Delhi District Court
R.C. No. 57(A)/96/Cbi/Acb/Nd vs Ramados Naidu And Ors. On 13 October on 16 April, 2012
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No. 13/2011
R.C. No. 57(A)/96/CBI/ACB/ND
Case I.D No. 02401R0000961999
Central Bureau of Investigation
Versus
Shri Prakash Chand
S/o Late Shri Hari Singh
R/o RZ 45, Gali No. 1, Nangloi Road,
Maksudabad Colony, Nazafgarh,
New Delhi.
Date of Institution : 22.12.1999
Date of reserving Judgment : 01.03.2012
Date of Pronouncement : 03.04.2012
JUDGEMENT
FACTS:
The Accused has been sent for trial under section 120B r/w 420 r/w 511, 468, 471 IPC & Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
C.C. No. 13/11
2. The Accused was working as Upper Division Clerk in Motor Licensing Office (HQ) branch of the State Transport Authority Govt of NCT. He was dealing with transfer of vehicles of DL 1P series.
3. One Shri Ishwar Lal Ex Hawaldar of Indian Army in response to scheme formulated for grant of 3000 stage carriage permits by the Transport Authority had submitted application no. 007049 dated 25.01.1992 in Ex Servicemen Category. In a th draw of lots he was declared successful. A letter dated 24 of December, 1992 was issued to him asking him to submit certain documents and also to produce the specified Bus within a period of 90 days.
4. Shri Ishwar Lal arranged some money from his own resources and for the remaining Rs. 3,00,000/ ( Rs. Three Lacs only) approached Ashok Leyland Finance Limited Delhi. On Hire Purchase basis, he purchased the Bus DLIP 5290. The Vehicle was registered in his name vide Registration Certificate dated 7 April 1993.
C.C. No. 13/11
5. Ishwar Lal submitted all the documents necessary for the issuance of the permit and paid the requisite fees. He was informed that Route No. 706 from Vivek Vihar to Pragati Maidan had been allotted to him. The permit, however, was not issued to him. He wrote letters after letters requesting for permit to be issued to him at the earliest and also informing that in the absence of permit vehicle is lying idle. The arrears of installments were mounting. For failure to make the payment of installments the vehicle was repossessed by the Financier on th 24 of May 1994.
th
6. At the instance of the Accused himself a letter dated 20 June 1994 was written by one Sanjay employee of M/ Ashok Leyland Finance Ltd in the name of the Accused and also signing on his behalf as PRAKASH for purchasing the vehicle for Rs. 3,40,000/ with finance of Rs. Two lakhs for two years. Ultimately the vehicle was purchased by the Accused in the name of his mother Laxmi Devi vide registration certificate dated th 29.06.1994 after it was conveyed to her by letter dated 24 of C.C. No. 13/11 June 1993 that her quotation for Rs. 3,40,000/ had been accepted. It may further be noted that normally Finance Company would not refinance the vehicle but in this case it was done so after the daughter of the Accused Ms. Manju had made a fixed deposit of Rs.1,80,000/ with the Finance Company.
7. Though the vehicle had been purchased but it could have been transferred in the name of Smt Laxmi Devi the mother of the Accused till permit issued in respect of the vehicle Bus DL 1 P 5290 had been surrendered and the surrender slip showing such surrender was attached with the Application. The Accused, however, abusing his position not only managed to have the vehicle transferred in the name of his mother Laxmi Devi vide RC dated 29/06/1994 but also have the vehicle further transferred from Laxmi Devi to one R S Bhardwaj vide RC dated 05.07.94.
8. In order, however, to regularize the transfers the Accused submitted to the dealing assistant one V K Gupta three forged C.C. No. 13/11 documents. An application purported to have been signed by Ishwar Lal for the surrender of the permit in duplicate and sworn affidavit of Ishwar Lal. All the documents were of 05/07/1994. The said documents were handed over by Shri V.K. Gupta to Shri Ram Pal Singh, an Exemployee of DTC, who often used to visit STA office to help the officials in writing work. The surrender application was found to be not fulfilled in properly. On the instructions of Shri V.K. Gupta, Shri Ram Pal had filled the missing details. Shri Ram Pal then put up the note dated 05.07.1994 alongwith the said forged documents. Shri V.K. Gupta first signed the said note sheet but later on after he found that the surrender application of the applicant did not match the original application submitted by Shri Ishwar Lal for grant of permit, he crossed the said note but kept the forged documents on record.
9. After the permission under Section 19(1) (c ) for his prosecution, the challan was filed in the Court. C.C. No. 13/11 CHARGE
10. On the basis of the allegations a charge was framed under four heads. Under the first head he was charged for having committed offences punishable under Section 120 B read with section 420, 471, 468 and 13(2) read with section 13(1)(d) of the P.C. Act. Under the second section he was charged for having committed offence under section 420 IPC. Under the third head he was charged under Section 471 read with Section 468 IPC and lastly under the fourth head he was charged for having committed offence under Section 13(2) read with Section 13(1)
(d) of the P.C. Act.
PROSECUTION EVIDENCE
11. The prosecution has examined 21 witnesses.
12. Witness PW1 Shri VA Vasu is the Technical Officer from State Transport Authority. He had deposed two things. First, that C.C. No. 13/11 for the transfer of ownership of a commercial vehicle, it is mandatory to submit the slip with regard to the surrender of permit, which is issued by the STA. Second, when he took over as the MLO of the Authority, the file of the vehicle DL1P5290 was not traceable.
13. Witness PW2 Shri Virender Singh Secretary OBC Commission Govt of India had proved the order of Sanction Ex PW 2/A stating, interalia, that he was working as Secretary Commissioner, Govt of NCT. in December 1999 and was competent to remove the accused from service.
14. Witness PW3 Inspector Sudhir Jain had deposed that from April, 1993 to July, 1994 he was posted as MLO Head (Quarter) as Driving Test Inspector. He had signed the registration certificate of bus No. DL1P 5290 Ex. PW3/A in the name of Smt. Laxmi Devi. He had further stated that the file relating to the transfer of vehicle was brought to him by the accused who was working in his office as UDC. He had signed C.C. No. 13/11 the said registration certificate on the assurance of the accused that he will provide surrender slip and the bus permit on the same day.
15. He had further identified the signatures of Shri J.S. Dabas, MLO on the R.C. of the same vehicle Ex. PW3/B showing the bus being transferred in the name of Shri R.S. Bhardwaj.
16. Witness PW4 Shi R.S. Chiller deposed that he was working as Head Clerk at the office of MLO (HQ), Under Hill Road, Rajpur Road, Delhi. He alongwith Record Keepers Shri Virender and Shri Chandra had tried to trace the file of bus No. DL1P 5290 containing the registration certificate but despite their best efforts the same could not be find. He had further deposed that this file was not kept in safe custody. He had clarified that it is only those files in which there is an order to preserve the file by the Court or there is any order received from any agency like police or CBI etc. to preserve the file, are kept in safe custody and remaining files are kept in open racks. C.C. No. 13/11
17. PW5 Shri Ishwar Lal is the victim in this case. He had deposed that he was discharged from Indian Army in the year 1979 as Hawaldar Clerk. He had submitted the application Ex. PW5/A dated 25.01.1992 for a permit to be granted of a red line bus. In a draw of lots for the allotment of granting of permit he was declared successful. A letter of intent dated 24.12.1992 Ex. PW5/B was issued to him. Pursuant to that he had purchased a new bus from M/s Ashok Leyland bearing No. DL1P 5290 for which he had taken a loan of Rs. 3 lacs from M/s Ashok Leyland. He had submitted all the required papers for granting the permit and his bus was also passed by the office of STA, Burari. He was informed that he has been alloted route No. 706 from Vivek Vihar to Pragati Maidan. Though he submitted all the documents for the issuance of the permit along with the requisite fee but no permit was issued to him. He wrote reminders dated 04.03.1994, 07.03.1994 and 28.10.1994 Ex. PW5/C to Ex. PW5/F, also submitted affidavit Ex. PW5/G and a receipt of payment of the permit security fee Ex. PW5/H (On C.C. No. 13/11 the same receipt later on he was refunded the security deposit / earnest money).
