Delhi District Court
(C.B.I. vs . Dr.S.C.Mittal & Ors.) on 4 October, 2013
Judgement in the matter of:
(C.B.I. Vs. Dr.S.C.Mittal & Ors.)
Dated : 04 October 2013
th
: IN THE COURT OF SH. KANWAL JEET ARORA :
SPECIAL JUDGE : C.B.I. (P.C.ACT)
DWARKA COURT COMPLEX, NEW DELHI.
Case No. : RC5 (A )/ 2005 / CBI ACUVI / New
Delhi dated 20.09.2005
U/s : 120 B r/w sec. 167 IPC & section 15 r/w
sec 13 (2) read with section 13 (1) (d) of
Prevention of Corruption Act, 1988.
CBI VS. DR.S.C.MITTAL & ORS.
C.C. NO.: 04 / 11
In the matter of:
CENTRAL BUREAU OF
INVESTIGATIONS (C.B.I)
v e r s u s
(i) DR.S.C.MITTAL,
S/o.: Late Sh. Goverdhan Dutt Mittal,
R/o.: 23/2, Punjabi Bagh Extn., New Delhi.
(ii) V.K.KHANNA,
S/o: Sh.Remal Dass Khanna,
R/o : 270B, PocketII, Mayur Vihar,
PhaseI, New Delhi.
(iii) RAMESH SHARMA
S/o: Late Sh.D.P.Sharma,
R/o : J21, South Extension, PartI,
New Delhi.
... Accused Persons.
C.C.No: 04 / 2011 Page No.1 of 177
Judgement in the matter of:
(C.B.I. Vs. Dr.S.C.Mittal & Ors.)
Dated : 04 October 2013
th
Date of Institution : 21.12.2006.
Date on which the case was
received on transfer in this court : 28.09.2011.
Date of reserving judgement : 17.09.2013.
Date of pronouncement : 04.10.2013.
: J U D G E M E N T :
1.Liberty of an individual, his property and possession being supreme, are required to be protected by the State, being must for existence of any civilized society. This guarantee by the State would be meaningless, if any person's liberty is violated by a criminal, with impunity or his property or possession is preyed upon by any thief or trickster. Prevention of crime is the duty of State. To combat the crime, its detection, investigation and preventive methods have to be employed synchronously.
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2. For a successful detection of a crime, honest and qualitative investigation is an indispensable requirement. As no investigating officer is supposed to be versatile in all the fields and aspects, therefore for his assistance, the State has to back the investigating agency with a separate independent agency, fully equipped with scientific aids and instruments, coupled with experienced and qualified experts who are supposed to assist the investigating agency for detection of crime.
3. Central Forensic Science Laboratory (hereinafter referred to as CFSL), is a scientific department working under the administrative control of CBI and over all control of Ministry of Home Affairs, Government of India. CFSL undertakes the scientific analysis of crime exhibits referred by Central Bureau of Investigations (CBI), Delhi Police, Judiciary and Vigilance Department of various ministries and undertakings. The experts of CFSL examine C.C.No: 04 / 2011 Page No.3 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th the exhibits so forwarded to it and render their expert opinion with aid and assistance of the scientific instruments available to them.
4. Central Forensic Science Laboratory (CFSL), New Delhi being one of the most comprehensive laboratories is having ten fully equipped divisions, including the Document Division. All these ten divisions have their separate Head of the Departments (HODs) and all these departments are ultimately headed by Director, CFSL.
5. The experts functioning with CFSL, thus being an important part of the investigations are supposed to function in a prudent and honest manner, without diluting the expected standards of integrity, procedural skills and the knowledge acquired by them through education and experience in the field. As their reports and opinions are formed the basis of the investigation which are then put up before the Court of C.C.No: 04 / 2011 Page No.4 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Law for adjudication with respect to the question of life and liberty of accused at one end and of the victim of crime on the other.
6. The crime scenario in our country has become distressingly disturbing as the concomitance of the deeprooted criminalization has manifested a situation giving criminals and their abettors a hold over the reins of administration directly or indirectly. The present case involves the two senior scientific experts of CFSL, who by virtue of their position were holding the reins of the administration being part of the system of investigation / detection, who allegedly got themselves involved with a private individual and diluted the expected standards of integrity and procedural skills expected of them, while working on certain documents referred to CFSL for expert opinion by Court.
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7. Before proceeding further, it is pertinent to advert to the facts in brief which led to registration of FIR and filing of charge sheet against the accused persons. The same are as under: FACTUAL MATRIX:
8. During the period May 2005 to August 2005, Dr.S.C.Mittal, Principal Scientific Officer (Document Division), was Head of the Department of Document Division, CFSL and V.K.Khanna was working as Principal Scientific Officer, Document Division.
9. One Ramesh Sharma, a private person who claimed to have purchased property bearing number C89, NDSEII, New Delhi in a court auction, had sold 900 square feet on the 2nd floor of this property to one Sh.Brahm Prakash Sharma, vide sale deed dated 25th June 2003, and further allowed him to use the first floor of this property. C.C.No: 04 / 2011 Page No.6 of 177
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10. The said Ramesh Sharma had filed a Civil Suit against Brahm Prakash Sharma seeking possession of first floor of this property in the court of Additional District Judge, Tis Hazari and a counter case was filed by Brahm Prakash Sharma against Ramesh Sharma, relying upon an agreement to sell dated 15th June 2002 in his favor, alleged to have been executed by Ramesh Sharma.
11. Ramesh Sharma had filed a criminal complaint against said Brahm Prakash Sharma in the court of Ld.Metropolitan Magistrate, New Delhi claiming that the th "power of attorney" dated 15 June 2002, purportedly executed by him in favor of Brahm Prakash Sharma , is a forged document on which Brahm Prakash Sharma had forged his signatures. He claimed that he never executed this document.
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12. On the basis of this complaint of Ramesh Sharma, Ld.Metropolitan Magistrate had directed SHO P.S.Defence Colony, to register an FIR and to investigate the same.
13. On the basis of this order, FIR bearing no. 461/2004 dated 02nd September 2004 was registered at PS Defence Colony, which was entrusted for investigations to SI A.K.Singh.
14. SI A.K.Singh filed an application before the concerned court for referring the questioned agreement dated 15th June 2002 to CFSL, New Delhi for examination and opinion, on which requisite directions were passed by the court vide orders dated 23rd September 2004.
15. The questioned and specimen documents were then sent to CFSL for examination which were assigned for C.C.No: 04 / 2011 Page No.8 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th examination to Dr.M.A.Ali, Principal Scientific Officer, Document Division.
16. Dr.M.A.Ali, vide his interim report dated 31st December 2004 stated that some more specimen signatures of Ramesh Sharma along with the admitted signatures of the contemporary period are required for the opinion which was sent to SHO PS Defence Colony, vide letter dated 04th January 2005 of Dr.S.R.Singh, Director CFSL.
17. The investigating officer after obtaining more specimen and admitted signatures of Ramesh Sharma, forwarded the same to CFSL on 27th January 2005. After receipt of these documents, Dr.M.A.Ali, again examined the questioned documents and prepared a draft report dated 03rd March 2005, which was approved by Dr.S.C.Mittal and this report was forwarded to SHO PS Defence Colony along with a forwarding letter dated 04th March 2005. Vide this report, C.C.No: 04 / 2011 Page No.9 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Dr.M.A.Ali had opined that the questioned signatures are that of Ramesh Sharma himself.
18. On the basis of this report from CFSL, IO SI A.K.Singh filed a "cancellation report" before the concerned court with respect to FIR No.461/04.
19. Ramesh Sharma then filed a 'protest petition' along with the report of two independent handwriting experts dated 03.08.2004 and 06.08.2004 supporting his claims and contentions. On the basis of this protest petition, Ld.Metropolitan Magistrate vide his orders dated 21.05.2005 directed the Director, CFSL to constitute a 'panel of experts' for reexamination of the documents.
20. The said order passed by Ld.Metropolitan Magistrate was forwarded to CFSL through a forwarding letter dated 27th May 2005 of Additional SHO PS Defence Colony, on C.C.No: 04 / 2011 Page No.10 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th which Dr.S.C.Mittal endorsed "court direction, please check and retain documents". This letter was put up before Dr.S.R.Singh, Director CFSL on 30.05.2005 who acknowledged the receipt thereof on 31.05.2005 and sent it to the concerned section for processing.
21. As per a circular dated 20.10.2009 issued by Dr.S.R.Singh bearing number 914/97CFSL/4880, the Divisional Head was the appropriate authority to finalize the technical opinion concerning his division. This circular further states that, if the report remains controversial, then the Divisional Head will forward the report with his comments to Director, CFSL for final decision. Dr.S.C.Mittal in this case being the Divisional Head was thus under an obligation to put up a proposal for constitution of panel of experts to Director CFSL, but instead of doing so, he alloted the case to himself and Sh.V.K.Khanna on 27.05.2005 itself and failed to put up this file before Director CFSL till the time, Director CFSL C.C.No: 04 / 2011 Page No.11 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th proceeded on leave from 09.07.2005 till 21.08.2005.
22. During the absence of Director CFSL, Dr.S.C.Mittal was authorized to look after the routine work of Director CFSL as per the office order dated 11th July 2005.
23. It is alleged that Dr.S.C.Mittal and th V.K.Khanna thereafter prepared a false report dated 05 August 2005 confirming that questioned signatures of Ramesh Sharma are forged ones and this report was contrary to the earlier report of Dr.M.A.Ali, which was duly approved by Dr.S.C.Mittal himself.
24. It is alleged that Dr.S.C.Mittal then gave a telephone call to SHO PS Defence Colony and asked him to collect the report immediately, on which Const.Surender Singh so deputed, was handed over the report as well as the documents, on 05.08.2005 itself and an entry in the dispatch C.C.No: 04 / 2011 Page No.12 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th register was got entered on 08.08.2005 in the back date, from one Ram Karan Dak Assistant, under compulsion and force of accused Dr.S.C.Mittal.
25. It is alleged that Dr.S.C.Mittal during the period these documents remained with him under examination was in constant touch with Ramesh Sharma. Dr.S.C.Mittal had used his mobile phone and had telephonic conversations with Ramesh Sharma on 03.06.2005 and 04.06.2005 and had also used the mobile phone of his son Deepankar Mittal and communicated with Ramesh Sharma who had also returned the calls on the mobile phone of the son of Dr.S.C.Mittal.
26. It is alleged that Ramesh Sharma was defending a suit filed against him by Brahm Prakash Sharma, th on the basis of 'agreement to sell' dated 15 June 2002 and thus was interested to have a report in his favor to prove in 'Court of Law' that signatures on this 'agreement to sell' are C.C.No: 04 / 2011 Page No.13 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th forged. It is alleged that he remained in contact with Dr.S.C.Mittal during the period, these documents remained under examination with CFSL. It is further alleged that in furtherance of the conspiracy which Dr.S.C.Mittal had with Ramesh Sharma, he criminally misconducted himself and along with V.K.Khanna, and they by abusing their official positions as "public servants" gave a false report, so that his co accused can have an undue favor in a Court of Law, with respect to the present proceedings.
27. It is alleged that Dr.S.R.Singh, Director CFSL after joining his duty on 22.08.2005 came to know of report dated 05.08.2005 prepared by Dr.S.C.Mittal and V.K.Khanna, therefore he called SHO PS Defence Colony and asked him not to submit the said report in court.
28. It is alleged that Dr.S.R.Singh thereafter constituted a "panel of experts" consisting of Sh.Narender C.C.No: 04 / 2011 Page No.14 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Singh, GEQD, Hyderabad, Sh.M.L.Sharma, GEQD, Kolkata, Sh.S.L.Mukhi, PSO, CFSL, New Delhi, for reexamination of the questioned documents.
29. It is alleged that the panel of experts vide their report dated 18.10.2005 opined that the questioned documents bears signatures of Ramesh Sharma, thereby confirming the report earlier submitted by Dr.M.A.Ali.
30. It is alleged that Dr.S.C.Mittal by abusing his official position and without any authority had constituted a panel of experts consisting of himself and V.K.Khanna and both of them entered into a criminal conspiracy with Ramesh Sharma, in furtherance of which, they had given a false report in favor of Ramesh Sharma and thus have criminally misconducted themselves. It is alleged that sanction for prosecution of S.C.Mittal and V.K.Khanna were obtained from the competent authority and were filed along with the charge C.C.No: 04 / 2011 Page No.15 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th sheet.
31. After completion of investigations, the present charge sheet was filed in court against Dr.S.C.Mittal, V.K.Khanna ; the public servants and Ramesh Sharma for their trial for offence punishable under section 120 B read with section 167 IPC and under section 15 read with section 13(2) r/w section 13 (1)(d) of Prevention of Corruption Act, 1988. CHARGE:
32. Ld.Predecessor of this Court after hearing Ld.Defence Counsels for all the three accused persons passed orders on the point of charge dated 30.04.2010, forming an opinion that prima facie case for offence punishable under section 120 B IPC , 167 IPC and section 15 and section 13(1) (d) and 13(2) of Prevention of Corruption Act is made out against all the three accused. Ld.Predecessor of this Court further opined that prima facie a case for substantive charge for C.C.No: 04 / 2011 Page No.16 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th offences punishable under section 167 IPC and section 13(1) (d) read with 13(2) and section 15 of Prevention of Corruption Act, is made out against accused S.C.Mittal and V.K.Khanna.
33. Vide orders dated 10.05.2010 formal charges were framed against all the three accused to which all three of them pleaded not guilty and claimed trial. PROSECUTION EVIDENCE:
34. Prosecution was thereafter called upon to substantiate its case by examining their witnesses, listed in the list of witnesses, filed along with the charge sheet. Availing the given opportunities, CBI had examined 26 witnesses.
35. The witnesses so examined by the prosecution can be broadly categorized in 6 categories ; C.C.No: 04 / 2011 Page No.17 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th
36. First Category is of material witnesses which consists of the witnesses from CFSL who had either deposed about the procedure which is followed whenever any document is received for the purposes of examination or who have deposed about the receipt of the present exhibits in CFSL and the manner in which they were dealt with. This category comprises of PW1 Anil Sharma ; PW2 Sanjay Malhotra; PW3 Ram Karan ; PW4 Lal Singh; PW5 J.B.Subnani, PW6 N.B.Bardhan; PW8 S.L.Mukhi; PW9 Ms.Lavang Lata Sharma; PW15 Pramod Kumar; PW18 Dr.M.A.Ali and PW24 Sh.S.R.Singh .
37. Second Category consists of witnesses from Delhi Police who have appeared and deposed with respect to the proceedings conducted regarding FIR No.461/04 PS Defence Colony, more particularly about the sending of exhibits of that case to CFSL for expert opinion on the basis of court orders and the resultant proceedings. This category comprises of PW11 C.C.No: 04 / 2011 Page No.18 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th HC Surender Singh; PW12 SHO Harcharan Verma ; and PW13 Inspector Ashok Kumar Singh.
