1 to 44 pages and mark as A 1 to A 44). All these documents were again sent to GEQD/Hyderabad for further examination. He had recorded the statements of witnesses. Report from GEQD/Hyderabad were obtained and placed on the case file.
16. PW12 Inspector Yashpal Singh is the first IO. He has deposed that on 30.09.1997, on the instructions of IO, he had reached at H. No.131, Gali Batashan, where a raid of Railway Officials was under process. There he found Hem Chander, CTI, Sh.R.K. Purohit, TTE Railway and other member of Railway Board, ASI Chander Singh, Ct. Vijay Pal of PS : Hauz Qazi. CTI Hem Chander had handed over a complaint to him. He made an endorsement on the complaint and got the case registered through Ct.Vijay Pal. He had also handed over certain documents which were seized vide memo Ex. PW2/B. After getting the FIR registered Constable Vijay Pal had returned at the spot and handed over the original complaint and copy of FIR. Thereafter, he went to shop no. 72, New Lajpat Rai Market, Chandni Chowk for verifying the source of fax in question from where the aforesaid forged document was sent. He recorded the statement of the shop owner namely Surender Verma. On 09.10.1997, one accused Bankim Chandu Lal Modi was arrested vide memo Ex. PW12/A and his disclosure FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 11 of 27 PS : Hauz Qazi statement was recorded vide memo Ex.PW5/A. On 10.10.1997, a pamphlet was seized vide memo Ex.PW5/D. On 12.10.1997 his disclosure statement Ex.PW5/B was also recorded. Pointing out memo Ex.PW5/C was prepared at his instance. On 10.10.1997, he went to the shop no. 105, New Lajpat Rai Market, Chandni Chowk, Delhi and seized one pamphlet given by shop owner vide memo Ex. PW5/B. He had handed over the case file to the MHC ( R ). In the year 1998, the investigation of the present case was again marked to him. He had visited the address of accused Vijay Shankar Bhatnagar, however, he could not be found. Thereafter, he was again transferred.
17. PW13 Retd. Government Examiner of Questioned document Sh. S.C.Gupta has deposed that he had forwarded report number CH471/2003/4117 to Additional DCP (Central District) on 27.12.2006. Forwarding letter is Ex.PW13/A and duplicate copy of aforesaid document are Ex.PW13/B.
18. PW14 Sh. Shiv Kumar Rana has deposed that on 30.09.1997, he had also reached at PS : Hauz Qazi, where complaint Ex.PW1/A was made. PW14 had put his signature on the aforesaid complaint at point "D".
19. The witnesses were cross examined. The prosecution evidence was closed. Accused were examined under Section 313, Cr. P.C., r/w Section 281, Cr. P.C. The accused persons denied all the incriminating evidence against them. They would state that they were falsely implicated and that they had not committed any FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 12 of 27 PS : Hauz Qazi such crime. All accused except accused Vijay Bhatnagar have stated that tickets were arranged by Vijay Tours and Travel through Vijay Shankar Bhatnagar and the concerned owner had got confirmed the tickets. Accused Vijay Bhatnagar has stated that tickets were booked by M/s Amit Tour and Travels. The tickets were in waiting list. The passenger had demanded the waiting list ticket. The tickets were booked from TriNagar Railway Counter by employee of Amit Tour and Travels named Deep Narayan. He stated that no raid was conducted. He was at his Office. He came to know from his family members that some police officials had visited the home. On the night, he had visited the police station.