18. His testimony further reveals that because of non issuance of permit, he could not ply the bus resulting in accumulation of installments. The forged applications submitted in duplicate Ex. PW5/I1 and Ex. PW5/I2 and also the affidavit Ex. PW5/J were shown to the witness for identifying his signatures on the said documents. He had categorically denied having submitted the said applications and the affidavit. He had also denied that these said documents had his signatures. In fact he had stated that he had never submitted any application for surrender of permit and he actually on the other hand, had been trying his level best to get the permit.
19. There was one permit on record Ex. PW5/K dated 15.12.1993, which is supposed to be a forged permit showing the route different from for which the actual permit was granted, was shown to the witness during the testimony. The witness C.C. No. 13/11 had denied having submitted the same. He had further added that the route stated therein was not assigned to him.
20. He has also shown copy of another permit Ex. PW5/L for identification which was supposed to be the actual permit to have been issued to the witness. He had denied that this permit was ever issued to him.
21. At the end of his examination in chief he had stated that the bus was repossessed from him in May, 1994.
22. Witness PW6 Vijay Kumar Gupta UDC from STA, this witness in his testimony referred to the note sheet written by Shri Ram Pal Singh (Exemployee of DTC who had been visiting the office of STA for assisting the staff in writing work), on the basis of the forged surrender applications Ex. PW5/I1 and I2 and affidavit Ex. PW5/A. He had identified his signatures on the note Ex. PW6/A which he had later on cancelled(crossed) after discovering that the signatures on these documents did not tally with the original application for permit.
C.C. No. 13/11
23. This witness had categorically deposed that Prakash Chand accused had brought this document to him. After finding out that the signatures did not tally with the record he had asked the accused to send the applicant himself. Neither the accused Parkash Chand nor Ishwar Lal turned up thereafter.
24. Witness PW7 Shri Baljeet Singh Rathi, UDC, Pay & Accounts Office had deposed that from 1990 to 1993 he was working as UDC in the MLO Branch. He knew Prakash Chand accused since 1980. He also knew Shri R.S. Bhardwaj since 1993 as he used to come to meet MLO Shri B.S. Chaudhary. In 1993 Shri R.S. Bhardwaj had visited STA, MLO Branch, Raj Pur Road. He was in some financial difficulty and not in a position to purchase the bus though a permit had been issued to him. In such circumstances he was also not in a position to get the refund of Rs. 25,000/ (which he may have given the security). He had introduced him to accused Prakash Chand. The accused had a bus purchased in the name of his mother Smt. Laxmi Devi.
C.C. No. 13/11
25. Witness PW8 Ram Pal Singh, retired employee of DTC, stated in his testimony that he used to go to the office of STA at Rajpur Road as he had came to know from reliable sources that STA required consultants in the Department for preparing time tables, route surveyors as they were going to start Red Line bus service in Delhi. Thus he came to know Shri Bhram Kaushik, dealing Assistant in the office. Shri Bhram Kaushik had some injuries in his right hand and, therefore, he was unable to write properly. He used to take his help in writing work in the office. After Bhram Kaushik was transferred, Shri V.K. Gupta joined in his place. He had identified the note sheets Ex. PW6/DA, Ex. PW7/A and Ex. PW7/B and portions B to B written in Ex. PW6/A to be in his handwriting. He had identified the signature of Shri Bhram Kaushik. He had admitted in the portions encircled as Q4 and Q1 in forged applications Ex. PW5/I1 and I2 in his handwriting. He had, however, denied that he had forged the signatures of Shri Ishwar Lal on these documents. On a specific questions put to him he had replied "I do not C.C. No. 13/11 know I had filled up these form Ex. PW5/I1 and I2 at the instance of the accused."
26. Witness PW9 Shri Ravi Dutt Sharma who was posted as Head Clerk during January, 1993 to August, 1994 in the office of MLO, Head Quarter, State Transport Department, Delhi had given the procedure as to how the ownership of commercial vehicles was transferred during 1993 - 1994. He had also stated that the accused had joined the branch sometime in 1993 and had remained in the same branch till the witness was transferred in August, 1994. He had further deposed that he had assigned the work related to transfer of ownership and issuance of duplicate registration certificates etc. of DL1P series of the buses besides series of other vehicles to the Accused.
27. Witness PW10 Shri N.K. Aggarwal, Sr. Scientific Officer, CFSL had identified the forwarding letters dated 18.08.1988 Ex. PW10/A by which Shri Anil Kumar, SP, ACB, CBI, Delhi had sent the documents as Annexure 1 and Questionnaire as C.C. No. 13/11 Annexure2 with Ex. PW10/A. He had also similarly identified another letter dated 18.10.1988 Ex PW10/B sent by SP, CBI alongwith AnnexuresI and II. He had further given the details of examination of different documents by him in his testimony and ultimately proved his detailed report dated 03.12.1999 Ex. PW10/E. He had also identified the paragraphs mark I to V giving the reasons for his opinion. Lastly, he had identified the forwarding letter dated 07.12.1999 Ex. PW10/E1 by which Shri S.R. Singh, the then Director CFSL had forwarded his report to CBI.
28. Witness PW11 Shri Karamvir Singh who was working as a driver from 1993 to 1995 on bus No. DL1P 4454 had deposed that the said bus DL1P 4454 though was registered in the name of Shri R.S. Bhardwaj but it was owned by Shri Prakash Chand. The bus was purchased in the name of Shri R.S. Bhardwaj as Shri R.S. Bhardwaj had a permit in his name. (One would note from the file on record that Shri R.S. Bhardwaj was also an Exservice man).
C.C. No. 13/11
29. According to the testimony of this witness Shri Prakash Chand had sold his bus DL1P 4454 and purchased another bus registration No. DL1P 5290. This bus was purchased by Prakash Chand in the name of his mother Smt. Laxmi Devi through Shri Sanjay Kumar of M/s Ashok Leyland Finance Ltd. Since Smt. Laxmi Devi did not have any permit for operating the said bus it was transferred in the name of Shri R.S. Bhardwaj. He had identified his signatures on letters Ex. PW11/A and Ex. PW11/B dated 04.07.1994 and 24.06.1994, one addressed to Ravinder Arora for the release of the vehicle to this witness and other is the letter addressed to Shri Prakash Chand himself. According to this witness these two documents were handed over to him by Shri Prakash Chand for the purpose of taking delivery from the Rohtak Yard of M/s Ashok Leyland. (The vehicle was apparently parked there after it had been repossessed from Shri Ishwar Lal). One may also note that the testimony of this witness was recorded in the absence of the accused in terms of Section 22(c) of the P.C. Act. This witness, C.C. No. 13/11 however, did not appear again in the Court as he was reported to have expired.
30. Witness PW12 Shri R.S. Sharma who had been working as Motor Vehicle Inspector at Burari in the year 1993 had given the procedure with regard to the transfer of vehicle. He had also identified the inspection report Ex. PW12/1 prepared by him with regard to the vehicle in question.