38. Third Category consists of witnesses relating to the telephone connections and call detail records with respect to the mobile phone connections and the landline phones allegedly used in this case by accused no.1 and accused no.3 for communication. This category comprises of PW7 Israr Babu ; PW16 J.N.Sharma ; PW19 Rakesh Bakshi ; PW20 Brij Mohan Sharma; PW21 Sanjeev Lakra; and PW22 Bharat Bhushan.
39. Fourth Category of the witnesses are the witnesses to the grant of sanction to prosecute the accused persons. Under this category prosecution had examined Sh.S.C.L.Dass, who appeared in the witness box as PW10. C.C.No: 04 / 2011 Page No.19 of 177
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40. Fifth Category of the witnesses examined by the prosecution were the independent witnesses. This category comprises PW14 Vijay Sharma and PW17 B.P.Sharma; who had deposed about the execution of the agreement to sell Ex.PW.14/A which was the bone of contention in this case. PW23 Amit Varshney is also included in this category as he appeared in the witness box on behalf of M/s K.L.B.International and deposed that their company had installed the instrument VSC 5000 in CFSL.
41. Sixth Category of the witnesses examined by the prosecution were those who were part of the investigating team including the investigating officer. Under this category prosecution had examined, PW25 Lakhi Prasad, S.P.CBI and PW26 Inspector Rajpal Singh, the investigating officer.
42. Before proceeding further, it is pertinent to make a brief mention of the role and deposition of the C.C.No: 04 / 2011 Page No.20 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th prosecution witnesses category wise, as referred hereinabove. The detail deposition of the witnesses is not being adverted to, as the same shall be referred hereinafter while dealing with the necessary ingredients of the offence, with which accused have been charged, visavis the rival contentions advanced by Ld.Special PP for CBI, as well as by Ld.Defence Counsels for the accused persons.
43. Most of the prosecution witnesses were cross examined in detail by Dr.S.K.Gupta, Advocate, Ld.Counsel for accused S.C.Mittal, Sh.Jai Dev Prasad, Advocate, Ld.Counsel on behalf of accused V.K.Khanna and Sh.Anil Kumar, Advocate, Ld.Counsel for accused Ramesh Sharma. The cross examination of these witnesses is not being mentioned for the sake of brevity, but the same and material portion thereof, more particularly, the one referred to during the course of arguments, shall be adverted to hereinafter, while appreciating the legal and factual issues raised on behalf of the accused, alongside appreciation of evidence in entirety.
C.C.No: 04 / 2011 Page No.21 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th FIRST SET OF WITNESSES:
44. PW1 Anil Sharma, working as Lab Assistant with CFSL appeared in the witness box and proved the report given by the panel of experts ie. accused V.K.Khanna and S.C.Mittal bearing CFSL report no. 2005/D346 dated 05.08.2005 as Ex. PW1/A1. He identified signatures of both the accused persons on the said report. He deposed that this report was forwarded vide forwarding letter dated 05.08.2005 Ex. PW1/A which was signed by accused S.C.Mittal. PW1 further deposed that on 05.08.2005, on directions of S.C.Mittal, he went to dispatch clerk Ram Karan for dispatching the report Ex.PW.1/A but he returned the same along with the file stating that the same is not complete.
45. PW2 Sanjay Malhotra, appeared and deposed that in the year 2005 he was working with Head Of Department (Document Division) i.e. accused S.C.Mittal. He deposed that the dictation of report Ex. PW1/A was given to C.C.No: 04 / 2011 Page No.22 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th him by S.C.Mittal on 04.08.2005 in presence of accused V.K.Khanna. He also identified signatures of S.C.Mittal on the forwarding letter Ex. PW1/A1. He deposed that during the course of investigations i.e. on 20.12.2005 the shorthand notebook in which he had taken the dictation was seized vide seizure memo Ex. PW2/A and he identified the shorthand notebook as Ex. PW2/B. He proved the transcription of his shorthand notebook with respect to dictation given by S.C.Mittal as Ex. PW2/C.
46. PW3 Ram Karan, working as dispatch clerk from CFSL appeared in the witness box and deposed that as per the normal procedure complete file used to be assigned from the office of Director. He deposed that on receipt of any file, the same is entered in the dispatch register and thereafter is delivered to the concerned section on which the signatures of the Case Assistant used to be taken as an acknowledgment of receipt of the file. This witness deposed that he used to C.C.No: 04 / 2011 Page No.23 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th maintain a dispatch register which he proved as Ex.PW.3/A. He deposed that on 05.08.2005 Anil Sharma came to him along with a forwarding letter and report without the requisite file and without any copy of the forwarding letter and report, for the purposes of dispatching, on which he raised an objection, stating that it cannot be dispatched without the requisite file. He deposed that the dispatch register Ex.PW.3/A for the period 13.07.2005 to 06.10.2005 is in his handwriting.
47. PW3 deposed that as 06.08.2005 and 07.08.2005 were holidays, therefore on 08.08.2005 he was called by Dr.S.C.Mittal who reprimanded him for not dispatching the report on 05.08.2005. He deposed that at instance of S.C.Mittal, he brought the dispatch register and made an entry no.4271 Mark X, in the dispatch register in the back date ie. of 05.08.2005. He deposed that he then put the dispatch number on the forwarding letter and handed it over to Jeet Singh on 08.08.2005. He proved the forwarding letter C.C.No: 04 / 2011 Page No.24 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th bearing dispatch number Ex.PW.1/A1 and corresponding report Ex.PW.1/A. He deposed that in the other report, which is exhibited as Ex.PW.15/B, which is in the envelope Ex.Pw. 9/G, there is no dispatch number.
48. PW4 Lal Singh, working as Lab Assistant in Case Section of CFSL, appeared and deposed that letter dated 27.05.2005 Ex. PW4/A was received by him on which he had given the file no. 2005/D346. He proved the earlier forwarding letter of SHO, PS Defence Colony dated 27.01.2005 to CFSL as Ex. PW4/B and the Road Certificate as Ex. PW4/C vide which the documents pertaining to FIR No. 461/04, PS Defence Colony were received in CFSL.
49. PW5 J.P.Subnani, working as Senior Scientific Assistant with CFSL, during the course of his deposition had stated the complete procedure which was invogue with CFSL, as and when any request for opinion is C.C.No: 04 / 2011 Page No.25 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th received in CFSL. He deposed that whenever any letter is received from any investigating agency, permission of Director is taken. He deposed that after the approval / permission of the Director the file is received in the Document Division and the forwarding letter including the exhibits are sent to Head Of Department (Document Division), who use to mark the same to the subordinate officers for checking, verifying and receiving the same. He deposed that thereafter Head Of Department (Document Division) use to mark the file to the experts for examination and opinion. He deposed that thereafter the concerned expert, so appointed used to examine the documents with the help and assistance of Junior Staff. He deposed that the expert thereafter used to prepare the report which is sent to Head Of Department (Document Division) for approval. PW5 went on to depose that after approval of Head Of Department (Document Division) same is marked to Director, CFSL for formal approval and he then vide his forwarding letter sends the said report to the concerned agency from C.C.No: 04 / 2011 Page No.26 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th where the request was received.
50. PW5, thereafter deposed about the first round when the questioned documents of the present case were received in CFSL. He deposed that a letter / application dated 23.09.2004 of S.I. A.K.Singh of PS Defence Colony Ex. PW5/A was received in CFSL on 29.10.2004 by him vide his endorsement at point A. He deposed that on the said application there were directions from the Court at point F whereby Director, CFSL was directed to do the needful on priority. He deposed that this application was put up before Director, CFSL S.R.Singh, who made his endorsement at point B and marked it to Head Of Department (Document Division). He deposed that Head Of Department (Document Division) S.C.Mittal then on 29.10.2004 had made an endorsement directing to check and retain the documents whereafter file was marked to Lata Sharma, Lab Assistant, who vide her endorsement stated that documents have been received and C.C.No: 04 / 2011 Page No.27 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th retained. PW5, further deposed that on 29.10.2004 itself vide entry no. 18/156 in the case register Ex. PW5/L this case was marked to Dr.M.A.Ali for examination. PW5 deposed that this letter / application Ex. PW5/A was received in CFSL alongwith forwarding letter Ex. PW5/B and the documents vide Road Certificate Ex. PW5/C.
51. PW5 deposed that they had received another forwarding letter Ex. PW5/D from PS Defence Colony alongwith which letter dated 17.11.2004 Ex. PW5/E of Sh.S.N.Dhingra, the then Ld. Additional Sessions Judge, was received to give report within ten days. PW5 deposed that this letter was received on 18.11.2004 vide his endorsement at point A. He deposed that the same was put up before Director, CFSL, who vide his endorsement at point B marked it to Head Of Department (Document Division). PW5 deposed that he thereafter vide his endorsement forwarded it to accused S.C.Mittal. PW5 further deposed that S.C.Mittal vide his C.C.No: 04 / 2011 Page No.28 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th endorsement dated 22.11.2004 marked it to Lata Sharma whereafter a reply of this letter dated 25.11.2004 Ex. PW5/F was sent to the Court under signatures of accused V.K.Khanna whereby it was reported that the case is under examination.
52. PW5 further deposed that Dr.M.A.Ali vide his letter dated 31.12.2004 Ex. PW5/G had asked for more specimen and admitted signatures of Ramesh Sharma to give his finding on the questioned documents. He deposed that pursuant to this letter of Dr.M.A.Ali, PS Defence Colony furnished additional documents vide their letter Ex. PW4/B and Road Certificate Ex. PW4/C. He deposed that the letter Ex. PW4/B was received in CFSL on 27.01.2005. It was seen by Director CFSL vide endorsement at Point E, whereafter S.C.Mittal vide his endorsement marked it to Dr.M.A.Ali and thereafter Ved Mittar attached to Dr.M.A.Ali vide endorsement at point G checked and retained the additional documents. PW5 deposed that Dr.M.A.Ali thereafter on the basis of C.C.No: 04 / 2011 Page No.29 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th additional documents gave his report dated 03.03.2005 Ex. PW5/J. He deposed that this report was forwarded by Dr.S.R.Singh to SHO PS Defence Colony vide his letter dated 04.03.2005 Ex. PW5/H. PW5 deposed that SHO PS Defence Colony authorized Ct. Jagdish Raj to receive the report vide authority letter Ex. PW5/K which was marked to Dr. M.A.Ali by accused S.C.Mittal whereafter Ct. Jagdish Raj was handed over original documents vide endorsement at point B on Ex. PW5/K.
53. PW5 further deposed with respect to the second round vide which these documents were again received in CFSL for opinion. He deposed that letter dated 27.05.2005 Ex. PW4/A from SHO PS Defence Colony was received which was put up before Dr.S.C.Mittal vide endorsement at point E. He deposed that thereafter S.C.Mittal marked the file to him for checking and retaining the documents and he vide his endorsement at point H requested Case Assistant Lal Singh to C.C.No: 04 / 2011 Page No.30 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th open the case. He deposed that this file was put up before Director, CFSL S.R.Singh vide endorsement at point F on 31.05.2005. He deposed that vide note sheet Ex. PW6/F which was written by V.K.Khanna, a panel of V.K.Khanna and S.C.Mittal was constituted for examining the documents and the present case was given Case no. 05/D346 which was entered in the case register vide entry no. 14/63 dated 27.05.2005 itself Ex. PW5/M and in the column "allotted" it was mentioned as marked to S.C.Mittal and V.K.Khanna.
54. PW6 N.B.Bardhan, Sr. Scientific Officer, GradeII, deposed that on 19.01.2006 he was posted as Sr. Scientific Officer, GradeI, Ballistic and was given additional charge of Head Office, CFSL. He deposed that vide letter dated 16.01.2006 original of which is Ex. PW6/D and copy was marked as Ex. PW6/X1 duties and responsibilities of Director, PSO (Admin.), PSO & HOD, SSOI & SSOII were informed by CFSL to CBI pursuant to their queries. He deposed that Head C.C.No: 04 / 2011 Page No.31 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Of Department (Document Division) is the senior most officer of that Division and if any PSO is the senior most then he is known as PSO & HOD.
55. PW6 proved the personal file of Dr.S.R.Singh as Ex. PW6/A. He deposed that Dr.S.R.Singh had filed an application seeking earned leave of which note Ex. PW6/G was prepared which was sanctioned vide note Ex. PW6/H. He deposed that thereafter on the basis of notes Ex. PW6/A and Ex. PW6/L an office order Ex. PW6/B was issued with the approval of Director, CBI. He deposed that vide this office order dated 11.07.2005 Dr.S.R.Singh was sanctioned earned leave from 11.07.2005 to 19.08.2005. PW6 deposed that Dr.S.C.Mittal, PSO & HOD (Document Division) was directed vide this office order to look after the routine work of Director CFSL for the period for which Dr.S.R.Singh is on leave in addition to his own functions. PW6 deposed that it was made clear in the office order Ex. PW6/B that all Administrative and C.C.No: 04 / 2011 Page No.32 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Financial matters will be referred to CBI, Head Office for decision during the period Dr.S.R.Singh will remain on leave.
56. PW6 deposed that Sh.S.K.Sharma, Ld. Metropolitan Magistrate vide his orders dated 21.05.2005 Ex. PW6/C had directed, Director, CFSL to constitute a board / panel of more than one expert. He deposed that, generally, Director being Head of Department, constitute the board / panel of experts. He proved the file pertaining to the present set of documents and report ie. file no. CFSL/2005/D0346 as Ex. PW6/E. He proved the note sheet Ex. PW6/F which is in the hands of V.K.Khanna giving gist of the report on behalf of an expert panel consisting of V.K.Khanna and S.C.Mittal. He deposed that on the basis of this note sheet the report Ex. PW1/A consisting of 8 pages was submitted which bears signatures of V.K.Khanna and S.C.Mittal. C.C.No: 04 / 2011 Page No.33 of 177
Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th
57. PW6 during the course of his deposition stated that in terms of the office order Ex. PW6/B and the note Ex. PW6/K S.C.Mittal was not competent to constitute the panel of experts as he was required to do only the routine functions of Director, CFSL, during the absence of Dr.S.R.Singh. He went on to depose that whenever any such request is received then HOD of that Division used to put up a note to Director, CFSL, who may constitute the panel himself or can direct HOD of that Division to do the same. He deposed that panel of experts then used to put up their report for approval to Director, CFSL who if approves the same forwards it to the concerned Court or police from where the request was received vide his own forwarding letter.
58. PW8 S.L.Mukhi, Principal Scientific Officer, CFSL appeared and deposed that vide office order no. 147 / 2005 dated 14.09.2005 of Director, CFSL he alongwith Narinder Singh, GEQD (Hyderabad) and M.L.Sharma, GEQD C.C.No: 04 / 2011 Page No.34 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th (Ahmadabad) were asked for examination of documents as a panel of experts. He deposed that all three of them then examined the questioned documents and concluded that the person whose signatures were in question is the one whose specimen and admitted signatures were forwarded. He proved the report of the panel of experts dated 27.09.2005 as Ex. PW12/D and he identified his signatures as well as signatures of other experts on the same.