20. The accused did not lead any defence evidence. Therefore, matter was fixed for final arguments.
21. Ld. APP for the State would argue that the prosecution has proved its case beyond reasonable doubts. The identitities of the accused persons have been established beyond reasonable doubt. It has been proved beyond reasonable doubts that accused Bankim Chandu Lal Modi, Rajni Bhai and Atul Kumar had purchased tickets of Indian Raiway from accused Vijay Shankar Bhatnagar even though accused Vijay Shankar Bhatnagar was not an authorized agent of the Indian Railways. Further, it has been proved by the prosecution that the accused persons, in collusion with each other, had used a forged letter in the name of MP Sh. Raju Bhai Parmar and on the basis of the said letter they had got their tickets confirmed in VIP Quota. Had the said letter been not FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 13 of 27 PS : Hauz Qazi sent to the Indian Railways, there would have not been any occasion for confirmation of the said tickets. Thus, the accused persons had entered into a criminal conspiracy to use, as genuine, a forged letter to obtain wrongful gain to themselves and to cause wrongful loss to the Indian Railways. Thus, it has been submitted, the prosecution has proved all the ingredients of the offences punishable under Section 420/471 r/w Section 120 B IPC and under Section 143, the Railways Act. Hence, it is prayed that all the accused persons may be convicted for the offences they are charged with.
22. Learned counsels for the accused persons, on the other hand, would argue that there is no material on Court record to prove the guilty of any of the accused beyond reasonable doubts. Learned counsel for accused Vijay Shankar Bhatnagar would argue that the accused has been falsely implicated. Even the prosecution witnesses have admitted that there was no evidence of involvement of accused Vijay Shankar Bhatnagar in any criminal conspiracy. He was working as Manager of Amit Tours and Travels at the relevant time and in the said capacity he had got the tickets issued to other three accused persons. No recovery has been effected from the house of the accused or at his instance. All the alleged articles have been planted upon him to falsely implicate him in the present matter. There are various contradictions in the testimonies of the prosecution witnesses. The material on record is not sufficient to prove the guilt of the accused beyond reasonable doubts. Hence, it FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 14 of 27 PS : Hauz Qazi is prayed, benefit of doubts may be given to the accused and he may be acquitted.
23. Learned counsel for the accused for Bankim Chandu Lal Modi, Rajni Bhai and Atul Kumar has also argued that there is no material on record to prove beyond reasonable doubts that any of the accused had used the alleged forged document for the purpose of confirmation of the tickets. The accused persons were not aware that their tickets were got confirmed in VIP quota by using a forged document. They had not caused any wrongful loss to the Indian Railways as they had already paid the amount of fare to the Railways. They had not entered into any criminal conspiracy. There is no evidence on Court record to this effect. Hence, it is prayed, benefit of doubts may be given to the accused persons and they may be acquitted.
24. I have heard the rival submissions and carefully perused the material available on record.
25. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence. Further, it is also settled principle of Criminal law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court.
26. In the present case, all the accused persons have been charged with offences punishable under Section 420, 471 IPC read with Section 120 B IPC.
FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 15 of 27PS : Hauz Qazi
27. Section 420, IPC provides punishment for cheating and dishonestly inducing delivery of property. In order to constitute, offence under Section 420 IPC, the prosecution has to establish that the accused had deceived the complainant/victim dishonestly inducing him to part with any property in his favour which he would not have parted but for the deception played on him. Thus, the essential ingredients of the offence is that there must be dishonest intention on the part of the accused at the time of making the representation to the complainant / victim on the basis which the complainant / victim part with his property. Intention must be dishonest and there must also be mens rea.
28. Section 471, IPC provides punishment for fraudulently or dishonestly using as genuine any document or electronic record which the user knows or has reason to believe to be a forged document or electronic record.
29. Section 120 B, IPC reads as under:
"120B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
"(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 16 of 27
PS : Hauz Qazi
30. Section 120B, IPC, provides punishment of Criminal conspiracy. For the purpose of proving criminal conspiracy, the prosecution must establish the following:
1. that the accused agreed to do or caused to be done an act;
2. that such act was illegal or was to be done by illegal means; and
3. that some overt act was done by one of the accused in pursuance of the agreement.
31. The Hon'ble Apex Court in Baliya Vs. State of Madhya Pradesh, 2012(9) SCC 696 has held that the offence of criminal conspiracy has its foundation in an agreement to commit an offence or to achieve a lawful object through unlawful means. Such a conspiracy would rarely be hatched in the open and, therefore, direct evidence to establish the same may not be always forthcoming. Proof or otherwise of such conspiracy is a matter of inference and the court in drawing such an inference must consider whether the basic facts i.e. circumstances from which the inference is to be drawn have been proved beyond all reasonable doubt, and thereafter, whether from such proved and established circumstances no other conclusion except that the accused had agreed to commit an offence can be drawn. Naturally in evaluating the proved circumstances for the purposes of drawing any inference adverse to the accused, the benefit of any doubt that may creep in must go to the accused.
FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 17 of 27PS : Hauz Qazi
32. Similarly the Hon'ble Apex Court, again in Central Bureau of Investigation, Hyderabad Vs K. Narayana Rao, 2012(9) SCC 512 has held that the ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.
33. In the present case, it has been alleged that all the accused persons had entered into a criminal conspiracy to cheat the Indian Railways in order to get the railways ticket confirmed which FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 18 of 27 PS : Hauz Qazi were otherwise in waiting list and in such efforts they had used a forged and fabricated letter of Sh. Raju Bhai Parmar, an MP of Rajya Shabha, which was faxed to the Ministry of Railways, Government of India and the said tickets were confirmed on the basis of said letter and accused Bankim Chandu Lal Modi, Raju Bhai and Atul Kumar had been traveling in Jammu Bombay Superfast Express on the basis of such confirmation.
34. The prosecution has examined various witnesses as mentioned hereinabove to prove its case. In the present case, it has been proved beyond reasonable doubts that the accused Bankim Chandu Lal Modi, Rajni Bhai and Atul Kumar had been traveling in a train of Indian Railways on the relevant date and time. It has also been proved beyond reasonable doubts that the tickets purchased by them were in waiting list and that the ticket had been confirmed in VIP quota. The prosecution witness PW7 Sh. Raju Bhai Parmar has also proved beyond reasonable doubts that the letter Mark X does not bear his signature and that he had made an endorsement to that effect on the copy of the letter. The endorsement is Ex. PW7/A from point A to A1.
35. One objection had been taken by learned defence counsel that the endorsement was hit by Section 162 Cr.P.C., as the statement made to the police official was not to be signed. However, perusal of record would show that the witness had not made the said endorsement to any police official. He had made the said endorsement when he had visited the Rail Bhawan and the FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 19 of 27 PS : Hauz Qazi letter Mark X was shown to him by the Railway Officials. It is also noteworthy that the letter was faxed to the office of Railways and therefore only photocopy of the letter had reached in the Office of the Railways and the original letter had remained in possession of the person who had sent the fax.
36. It has been alleged by the prosecution that the accused persons, in furtherance of their criminal conspiracy, had sent a forged document through fax to the Ministry of Railways and thus, the accused persons had used a forged document as genuine one knowing the same to be forged. However, as the record would reveal, there is no evidence on Court record to show, even prima facie as to who had sent the Fax as alleged. PW1, PW2 and PW3 are the Officials of the Indian Railways. They do not know as to who had sent the said fax. PW4 is an employee of M/s Amit Tours and Travels. He has also not deposed anything regarding the letter in question. PW5, PW6, PW9, PW10 & PW12 are the police officials, who had conducted the investigation or joined the investigation. Their testimonies are also unable to prove beyond reasonable doubts as to who had sent the said fax. PW7 Sh. Raju Bhai Parmar also does not appear to have any knowledge of this fact. Similarly, PW8 Prahalad Singh, who is the owner of M/s Amit Tours and Travels also has not made any statement in relation to the said letter.
37. Further, there is not even a single piece of evidence to show primafacie that any of the accused at any point of time was FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 20 of 27 PS : Hauz Qazi in possession of the said letter. The shopkeeper who had sent the alleged fax was made a witness, however, he could not be examined as a witness by the prosecution as the report was received that he had expired. During investigation, the IO had not got prepared any sketch of the culprit from the said person to search the actual person who had faxed the letter to Railway's Office. During investigation, the IO did not make any efforts to trace the person who had faxed the letter to the Railways. Two disclosure statements of accused Bankim Chandu Lal Modi are shown to be recorded by the IO which are Ex.PW5/A and Ex.PW5/B. However, they can not be considered in evidence as they are hit by Section 25 & 26 of the Indian Evidence Act and they do not come under the proviso provided under Section 27 of the Act. Accused Bankim Chandu Lal Modi, Rajni Bhai and Atul Kumar, in their examination under Section 313 Cr.P.C., have stated that they have got the tickets booked through agency and they have no knowledge of the letter. Similarly, accused Mr. Vijay Shankar Bhatnagar has stated that he had only booked the tickets, the tickets were in waiting list and the passengers demanded waiting list tickets.