31. Witness PW13 Shri Anil Kumar Chhikkara too had deposed that he was posted at Burari Vehicle Inspection Unit in December, 1994 and his job involved technical inspection of vehicle including certification of the fitness thereof. He had seen the file Ex. PW9/A and had pointed out that document Ex. PW6/DA regarding the issuance of permit was submitted to him by the dealing assistant on which he had put his signatures at point A. He had further pointed out that Ex. PW6/DA sent to computer section for printing of the permit. As per his testimony the file Ex. PW9/A with regard to the issuance of permit was C.C. No. 13/11 initiated in July, 1993 by setting out a proposal in the name of Shri Ishwar Lal for grant of temporary permit for three months. This proposal was in the name of Shri Ishwar Lal. It was prepared by Shri Bhram Kaushik, the dealing assistant. He had identified the said proposal as Ex. PW13/1. He had given the sequence as to how this proposal was put up before the senior officers and finally got approved by the competent authority. It was on the basis of this approval, Ex. PW6/DA was prepared on which, as stated above, he had put his signatures. This witness had further identified the computer print out Ex. PW5/L of the permit No. SC/3000/Ex/0749/93 issued on 21.12.1993 by Secretary, Transport Authority. He had also categorically stated that the permit dated 15.12.1993 Ex. PW5/K did not have the signatures of Shri Malik who was the Asstt. Secretary of STA at that time and he was in a position to say so as he could identify his signatures because he had seen his signatures before in the course of official dealing. C.C. No. 13/11
32. Witness PW14 Shri Musaddi Lal Arora who had worked as Head Clerk in State Transport Authority, Rajpur Road, Delhi w.e.f. November, 1993 to April, 1994 had identified his signatures on the endorsement appearing on the reverse of Ex. PW13/1. He had further identified his signatures on the note Ex. PW7/B prepared after the forged application had been put up for surrender of permit.
33. Witness PW15 Sh. Chiranji Lal Meena again is a witness who had worked as LDC in State Transport Authority at Rajpur Road, Delhi from 1991 to 1996. He had testified that accused Prakash Chand was working as UDC in the said branch. He had further deposed that both registration certificates Ex.PW3/A relating to the transfer of the vehicle DL 1P 5290 in the name of Smt. Laxmi Devi and Ex.PW3/B the registration certificate showing the transfer of the vehicle from Smt. Laxmi Devi to Sh. R.S Bhardwaj were put up by him before Motor Licensing Authority for obtaining their signatures and he had done so at the instance of the accused who had asked him to do so even C.C. No. 13/11 without obtaining the surrender slip. According to him accused had told him that the relevant permit no. SC/3000/EX/0749/93 (in the name of Sh. Ishwar Lal) in relation to Ex.PW3/A and Ex.PW3/B was in the name of his mother and he would bring the permit and show it to him.
34. Witness PW16 Sh. D. Sengupta is an employee of NDMC. He was merely a witness to the specimen hand writings being taken during the course of the investigation of Sh. Rampal Singh, accused Sh. Prakash Chand, Sh. Radhey Shyam, Sh. Braham Kaushik and Sh. Baljeet Singh Rathi. Witnesses PW17 Sh. Jai Ram and PW18 Sh. Mohan Lal are also the employees of NDMC in whose presence the specimen hand writings/signatures of Sh. Ishwar Lal had been taken.
35. Witness PW19 Inspector A.K Singh is the Investigating Officer who had taken over the investigation from the earlier Investigating Officer Sh. S.R Singh. In the course of his testimony he had identified various documents which he had C.C. No. 13/11 collected during the course of the investigation and the seizure memos vide which the documents he had seized. He had also further deposed that as to how during the course of the investigation he had obtained the specimen hand writing of the officials of State Transport Authority including that of Sh. Ishwar Lal.
36. Witness PW20 Sh. S.R Singh Dy. Superintendent of Police had proved the FIR Ex.PW20/1 which according to him was registered under the signatures of Sh. V.S.K Kamudi, the then SP on 11.07.96.
37. Witness PW21 Sh. M. Radha Mohan the Regional Manager of Ashok Leyland Finance Ltd. had deposed with regard to the vehicle DL 1P 5290, being initially given to Sh. Ishwar Lal. He had identified the various documents prepared in this respect, such as, proposal given by the borrower for availing the loan in respect of chassis of the vehicle No. DLIP 5290, Ex.PW21/1, agreement entered between the company C.C. No. 13/11 and the borrower Sh. Ishwar Lal for giving the loan of Rs.3 lakhs to Sh. Ishwar Lal Ex.PW21/2 and invoice Ex.PW21/3 issued by M/s Ashok Leyland Finance Ltd at the time of delivery of the chassis.
38. He had further deposed that in May 1994 Sh. Ishwar Lal was in the arrears and there was an amount of Rs.59,650/ outstanding against him. He had proved the statement of account Ex.PW21/4. He had also identified the copies of the letters Ex.PW21/5 and Ex.PW21/6 written to Sh. Ishwar Lal to inform him that his vehicle had been repossessed as he had not cleared the outstanding arrears.
39. His testimony further reveals that as per the policy of the bank to recover the dues the vehicle was disposed off by selling it to Smt. Laxmi Devi through Prakash Chand. After Sh. Prakash Chand had approached Sh. Sanjay an executive of M/s Ashok Leyland Finance Ltd. for buying this vehicle in the name of his mother. He also referred to the fact that normally C.C. No. 13/11 the repossessed vehicles are not refinanced but in this case the vehicle was refinanced as per the request made after one Manju had submitted an application for depositing Rs.1,80,000/ as collateral security against the refinanced agreement. The witness had identified this application Mark PW21/1 submitted by Manju through his father Prakash Chand for a period of one year. He had also identified photocopy of the bankers cheque of Rs.1,80,000/ drawn on State Bank of Mysore dated 24.6.94 Mark PW21/2 submitted with the application. The vehicle thereafter according to the witness was transferred to Smt. Laxmi Devi.
40. Subsequently, a request was received from Smt. Laxmi Devi in the form of application Mark PW21/3 to transfer the vehicle to one Sh. R.S Bhardwaj. The vehicle was accordingly transferred to Sh. R.S Bhardwaj.
41. The witness had pointed out that it was initially Parkash Chand who had submitted a quotation of Rs.3,40,000/ vide C.C. No. 13/11 application Mark PW21/4 and PW21/5 but subsequently had submitted a fresh quotation for the same amount in the name of his mother Laxmi Devi. After accepting the quotation of Smt. Laxmi Devi a letter dated 24.6.94 Mark PW21/7 signed by Sh. Sudhir Arora, the then branch Manager, had been sent to Smt. Laxmi Devi. This witness also identified his signatures on the seizure memo Ex.PW19/1 by which various documents had been seized by CBI.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C :
42. All the incriminating evidence, which has come on record was put to the accused and his statement was recorded under Section 313 Cr.P.C.
DEFENCE EVIDENCE
43. In his defence accused had examined one Sh. Satish Kumar S/o Mathan Singh posted as clerk in the Transport Authority. This witness was asked to produce the record C.C. No. 13/11 relating to the vehicle DL1P 5290. He had deposed that he had tried to trace the file of the vehicle no.DL1P 5290 but despite his best efforts he had not been able to trace the same. He, however, had brought one computerized record available in the office for the vehicle. He had proved the same as Ex.DW1/A. As per this document the vehicle was in the name of Sh. R.S Bhardwaj S/o Sh. S.R Bhardwaj. The names of previous owners were shown to be of Sh. Ishwar Lal and Smt. Laxmi Devi.
SUBMISSIONS
44. I have heard the submissions made in detail by Ld. PP for CBI and also Ld. Defence Counsel.
No Offence under Section 120 B IPC
45. It does not require any precedent to say Section 120B is a substantive offence like any other offence in the Penal Code. It is an agreement between two or more persons to do or cause to C.C. No. 13/11 do (1) an illegal act (2) an act which is not illegal by illegal means. It can be proved by a direct or circumstantial evidence. Since in the cases of conspiracy the direct evidence is hard to come by it would generally be proved by circumstantial evidence. Where evidence is only circumstantial it must necessarily stand the well known test of circumstantial evidence. That is to say, circumstance in totality shall be such as would not only be consistent with the guilt of the accused but also inconsistent with any reasonable hypothesis of his innocence.