59. PW9 Lavang Lata Sharma, Lab Assistant, CFSL appeared and deposed that an application of S.I A.K.Singh, PS Defence Colony Ex. PW5/A was received in the office of Director, CFSL which was marked to Head Of Department (Document Division), S.C.Mittal who then directed her to receive the documents which she received vide endorsement on this letter itself. She deposed that vide Ex. PW5/L the case was marked by S.C.Mittal to Dr.M.A.Ali. C.C.No: 04 / 2011 Page No.35 of 177
Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th
60. PW9 Lavang Lata Sharma deposed that at instance of S.C.Mittal, she had prepared Observation chart Ex. PW9/A and a photo performa Ex. PW9/B, which bears signatures of S.C.Mittal. She deposed that prints of signatures of Ramesh Sharma Ex. PW9/C & Ex. PW9/D were also pasted by her wherein she had mentioned the case number. She deposed that SHO PS Defence Colony vide letter Ex. PW9/E had authorized Constable Surinder Singh to receive the documents and report on which S.C.Mittal had ordered her, to hand over the opinion to Constable Surinder Singh, m, ,, which she did vide noting Ex. PW9/F. She deposed that the report was handed over to Constable Surinder Singh in an envelop Ex. PW9/G.
61. PW15 Sh.Pramod Kumar, P.S. To Director, CFSL, appeared and deposed that he, used to take dictations from Director who was Dr.S.R.Singh in the year 2005. He deposed that the report Ex.PW.15/B bears signatures of C.C.No: 04 / 2011 Page No.36 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th S.C.Mittal and V.K.Khanna. He deposed that out of the 8 pages of the report, 7 were typed by P.S of Dr.S.C.Mittal. He deposed that in August 2005, Dr.S.C.Mittal called him in his room where V.K.Khanna and Dr.V.N.Sehgal, Ex.Director, CFSL were present. He deposed that at instance of Dr.S.C.Mittal, he had typed the 8th page of the report.
62. PW18 Dr.M.A.Ali, appeared and deposed that at the relevant point of time, he was working as Principal Scientific Officer, CFSL, New Delhi. He deposed that documents of the present case were submitted by SHO PS Defence Colony to CFSL for examination. He deposed that HOD of their department then assigned these documents, for examination to him vide serial number 18 / 156 dated 29.10.2004 of the case register vide entry Ex.PW.5/L. He deposed that he gave a report dated 31.12.2004 Ex.PW.5/G stating that he require some more specimen and admitted signatures of the concerned person, to give final opinion. He C.C.No: 04 / 2011 Page No.37 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th deposed that subsequent thereto, he received further documents vide letter Ex.PW.4/B. Dr.M.A.Ali deposed that thereafter he had examined all the specimen and admitted signatures with the help of scientific aids and instruments and gave his report dated 03.03.2005 Ex.PW.5/J. He deposed that he had submitted the note sheet Ex.PW.18/E giving the gist of report to Head of Department Dr.S.C.Mittal, who approved the same . This witness deposed that a circular Ex.PW.18/D was issued by Dr.S.R.Singh, the then Director to be followed by all Group A Officers.
63. PW24 Dr.S.R.Singh, the then Director CFSL, appeared in the witness box. He deposed that an application Ex.PW.5/A containing the directions passed by the Court were received in CFSL for examining certain documents. He deposed that on this application, he made an endorsement stating "please accept and compliance be done on priority". He deposed that necessary compliance of his directions were made C.C.No: 04 / 2011 Page No.38 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th by Dr.M.A.Ali, who was assigned the case by Head of Department (Document Division), Dr.S.C.Mittal. He deposed that Dr.M.A.Ali had given an interim report Ex.PW.5/G. He deposed that thereafter he had received letter Ex.PW.4/B from SHO PS Defence Colony with which additional documents were submitted which he forwarded to Head of Department (Document) on 27.01.2005. He deposed that thereafter Dr.M.A.Ali gave his report Ex.PW.5/J which he forwarded to SHO PS Defence Colony vide letter Ex.PW.5/H. He deposed that the gist of the case was mentioned in the note sheet Ex.PW.18/F by Dr.M.A.Ali, which was approved by Head of the Document Division and thereafter the final report Ex.PW.5/J was submitted by Dr.M.A.Ali.
64. PW24 went on to depose that thereafter court directions Ex.PW.6/C were forwarded to CFSL vide letter Ex.PW.4/A on which he identified his endorsement dated 31.05.2005 at Point F. He deposed that report Ex.PW.1/A was C.C.No: 04 / 2011 Page No.39 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th submitted in compliance of directions given by the court but this report was submitted during the period when he was on leave.
65. PW24 deposed that after joining his office he received certain files from Joint Director, CBI and came to know that report Ex.PW.1/A was not submitted in strict compliance of court orders and as per the normal procedure of CFSL. He deposed that he prepared a note Ex.PW.24/A which was approved by Joint Director CBI. He deposed that thereafter vide his order dated 14.09.2009 Ex.PW.24/B, he constituted a committee of 3 experts. He deposed that Delhi Police was informed in writing about the orders Ex.PW.24/B and SHO PS Defence Colony was asked to send back the report and documents for examination by the panel of experts. He deposed that the panel of experts then examined the documents and prepared report Ex.PW.12/D of which SHO PS Defence Colony was informed vide letter Ex.PW.12/C. C.C.No: 04 / 2011 Page No.40 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th
66. PW24 proved the note sheet Ex.PW.6/J regarding his leave and also proved the note vide which his leave was approved as Ex.PW.6/K. PW24 deposed that as per Ex.PW.6/K, Dr.S.C.Mittal was directed to look after the routine work of Director CFSL and was directed that all administrative and financial matters be referred to CBI Headquarters for decision. PW24 deposed that during his tenure as Director CFSL, he had constituted panel of experts, a number of times.
SECOND SET OF WITNESSES:
67. PW11 Head Constable Surinder Singh deposed that on 05.08.2005 he had visited CFSL alongwith authority letter Ex. PW9/E to collect opinion and documents. He deposed that envelop Ex. PW9/G was handed over to him and he had signed on Ex. PW6/F as an acknowledgment of receipt of the same.
C.C.No: 04 / 2011 Page No.41 of 177
Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th
68. PW12 Harcharan Verma, ACP Lajpat Nagar, appeared and deposed that at relevant point of time, he was posted as SHO PS Defence Colony. He deposed that vide his forwarding letter Ex.PW.5/B and road certificate Ex.PW.5/C certain documents were sent to CFSL for examination. He deposed that these documents pertains to FIR No.461/04 PS Defence Colony which he had entrusted for investigations to SI A.K.Singh. He deposed that alongwith Ex.PW.5/B application of SI A.K.Singh Ex.PW.5/A containing directions of the Court were forwarded to Director CFSL. He deposed that he received a letter from CFSL Ex.PW.5/G whereby he was requested for some admitted and specimen signatures of complainant Ramesh Sharma, which were forwarded to CFSL vide forwarding letter Ex.PW.4/B.
69. PW12 deposed that the report dated 03.03.2005 Ex.PW.5/J was received along with the original questioned documents which were collected by Constable C.C.No: 04 / 2011 Page No.42 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Jagdish Raj, vide authority letter Ex.PW.5/K. He deposed that the Investigating Officer on the basis of expert report Ex.PW. 5/J submitted a closure report. He deposed that court thereafter passed an order Ex.PW.6/C thereby directing Director CFSL to constitute a board / panel consisting of more than one expert for examining the questioned documents.
70. PW12 deposed that thereafter the questioned documents were again submitted to CFSL by the then Additional SHO PS Defence Colony, vide letter Ex.PW.4/A and documents were forwarded vide road certificate Ex.PW.4/X.
71. PW12 deposed that on 05.08.2005 when he was in the DCP Office, South District, he received a telephonic call from Dr.S.C.Mittal stating that the result of the documents is ready to be collected. He deposed that he had accordingly instructed Additional SHO and the IO, on which Constable Surender Singh was authorized vide authority Ex.PW.9/E who C.C.No: 04 / 2011 Page No.43 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th then collected the report Ex.PW.1/A along with forwarding letter Ex.PW.1/A1. He deposed that after 1 or 2 days of receipt of this report, he received a telephonic call from Director CFSL namely Dr.S.R.Singh, who directed him not to deposit the report in Court. PW12 deposed that subsequently he received a letter dated 13.09.2005 Ex.PW.12/A from Dr.S.R.Singh for resubmitting the documents to CFSL. He deposed that he thereafter again submitted the documents and the earlier report received by them to CFSL vide letter Ex.PW.12/B. PW12 deposed that thereafter vide forwarding letter Ex.PW. 12/C he received the report Ex.PW.12/D consisting of 5 pages which was collected by SI Nafe Singh vide authority letter Ex.PW.12/E.
72. PW13 Inspector A.K.Singh appeared in the witness box as PW13. He deposed that at relevant point of time, he was posted as SubInspector with PS Defence Colony and was investigating FIR No.461/04 which was registered on C.C.No: 04 / 2011 Page No.44 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th complaint of one Ramesh Sharma. He deposed that he had prepared an application Ex.PW.5/A which he filed in Court seeking directions to CFSL for examination of certain documents on priority. He deposed that on his application, the orders were passed by the Court. He deposed that this application of his along with the court orders were forwarded to CFSL by the then SHO vide his letter Ex.PW.5/B and documents were forwarded vide road certificate Ex.PW.5/C. He deposed that vide his letter Ex.PW.5/D, he had requested CFSL for expediting the examination of questioned documents along with which he had forwarded the copy of the orders passed by the Court.
73. PW13 deposed that vide report Ex.PW.5/G from CFSL, he was called upon to furnish some more admitted / specimen signatures of the complainant, which were forwarded vide letter Ex.PW.4/B dated 27.01.2005, on which they received the expert report Ex.PW.5/J through Constable Jagdish Raj C.C.No: 04 / 2011 Page No.45 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th vide authority letter Ex.PW.5/K.
74. PW13 deposed that he, on the basis of Ex.PW. 5/J filed a cancellation report. He deposed that the court on protest petition of the complainant, passed an order Ex.PW.6/C, directing Director CFSL to constitute a board consisting of more than one expert for examination of the questioned documents. PW13 deposed that Additional SHO PS Defence Colony, thereafter vide forwarding letter Ex.PW.4/A had submitted those documents, which were forwarded vide road certificate Ex.PW.4/X to CFSL. He deposed that thereafter he was transferred and further investigations were entrusted to someone else.
THIRD SET OF WITNESSES:
75. Israr Babu, Nodal Officer from Vodafone appeared in the witness box as PW7. This witness proved the receipt memo Ex.PW.7/A vide which the call detail records C.C.No: 04 / 2011 Page No.46 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th pertaining to mobile phone number 9811124493 for the period 01.04.2004 to 30.09.2005 Ex.PW.7/B1 to Ex.PW.7/B10, were handed over to the Investigating Officer. This witness deposed that the call detail records have been provided by retrieving from the Mobile Switching Centre, wherein all the data is kept. He proved the certificate regarding computer generated data as Ex.PW.7/B12 with respect to the data Ex.PW.7/B11. This witness also proved the computer generated record of their company Ex.PW.7/C certifying that mobile phone number 9811124493 was allotted to Deepankar Mittal.
76. PW16 J.N.Sharma, Section Officer from MTNL appeared in the witness box and deposed that the documents pertaining to telephone connection bearing number 624032, were handed over to CBI vide seizure memo Ex.PW. 16/A. He deposed that initially this telephone was installed in the name of Ramesh Chand Jain vide application Ex.PW.16/B. He deposed that after death of R.C.Jain, his wife Pushpa Jain C.C.No: 04 / 2011 Page No.47 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th applied for transfer of phone in her name vide application Ex.PW.16/E, which was allowed vide order Ex.PW.16/F. This witness went on to depose that Pushpa Jain vide application Ex.PW.16/G applied for shifting of phone to C27, IInd Floor, NDSE, PartI which was allowed vide order Ex.PW.16/H.
77. Sh.Rakesh Bakshi, Nodal Officer from M/s Airtel appeared in the witness box as PW19. He deposed that the call detail records pertaining to mobile phone number 9810374746 Ex.PW.19/B, were forwarded to CBI vide forwarding letter Ex.PW.19/A.
78. PW20 Brij Mohan Sharma, Field Officer from M/s Reliance Infocom, appeared and deposed that he, on behalf of his company, had submitted the call detail records Ex.PW.20/B, with respect to Mobile Phone number 9350359916 to CBI vide letter Ex.PW.20/A. C.C.No: 04 / 2011 Page No.48 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th
79. Sanjeev Lakra, Manager Reliance Infocom, appeared in the witness box as PW21. He deposed that vide his letter Ex.PW.21/A, he had provided copy of the customer application form for mobile phone number 9350359916 Ex.PW.21/B. He deposed that as per their records, this phone was issued in the name of Ramesh Sharma, with the address 1464/7, Wazir Nagar, Kotla, Mubarakpur. He deposed that initially this number was 36659916 which was subsequently changed to 9350359916.
80. Bharat Bhushan, Accounts Officer from MTNL appeared in the witness box as PW22 and proved the 4 telephone bills pertaining to landline number 24624032, standing in the name of Pushpa Jain as Ex.PW.22/A. FOURTH SET OF WITNESSES:
81. PW10 Sh. S.C.L. Das, posted as Director, Ministry of Home Affairs, deposed that CBI had submitted a C.C.No: 04 / 2011 Page No.49 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th request for grant of Sanction under Section 19 of Prevention of Corruption Act for prosecution of accused S.C.Mittal and V.K.Khanna. He deposed that the competent authority after applying its mind had recommended for grant of sanction and matter was put up before Hon'ble Home Minister. He deposed that the sanction for prosecution was thereafter granted. He further deposed that on the basis of decision taken by the Central Government he being Director as per allocation of business rules was empowered to sign the sanction order on behalf of President of India. He proved the sanction order with respect to S.C.Mittal as Ex. PW10/A and with respect to V.K.Khanna as Ex. PW10/B. FIFTH SET OF WITNESSES:
82. PW14 Vijay Sharma, appeared in the witness box and deposed that B.P.Sharma is related to him being his Sandhu (brotherinlaw). He further deposed that accused Ramesh Sharma is Jeeja of B.P.Sharma. He deposed C.C.No: 04 / 2011 Page No.50 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th that "agreement to sell" dated 15.06.2002 Ex.PW.14/A, was entered into between B.P.Sharma and Ramesh Sharma and he signed the said agreement, as a witness.
83. PW17 B.P.Sharma, Brotherinlaw (Saala) of accused Ramesh Sharma, appeared in the witness box. He deposed that he has purchased C89, rear portion of IInd Floor, South Extension from Ramesh Sharma, for which an agreement to sell was entered into, which was executed by Ramesh Sharma. He deposed that Ramesh Sharma signed the same in his presence, and it was witnessed by Vijay Sharma. This witness deposed that accused Ramesh Sharma had filed a criminal complaint against him stating that Ex.PW.14/A, is a forged document on the basis of which FIR No.461/04 was registered at PS Defence Colony. He deposed that documents were sent to CFSL from where the expert gave a report that signatures on Ex.PW.14/A are of Ramesh Sharma. C.C.No: 04 / 2011 Page No.51 of 177
Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th
84. PW23 Amit Varshney, who is also included in this category of witnesses, was Area Manager of M/s K.L.B.International. This witness deposed that their company had supplied VSC 5000 to CFSL which was successfully installed there vide certificate Ex.PW.23/A and brochure of the said instrument is Ex.PW.23/B. SIXTH SET OF WITNESSES:
85. PW25 Lakhi Prasad, appeared in the witness box and deposed that on 20.09.2005, he was posted as S.P., CBI. He deposed that on said date, on the basis of a source information FIR Ex.PW.25/A was registered under his signatures. He deposed that during the course of investigations, he had received a letter Ex.PW.25/B, from Director CFSL, whereby certain documents were furnished. PW25 deposed that vide letter Ex.PW.25/C from Director CFSL, he received the information regarding installation of the instrument VSC 5000 in CFSL. He further deposed that vide C.C.No: 04 / 2011 Page No.52 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th letter dated 26.12.2005 Ex.PW.25/D, he was informed about the cases of constitution of the expert panel, by CFSL.