38. The record thus makes it clear that there is not even an iota of evidence to show that accused Mr. Vijay Shankar Bhatnagar or any of the accused, namely, Bankim Chandu Lal Modi, Rajni Bhai or Atul Kumar had faxed the letter or got it faxed through somebody.
FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 21 of 27PS : Hauz Qazi
39. The burden lies upon the prosecution to establish beyond reasonable doubts that accused Bankim Chandu Lal Modi, Rajni Bhai, Atul Kumar and Vijay Shankar Bhatnagar had conspired to use the alleged letter as forged one. As mentioned hereinabove the disclosure statement of accused Bankim Chandu Lal Modi is not admissible in evidence. Further, the report of handwriting expert which is Ex.PW13/A also shows that none of the accused had written the alleged letter.
40. In the facts and circumstances of the case, I am of the opinion that there is no evidence on record to prove beyond reasonable doubts that any of the accused had used the forged letter Mark X.
41. The question which comes for consideration is whether the fact that the accused were beneficiary of the letter in question is sufficient to prove that the accused persons had used the said letter. I am of the considered opinion that no such presumption can be drawn. The prosecution has to prove this fact by some independent evidence that any of the accused, or all of them in collusion with each other had used the forged letter in question. However, no such material has been brought on record so as to establish liability of any of the accused beyond reasonable doubts. The benefit of doubts is to be given to the accused persons as per law.
42. The prosecution has also alleged that accused persons Bankim Chandu Lal Modi, Rajni Bhai, Atul Kumar and Vijay Shankar Bhatnagar had entered into a criminal conspiracy to cheat FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 22 of 27 PS : Hauz Qazi the Indian Railways in order to get the railways ticket confirmed which were otherwise in waiting list and they also cheated the Railways by getting tickets of waiting list confirmed on a forged letter.
43. It has been proved on record that accused Bankim Chandu Lal Modi, Rajni Bhai and Atul Kumar had paid ticket charges to agent and on payment, the ticket was booked. There is nothing to show that Railways was induced to give tickets due to any inducement made by accused persons. As already held, there is nothing on record to prove that any of the accused had used the forged letter as genuine one / faxed the alleged forged letter to get the ticket confirmed. Therefore, I am of the view that the prosecution has also failed to prove beyond reasonable doubts that accused persons had induced the Railways to confirm the waiting list tickets. The prosecution has also failed to prove either thorugh direct evidence or circumstantial evidence that there has been any meeting of mind between Bankim Chandu Lal Modi, Rajni Bhai, Atul Kumar and Vijay Shankar Bhatnagar to induce Railways to confirm the waiting list tickets or to use the forged letter as genuine one. Be that as it may, it is on record that the accused persons had purchased tickets from the Indian Railways and they had paid the fare required. There is nothing on Court record to show that some extra money was to be paid for confirmation of a ticket in VIP Quota. Thus, the amount which the Railways was entitled to receive for tickets was paid by the accused persons. Therefore, even FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 23 of 27 PS : Hauz Qazi if it is presumed that the Railways was deceived to confirm the ticket in VIP quota on the basis of forged document, no wrongful loss is shown to be caused to the Indian Railways.
44. In the light of discussions hereinabove, I am of the considered view that the prosecution has failed to prove ingredients of offences punishable under section 420/471 read with Section 120B IPC beyond reasonable doubts against any of the accused.
45. Further, it has been alleged by the prosecution that accused Vijay Shankar Bhatnagar had been acting as an unauthorised agent of the Indian Railways. This is the basis of charge under Section 143 IR Act. Section 143 IR Act provides penalty for unauthorized carrying on of business of procuring and supplying of Railway tickets.