46. There is no other person named in this case as an accused except the accused himself. The allegation is , he conspired to commit the offences in this case with unknown persons. The entire set of circumstance relating to this charge have been well set out in the charge sheet itself. There would be no better way of doing it then to reproduce it from the charge it self. It reads as under:
"In 1994 at Delhi you, while working as UDC in the office of Motor Licencing Officer, (H.Q.) Branch of C.C. No. 13/11 State Transport Authority, Rajpur road, Delhi were party to a criminal conspiracy with some unknown persons, with the object of committing certain offence to wit, cheating State Transport Authority for getting bus No. DL1P 5290, registered in the name of your mother Smt. Laxmi Devi, upon transfer from the name of original owner Ishwar Lal and then in the name of R.S. Bhardwaj on transfer from the name of said Smt. Laxmi Devi, on the basis of forged surrender application of permit no. SC/3000/Ex/0749/93 in the name of Ishwar Lal in duplicate and a forged affidavit purporting to have been sworn on 05.07.94 by the said Ishwar Lal to the effect that he wanted to surrender the said permit, knowing fully well that the transfer of ownership of a commercial vehicle could not be registered by the said office of MLC unless the original owner had surrendered his original permit to the STA branch in the prescribed proforma and had obtained a surrender slip and also knowing fully well that said R.S. Bhardwaj was already owner of red line bus permit No. SC/3000/Ex/0714/93, using the said forged documents with knowledge that they were forged; and committing mis conduct by a public servant by abusing your said office by corrupt or illegal means to secure unlawful pecuniary advantage to yourself and to your coconspirators and thereby committed C.C. No. 13/11 an offence punishable u/s. 120 B r/w. Sec. 420, 471, 468 IPC and sec. 13(2) r/w sec. 13(1)(d) of PC Act, 1988 within my cognizance."
47. There is no direct evidence of conspiracy in this case. I have closely examined the entire evidence and I find absolutely no evidence or shreds of evidence to locate the reference points, which if joined together, would complete a chain which would point only in one direction that the accused had entered to an agreement with someone to do an illegal act of having transferred the Vehicle DL1P 5290 in the name of first his mother Smt. Laxmi devi and from Laxmi Devi to Sh. R S Bhardwaj without having submitted the surrender slip for the permit essential for the transfer of the ownership of the said vehicle and subsequently tried to fill up the lacuna by submitting forged application and affidavit to achieve the objective of submission of a surrender slip of the permit of the said vehicle to justify the transfer of ownership of the transfer of the said vehicle.
C.C. No. 13/11
48. All those who could have been potential conspirators with him have in fact stood as witnesses against him.
49. Ex PW3/A is the Copy of the registration certificate showing its transfer date 29.06.1994 by which the vehicle was transferred to Smt. Laxmi Devi mother of the Accused and Ex PW3/B is the Registration Certificate showing its transfer dated 05.07.1994 by which the vehicle was transferred to Shri R S Bhardwaj from Smt. Laxmi devi.
50. Witness PW3 Shri Sudhir Jain is the Motor Licensing Officer ultimately under whose signatures the vehicle was transferred to Smt. Laxmi Devi. He had deposed " Prakash Chand accused was working in my office at (that) time as UDC. He had brought this file to me. He told me that Smt. Laxmi Devi was his mother. He had told me that he will give the surrender slip of bus permit after sometime on the same day." In the later part of his examination in chief he deposed " Shri Praksh Chand had not handed over any surrender slip to me, inspite of repeated demands."
C.C. No. 13/11
51. Similarly Sh. C L Meena witness PW15 who was working as the LDC in the same office as the Accused. He was responsible for processing the files on both the occasions for the transfer of ownership to Smt. Laxmi Devi and from Smt. Laxmi Devi to Sh. R S Bhardwaj. He deposed "Both the aforesaid Registration Certificates Ex. PW3/A and Ex PW3/B ( also proved as Ex PW15/1) were put up by me before Motor Licensing Officer for obtaining signatures thereon but this was done by me at the instance of the accused who had asked me to do so even without obtaining the surrender slip. In fact accused had told me that the relevant permit no. SC/3000/EX/0749/93 in the name of Ishwar Lal in relation to Ex PW3/A and ExPW3/B (also proved as Ex PW 15/1) was in the name of his mother and he would bring the permit and show it to me."
52. It is, therefore, certain that there was no intermediary involved in the transfer of the vehicle without the surrender slip. It was accused alone who was responsible for it. C.C. No. 13/11
53. The forged Applications Ex PW5/I1 and Ex PW5/I2 and the affidavit PW5/J with regard to the surrender of permit had also been put up by the Accused himself before the concerned dealing clerk PW6 Shri. V K Gupta. He had deposed "I have seen the noting at page 6/N of D 19 ( number of the document). This noting is in the handwriting of Braham ( read 'Ram')Pal Singh. This noting was regarding surrender of permit. This note sheet was written by Ram Pal on the basis of surrender applications Ex PW5/I1 and Ex PW5/I2 and the affidavit Ex PW 5/J. I put my signatures at portion A on the note sheet Ex PW6/A and which was later cancelled by me as the signatures on these documents were not tallied (sic) with original application for permit. These application were brought to me by Prakash Chand. I directed the accused to send the applicant as the signatures were not tallied (sic) with the record. Ishwar Lal and Prakash Chand had not turned up again regarding this case."
C.C. No. 13/11
54. Thus there is no evidence that the accused had committed the offences alleged in this case with the involvement of anyone else. Therefore there is a reason to conclude that he had no agreement with anyone to commit any of the offences. There is nothing to prove that the Accused has committed the offence under section 120 B of the Act.
No offence under section 468 IPC
55. Similarly no offence under section 468 made out in this case. For proving that the accused has committed offence under section 468 IPC, it was for the prosecution to prove that the accused forged the application in duplicate submitted for ExPW3/I1 & Ex PW I2 and the affidavit Ex PW3/J. 1
56. Offence under section 468 IPC can only be proved by direct evidence and not otherwise. Mere because someone has 1 468 . Forgery for purpose of cheating.Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description a term which may extend to seven years, and shall also be liable to fine.
C.C. No. 13/11 used a forged document is not to say he has forged the documents. It may be noted using a forged document in itself is 1 an offence under section 471 IPC to be punished as if the person has forged the document.
57. In this case the report of the handwriting expert does not connect the accused with the forgery of the said documents. S 22 to S 40 are the handwritings of the accused taken during the course of the investigation for comparison with the questioned handwriting i.e. the signatures Q3, Q2 and Q5, and Q6 of the victim Shri Ishawar Lal appearing on the forged application Ex PW5/I1 and Ex PW5/I2 submitted in duplicate for the surrender of the permit and supporting affidavit purported to have been sworn by Shri Ishwar Lal Ex PW5/J. CFSL report Ex PW10/E is positive about the fact that these questioned signatures are not of Sh. Ishwar Lal but there is no finding that these signatures match the specimen handwritings of the Accused. There is no 1 471. Using as genuine a forged document or electronic record. Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record. C.C. No. 13/11 witness who said that these documents had been signed by the Accused in there presence as " Ishwar Lal".
58. In the absence of any evidence that the Accused had forged the said signatures, the Accused cannot be said to have committed the offence under section 468 IPC. Offence committed under section 471 IPC read with section 465 IPC
59. Let it be made clear straight away that the forgery in this case is not for the purpose of cheating but to cover up the cheating. The accused had already manged to get the ownership of the vehicle sans surrender slip first in the name of his mother Laxmi Devi and than to Sh. R S Bhardwaj.