86. PW26 Inspector Rajpal Singh, appeared and deposed that after registration of FIR Ex.PW.25/A, the case was entrusted for investigations to Rishi Prakash, whereafter the investigations were entrusted to him. He deposed that during the course of investigations, he had examined witnesses and collected the documents from CFSL and other agencies.
87. He deposed that he collected letters which are already exhibited as Ex.PW.25/B, Ex.PW.25/C and Ex.PW.25/D along with the requisite record. He deposed that apart from that, he had collected call detail records of mobile phone bearing number 9350359916 standing in the name of Ramesh Sharma as Ex.PW.26/A. He deposed of having received the information from Reliance Infocom vide letter Ex.PW.21/A. He deposed that he had also collected page no.55 from book titled C.C.No: 04 / 2011 Page No.53 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th "Questioned Documents" Mark X and had also received call detail records vide letter Ex.PW.7/A and vide letter Ex.PW. 19/B, he had received call detail record of mobile phone no. 9810374746 of accused S.C.Mittal Ex.PW.19/A.
88. The investigating officer further deposed that he had also received the telephone bills pertaining to landline number 24624032 Ex.PW.22/A vide seizure memo Ex.PW.26/B, and received commercial file with respect to this telephone number vide Ex.PW.16/A. He deposed that on conclusion of investigations, he had obtained the sanction order qua accused S.C.Mittal and V.K.Khanna Ex.PW.10/A and Ex.PW.10/B from the competent authority, whereafter he had filed the charge sheet Ex.PW.26/D. STATEMENT OF ACCUSED:
89. Separate statement of all the three accused persons were thereafter recorded under section 313 Cr.P.C., C.C.No: 04 / 2011 Page No.54 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th wherein the prosecution evidence against them was put, which they denied. In their statement, all the three accused persons refuted the evidence against them and claimed themselves to be innocent.
90. On being asked, all the three accused persons wished to examine witnesses in their defence. They were permitted to do so.
DEFENCE EVIDENCE:
91. Availing the given opportunities, accused S.C.Mittal had exmained 4 witnesses in his defence.
92. DW1 Sh.V.N.Sehgal, appeared in the witness box and deposed that he was earlier posted as Director CFSL. He deposed that during his tenure as Director CFSL, he used to leave it to the discretion of the Head of Department to form the panel of experts as he used to consider the same, a routine C.C.No: 04 / 2011 Page No.55 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th matter and not an administrative or financial matter. He further deposed that according to his experience, if any HOD approves the report, he approves the same in a routine manner and does not himself examine the documents, for the purposes of approving or forwarding the report. This witness was cross examined by Ld.PP , wherein he deposed that during his tenure as Director CFSL, he never used to approve the panel so formed by Head of Department, once he is directed by him to do so. He denied the suggestion that formation of panel, is not a routine work. He denied the suggestion that he is deposing falsely at instance of accused S.C.Mittal.
93. DW2 Sh.D.R.Handa, appeared and deposed that Dr.S.C.Mittal vide his application Ex.DW.2/A to Ex.DW. 2/C had applied for certain queries under RTI, which were replied to him by the concerned division. He deposed that he has brought the register with respect to the use of VSC 5000 instruments. He deposed that the entries dated 26.09.2005 and C.C.No: 04 / 2011 Page No.56 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th 28.09.2005 are Ex.DW.8/DX. He deposed that generally name of the expert who use the instrument is mentioned in the register, but this practice is not being strictly followed. He deposed that he cannot say that as per entry no.1, the Director CFSL had or had not used this instrument at the time reflected in the entry.
94. DW3 Dr.Deepa Verma appeared and deposed that during her tenure as Expert in examination of documents, she had examined more than 1 lakh exhibits. She deposed that for the purposes of examining the documents, she refers to the proposition of various authors including the propositions mentioned in the book of Sarla Gupta Ex.DW.3/A, Book of Wilson R.Harrison Ex.DW.3/B, Ordway Hilton Ex.DW. 3/C, Albert S.Osborn Ex.DW.3/D and F.Bruister Ex.DW.3/E and M.K.Mehta Ex.DW.3/F. She deposed that as per her experience, even one fundamental difference which is not able to be logically explained can lead to different authorship. This C.C.No: 04 / 2011 Page No.57 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th witness on being shown the questioned signatures stated that she cannot comment as to whether the questioned signatures are of the person whose admitted and specimen signatures have been shown to her. She stated that pen lifts, blunt start and finish, pen stops and extra deposit of ink are significant aspects, however she stated that she cannot comment on the line quality defects in the enlarged photographs of the signatures of this case. She stated that fundamental difference is something which is more than the natural variation which do occur in the genuine signatures. On being cross examined, she stated that the natural variations are possible in the signatures of the same person at different point of time. She deposed that she is not in a position to state that which of the three reports in the present case is the correct one. She also admitted that length of signatures of same person varies at different point of time at different places, depending upon the available space with the author.
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95. DW5 J.G.Moses, appeared and deposed that pursuant to the applications of Dr.S.C.Mittal under Right to Information Act (RTI Act) Ex.DW.5/A, Ex.DW.5/B, Ex.DW.5/C, replies Ex.DW.5/A1, Ex.DW.5/A2 and Ex.DW.5/A3 were submitted after obtaining the information from the concerned department. He further stated that pursuant to the applications Ex.DW.5/B and Ex.DW.5/C, replies Ex.DW.5/B1 Ex.DW.5/C1 and Ex.DW.5/C2 were submitted.
96. Accused V.K.Khanna, himself appeared in the witness box under section 21 of Prevention of Corruption Act as DW4. During the course of his deposition as his own witness, he stated that after inspection of the court record, he had measured the length of questioned and standard signatures and have prepared a report Ex.DW.4/A. He deposed that the report Ex.PW.1/A is a correct report which he had given alongwith coaccused S.C.Mittal. He deposed that this report was given by him after examining the documents with C.C.No: 04 / 2011 Page No.59 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th aid and assistance of scientific instruments and without any fear or threat. On being cross examined by Ld.PP, he has admitted the fact that while examining the documents with S.C.Mittal, he was aware of the other report given by Dr.M.A.Ali Ex.PW.5/J. He also stated that he was also aware of the fact that the said report of Dr.M.A.Ali was approved by coaccused Dr.S.C.Mittal. Accused V.K.Khanna during cross examination stated that he was not aware as to whether his co accused Ramesh Sharma and S.C.Mittal were in contact with each other on telephone during the period when these documents were under examination. He denied the suggestion of giving wrong report in collusion with coaccused S.C.Mittal.
97. The other accused Ramesh Sharma did not lead any evidence in his defence.
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Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th PROSECUTION ARGUMENTS:
98. Sh.Harish Gupta, Ld. Special Public Prosecutor for CBI, contended that the agreement to sell dated 15.06.2002 Ex.PW.14/A is the bone of contention. He contended that this 'agreement to sell' was executed by Ramesh Sharma in favor of his brother in law Sh.Brahm Prakash Sharma. He contended that Ramesh Sharma challenging the authenticity of this agreement to sell, had filed a criminal complaint in the court of Ld.Metropolitan Magistrate alleging therein that the "Agreement to Sell" dated 15.06.2002, is a forged document, as it does not bear his signatures.
99. It is contended that on the basis of his complaint, FIR No.461/04 was registered at PS Defence Colony. He contended that said agreement to sell was then sent to CFSL for examining the questioned signatures and Dr.M.A.Ali vide his report dated 03.03.2005 Ex.PW.5/J, which was approved by Dr.S.C.Mittal, opined that the said signatures are C.C.No: 04 / 2011 Page No.61 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th of Ramesh Sharma himself. Ld.Public Prosecutor contended that thereafter 'closure report' was filed in court by the police and on a protest petition filed by Ramesh Sharma, Ld.Metropolitan Magistrate had directed, Director CFSL to constitute a panel of more than one experts and to reexamine the questioned signatures.
100. It is contended by Ld.PP that Dr.S.C.Mittal, who at the relevant point of time was posted as Head of Department, Document Division, instead of putting up the matter before Dr.S.R.Singh, the then Director CFSL, for constitution of panel of experts, himself constituted the panel on 27.05.2005 itself, consisting of himself and accused V.K.Khanna. He contended that accused S.C.Mittal kept the file with himself till Dr.S.R.Singh proceeded on leave in the month of July. It is further contended that Dr.S.C.Mittal, in furtherance of conspiracy which he had with accused Ramesh Sharma and in order to favor accused Ramesh Sharma in court C.C.No: 04 / 2011 Page No.62 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th proceedings, had framed a false report along with accused V.K.Khanna and forwarded the same to SHO PS Defence Colony for the purposes of filing it in court, which was contrary to the earlier report of Dr.M.A.Ali.
101. Ld.Public Prosecutor for CBI contended that Dr.S.C.Mittal by forming a panel himself, contrary to the directions of the Court, misconducted himself. He further contended that Dr.S.C.Mittal abused his official position as a public servant and had given a false report in order to favor co accused Ramesh Sharma in court proceedings.
102. Ld.PP relying upon the deposition of the witnesses examined during the course of trial, stated that as per the deposition of PW5 and PW6 coupled with the office order Ex.PW.6/B, Dr.S.C.Mittal during the absence of Dr.S.R.Singh, was supposed to act as an Incharge Director, wherein he could have dealt with only the routine matters and C.C.No: 04 / 2011 Page No.63 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th not the administrative matters, therefore, he was not competent to formulate panel of experts which was an administrative matter.
103. He further contended relying upon the deposition of PW7, PW16 J.N.Sharma, PW19 Rakesh Bakshi, PW20 B.M.Sharma, PW21 Sanjeev Lakra and PW22 Bharat Bhushan, that during the period these documents remained with Dr.S.C.Mittal, for the purposes of giving report, he was in regular touch on his mobile phone as well as on the mobile phone of his son Deepankar Mittal, with coaccused Ramesh Sharma. He contended that this conduct on the part of public servants, to be in touch with private person on telephone while his alleged signatures were with him for the purposes of examination and for submission of report in Court of Law, is nothing short of misconduct. He contended that Dr.S.C.Mittal and V.K.Khanna thus have abused their official position and had given this report, which was forwarded to SHO PS Defence C.C.No: 04 / 2011 Page No.64 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Colony to be submitted in Court.
104. He contended relying upon the deposition of prosecution witnesses as well as the documents proved during the course of trial, that prosecution has been able to establish its case against the accused persons, therefore, they be convicted accordingly.
DEFENCE ARGUMENTS :
(a) On behalf of accused no.1 Dr.S.C.Mittal:
105. Dr.S.K.Gupta, Advocate, leading the Defence Arguments, opened the same with a multipronged attack on the case of prosecution. The first and foremost contention of Dr.S.K.Gupta, Advocate, Ld.Defence Counsel, to the case of prosecution was that prosecution has miserably failed to prove the necessary ingredients of the offence, with which the accused was charged. He contended that as per the charge framed against the accused, it was alleged that he had C.C.No: 04 / 2011 Page No.65 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th prepared a false report to favor coaccused Ramesh Sharma, and thus misconducted himself.
106. To further his arguments, he contended that any opinion given by a handwriting expert, is just a subjective opinion of that expert or individual. The same is given to facilitate the court to arrive at some decision. He contended that such subjective opinion is given by an individual based on his perception of the subject, experience derived by him while working in the field and on the basis of precedents in the form of books authored by different experts, but the same can vary from the opinion of another expert in same set of circumstances / records.
107. He contended that the report Ex.PW.1/A (which is also exhibited as Ex.PW.15/B) given by the Panel of Dr.S.C.Mittal and V.K.Khanna, is an elaborate report which has been substantiated with supporting notes prepared while C.C.No: 04 / 2011 Page No.66 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th examining the questioned signatures & comparing them with the specimen signatures under the magnification to the extent of 12, 13 & 14 times. He contended that the earlier report given by Dr.M.A.Ali Ex.PW.5/J has already been rejected by the concerned court of Ld.Metropolitan Magistrate, who had issued directions to Director, CFSL to form a panel of experts to give a fresh report / opinion.
108. Another limb of his contention was that the report given by Panel of Experts Ex.PW.12/C is also a cryptic report given at instance of Director, CFSL. He contended that Director CFSL Dr.S.R.Singh had exceeded the jurisdiction in appointing the panel of experts on 14.09.2005, as prior to that in terms of directions of the court, the report has already been sent from CFSL to the police, to be submitted in court. He contended that without seeking any directions from the court, Dr.S.R.Singh on his own, had called back the documents and formed a panel of experts. He contended that the panel of C.C.No: 04 / 2011 Page No.67 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th experts chosen by him, acted at behest of Dr.S.R.Singh and had given a hasty report wherein they had failed to compare the documents with the earlier reports which were already there on records and which was the mandate given to the panel of experts.
109. He contended that an important facet of comparison ie. length of signatures was ignored by Dr.M.A.Ali, while giving his report Ex.PW.5/J and which was also not adhered to by the panel of experts, while furnishing their report Ex.PW.5/C. He contended that therefore the report given by accused S.C.Mittal and V.K.Khanna, being an "opinion report" cannot fall under the scope and purview of "false report"
as mentioned in section 167 IPC.
110. Another facet to the arguments advanced by Dr.S.K.Gupta, Advocate was that in absence of Dr.S.R.Singh, Dr.S.C.Mittal accused herein, was functioning as Incharge / C.C.No: 04 / 2011 Page No.68 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Director and thus it was within his domain to form the panel, which he did, as Dr.S.R.Singh had failed to form the panel himself. He contended that Dr.S.C.Mittal had given a noting on the letter Ex.PW.4/A, vide which for the first time these documents were received along with the directions to the Court. He contended that on 31.05.2005 itself, Dr.S.R.Singh was aware of the court directions and had he intended to form the panel himself, he would have done so, on that very day, but he left it to the discretion of Head of Department to do so which at that time was Dr.S.C.Mittal. He contended that in view thereof, Dr.S.C.Mittal considering the deadline given by the court for the report to be 08.08.2005 was left with no other option, but to form the panel himself, which he did.
111. It is further contended by Dr.S.K.Gupta that formation of panel of experts is not an administrative function, but it is a routine matter, as the functions to be carried out by CFSL, nowhere falls under the domain of Administrative C.C.No: 04 / 2011 Page No.69 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Manual of CBI, but it falls under the Crime Manual, more particularly, under Rule No.15.10.