46. In the present case, it has been alleged that the three of the accused persons had purchased tickets from accused Vijay Shankar Bhatanagar through his agency M/s Vijay Tours and travels. It has been deposed by the prosecution witnesses that the accused persons Bankim Chandu Lal Modi, Rajni Bhai and Atul Kumar themselves had made this statement to the checking squad. The alleged statement is Ex. PW2/A. It has also been alleged that various documents of Vijay Tours and Travels had been recovered from the house of accused Vijay Shankar Bhatanagar.
47. I have considered the submissions. Perusal of the record would show that the alleged recovery from the house of accused Vijay Shankar Bhatnagar is not made by the IO during FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 24 of 27 PS : Hauz Qazi investigation. PW1 and PW2 have admitted in their cross examination that CTI Hem Chand had handed over those documents and articles to the IO. This fact is also reflected in the seizure memo Ex.PW2/B. The alleged recovery is stated is to be made by the complainant / CTC Railways and his team during their internal inquiry. There is nothing on Court record to show that the complainant and his team was authorised to conduct any such inquiry. In any case, there is no material on the record of the Court to show that the complainant and his team members were authorised to conduct a raid at the house of the accused. Further, the proceedings of the said inquiry and the alleged raid have not been brought on record. No proper seizure memo is shown to be prepared by the raiding team at the time of recovery of the alleged items. Thus, the recovery of the alleged items from the house of accused Vijay Shankar Bhatanagar has come under the clouds of doubts. The accused is entitled to the benefits of the doubt.
48. Further, it has also been alleged that accused Vijay Shankar Bhatanagar had been illegally using the name of M/s Amit Tours and Travels. However, it has been proved on record by PW4 Deepa Narayan Tiwari and PW8 Prahalad Kumar that accused Vijay Shankar Bhatanagar was working as Manager of M/s Amit Tours and Travels. Hence, even if it is presumed that the documents of M/s Amit Tours and Travels had been recovered from his house, there is no reason to presume that the accused had been misusing those documents. Similarly, recovery of the documents of FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 25 of 27 PS : Hauz Qazi booking of the ticket in question from his house also does not prove that the accused had been acting as unauthorized agent of the Indian railways. It has been proved that the tickets of the three accused persons had been booked through M/s Amit Tours and Travels which was an authorized agent of the Indian Railways. Ex. PW4/A is a requisition slip for request to issue the tickets. It bears stamp of M/s Amit Tours and Travel. It has been proved by the prosecution witnesses themselves that accused Vijay Shankar Bhatnagar was manager of the said agency. Alleged pamphlet seized vide memo Ex.PW5/D does not prove anything against the accused in relation to present case. Therefore, the material on record create doubts on the allegation of the prosecution that accused Vijay Shankar Bhatnagar was working an as unauthorized agent of the Railways. Hence, the ingredients of the offence punishable under Section 143 IR Act are not proved beyond reasonable doubts against the accused.
49. In view of aforesaid discussion, this Court holds that the prosecution has failed to prove beyond reasonable doubts, that any of the accused had entered in criminal conspiracy with any other. The prosecution has also failed to prove beyond reasonable doubts that any of the accused had used the forged letter shown to be issued by the MP. The prosecution has also failed to prove the ingredient of Section 420 IPC against any of the accused. It has also not been proved beyond reasonable doubts that accused Vijay Shankar had been carrying on the business of procuring and FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 26 of 27 PS : Hauz Qazi supplying tickets for travel on a Railways or from Reserved accommodation for journey in a train or that he had purchased or sold or attempted to purchase or sold tickets with a view to carrying on any business either by himself or by any other person as defined under Section 143 IR Act. Benefit of doubt is given to the accused persons as per law and they are acquitted of the charged offences.
50. The accused persons have already furnished bonds under Section 437A Cr.P.C alongwith surety, photographs and ID proofs.
Digitally signed by DINESHDINESH KUMAR Date: KUMAR 2018.07.05 16:34:28 +0530 Pronounced in the open Court on (Dinesh Kumar) th this 05 day of July 2018. MM08 (Central) Tis Hazari Courts, Delhi. FIR No. 297/97 State Vs Bankim Chandu Lal Modi & Ors Page 27 of 27 PS : Hauz Qazi