60. The testimony of Sh. V K Gupta has already been referred above where it has been stated that the Accused had given him the forged papers ( Ex PW5/I1, PW5/I2 and Ex PW5/J with regard to surrender of permit and after discovering that the C.C. No. 13/11 documents were forged he had scored out office note Ex PW6/A. The question was put to the witness in cross examination as to whether at the surrender of the application a counter foil is issued to the party and the attention of the witness was drawn to Ex PW1/I1 and Ex PW1/I2 the application for surrender submitted in duplicate, to show that in this case no counter foil had been issued. It is understandable that the Application before could be acted upon was discovered to be forged. To one another question put to him the witness had though admitted that it was not part of duty of the accused to deposit surrender application. He had, however, explained "if any party is personally known to an employee, he can come for his assistance."
61. Documents Ex PW5/I1, PW5/I2 and Ex PW5/J are false 1 documents within meaning of section 464 of the Penal Code, 1 464. Making a false document. A person is said to make a false document or false electronic record First. Who dishonestly or fraudulently
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the C.C. No. 13/11 as someone has dishonestly signed these documents in the name of Sh. Ishwar Lal with the intention of causing it be believed that such documents were signed by Ishwar Lal. These documents had been undoubtedly made to support the claim that Shri Ishwar Lal was surrendering the permit as "vehicle could not be operated economically" as noted in forged affidavit Ex PW 5/J. Thus forgery was committed in respect of the said 1 documents as per section 463 of the Penal Code punishable 2 under section 465 of the penal code.
62. In view of the forgoing discussion I would conclude that the accused had committed offence under section 471 punishable as provided for under section 465 of the Penal Code. electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signatures was made, signed, sealed executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or 1 463. Forgery. Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
2 465. Punishment for forgery. Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
C.C. No. 13/11 Offence Under section 420 of the Penal Code.
63. I feel to understand what we need to examine to reach the conclusion as to whether accused has committed an offence of cheating as defined in section 415 of IPC there would be no better way of doing it rather then to reproduce the following from the Judgment of the Hon'ble Madras High Court in the case State vs Ramados Naidu And Ors. on 13 October, 1976 [ 1977 CriLJ 2048] :
7. On behalf of the State, it is contended that the view taken by the trial Magistrate is wrong and it is not in accordance with law. To appreciate the contentions of the learned Public Prosecutor it is necessary to refer to the definition of the offence of cheating in the Penal Code. Shorn of minute details, Section 415, I. P. C reads as follows Section 415 : Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person.................... or intentionally induces the person so deceived to do or omit to do anything........................................ which act or omission causes Or.....................is likely to cause C.C. No. 13/11 damage or harm to that person in body, mind, reputation or pro is said to 'cheat'.
The word 'dishonestly' had been defined in Section 24, I. P. C. as follows Section 24 : Whoever does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, is said to do that thing 'dishonestly'.
Section 25, I. P. C. describes the word 'fraudulently' in the following manner
25. A person is said to do a thing fraudulently if he does that thing with intent to defraud.
Bearing these definitions in mind, we have to find out what are the ingredients of the offence of cheating. Firstly, there has to be practice of deception by the offender. Then on account of the deception there must be fraudulent or dishonest inducement so as to make the person deceived to deliver any property or to do something or omit to do something etc. Lastly, by reason of delivery of the property or the doing of a thing or the omission to do a thing, there must be the causing of or the likelihood of the causing of damage or harm to the C.C. No. 13/11 person deceived in body, mind, reputation or property. Thus, as a result of the dishonest inducement of a person, there can be either wrongful loss to the person deceived or wrongful gain to another including the person practising the deception. Whenever any one of these results follow on account of the deception practised by a person, then the offence of cheating would be complete. The learned Magistrate is not, therefore, correct in having taken the view that since no damage or harm had been caused to the person to wit the Bank the offence of cheating has not been committed." (Emphasis supplied).
64. One may also refer to the judgment of the Hon'ble Supreme Court in the case AIR 1977 SUPREME COURT 1174 "Nrisingha Murari Chakraborty v. State of W.B." It is a case where it was held "The word "property" does not necessarily mean that the thing, of which delivery was dishonestly desired by the person who cheats," must have a money value or a market value, in the hand of the person cheated". Even if the thing has no money value, in the hand of the persons cheated, but becomes a thing of value, in the hand of the person, who C.C. No. 13/11 may get possession of it, as a result of the cheating practised by him, it would still fall within the connotation of the term 'property' in S. 420." It was also added "a passport was a valuable document".
Dishonest Inducement resulting in transfer of vehicle.
65. There is little doubt that in this case there was dishonest inducement by the Accused.
66. There is enough evidence on record that the accused was working in the same office and was dealing with cases relating to the transfer of the vehicles. He has not even disputed this fact. One may refer to the question No. 1 to 3 put to him under section 313 of the Procedure Code. The same read as under:
"Q.1 It has come in evidence against that you were employed as Upper Division Clerk (UDC) in the office of Motor Licensing Officer (HQ Branch) Under Hill Road Delhi during 1993 to 1994. What have you to say?
Ans. Yes.C.C. No. 13/11
Q.2 It has come in evidence against you that in the year 1999 also you were posted in the same office? What have you to say?
Ans. Yes.
Q.3 It has come in evidence against you that while being posted as UDC you together with Shri Chiranji Lal Meena LDC used to deal with cases relating to commercial vehicles like trucks, tempos, buses etc. having registration numbers of all series. What have you to say?
Ans. Yes."
67. He has also not disputed that the Bus DLIP 5290 was purchased in the name of his mother Laxmi Devi first and thereafter transferred from his mother to Shri R S Bhardwaj and that for the transfer of a commercial vehicle the surrender certificate was an essential requirement. One may refer Q27 to Q 30, Q 33 and Q 35. The same read as under: (dates mentioned in question no. 28 and 29 be read as 11.07.1994 and 29.06.1994 in stead of 11.07.1997 and 29.06.1994 being typographical errors) C.C. No. 13/11 "Q.27 It has further come in evidence against you that after you had quoted the price for the purchase of the said vehicle Rs. 3,40,000/ vide Mark P21/5 dated 20.06.1994 (written on your behalf by Shri Sanjay Kumar, executive of Ashok Leyland Finance Ltd. ) wherein you had offered to purchase the said vehicle for a sum of Rs.
3,40,000/ and pursuant to the same had submitted an FDR in the sum of Rs. 1,80,000/ in the name of your daughter Manju for one year and also a margin money of Rs. 1,40,000/. What have you to say?
Ans. It is correct.
Q.28 It has further come in evidence against you that the vehicle (bus) bearing No. DL1P 5290 was sold to Mrs. Laxmi Devi, your mother, through you by Ashok Leyland Finance Limited on hire purchase vide Hire Purchase Agreement Ex.
PW21/6 dated 11.07.1997 after you had approached Shri Sanjay, an executive of Ashok Leyland Limited for buying this vehicle. What have you to say?
Ans. It is correct.
C.C. No. 13/11 Q.29 It has further come in evidence against you that the said vehicle was transferred in the name of your mother Smt. Laxmi Devi vide Registration Certificate Ex. PW3/A dated 29.06.1997. what have you to say?
Ans. It is correct.