112. It is further submitted by Dr.S.K.Gupta, Advocate that at the relevant point of time, there were 4 Principal Scientific Officers in the Documents Division, including Dr.S.C.Mittal. He submitted that besides him, V.K.Khanna, S.L.Mukhi and Dr.M.A.Ali were the other Principal Scientific Officers. It is contended by Ld.Defence Counsel that as Dr.M.A.Ali had given the earlier report therefore, he could not have been chosen to be a member of the panel. He further contended that Dr.S.L.Mukhi had already sent a letter to Dr.S.C.Mittal, Head of the Department (Document Division), expressing his inability to Dr.S.C.Mittal stating that he has to undergo an operation and is already having sufficient work at his disposal and had requested that he should not be assigned any new work, therefore Dr.S.C.Mittal was left with no other option / alternative, but to C.C.No: 04 / 2011 Page No.70 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th form a panel consisting of himself and V.K.Khanna, which he did.
113. It is further submitted by Dr.S.K.Gupta,Advocate that once the report E.xPW.1/A was submitted by CFSL and was handed over to HC Surender Singh in the envelope Ex.PW.9/G on 05.08.2005 itself wherein Dr.S.C.Mittal had given a specific noting "To be opened by court only", therefore it should have been submitted by the then SHO ie. PW12 in the court on the date fixed ie. 08.08.2005, but he for reasons best known to him had failed to do so and kept this report with himself and had given a false statement that they are yet to receive the report from CFSL. He contended that the then SHO as per the deposition made by him in court as PW12 as well as Dr.S.R.Singh, who appeared in the witness box as PW24, it is apparent that both of them without permission of the court had facilitated calling back the documents as well as report submitted by Dr.S.C.Mittal to C.C.No: 04 / 2011 Page No.71 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th CFSL, whereafter Dr.S.R.Singh on his own had formed a panel exceeding his jurisdiction. He contended that Dr.S.R.Singh who is to settle his own personal scores with Dr.S.C.Mittal had falsely implicated him in the present case.
114. Last limb of the contentions urged on behalf of accused S.C.Mittal by Dr.S.K.Gupta, Advocate was that prosecution has failed to establish that Dr.S.C.Mittal during the time, the examination of questioned signatures on the "Agreement to Sell" was pending with him remained in touch on telephone with coaccused Ramesh Sharma. He contended that prosecution to establish this fact had examined 6 witnesses but deposition of none of them is an admissible or substantive piece of evidence. He contended that the deposition of PW7 Israar Babu is not admissible as he himself had not worked with Gulshan Arora, whose signatures he has identified on the documents. He further submitted that the Certificate of Section 65 B of Indian Evidence Act is not there C.C.No: 04 / 2011 Page No.72 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th on record, therefore, the call detail record sought to be placed on record by the prosecution, cannot be looked into. He further contended that neither the phone of Deepankar Mittal was taken into possession during the course of investigations, nor prosecution has been able to establish that the said phone of Deepankar Mittal was in possession of S.C.Mittal at the relevant point of time or was used by him.
115. He further contended that deposition of PW19 as well as PW20 are also not admissible as the Certificate of Section 65 B, is not there. He further contended that as per the deposition of PW19, out of 3 calls on the phone of Dr.S.C.Mittal, 2 calls from were the landline phone of one Pushpa Jain and there is no evidence to the effect that the said landline phone was used by coaccused Ramesh Sharma.
116. He further contended that from the deposition of PW16 and PW22 witnesses from MTNL, it has not been C.C.No: 04 / 2011 Page No.73 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th established by the prosecution that this landline phone was being used at the relevant time by Ramesh Sharma, as both these witnesses have deposed that this landline phone is in the name of Pushpa Jain and not in the name of Ramesh Sharma. He further contended that PW21 has placed on record a scanned copy of the application form showing that Ramesh Sharma was the applicant and had applied for getting a mobile phone connection. He contended that this witness during the course of his cross examination admitted that at the time of certifying the scanned copy, the original was not with him. He further contended that Sh.S.L.Mukhi, who appeared in the witness box as PW8, during the course of his cross examination had also admitted that he had given a report Ex.PW.8/DZ that the handwriting on this application form is not of Ramesh Sharma.
117. Dr.S.K.Gupta, Advocate, Ld.Defence Counsel thus summed up his arguments stating that as prosecution has C.C.No: 04 / 2011 Page No.74 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th failed to establish on the basis of reliable piece of evidence that Dr.S.C.Mittal during the period the documents were with him for examination, had any communication with coaccused Ramesh Sharma, therefore by no stretch of imagination, it can be said that he misconducted himself for the purposes of giving the report, which otherwise is based on the established principles and procedures of Handwriting Examination.
118. Towing the line of arguments taken by Dr.S.K.Gupta, Sh.Jai Dev Prasad, Advocate, Ld.Counsel appearing on behalf of accused V.K.Khanna contended that V.K.Khanna was posted as Principal Scientific Officer and he had no role to play towards the constitution of the 'panel of experts' as the same could have been done only by Director CFSL or Head of the Division. It is contended that V.K.Khanna acted in good faith and there is nothing on record to infer that he in any way was associated with Dr.S.C.Mittal or with coaccused Ramesh Sharma, for having any reasons to C.C.No: 04 / 2011 Page No.75 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th give a false or incorrect report. He contended that the report Ex.PW.1/A was a report of 2 handwriting experts and the same was an opinion report, which is subjective and it may differ from expert to expert.
119. Another line of contention advanced by Sh.Jai Dev Prasad Advocate was that this report was sent to SHO PS Defence Colony on 05.08.2005, who was supposed to file it before the concerned court of Ld.Metropolitan Magistrate on date fixed ie. 08.08.2005, but the SHO for reasons best known to him failed to file the said report. He contended that there was some nexus between Dr.S.R.Singh ; the then Director CFSL ; and SHO PS Defence Colony, as this report was not filed in court by SHO PS Defence Colony, rather it was sent back to CFSL along with the questioned documents, so as to facilitate Dr.S.R.Singh to constitute a fresh panel of experts and to give a report suitable to him to the detriment of Dr.S.C.Mittal.
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120. He contended that V.K.Khanna was a victim of circumstances and there is no evidence on record to infer any nexus or conspiracy between V.K.Khanna and other coaccused persons.
121. Sh.Anil Kumar, Advocate, Ld.Counsel appearing on behalf of accused Ramesh Sharma contended that his client has only been charged for the offence of conspiracy. He contended that there is no evidence on record to show that accused Ramesh Sharma was known to Dr.S.C.Mittal. He contended that prosecution has failed to establish on record that mobile phone bearing number 9350359916 belonged to Ramesh Sharma. His further contention was that the landline phone, as per the case of prosecution was in the name of Pushpa Jain who was not examined. He contended that even Deepankar Mittal was also not examined by the prosecution. He contended that as the material witnesses were withheld by the prosecution, therefore an adverse inference be drawn C.C.No: 04 / 2011 Page No.77 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th against the prosecution. He further contended that neither the phone was taken into possession nor there is any evidence on record to establish that the said landline or mobile phone at the relevant point of time, was used by Ramesh Sharma.
122. He contended that in absence of such evidence, it cannot be inferred that it was Ramesh Sharma who had talked to Dr.S.C.Mittal on his phone or on the phone of his son Deepankar Mittal.
123. He complimented the arguments advanced by Dr.S.K.Gupta, Advocate, stating that in absence of requisite certificate under section 65 B of Indian Evidence Act, the call detail record sought to be placed on record by the prosecution, cannot be looked into, as the same are not admissible piece of evidence. He further contended that PW21 Sanjeev Lakra who placed on record the scanned copy of the Customer Identification Application, cannot be looked into as there is no C.C.No: 04 / 2011 Page No.78 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th photograph or I.D.Proof in support of this application and as per Ex.PW.8/DZ, writing on this scanned copy of the customer identification form, is not of Ramesh Sharma. He further submitted that even date of birth of Ramesh Sharma is not the one as mentioned on this application form.
124. He contended that as prosecution has failed to establish on record on the basis of evidence, that Ramesh Sharma at any point of time had communicated with Dr.S.C.Mittal, either on his phone or on the phone of his son Deepankar Mittal, therefore no offence whatsoever is established against this accused.
APPRECIATION OF EVIDENCE AND RIVAL CONTENTIONS:
125. Before adverting to appreciate the prosecution as well as defence evidence which has come up on record visa vis the charges against the accused persons, as well as the C.C.No: 04 / 2011 Page No.79 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th arguments advanced on the mixed questions of facts and law, I deem it appropriate to deal with those contentions first which have been raised by Ld.Defence Counsels, on purely legal aspects, in their quest to demolish the prosecution case at the threshold.
126. One of the contentions urged on behalf of accused V.K.Khanna by Sh.Jai Dev Prasad, Advocate is that as the present proceedings had arisen out of FIR no.461/2004 registered at PS Defence Colony and as the said case has already been disposed off being settled / compromised between the complainant and accused therein, therefore the present proceedings should not proceed and should be dropped.
127. This contention of Ld.Defence Counsel to my mind is farfetched and without any force. No doubt, the questioned document ie. agreement to sell Ex.PW.14/A was the bone of contention with respect to the case ie. FIR No.461/200 C.C.No: 04 / 2011 Page No.80 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th PS Defence Colony, between the accused and the complainant therein, however the present proceedings are totally independent of the said proceedings. The said "agreement to sell" Ex.PW.14/A with permission of the Court was sent to CFSL for examination. The present case relates to the alleged conspiracy which complainant in the said case ie. Ramesh Sharma (accused herein) had with two senior officers of CFSL, the object of which was to have a favorable report from them in his favor, so as to have an advantage in the proceedings arising out of FIR No.461/04 PS Defence Colony.
128. The present case relates to the conspiracy and the resultant alleged criminal misconduct on the part of two senior officers of CFSL, who were public servants and as per the allegations, they by abusing their official positions had committed offences under Prevention of Corruption Act. The said offences being totally independent and alien to the proceedings arisen out of FIR No.461/04 PS Defence Colony, C.C.No: 04 / 2011 Page No.81 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th thus by no stretch of imagination, it can be presumed that if in the initial FIR, a compromise has been arrived at between the complainant and accused therein, nothing shall survive in present proceedings.
129. The present case being independent, relating to distinct offences, this contention urged on behalf of accused V.K.Khanna by Ld.Defence Counsel, stands rejected.
130. Next argument raised by Ld.Defence Counsels for all the three accused persons was that the opinion of handwriting expert, is just an opinion evidence and does not fall within the definition of the term "document", therefore, the provisions of section 167 of Indian Penal Code, could not have been invoked against the accused persons.
131. This contention of Ld.Defence Counsels to my mind, is also devoid of any merits. The reasons for which are C.C.No: 04 / 2011 Page No.82 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th not far to seek.
132. Ld.Defence Counsels to put across their point had relied upon the law laid down by Hon'ble Apex Court in the cases titled "Ishwari Prasad Mishra Vs. Mohd.Isa" reported as AIR 1963 SC 1728 ; "Mahender Manilal Nanavati vs. Sushila M. Nanavati" reported as AIR 1965 SC 364 ; and "State of Maharashtra vs. Sukhdeo Singh & Anr." reported as AIR 1992 SC 2100 .
133. I have perused the precedents relied upon by Ld.Defence Counsels. In order to appreciate the argument advanced as to whether the provisions of section 167 IPC with which the accused persons have been charged, could or could not have been invoked, it is pertinent to refer to the relevant section.
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134. Section 167 of Indian Penal Code is delineated as under: Public Servant framing an incorrect document with intent to cause injury - Whoever, being a public servant, and being, as [such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record] in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
135. The word "document" is defined in Indian Evidence Act 1872: "Document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used or which may be used for the purpose of recording that matter.
Further, all the documents produced for the inspection of the Court are called documentary evidence. C.C.No: 04 / 2011 Page No.84 of 177
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136. The report of a Handwriting Expert is also a matter which is expressed and described by the expert on a document which is required for inspection of the Court and thus, is a documentary evidence; to be considered as per section 45 of Evidence Act. The report of the Expert therefore does fall within the contours of the word "document", as mentioned in Section 167 of Indian Penal Code. The said section for its invocation requires, that the accused must be a public servant, which fact is not disputed in the present case, visavis accused S.C.Mittal and V.K.Khanna.
137. The second condition for invocation of this section is that the said public servant must have been entrusted with the preparation of the document. Which in this case, is apparently evident as both the accused persons have alleged themselves to be entrusted with preparation of the report on the questioned signatures ie. the document. C.C.No: 04 / 2011 Page No.85 of 177
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138. The next condition which is required for invocation of this Section is that the said public servant has framed it incorrectly, knowing or believing the same to be incorrect with the knowledge that it would cause or likely to cause an injury. No doubt, this particular aspect is required to be ascertained which can be done only after appreciation of the prosecution evidence, which has come up on record. However, for the purposes of invocation of this Section, the allegations levelled in the charge sheet are sufficient, wherein it has been specifically alleged that accused S.C.Mittal and V.K.Khanna in furtherance of a conspiracy had prepared a false report contrary to an earlier report duly approved by accused S.C.Mittal with the intent and knowledge that the same would favor their coaccused, who is complainant in the case FIR No. 461/04 PS Defence Colony and would cause injury to the accused of the said case.
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139. Even the precedents relied upon by Ld.Defence Counsels does not support their contention. As in all the cases, Hon'ble Apex Court though laid a rule of caution for other courts to follow while dealing with the opinion of a handwriting expert, but in none of the cases and nowhere it has been held or laid down that opinion of a handwriting expert is not a "document" and cannot be considered as a "documentary evidence".
140. In view thereof, this contention of Ld.Defence Counsels that provisions of section 167 IPC exfacie should not have been invoked against the accused persons, is turned down.
141. This has brought me down to another legal contention urged on behalf of the accused persons. It is contended by Ld.Defence Counsels for all the three accused persons that as it is not the case of the prosecution that accused C.C.No: 04 / 2011 Page No.87 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th S.C.Mittal or V.K.Khanna being public servants had adopted any corrupt or illegal means or had demanded and accepted any illegal gratification from coaccused Ramesh Sharma, for extending any favor to him or to cause any advantage to him therefore, the provisions of Section 13 (1) (d) of Prevention of Corruption Act, cannot be invoked against the accused persons.
142. In order to deal with this contention of Ld.Defence Counsels, it is pertinent to make a mention of the relevant provisions of Section 13 (1) (d) of Prevention of Corruption Act. The same is as follows : Section 13: Criminal misconduct by a public servant : (1) A public servant is said to commit the offence of criminal misconduct,
(a) . . .
(b) . . .
(c) . . .
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage ; or C.C.No: 04 / 2011 Page No.88 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th
(ii)by abusing his positioning as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii)while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest ; or
(e) . . .
143. The phrases namely "corrupt , illegal means"
and "by abusing his position as public servants" are different categories of corrupt practices, which are conjuncted by the words "or" and not by the conjunction "and". This in itself indicates that these three different categories are alternate misconduct on the part of public servant and either of these three practices, if done by public servant then the same can constitute an offence under this Section.