Q.30 It has further come in evidence against you that the procedure for the transfer of commercial vehicle under the commercial permit as applicable during the year 199394 was that the permit holder was required to file an application for surrender of his permit in prescribed performa in STA permit and thereafter his surrender was used to be issued to him in token of having surrendered the original permit and thereafter for the transfer of the ownership in the name of the purchaser alongwith said surrendered slip the documents such as from No. 29 & 30, insurance, road tax, address proof, NOC in case of vehicle is on hire purchase etc. will required to be filed and further the Form No. 29 was required to be signed by registered owner i.e. seller of the vehicle and Form No. 30 by the purchase of the vehicle. what have you to say? Ans. It is correct."
xxxxxxxxx C.C. No. 13/11 Q.33 It has further come in evidence against you that PW7 Shri Baljit Singh Rathi knew you since 1980 and he also knew R.S. Bhardwaj since 1993 as he used to visit Shri D.S. Chaudhary, MLO in whose office he was working as UDC. Since Shri R.S. Bhardwaj was in financial problem and was not in a position to purchase the bus though permit had been issued to him, Shri Baljit Singh Rathi, had, therefore, introduced Shri R.S. Bhardwaj to you as you had the purchased in the name of your mother Smt. Laxmi Devi. What have you to say? Ans. It is correct.
xxxxxxxxx Q.35 It has further come in evidence against you that the bus bearing No. DL1P 5290 was transferred by Smt. Laxmi Devi, your mother to one Shri S.R. Bhardwaj as per registration certificate Ex.PW3/B. What have you to say?
Ans. It is correct."
68. There is a note sheet on record Ex PW7/A and Ex PW7/B. Although in this note there is an allegation tried to be made that Shri Ishwar Lal was trying to get a route allotted on the basis of a forged permit but for us what is important is that there is C.C. No. 13/11 categorical assertion that permit allotted to him was still lying in the file and not received by Shri Ishwar Lal. In support there is testimony of the Shri Ishwar Lal himself and the various application he wrote to STA making a request that the permit be issued to him and in fact it is the nonissuance of the permit which became the reason the vehicle being repossessed by the Finance company for having not been able to make the payment of installments because he could not have plied the bus in the absence of the permit. Sufficient would it be if relevant portion of th his last letter dated 28 October 1994 Ex PW5/F is reproduced. [There is an allegation in this letter that there was conspiracy from the beginning that he may not be able to get the permit, resulting in the failure of business consequently repossession of the vehicle and someone ending up picking his brand new Bus. It could be true because once the vehicle was re possessed it did not take long for the mother of the Accused buying the Bus. Since there had been no investigation from this angle I am overlooking these allegation and the portion reproduced may only be considered that there was no permit C.C. No. 13/11 issued to him.] The same reads as under:
"Sir, This is an old case representing against non issue of permit arbitratorily despite many letters and personal meetings with you and the dealing officials.
1. List of case is that the Bus No. Dl1P 5290 has been passed / produced and RC issued on 7/4/93 which has costed me about Rs. Seven lakhs including finance Rs. 3 lacs for which 12 instalments of Rs. 1.52 lacs have been paid.
2. I have also paid permit fee Rs. 550/ and permit security Rs. 2,000/ with all the requisite document to the test satisfaction of the STA. I have been advising the STA with daytoday going on with this case vide repeated letters duly acknowledged.
3. As I gathered from reliable sources that a conspiracy was planed in which the lower staff decided not to issue the permit just to made me a failure in this business. Your interested officials contacted he Fin. To pick up the Brand New Bus for nonpayment of Instalments about Rs. 14,000/ pm. When the bus could not ply at all for want of C.C. No. 13/11 permit, my case has been deliberately involved in some other fraudulent activities for which I am not aware and responsible. Please do enquire and ...... (not readable)".
69. Considering his position in the office and considering that the vehicle was to be transferred in the name of his mother it is impossible to believe that he would have not known that there was no permit issued to Ishwar Lal at any point of time.
70. The relevant parts of the testimonies of Witness PW3 Shri Sudhir Jain MLO had PW15 Shri C L Meena have already been reproduced above to show that they had been approached by the Accused and persuaded by the Accused to transfer the vehicles in the name of his mother and to the name of Shri R S Bhardwaj without the surrender slip on the assurance that he would produce the same later. I have closely seen the cross examination of these witnesses and there is also nothing of importance pointed by the Ld defence counsel which may create any doubt about there testimony. It is apparent that this C.C. No. 13/11 persuasion of transferring of vehicle without the surrender slip of permit on the pretext of producing it later, was nothing but a gambit to have the vehicle transferred without the surrender slip as there could not have been surrender slip of permit because it had never reached the hands of the permit holder Sh Ishwar Lal. In other words it was nothing but dishonest inducement by the Accused of Shri Sudhir Jain MLO and Clerk Shri C L Meena which resulted in the transfer of the vehicle in the name of the mother of the accused first, Smt. Laxmi Devi and then from Laxmi Devi to Sh. R S Bhardwaj.
Harm to the mind body reputation etc.
71. It is a case where a Registration certificates had been issued on the basis of a misrepresentation by the Accused. There is little doubt that had it not been for the assurance given by the Accused as to the supply of the surrender slip the vehicles could not have been transferred in the name of Smt Laxmi Devi or Shri R S Bhardwaj. The question, therefore, is what harm has been caused to Shri Sudhir Jain and Shri C L C.C. No. 13/11 Meena in particular and State Transport Department of Govt NCT in general.
72. As has been noted in the Ramdos Naidu's Case (supra) it is not necessary to show any loss to the Govt. or to the said officials, it would be good enough to show it has resulted in the wrongful gain to the person deceiving. As was put in Nrisingha Murari Chakraborty' s case ( supra) the wrongful not necessarily is to be in terms of money. It is sufficient to attract offence of cheating if it is a "thing of value' in the hand of the person cheating.
73. Registration Certificate of vehicle for sure is a thing of value as without it a vehicle that too commercial vehicles like Bus cannot be legitimately plied on road.
74. It , therefore, can be said that the Accused has committed an offence under section 415 of the Penal Code punishable under section 420 IPC.
C.C. No. 13/11 Offence under section 13(1) (d) of the Prevention of Corruption Act
75. The reasons which hold good for concluding that the Accused had committed offence under section 415 of the Penal could also apply for holding that the Accused has committed offence under section 13(1)(d) (ii) of the Prevention of Corruption Act for the Accused could not have persuaded Shri Sudhir Jain MLO or Shri C L Meena to process the case or transfer the vehicle without the surrender slip of the permit if he had not misused( abused) his position as a public Servant and had obtained for himself/his mother Smt Laxmi Devi and Shri R S Bhardwaj a valuable thing " Registration Certificate". Sanction for prosecution
76. The prosecution for sanction was proved by witness PW2 Sh. Virender Singh the sanctioning Authority himself. There was no question put to him in the crossexamination. There was C.C. No. 13/11 also no submission made as to challenging sanction in any manner.
DEFENCE OF THE ACCUSED No rules and regulations placed on record allegedly bypassed with regard to the transfer of the vehicle.
77. It was submitted by ld. Defence counsel that in this case there is an allegation that the rules have been bypassed for the transfer of vehicle to Smt. Laxmi Devi, the mother of the accused and from Smt. Laxmi Devi to Shri R.S. Bhardwaj by not submitting the surrender slip alongwtih the application for transfer of the vehicle. There is, however, no such rule and regulation placed on record.
78. As has been noted above, this is a fact, which has been repeatedly said by different witnesses who had appeared from the Transport Department, but had also been admitted by the accused himself in his statement u/s 313 Cr.P.C. One may refer C.C. No. 13/11 to answer to the question No. 30 given by the Accused it reads as under:
Q.30 It has further come in evidence against you that the procedure for the transfer of commercial vehicle under the commercial permit as applicable during the year 199394 was that the permit holder was required to file an application for surrender of his permit in prescribed performa in STA permit and his surrender was used to be issued to him in token of having surrendered the original permit and thereafter for the transfer of the ownership in the name of the purchaser alongwith said surrendered slip the documents such as from No. 29 & 30, insurance, road tax, address proof, NOC in case of vehicle is on hire purchase etc. will required to be filed and further the Form No. 29 was required to be signed by registered owner i.e. seller of the vehicle and Form No. 30 by the purchase of the vehicle. what have you to say?