144. The phraseology "By abusing his official position as Public Servant" covers the acts done by the public C.C.No: 04 / 2011 Page No.89 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th servant otherwise than by corrupt or illegal means. The gist of the offence under this clause is that a public officer abusing his position as "public servant" obtains for himself or for other person, any valuable thing. The word "abuse" used by the Legislature means "misuse", ie. using his position for something which is not intended. That abuse of the position may be by corrupt or illegal means or otherwise than those means". In view thereof, the Legislature never intended that there has to be an evidence of illegal gratification before invocation of this section. In case, there are instances and allegations that a person has abused his position as a public servant, in order to cause advantage to anyone, that in itself is sufficient for invocation of this Section.
145. In view thereof, the contention advanced by Ld.Defence Counsel that in the present case there is no evidence on record that either of the two public servants, who are accused herein had adopted any corrupt or illegal means or C.C.No: 04 / 2011 Page No.90 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th have obtained any pecuniary advantage for themselves, is rejected. However, the prosecution has to establish the necessary ingredients of the offences, with which the accused persons have been charged, on the basis of the evidence which has come up on record, with which I shall be dealing hereinafter.
146. This has brought me down to the contentions urged on behalf of the accused persons which involves mix questions of facts and law, for which the evidence on record and more particularly the cross examination referred to by Ld.Defence Counsels, during the course of their arguments, is required to be advertedto.
147. In the present case which was registered and investigated by CBI, the allegations against the public servants is that they have criminally misconducted themselves by abusing their position as public servant. To substantiate their C.C.No: 04 / 2011 Page No.91 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th allegations qua the public servants, regarding abuse of their office, the prosecution has alleged that during the period the questioned documents purportedly bearing signatures of co accused Ramesh Sharma were under examination with S.C.Mittal and V.K.Khanna, S.C.Mittal was in constant touch over telephone with coaccused Ramesh Sharma. To prove the factum of communication between the two, prosecution had examined 6 witnesses.
148. PW7 was examined by the prosecution to prove on record the call detail records of mobile phone number 9811124493 ie. the phone of Deepankar Mittal, son of accused S.C.Mittal. PW19 Rakesh Bakshi, from M/s Airtel was examined to prove call detail records of Mobile phone number 9810374746 of accused S.C.Mittal. PW20 Brij Mohan Sharma appeared in the witness box to prove on record the call detail records with respect to the phone number 9350359916 belonging to Ramesh Sharma. PW21 was examined to prove C.C.No: 04 / 2011 Page No.92 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th the application vide which Ramesh Sharma was allotted the telephone number 9350359916, by the service provider M/s Reliance Infocomm.
149. PW16 J.N.Sharma appeared in the witness box for the prosecution to prove a landline number 24624032, installed at C27, IInd Floor, NDSE, PartI, and PW22 proved the telephone bills of the said landline number installed at this premises as Ex.PW.22/A.
150. Ld.Defence Counsels Dr.S.K.Gupta, Advocate on behalf of accused S.C.Mittal and Sh.Anil Kumar, Advocate, on behalf of accused Ramesh Sharma had complimented the arguments advanced by each other to demolish the deposition of these witnesses. It is contended that the call detail records sought to be placed on record by the prosecution through these witnesses, cannot be considered, as the same does not bear the requisite certificate as required under the provisions of C.C.No: 04 / 2011 Page No.93 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Section 65 B of Indian Evidence Act, 1872.
151. Dr.S.K.Gupta, Advocate appearing on behalf of accused S.C.Mittal contended that the deposition of PW7 Israr Babu, Nodal Officer of M/s Vodafone with respect to call detail records of mobile phone number 9811124493 of Deepankar Mittal Ex.PW.7/B1 to Ex.PW.7/B10 cannot be accepted, as he on this certificate had identified signatures of one Gulshan Arora, with whom he had never worked nor had seen him writing and signing, therefore, in view of section 47 of Indian Evidence Act, this deposition of PW7 and corresponding call detail records become inadmissible in evidence.
152. I do find some force in the contention advanced by Ld. Defence Counsel in view of the explanation attached to Section 47 of Indian Evidence Act. Admittedly PW7 during his cross examination stated that he had never worked with Gulshan Arora, who was earlier posted as Nodal officer with C.C.No: 04 / 2011 Page No.94 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Vodafone, the service provider of phone no. 9811124493. In view thereof, he could not have identified the signatures of said Nodal officer on the Call Detail Records. However, the question that arises now is that, can the printouts of Call Detail Records generated from the system of service provider be discarded ?
153. The answer to this question is in negative. The same cannot be discarded for the reasons as under :
154. Prosecution through the deposition of this very witness had again called for the fresh call detail records with respect to mobile phone number 9811124493, for the period 01.10.2004 to 30.09.2005 on which PW7 himself had given a certificate Ex.PW.7/B12 and he proved the said data as Ex.PW.7/B11 after having generated the same from the server of the service provider. Further PW7 during the course of his deposition had deposed that as per Ex.PW.7/C, this number was allotted to Deepankar Mittal.
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155. The factum that this telephone number was allotted to Deepankar Mittal by M/s Vodafone, is not disputed on behalf of the accused, as PW7 was not at all cross examined on this aspect by Ld.Defence Counsels.
156. Another limb of arguments advanced by Ld. Defence Counsels was that in absence of a certificate in conformity with Section 65B Indian Evidence Act the Call Detail Records can not be and should not be considered as substantial piece of evidence.
157. It has been held in a catena of judgements by Hon'ble Apex Court that even an illegally procured evidence cannot be thrown overboard. The court has to see as to whether such an evidence is admissible and if so, what probative value can be attached to such an evidence. C.C.No: 04 / 2011 Page No.96 of 177
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158. In the present case, the evidence brought on record by the prosecution cannot be said to be illegally procured. Prosecution has examined the investigating officer i.e. PW26 Inspector Raj Pal who deposed that during investigations he had sought for the Call Detail Records from the Service provider which were furnished. To prove the same prosecution has also examined the Nodal officer of the said company who is familiar with the computer system and server of the company and its output.
159. Further, Hon'ble Supreme Court of India in case titled "State of NCT of Delhi vs. Navjot Sandhu & Ors." reported as 2005 Crl.L.J. 3950, has held that : According to Section 63, secondary evidence means and includes, among other things, "copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies". Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable, it is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved C.C.No: 04 / 2011 Page No.97 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th and produced in the Court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers / servers by mechanical process and certified by a responsible official of the service providing Company can be led into evidence through a witness who can identify the signatures of the certifying officer or otherwise speak to the facts based on his personal knowledge, irrespective of the compliance of the requirements of Section 65B which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely Section 63 & 65. It may be that the certificate containing the details in subSection (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely Sections 63 & 65.
160. In view of the law laid down by Hon'ble Apex Court in the said judgement, the submissions made by Ld.Defence Counsel that in absence of a certificate in strict confirmity with section 65 B of Indian Evidence Act, the call detail records should not be looked into, is turned down. C.C.No: 04 / 2011 Page No.98 of 177
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161. To my mind, the print outs of the call detail exhibited by the prosecution are of such regularity and continuity, for me to draw a presumption that the system of the Service Provider Company, was functional and the output was produced by the Computer, which was put in regular use. In view thereof, the call detail records pertaining to the mobile phone of Deepankar Mittal are an admissible piece of evidence and thus is accepted, as such.
162. PW19 Rakesh Bakshi, Nodal officer from M/s Airtel appeared and proved his forwarding letter Ex.PW.19/A vide which the call detail records pertaining to the mobile phone number 9810374746 allotted to S.C.Mittal were placed and proved on record as Ex.PW.19/B.
163. Similar objections to the acceptance of this evidence on record were raised by Ld.Defence Counsels, however, in view of my observations made hereinabove visavis C.C.No: 04 / 2011 Page No.99 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th deposition of PW7, these objections raised qua this witness by Ld.Defence Counsels, is also turned down.
164. So far as allotment of this telephone number by M/s Airtel to S.C.Mittal is concerned, the same has not been objected to or disputed on behalf of the accused either during the course of cross examination of this witness or even during his statement under section 313 Cr.P.C by accused S.C.Mittal.
165. PW20 B.M.Sharma, Field Officer from M/s Reliance Infocom, proved his letter Ex.PW.20/A vide which the call detail records Ex.PW.20/B with respect to 9350359916 belonging to Ramesh Sharma were handed over to CBI. The objections raised to the deposition of this witness pertaining to call detail records in absence of a certificate in exact language of Section 65 B of Evidence Act, are turned down in view of my observations to same effect visavis deposition of PW7 and PW19.
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166. PW21 Sanjeev Lakra, Manager from M/s Reliance Infocom, appeared and proved the scanned copy of application Ex.PW.21/B vide which the mobile phone number 9350359916 was allotted to Ramesh Sharma. He deposed that earlier the number of this mobile phone was 36659916 which was subsequently changed to this number.
167. On being cross examined by Sh.Anil Kumar, Advocate, this witness stated that this application form does not bear photograph of the applicant nor any identity proof. He deposed that the original of this application form is lying with customer support department of Reliance Communication.
168. Ld.Defence Counsel Sh.Anil Kumar, contended that this application form was never filled by Ramesh Sharma. He contended that even the date of birth given on this application form is not of Ramesh Sharma. He contended relying upon report of handwriting expert ie. of PW8 C.C.No: 04 / 2011 Page No.101 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th S.L.Mukhi, Ex.PW.8/DZ as well as cross examination of PW8 on this aspect, whereby it has been opined by the handwriting expert that the handwriting on this application is not of Ramesh Sharma.
169. No doubt PW8, Sh. S.L.Mukhi, the prosecution witness during the course of his cross examination admitted the fact that he gave the report Ex. PW8/DZ after comparing the handwriting on the form Ex. PW21/B and the specimen and admitted writing of Ramesh Sharma. As per said opinion the handwriting on application form Ex. PW21/B is not of Ramesh Sharma.
170. However, even if this report and contention of Ld. Defence Counsel is accepted to the effect that the application form Ex. PW21/B is not in the handwriting of Ramesh Sharma, but that ipso facto does not establish on record that vide this form the mobile number 9350359916 was C.C.No: 04 / 2011 Page No.102 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th not allotted to him.
171. It is a matter of common knowledge that whenever any consumer or customer goes to the office of any service provider, desiring to have a mobile phone allotted, then the sales executive of the service provider themselves fill up the form for the convenience of the customer and it is for this reason that as per the report of handwriting expert Ex.PW. 8/DZ, it is opined that the handwriting is not of Ramesh Sharma.
172. On perusal of this form Ex. PW21/B, it is clear that name, parentage and address mentioned on this form is that of accused Ramesh Sharma. This form bears the earlier address of accused Ramesh Sharma i.e. 1464/7, Wazir Nagar, K.M. Pur, New Delhi as is depicted on his specimen signatures S1 to S8 Ex.PW.18/B1 to Ex.PW.18/B8, relied upon by the experts in giving reports Ex. PW5/J, Ex. PW1/A & C.C.No: 04 / 2011 Page No.103 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Ex. PW12/D. The fact that this telephone number was allotted to accused Ramesh Sharma, resident of 1464/7, Wazir Nagar, K.M. Pur, New Delhi, is also fortified from the letter Ex.PW. 26/A received by the investigating officer from M/s Reliance Infocomm, during the course of investigations. Apart from that, accused Ramesh Sharma had mentioned this to be his residential address, in the compromise deed, arrived at between him and B.P.Sharma Ex.PW.17/DY which was relied upon by accused himself during the course of cross examination of PW17 B.P.Sharma.
173. In view thereof, merely because handwriting on the form Ex.PW.21/B is not of Ramesh Sharma, the same cannot discredit the other evidence on record which goes on to establish that the mobile phone number 9350359916 was allotted to him only.
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174. Even otherwise, it is apparent on perusal of the call detail records Ex.PW.20/B, of this particular phone number which appears to be consistent and generated from the computer of the service provider, that from this phone number there were consistent calls to the landline number 24624032 which is the phone installed at the residential premises of Ramesh Sharma ie. C27, IInd Floor, NDSE, PartI, New Delhi.
175. Further, as per the provisions of Indian Evidence Act, to prove any particular fact, the initial onus lies on the prosecution and once these facts are established & initial onus is discharged, then in view of section 106 of Indian Evidence Act, the burden shifts on the accused to disprove those facts or prove what is within his specific knowledge.
176. In the present case, nothing has been brought on record by accused Ramesh Sharma to create any doubt in my mind, to the effect that the mobile phone 9350359916 was C.C.No: 04 / 2011 Page No.105 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th neither allotted to him, nor was used by him. Simplicitor denial of the accused during the course of his statement under section 313 Cr.P.C is not sufficient to dispel the cogent and consistent evidence, which has been brought on record by the prosecution by virtue of deposition of its witnesses.
177. PW16 J.N.Sharma proved that the landline number 24624032, was initially allotted in the name of one Ramesh Chand Jain and after his death, on an application filed by his wife Pushpa Jain, it was allotted in her name vide Ex.PW.16/F. PW16 further proved on record that on an application filed by Pushpa Jain Ex.PW.16/G, this telephone number was shifted to C27, IInd Floor, NDSE, PartI, vide order dated 04.01.2005 Ex.PW.16/H.
178. PW22 Bharat Bhushan, Accounts Officer from MTNL proved on record 4 bills pertaining to this telephone number as Ex.PW.22/A which were taken into possession by IO C.C.No: 04 / 2011 Page No.106 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th vide seizure memo Ex.PW.26/B.
179. It has been contended by Ld.Defence Counsel that prosecution has failed to connect this landline number with accused Ramesh Sharma. It is submitted that there is no evidence on record to show that this premises was in occupation of Ramesh Sharma or that this phone was being used by him.
180. This contention of Ld.Defence Counsel is devoid of any merits in view of the material on record. It is apparent on perusal of the Vakalatnama filed by accused Ramesh Sharma in court as well as the Bail Bond furnished by him while being released on bail that, he himself has mentioned his residential address to be C27, IInd Floor, NDSE, New Delhi.
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181. Consequently, in view of the provisions of Indian Evidence Act, the onus to discharge the initial burden which was on the prosecution has been adequately discharged. Prosecution on the basis of deposition of witnesses examined by it as well as from the documents submitted and placed on record by accused himself, have been able to establish that the premises where this landline phone was installed, was in possession of accused Ramesh Sharma. His mere denial of not having used this landline number is not sufficient to discard, this piece of the prosecution evidence.
182. He during the course of his statement under section 313 Cr.P.C stated that he does not know about this landline number. This statement of his is belied on bare perusal of call detail records Ex.PW.20/B of his mobile phone. It is apparent from these call details records that there are repeated calls from his mobile phone to this landline number, which makes it evident that this phone was known to Ramesh C.C.No: 04 / 2011 Page No.108 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Sharma, being installed at the premises where he was residing.