Ans. It is correct."
79. I have also gone through the Website of Transport 1 Department of Government of NCT of Delhi and have found 1h t t p : / / d e l h i g o v t . n i c . i n / n e w d e l h i / d e p t / t r a n s p o r t / t r 1 0 . a s p C.C. No. 13/11 that submission of permit surrender slip is one of the requirement for the transfer of ownership of a commercial vehicle. A judicial notice of the same can be taken. The same reads as under: " H o w t h e t r a n s f e r o f o w n e r s h i p o f a v e h i c l e can be done?
The transfer of ownership of a vehicle is to be applied in the concerned zonal office where vehicle is already registered and following are the documents to be submitted :
1.Registration certificate in original
2.Form No. 29 duly filled in duplicate
3.Form No. 30 duly filled in duplicate
4.Attested copy of valid insurance, in favour of buyer
5.Attested copy of address proof of buyer
6.Attested copy of valid pollution under control certificate
7.Attested copy of G.I.R./Pan no. or Form no. 60/Form no. 61 (in case of cars only)
8.Prescribed fee
9.For commercial vehicles in addition to above
10. Permit surrender slip for S.T.A. C.C. No. 13/11
11.Challan clearance from Traffic Police & Enforcement branch of the transport deptt. are required.
12.Tax clearance report from
13.Accounts."
No witness examined for transfer of vehicle from Smt. Laxmi Devi to Shri R.S. Bhardwaj.
80. This submission of ld. Defence counsel is contrary to the record. The witness PW15 Shri Chiranji Lal Meena had not only deposed that the accused had approached him for the transfer of vehicle but had also stated that the Registration Certificate Ex. PW3/B (also Ex. PW15/1), Registration Certificate in the name of Shri R.S. Bhradwaj was put up before him for obtaining signatures thereon without the surrender slip. The relevant part of the his testimony reads as under: "Both the aforesaid Registration Certificates Ex. PW3/A and Ex. PW3/B (also proved as Ex.
PW15/1) were put up by me before Motor Licensing Officer for obtaining his signatures thereon but this C.C. No. 13/11 was done by me at the instance of the accused who had asked me to do so even without obtaining the surrender slip. In fact accused had told me that the relevant permit no. SC/3000/EX/0749/93 in the name of Ishwar Lal in relation to Ex. PW3/A and Ex. PW3/B (also proved as Ex. PW15/1), was in the name of his mother and he would bring the permit and show it to me."
81. Similarly, witness PW3 Inspector Sudhir Jain had proved the same Registration Certificate by identifying the signatures of Shri J.S.Dabas, MLO who had signed the same. The fact that the vehicle was transferred in the name of Shri R.S. Bhardwaj has also not been disputed by the accused. Reference in this respect can be made to the question No. 35 of the statement of the accused recorded under Section 313 Cr.P.C.. The same is being reproduced hereunder: "Q. 35 It has further come in evidence against you that the bus bearing No. DL1P 5290 was transferred by Smt. Laxmi Devi, your mother to one Shri R.S. Bhardwaj as per registration certificate Ex. PW3/B. What have you to say?
Ans. It is correct."
C.C. No. 13/11
82. Going a step further we may also notice that Shri R.S. Bhardwaj was known to the accused personally. Witness PW7 Shri Baljit Singh Rathi had deposed that he was working as LDC in MLO Branch during 1992 to 1993 and he knew Prakash Chand since 1980. He also knew Shri R.S. Bhardwaj since 1993 as he used to come to the office of Shri D.S. Chaudhary, MLO at that time. Since he had a permit in his name but was not in a position to purchase the bus he had introduced him to the accused. He had stated during the examination in his testimony "I introduced him with Shri Prakash Chand. The bus was purchased in the name of Smt. Laxmi Devi mother of Prakash Chand. I do not know what happened thereafter". This is a fact which was admitted by the accused in his statement under Section 313 Cr.P.C. and there was also no question put to him in the crossexamination.
83. To sum up, it is evident that there is sufficient material on record that the vehicle was transferred from Smt. Laxmi Devi to Shri R.S. Bhardwaj and the accused was instrumental in getting C.C. No. 13/11 the vehicle transferred in the name of Shri R.S. Bhardwaj without the surrender slip of the permit. Ld. Defence counsel had examined the witness DW1 Shri Satish Kumar who had placed on record a computerized print out showing that the vehicle last stood in the name of Shri R.S. Bhardwaj. Other persons involved in the transfer not made accused in this case.
84. It has been submitted by the learned defence counsel that the accused was merely a LDC and was not concerned with the transfer of the vehicle. The persons who were actually involved in transfer of vehicle have not been made accused in this case. I am of the view that this submission of the learned defence counsel is of little consequence. The witnesses who were actually involved in the transfer of the vehicle, namely, Shri C.L. Meena and Shri Sudhir Jain had deposed that they were deceived by the accused to get the vehicle transferred first in the name of his mother Smt. Laxmi Devi and from Laxmi Devi C.C. No. 13/11 to Shri R.S. Bhardwaj. They were in the position of witnesses and not accused in this case.
The main file of the bus on the basis of which the allegations have been made not produced in the Court.
85. It is a matter of record that the file relating to the transfer of the vehicle of bus No. DL1P 5290 had gone missing. This was deposed by defence evidence DW1 Shri Satish Kumar as well where he had stated that he had made personal best efforts to trace the record of the said file but the same was not available. This is a fact which was also take note of during the testimony of PW3 Inspector Sudhir Jain where at the time of exhibiting RC Ex. PW3/A there was an objection raised that since it was a photocopy it could not have been exhibited. The Ld. Predecessor of the Court had made an observation that the Registration File of this vehicle i.e. bus No. DL1P 5290 is missing from the official record and copy of the same can be considered to be a secondary evidence. I am, therefore, of the opinion nonavailability of the file would have not adverse impact on the outcome of this case.
C.C. No. 13/11 There is nothing on record to show that something was missing which was required to be done for the transfer of registration certificate etc.
86. According to the learned defence counsel first of all there is nothing on record to show that there was something missing which was required for the transfer of the ownership of vehicle. He has also submitted that if the surrender slip had not been submitted by the accused later on, as per the assurance given by the accused, why did Shri Sudhir Jain did not make any inquiry from the accused as to not supplying the surrender slip to him or taken steps for stopping the transfer of RC in the name of Smt. Laxmi Devi.
87. It has already come on record that the file relating to this case had been missing for long time. Therefore, obviously there is no record available with regard to the transfer of the vehicle. As has been noted above there is, however, copious amount of oral evidence available on record that the accused had tried to C.C. No. 13/11 influence Shri C.L. Meena and Shri Sudhir Jain for transferring the vehicle in the name of Smt. Laxmi Devi without the surrender slip on the pretext that he would supply the same soon. There is nothing to doubt their testimony. It has already been discussed before that actually there was no permit ever received by Shri Ishwar Lal. If there was no permit issued to Shri Ishwar Lal, there was no question of it being surrendered. One may also notice that if the surrender slip had been on record there was no necessity for the accused to have submitted forged application for the surrendering the permit with the signatures of Ishwal Lal and also an affidavit sworn in his name. If all these facts are put together then even in the absence of actual record being available, there can only be one conclusion that at the time of submission of application for the transfer of vehicle in the name of Smt. Laxmi Devi, there was no permit surrender slip available.