183. Having held so, that mobile phone number 9810374746 belongs to accused S.C.Mittal and mobile phone number 9811124493 belonged to his son Deepankar Mittal. Further, mobile phone number 9350359916 was allotted to Ramesh Sharma and landline number 24624032 was installed at the premises which was in occupation of accused Ramesh Sharma, it is pertinent now to have a look at the call detail records Ex.PW.7/B11; Ex.PW.19/B and Ex.PW.20/B. It is evident on perusal of these call detail records that from 03.06.2005 till 09.08.2005, accused Ramesh Sharma and S.C.Mittal remained in touch with each other and communicated 24 times.
184. Accused S.C.Mittal being posted as Head of the Department (Document Division) CFSL, thus being a public servant having domain over the documents which were under C.C.No: 04 / 2011 Page No.109 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th examination with CFSL at the relevant point of time had no business whatsoever to be in touch, personally or telephonically with a person, who has an interest in the said documents under examination and in the present case, the documents in question purported to bear signatures of Ramesh Sharma himself and there is no dispute that he as such, was interested in having an opinion in his favor, for the purposes of getting an advantage in a criminal case, filed by him in a Court of Law, from where these documents were sent to CFSL for examination.
185. In view thereof, prosecution has been able to establish on the basis of evidence led by it on record, that accused S.C.Mittal during the period he had domain over these documents under examination, remained in constant touch with coaccused Ramesh Sharma.
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186. Another facet of arguments advanced by Ld. Defence Counsels to dent the prosecution case on this aspect, was that the prosecution has withheld material witnesses. Dr.S.K.Gupta & Sh. Anil Kumar, Advocates, Ld. Counsels for the accused persons had contended that neither Deepankar Mittal nor Pushpa Jain whose phone numbers and records are being relied upon for their case were examined by the prosecution. It is further contended that another witness viz. Satish Batra though named in the list of witnesses was also dropped. It is submitted that out of the three experts, panel of which was constituted by Dr.S.R.R.Singh, prosecution has withheld two experts and had examined only one of them ie. Sh.S.L.Mukhi. They contended that non - examination of these material witnesses has caused prejudice to the case of accused persons, therefore an adverse inference should be cast on the prosecution case.
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187. Ld.Defence Counsels in support of their contentions had relied upon the law laid down by Hon'ble Supreme Court in case titled "Narain & Others vs. State of Punjab" reported as AIR 1959 SC 484.
188. I have considered this contention of Ld.Defence Counsels and have also perused the precedents relied upon by them.
189. It is and always has been a sound and well established rule of law and practice, that a court while adjudicating upon a particular issue, should always be concerned with the quality of evidence before it and not quantity for proving or disproving a fact. The material witnesses listed in the "list of witnesses" by the prosecution, should be and ought to be examined. However, the discretion always rests with the Public Prosecutor, who is Incharge of the prosecution case, not to examine irrelevant or superfluous C.C.No: 04 / 2011 Page No.112 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th witnesses, more particularly, when a particular fact which is sought to be proved, has already come up on record through deposition of other witnesses already examined.
190. The relevant test has been laid down by Hon'ble Supreme Court in the precedent relied upon by Ld.Defence Counsels which is, "The test is, whether he is a witness essential to the unfolding of narrative, on which the prosecution is based".
191. Going by this particular test laid down by Hon'ble Apex Court, I am of the opinion that all the material witnesses, who were essential to the unfolding of prosecution case, were examined. Those witnesses who were not summoned despite having figured in the list of witnesses, are superfluous witnesses. Further, there was no prohibition imposed on the accused persons to summon any or all those witnesses, who they think were necessary for their defence. They could have C.C.No: 04 / 2011 Page No.113 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th filed an appropriate application for the same, which they failed to do.
192. In view thereof, I am of the considered opinion that this argument has been raised only as an afterthought and in an attempt to dent the prosecution case in an indirect manner. The same is therefore rejected.
193. The effect of this conduct of the accused persons to be in touch with each other, shall be considered while taking into consideration the way these documents were handled in CFSL and the proceedings resulting therefrom, so as to find out whether prosecution has been able to establish the necessary ingredients of the offences, with which the accused persons have been charged.
194. Section 8 of Indian Evidence Act makes the conduct of accused persons to a proceeding, relevant, if that C.C.No: 04 / 2011 Page No.114 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th conduct influences the acts or actions of theirs, being relevant to the adjudication thereof. It is therefore required to be looked into, as to whether accused S.C.Mittal and V.K.Khanna being senior and responsible experts, posted with CFSL did follow the regular and prescribed procedure while dealing with the questioned documents, or the conduct of S.C.Mittal of being in touch with coaccused Ramesh Sharma influenced his / their actions. And if so, whether the said deviations are proved on record and if proved, are sufficient to constitute the offences with which they are charged.
195. For the purposes of bringing on record the established procedure being followed by CFSL, whenever any document is received for the purposes of examination, prosecution had examined PW5 J.P.Subnani. This witness during the course of his deposition, categorically deposed that whenever any letter is received in CFSL from Delhi Police or any other investigating agency, then the same is received in the C.C.No: 04 / 2011 Page No.115 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th office of Director CFSL and only after permission from Director CFSL, the file is received in the document division. The forwarding letter alongwith the documents and endorsement of Director CFSL is then put up before Head of the Department (Document Division) who then assigns the same to any expert for doing the needful. The said expert after examining the documents, prepares a report, which is then approved by Head of the Department (Document Division). PW5 further deposed that the said report alongwith approval of Head of the Department is then sent to Director CFSL who then along with his forwarding letter, sends the expert report to the concerned agency from where the requisition was received.
196. This procedure so deposed by PW5, was not at all challenged or disputed by any of the three accused. No cross examination of PW5, on this procedural aspect has been conducted by any of the three accused. Rather, during the cross examination of PW4, Lal Singh, Laboratory Assistant, C.C.No: 04 / 2011 Page No.116 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th conducted on behalf of accused S.C.Mittal, this witness also deposed that no case is opened without directions of Director, CFSL. This procedural aspect also received corroboration through the deposition of PW6 N.B.Bardan, Sr.Scientific Officer, more particularly from his cross examination conducted on behalf of accused S.C.Mittal.
197. The procedural aspect so deposed by PW5 which has also been corroborated by PW4 and PW6 further stands fortified on the basis of documentary evidence on record, which is also not challenged by any of the three accused.
198. It is admitted position on record that the questioned documents of the present case for the first time were received in CFSL alongwith the forwarding letter Ex.PW. 5/B of SHO PS Defence Colony which was accompanied with the request letter of IO containing court directions Ex.PW.5/A. The said forwarding letter was accompanied with the C.C.No: 04 / 2011 Page No.117 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th questioned documents as well as specimen signatures and admitted signatures which were received in CFSL alongwith the road certificate Ex.PW.5/C.
199. It is also admitted position on record that pursuant to the interim report of Dr.M.A.Ali Ex.PW.5/G, the next letter from SHO PS Defence Colony, furnishing additional documents Ex.PW.4/B was received in CFSL.
200. It is apparent on perusal of these two letters ie. Ex.PW.5/A as well as Ex.PW.4/B that immediately on receipt thereof in CFSL, the same were put up before Director CFSL and both these letters were stamped with the seal of Director CFSL, as an acknowledgement of receipt of these letters, whereafter the same were signed by Director CFSL, giving necessary directions to Head of the Department (Document Division). Once these letters were assigned by Director CFSL to Head of Department (Document Division), he assumed C.C.No: 04 / 2011 Page No.118 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th jurisdiction and passed the necessary directions. It is thus apparent that when both these letters Ex.PW.5/A and Ex.PW. 4/B were received in the office of Director CFSL, due and appropriate procedure as deposed by PW5 and endorsed by PW4 and PW6 was followed.
201. It is contended by Ld. Defence Counsel that similar procedure was followed when the matter was again referred to CFSL by SHO, P.S.Defence Colony vide letter Ex. PW4/A (which is the bone of contention in the present case) pursuant to directions given by the Court vide order Ex. PW6/C directing Director, CFSL to constitute a board / panel of more than one expert for examination of the document.
202. Perusal of this letter Ex. PW4/A coupled with deposition of PW5 J.P.Subnani, PW4 Lal Singh and PW9 Lavang Lata Sharma however depicts a different picture. It is apparent from Ex. PW4/A that the letter dated 26.05.2005 C.C.No: 04 / 2011 Page No.119 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th from Additional SHO, P.S. Defence Colony was received in CFSL on 27.05.2005. Instead of the prevalent normal practice of being received in the office of Director, CFSL first and being diararised there, it was directly received by accused S.C.Mittal, H.O.D. (Document) who assumed jurisdiction on this, without it being assigned to him by Director, CFSL. Accused S.C.Mittal straightaway vide his endorsement at point E stated "Court directions, please check and retain documents" on 27.05.2005 itself. He then got the documents to be retained by PW5 J.P.Subnani vide his endorsement at point 'H' on Ex. PW4/A. Further as per deposition of PW5, the file was then marked to Case Assistant i.e. PW4 Lal Singh who opened the file vide File no. 05/D0346 vide endorsement at point 'C' and his signatures at point 'A' on Ex. PW4/A. All this as per evidence on record was done on 27.05.2005 itself.
203. As per the evidence on record of PW5 which has not been disputed by any of the three accused the case was C.C.No: 04 / 2011 Page No.120 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th allotted for examination by accused S.C.Mittal to himself and to V.K.Khanna vide entry dated 27.05.2005 itself, at Serial no. 14/16, Ex. PW5/M of the Case Register. PW5 was not at all cross examined on this aspect by any of the three accused. No suggestion was put to this witness to the effect that this entry Ex.PW.5/M in the case register is forged, fabricated or false.
204. It is only on 31.05.2005 that this file was sent to the officer of Director, CFSL Dr.S.R.Singh and was given diary no. vide endorsement at point 'G' and was signed by Dr.S.R.Singh at point 'F' on Ex. PW4/A.
205. From the above documentary and oral evidence on record it is evident that when the letter Ex. PW4/A was received at CFSL, the regular procedure was deviated from and accused S.C.Mittal had assumed his jurisdiction over the same without the same being marked or assigned to him, by the then Director, CFSL Dr.S.R.Singh.
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206. This departure from the settled procedure only exudes the over zeal of accused S.C.Mittal to deal with the questioned document of this case and directions of the Court vide order Ex. PW6/C. This deviation though tried to be explained by Dr.S.K.Gupta, Ld. Counsel for accused, but the said explanation does not inspire any confidence.
207. Though the contention of Ld. Defence Counsel that signatures of Dr.S.R.Singh, Director, CFSL on Ex. PW4/A on 31.05.2005 ratifies the action taken already on this letter has some force and semblence. But the same does not ratifies or approves of the panel formation, as the document ie. Ex.PW. 4/A does not depict any such endorsement.
208. On perusal of Ex. PW4/A it can be accepted that the factum of checking and retaining documents in the Document Division and opening of the case file, which was done prior to taking approval of Director, CFSL to open the case, C.C.No: 04 / 2011 Page No.122 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th were ratified by Dr.S.R.Singh, Director, CFSL on 31.05.2005 by putting his signatures at point F.
209. The important question which has arisen and requires an answer is - when was the panel of experts formed ? Who formed it and in what capacity ?
210. Ld.Defence Counsel on behalf of accused S.C.Mittal contended that Ex.PW.4/A along with the orders passed by the court Ex.PW.6/C were put up before the then Director, Sh.S.R.Singh on 31.05.2005. To substantiate this contention of his, he has relied upon the cross examination conducted by him of PW4, PW6 and of PW24 Dr.S.R.Singh himself. Although, PW4 during the course of his cross examination conducted by Dr.S.K.Gupta, Advocate, stated that he is not aware as to whether the court order giving directions to Director CFSL to form the panel Ex.PW.6/C was or was not put up before Dr.S.R.Singh, along with Ex.PW.4/A. C.C.No: 04 / 2011 Page No.123 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th
211. PW6 during the course of his cross examination conducted on behalf of accused contended that it might be possible that the Court Order Ex.PW.6/C was put up before Dr.S.R.Singh on 31.05.2005 along with Ex.PW.4/A. However, PW24 Dr.S.R.Singh during the course of his cross examination and also during the course of his examination in chief, had admitted the fact that on 31.05.2005, he had seen the court orders Ex.PW.6/C.
212. It is submitted by Ld.Defence Counsel that in view of this admission made by PW24 Dr.S.R.Singh during the course of his deposition, it is apparent that the directions of the court were in his knowledge on 31.05.2005 and in case he intended to constitute the panel himself, then he would have done so on that very day. He contended that Dr.S.R.Singh did not form the panel before proceeding on earned leave with effect from 11.07.2005.
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213. It is further contended by Ld.Defence Counsel relying upon the defence evidence led by him in the form of DW1 Dr.V.N.Sehgal, Ex.Director of CFSL that formation of panel was a routine matter and as Director CFSL. DW1 used to delegate the same to the concerned Head of the Department. It is submitted by Ld.Defence Counsel that in the present case, Director CFSL for reasons best known to him did not constitute any panel till he proceeded on leave. He augmented his arguments by saying that as the next date of hearing before the court where the report was to be filed was 08.08.2005, therefore Dr.S.C.Mittal, who in absence of Dr.S.R.Singh was working as Incharge Director, was left with no other option but to form the panel himself. He contended relying upon the cross examination conducted by him of PW8 Dr.S.L.Mukhi, PW6 N.B.Bardan and PW24 Dr.S.R.Singh that at that point of time, only 4 Principal Scientific Officers were posted in the document division ie. Dr.S.C.Mittal, V.K.Khanna, M.A.Ali and S.L.Mukhi. He further submitted that Dr.S.L.Mukhi had C.C.No: 04 / 2011 Page No.125 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th written a note to accused S.C.Mittal on 13.07.2005 stating that no case be assigned to him as he is already overburdened and is due to retire shortly, which fact was admitted by Sh.S.L.Mukhi during his cross examination as PW8. He contended that Sh.M.A.Ali had given the earlier report, therefore Dr.S.C.Mittal was left with no other option but to form the panel of experts, consisting of himself and V.K.Khanna. He contended that the panel of experts was formed by Dr.S.C.Mittal in his capacity as Incharge Director, at the time when Dr.S.R.Singh was on earned leave.
214. These contentions raised by Ld.Defence Counsel are disputed by Ld.PP. To find out the correctness of the contentions advanced by Ld.Defence Counsel and to see as to whether it stands substantiated on the basis of documentary evidence or not, it is pertinent to peruse the material on record.
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215. It is apparent from the record that Ex.PW.4/A was put up before Director, CFSL on 31.05.2005 ie. after registration and opening of the case file which was done on 27.05.2005 itself. It is apparent from the endorsement made on Ex.PW.4/A that Dr.S.R.Singh on 31.05.2005 had not formed any panel himself, nor had he delegated the powers to form the panel to Dr.S.C.Mittal, who at that time was posted as Head of Department (Document Division).