88. As far as question of Shri Sudhir Jain not making inquiry from the accused about non supplying the surrender slip is C.C. No. 13/11 concerned the accused could have taken benefit of it if he had crossexamined the witness Shri Sudhir Jain on these lines. At one stage in reply to the question by the defence counsel the witness had stated "RC was transferred in the name of Smt. Laxmi Devi as accused Prakash Chand, who was working under me had given an undertaking to submit the surrender slip by evening on the same day." After this answer had come, there was no question put to the witness thereafter if this witness had later on made inquries from Prakash Chand if he had not submitted the surrender slip later on. It may be noted that narration which comes in the crossexamination of a witness is entirely different from the narration which comes in examination in chief of a witness. In the examination in chief the witness is supposed to say things of his own relevant to the case giving complete narration of facts. In the case of cross examination, however, a witness is expected to reply to the questions only which have been put to him specifically for the crossexamination and not beyond that. It was, therefore, responsibility of the learned defence counsel in the cross C.C. No. 13/11 examination to have elicited the response from the witness, if this witness had after the registration certificate had been issued had asked the accused ever to submit the surrender slip. As has already been noted above in the absence of any cross examination on these lines the learned defence counsel cannot take benefit of it.
No surrender slip required in case of vehicles purchased by auction.
89. The learned defence counsel had made a reference to the testimony of the witness PW15 Shri C.L. Meena who was responsible for processing the case for transfer of vehicles wherein this witness had stated that he did not know that in case of a vehicle being purchased by way of auction it is necessary to ask for surrender slip of the permit. I believe if the accused wanted to put across the question that as far as the vehicles which are purchased by way of auction, there was no requirement of submissions of permit surrender slip, then he should have brought out this fact clearly in a positive manner by making reference to any rule or practice. Merely by putting one C.C. No. 13/11 simple question and trying to make an exception that in case of vehicles purchased by way of auction, permit surrender slip was not necessary, is far fetched.
CONCLUSION
90. In the light of above discussions, I am acquitting the accused of the charge under Section 120B read with Sections 420, 471, 468 IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act and also of the offence under section 468 IPC. I am, however, convicting the accused for having committed the offence under section 471 IPC punishable in the same manner as provided in Section 465 IPC, having committed offence of cheating under Section 415 IPC punishable under Section 420 IPC and having committed misconduct under section 13(1)(d)(ii) punishable under Section 13(2) of the Prevention of Corruption Act.
Announced in the Open Court ( L. K. GAUR )
on 3rd April, 2012 Special Judge, P.C. Act
(CBI09), Central District,
Delhi.
C.C. No. 13/11
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE P.C. ACT (CBI09), CENTRAL DISTRICT, TIS HAZARI: DELHI CC No. 13/2011 R.C. No. 57(A)/96/CBI/ACB/ND Case I.D No. 02401R0000961999 Central Bureau of Investigation Versus Shri Prakash Chand S/o Late Shri Hari Singh R/o RZ 45, Gali No. 1, Nangloi Road, Maksudabad Colony, Nazafgarh, New Delhi.
Date of Institution : 22.12.1999 Date of reserving Order : 11.04.2012 Date of Pronouncement : 16.04.2012 ORDER ON SENTENCE CONVICTION
The convict has been convicted under Section 471 punishable in the same manner as an offence under Section 465 IPC, under Section 415 IPC, punishable under Section 420 C.C. No. 13/11 IPC and under Sections 13(1)(d)(ii) of Prevention of Corruption Act punishable under Section 13(2) of the Act.
2. During trial it was established that an exserviceman Ishwar Lal was selected for grant of permit by a draw of lot. Pursuant to the selection he had purchased one bus bearing No. DL1P 5290 on hire purchase basis. The vehicle was transferred in his name vide Registration Certificate dated 07.04.1994. He was informed that Route No. 706 has been alloted to him but permit was not actually issued to him. He had kept approaching the Department for being issued the permit but in vain. So much so that because of the nonissuance of the permit he could not ply the bus and could not pay the monthly hire charges resulting in the bus being repossessed by the Finance Company. Convict who had been working as clerk in the Transport Department had himself approached the Finance Company for the purchase of vehicle. The vehicle was purchased in the name of his mother. Since the bus could not have been transferred in the name of his mother without the C.C. No. 13/11 permit being surrendered and surrender slip produced of such surrender, he deceived his own colleagues to get the bus transferred in the name of his mother and subsequently from his mother to one Shri R.S. Bhardwaj on the assurance that he would produce the surrender slip later, which he did not submit. Later on to cover up the nonsubmissions of the surrender slip he had submitted an application alongwtih an affidavit for "surrender of permit" with forged signatures of Shri Ishwar Lal.
3. I have heard the learned Public Prosecutor for CBI and also the learned defence counsel on the point of sentence and have gone through the record of the case.
4. The learned Defence counsel made a request for taking a lenient view and to award minimum punishment to the convict for the following reasons:
(i) The convict is facing trial since, 1996. He is 61 years old and has already retired from service. He is not maintaining good health since the year 2001.
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(ii) His wife has already expired. He has an adopted son who is living separately and one daughter who is already married and he is the only person to look after his old mother who is about 82 years old.
(iii) Because of the present case he has not been able to get any pensionary benefit including gratuity etc. He also did not get two promotions because of the pendency of the present case.
4. The learned Public Prosecutor on the other hand has made a request for handing out the maximum punishment to the convict taking into consideration the manner in which he has committed the offence by deceiving his own colleagues and an exserviceman.
5. As I can pick up the mitigating circumstance against the convict are:
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(i) the convict has been facing trial since the year 2000;
(ii) he is a sick person and is suffering from many diseases;
and
(iii) his mother who is aged about 82 years is completely dependent upon him both financially and physically.
6. The aggravating circumstance on the other hand against him is that he grossly misused his position as a government servant to get something done, which he otherwise could not have, by deceiving his own colleagues and had gone to the extent of submitting forged papers to cover up his wrong doing.
7. Having weighed all the options before me I am of the considered opinion that though in this case there is no loss to the exchequer of the Government in terms of money but surely there is a question of loss of reputation for the Government as the acts like this give an impression to the public in general that government servants are capable of bending any rule / procedure, if they want to. I am of the view that the acts like this C.C. No. 13/11 should have a suitably heavy component of fine and also of imprisonment proportionate to the offences committed taking into consideration the minimum and the maximum punishment provided for such offences.
8. In the light of above discussion I am sentencing the convict to undergo rigorous imprisonment of one year for committing the offence punishable under Section 471 IPC read with Section 465 IPC and also pay a fine of Rs. 25,000/ (Rs. Twenty Five Thousand only). I am further sentencing the convict to undergo rigorous imprisonment of Two years under Section 420 IPC and to pay a fine of Rs. 25,000/ (Rs. Twenty Five Thousand only). I am also sentencing the convict to undergo rigorous imprisonment of Two years under Section 13(2) of the Prevention of Corruption Act read with Section 13(1)
(d)(ii) of the Act and to pay a fine of Rs. 50,000/ (Rs. Fifty Thousand only).
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9. All the sentences of imprisonment shall run concurrently. In this case I want the convict to actually pay the overall fine of Rs. 1,00,000/ ( Rupees One Lac only ) which has been imposed by this order and, therefore, I have purposely not provided any imprisonment in default of payment of fine. I am giving time to the convict to make the payment of the fine within two weeks from now. In case of his failure to pay the fine during the said period, steps would be taken for recovery of fine in accordance with the Section 421 of the Code of Criminal Procedure, 1973.
10. The convict had not been arrested in this case and has not spent any time in jail during the entire course of the trial. Therefore, there is no benefit under Section 428 Cr.P.C. needs to be given to the convict in this case.
Ordered Accordingly.
Announced in the Open Court ( L. K. GAUR )
on 16 of April, 2012 Special Judge, P.C. Act
th
(CBI09), Central District,
Delhi.
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