216. PW6 during the course of his deposition had stated that whenever any request of formation of panel is received, it is Director CFSL who forms the panel himself and in case he directs the HOD to constitute the panel of experts, it has to be approved by Director CFSL. PW6 further deposed that Dr.S.R.Singh, Director CFSL proceeded on earned leave from 11.07.2005 till 19.08.2005. He deposed that his earned leave was sanctioned vide note Ex.PW.6/H. He deposed that thereafter an office order Ex.PW.6/B was passed, whereby C.C.No: 04 / 2011 Page No.127 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Dr.S.C.Mittal was directed to work as Incharge Director during the absence of Dr.S.R.Singh and in that order itself, it was made clear that Dr.S.C.Mittal during this period shall look after the routine work and shall refer all the administrative and financial matters to CBI Head Office for decision. PW6 went on to depose that formation of panel is an administrative matter. No doubt, he was cross examined on this aspect by Ld.Defence Counsel but he denied the suggestion that formation of panel is not an administrative function.
217. From the material on record, one thing that has emerged is that the panel consisting of Dr.S.C.Mittal and V.K.Khanna in this case was neither formed nor approved by Dr.S.R.Singh. This panel was formed by Dr.S.C.Mittal himself which is not disputed by any of the three accused.
218. Admittedly, during the absence of Dr.S.R.Singh, as per office order Ex.PW.6/B, Dr.S.C.Mittal was C.C.No: 04 / 2011 Page No.128 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th posted as Incharge Director, CFSL and by virtue of this order itself, he was directed to look after the routine functions. The question which is required to be decided is as to whether as Incharge Director, he was or was not competent to form the panel of experts.
219. It is contended by Ld.Defence Counsel that formation of panel is not an administrative function, but is it a routine matter as the same does not fall under the Administrative Manual of CBI, but under the Crime Manual, more particularly under Rule 15.10.
220. To substantiate his contention, he had relied upon the deposition of DW1 Dr.V.N.Sehgal, Erstwhile Director, CFSL. Apart from that, Ld.Defence Counsel relied upon the 2 files which were forwarded to the investigating officer by Director, CFSL vide letter Ex.PW.25/B, during the course of investigations. He contended that in these two files, C.C.No: 04 / 2011 Page No.129 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Director CFSL had given directions to Head of the Department to do the needful and the concerned Head of Department had formed the panel himself, which used to be the routine affair and the similar procedure has been adopted in the present case.
221. For the purposes of appreciating this contention of Ld.Defence Counsel, I have perused the two files which were forwarded to the investigating officer vide letter Ex.PW.26/B during the course of investigations ie.D12 and D13. Perusal of these two files makes it evident that in both these cases, the matters were referred to CFSL for examination of the documents by virtue of orders passed by Hon'ble High Court. Along with the forwarding letters addressed to Director CFSL, the orders passed by Hon'ble High Court were also annexed. In none of these two orders, there was any direction to Director CFSL for formation of any panel or board of experts. The documents were simplicitor forwarded to Director, CFSL to have the opinion of handwriting expert on the same C.C.No: 04 / 2011 Page No.130 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th and for submission of the report.
222. In view thereof, these two files relied upon by Ld.Defence Counsel, does not support his contention visavis the case in hand wherein the Court has given specific directions to Director CFSL, to form a panel / board of more than one expert. Rather perusal of the notesheet of these two files demolish the contentions raised by Ld.Defence Counsel. In the note sheet, it is apparently stated that as "directed by Director CFSL, the documents so received from Hon'ble High Court were examined by a panel of experts". Meaning thereby that formation of panel for examination of documents in these two files was done on directions of Director CFSL.
223. Coming to the next contention raised by Ld.Defence Counsel that formation of panel was not an administrative function but a routine matter, being part of the Crime Manual Rule 15.10.
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224. Although the Crime Manual of CBI is only regulatory in nature and does not have any statutory sanction, still perusal of Rule 15.10 makes it apparent that the same states "The questioned documents requiring reexamination and second opinion may be referred to Director CFSL New Delhi for their reexamination by a Board constituted by the Director CBI / CFSL".
225. Perusal of this rule of Crime Manual of CBI relied upon by Ld.Defence Counsel, makes it apparent that nowhere this rule gives any discretion or power to Incharge Director to form a panel. It empowers only Director CFSL to form panel and during his absence or nonavailability, Director CBI is empowered to do the same.
226. The office order Ex.PW.6/B by virtue of which Dr.S.C.Mittal was directed to work as Incharge Director is also in consonance to this rule of Crime Manual as in said office C.C.No: 04 / 2011 Page No.132 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th order, it was made clear that Dr.S.C.Mittal as Incharge Director, has to deal with only routine matters, whereas administrative / financial matter are to be referred to CBI Head Office for decision.
227. Ld.Defence Counsel relied upon the cross examination of PW6 during which he admitted that all administrative files used to be routed through him. PW6 further admitted that the file of the present case was not routed through him. Ld.Defence Counsel urged that from this deposition of PW6, it is clear that formation of panel was not an administrative function therefore this file was not routed through PW6.
228. This argument of Ld.Defence Counsel does not hold any grounds. To my mind, it further strengthens the case of prosecution. As Dr.S.C.Mittal in this case had deviated the regular procedure and had directed his subordinates to open C.C.No: 04 / 2011 Page No.133 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th the case file, before it was assigned to him by office of Director CFSL. Thereafter he kept the file with him till Dr.S.R.Singh proceeded on leave. Had he prepared a note on the basis of court orders Ex.PW.6/C for formation of panel to be put up before Director CFSL, then the file would have been routed through PW6. But that was not to be.
229. The deposition made by DW1 Dr.V.N.Sehgal does not come to support the contentions of Ld.Defence Counsel, in view of the clear instructions given in office order Ex.PW.6/B and also given by the Court vide orders Ex.PW.6/C wherein the directions were given to Director CFSL and to none else.
230. In view of the above discussion, I am of the considered opinion that as Incharge Director, Dr.S.C.Mittal was not competent to form the panel of expert. C.C.No: 04 / 2011 Page No.134 of 177
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231. The contention of Ld.Defence Counsel that at that point of time, there were only 4 Principal Scientific Officers, one of which had already given the earlier report and the other one had requested not to be given any additional work therefore only S.C.Mittal and V.K.Khanna were left, thus even if the panel is formed by Director CFSL, no other officer could have been included in the same. This contention of Ld.Defence Counsel does not support his case in view of the fact that directions for formation of the panel were to Director CFSL and it was his problem to constitute the panel and not of accused S.C.Mittal. It was for Director CFSL to decide, whom he wants to include in this said panel.
232. Apart from this discussion hereinabove, what clinches the issue is the case register maintained in CFSL. Deposition of PW5 J.P.Subnani, Sr.Scientific Assistant which has not at all been challenged or controverted by accused S.C.Mittal, during the course of his cross examination makes it C.C.No: 04 / 2011 Page No.135 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th apparent that this case register used to be maintained at CFSL wherein entries are made stating to whom a particular case is allotted , which also mentions the date of allotment of the case.
233. Ex.PW.5/M is the relevant entry of the present case. This entry makes it clear that the present case was allotted to S.C.Mittal and V.K.Khanna on 27.05.2005 itself. No suggestion has been given to PW5 during the course of his cross examination that this entry in the case register is false or fabricated. Rather PW5 deposed that he had made this entry on directions of S.C.Mittal.
234. Meaning thereby that in the present case, the panel was formed by accused S.C.Mittal. The same was formed on 27.05.2005 itself, ie. the date on which request letter Ex.PW.4/A was received in CFSL, when accused S.C.Mittal being Head of Department (Document Division) without any assignment or allocation by Director CFSL, assumed his C.C.No: 04 / 2011 Page No.136 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th jurisdiction on this letter, as has been held by me hereinabove. Further it is admitted position on record that on 27.05.2005, Dr.S.R.Singh was very much on duty and on said date, Dr.S.C.Mittal was Head of Department (Document Division). Thus the panel was formed by him in his capacity as Head of Department and not as Incharge Director, as claimed by him.
235. Even if, this contention of Ld.Defence Counsel is accepted that the panel was formed by Dr.S.C.Mittal as Incharge Director, then there should have been an order or endorsement by which the panel was formed and the date on which it was formed and there should have been a corresponding entry in the case register to that effect. But that was not to be. There is neither any order of formation of panel by Dr.S.C.Mittal as Incharge Director, nor there is any entry in the case register with respect to the present case except Ex.PW. 5/M. C.C.No: 04 / 2011 Page No.137 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th
236. It is apparent from the record that the note sheet with respect to the present case was prepared by accused V.K.Khanna ie. Ex.PW.6/F wherein also he stated that panel was constituted by Incharge Director CFSL which fact to his knowledge was not correct. V.K.Khanna was posted as Senior Principal Scientific Officer with CFSL and was not working there in any ministerial cadre for him to be unaware of the regular practice and procedure adopted in any such case by CFSL. However he, for the reasons best known to him, tacitly accepted what was being done by coaccused S.C.Mittal, which speaks volume about his being in concert and agreement with accused S.C.Mittal. Further, he participated in giving the report as a member of the panel, which to his knowledge was not properly formed.
237. Having held so, has brought me down to the question as to whether the report Ex.PW.1/A (copy of which is also exhibited as Ex.PW.15/B) is a false report or not. C.C.No: 04 / 2011 Page No.138 of 177
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238. Ld.Defence Counsel vociferously contended that the panel of Dr.S.C.Mittal and V.K.Khanna had examined the questioned documents visavis the specimen and admitted signatures using VSC 5000 and other instruments available. He contended that both of them on the basis of their rich experience in the field and the observations of various authors on this subject had given an elaborate report Ex.PW.1/A. He contended that various fundamental aspects of handwriting including the length was looked into by these two, whereafter they had given the present report. It is further contended by Ld.Defence Counsel relying upon the deposition of DW3 Dr.Deepa Verma that various observations and rules in the Science of Handwriting Examination, given by various authors in their books, are considered by the experts and it was done in this case by accused S.C.Mittal and V.K.Khanna while examining the document in question.
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239. Ld.Defence Counsel further contended that the earlier report given by Dr.M.A.Ali Ex.PW.5/J was simply forwarded by accused S.C.Mittal as Head of Department as at that point of time, he himself had not examined the documents, therefore it cannot be said that he by virtue of his report Ex.PW.1/A, has given a contrary opinion, to his own earlier opinion.
240. Another contention advanced by Ld.Defence Counsel in support of his arguments which was also endorsed by Ld.Defence Counsel for accused V.K.Khanna that the concerned court of Ld.Metropolitan Magistrate had already rejected the earlier report Ex.PW.5/J of M.A.Ali, therefore the present report cannot be termed as "false report' which otherwise is a subjective opinion of the handwriting expert which may differ from expert to expert. C.C.No: 04 / 2011 Page No.140 of 177
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241. It was also urged on behalf of the accused persons that neither Dr.M.A.Ali while giving his report Ex.PW. 5/J, nor the panel of three experts constituted subsequently by Dr.S.R.Singh, while giving their report Ex.PW.12/D had considered the minute details and the fundamental characters of the questioned signatures, whereas the accused persons in their report Ex.PW.1/A had examined and considered every fundamental characters of the questioned signatures. Therefore also their report cannot be termed as 'false report'.
242. I have considered the submissions advanced and have perused the three reports Ex.PW.5/J dated 03.03.2005, Ex.PW.1/A dated 05.08.2005 and Ex.PW.12/D dated 27.09.2005. I have also perused the cross examination conducted by Ld.Defence Counsel of PW8 Sh.S.L.Mukhi and PW18 Sh.M.A.Ali. I have also considered the precedents relied upon by Ld.Defence Counsels.
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243. In the precedents relied upon by Ld.Defence Counsels as mentioned in para 132 (supra), Hon'ble Apex Court had laid down certain principles observing the evidence of handwriting expert to be of a frail character, being based on an imperfect science.
244. Hon'ble Apex Court in case titled "State of Maharashtra Vs. Sukhdeo Singh" (supra) has held that : "There is no absolute rule of law or even of prudence which has ripened into a rule of law that in no case can the court base its findings solely on the opinion of a handwriting expert but the imperfect and frail nature of science of identification of the author be comparison of his admitted handwriting with the disputed ones has placed a heavy responsibility on the courts to exercise extra care and caution before acting on such opinion."
245. From the above observation made by Hon'ble Apex Court as well as the admission made by PW8, PW18 and PW24 during their cross examination, it is clear that the opinion of an expert is his subjective opinion and the same may C.C.No: 04 / 2011 Page No.142 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th differ from expert to expert with respect to same set of documents. This view was also deposed by DW3 Deepa Verma, examined by accused S.C.Mittal in his defence.
246. There is no denying to this fact that the opinion of an expert is a subjective opinion and the opinion of one may differ from other expert with respect to same set of documents. Further, in case two experts give different or contrary opinion with respect to same documents, then the opinion of one cannot be termed as 'false'. But this is subject to the condition that both the experts have given honest and prudent opinion on the basis of their experience in the field, education they have and without diluting the expected standards of integrity. Thus the contrary opinions given without any bias or favor, cannot be termed as 'false report / opinion".
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247. But, in the present case, on the basis of material on record and as held by me hereinabove, it cannot be said that the opinion / report given by accused S.C.Mittal and V.K.Khanna, ie. Ex.PW.1/A was given in an honest and prudent manner without diluting the expected standards of integrity expected from public servants. This report was given by them while S.C.Mittal was in constant touch with coaccused Ramesh Sharma, whose signatures were under examination. Thus, it cannot be said that the report given by them was given in absolutely fair, honest and prudent manner.
248. Even then, I have considered the submissions advanced and have perused the cross examination of PW8 DR.S.L.Mukhi as well as PW18 Dr.M.A.Ali. It is apparent from cross examination of PW18 that he had not mentioned about the length of signatures, speed of writing, pen lifts and line quality defects in his report. However, he in his cross examination itself had categorically explained about the same stating that as he had not found any blunt starts and finishes, C.C.No: 04 / 2011 Page No.144 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th any line quality defect, therefore, he had not mentioned about these aspects in his report. Further he had stated that the difference in length of signatures was within the natural variations.
249. I have also perused the cross examination of PW8 Dr.S.L.Mukhi wherein also he categorically stated that the panel of three experts had examined each and every constituent of the fundamental characteristic of handwriting examination. He deposed that all the three experts had independently examined the three documents using VSC 5000 instrument and had got the photography done. PW8 during his cross examination clarified that they had looked for the speed, penlifts, blunt starts and finishes. Upward and downward strokes etc. He clarified that the length and other fundamental characters which they found within the natural variations, were not mentioned by them in their report Ex.PW. 12/D. C.C.No: 04 / 2011 Page No.145 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th
250. There is no specific format for any handwriting expert to give his report. Any expert who is required to furnish the report after examination of the documents is supposed to mention the fundamental difference between the questioned signatures on one hand and the admitted and specimen ones, on the other if observed by him and his reasons thereof. In case, expert does not find any fundamental difference leading to a different authorship, then he is not supposed to mention that aspect in his report.
251. In view thereof, nonmentioning of these aspect by either Dr.M.A.Ali or the panel of three experts constituted subsequently by Dr.S.R.Singh in their respective reports would not make their reports, cryptic as contended by Ld. Defence Counsels.
252. Ld.Defence Counsel had drawn my attention to cross examination of PW8 Sh.S.L.Mukhi, conducted by him C.C.No: 04 / 2011 Page No.146 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th visavis entry mark X in the Register of VSC 5000 instrument Ex.PW.8/DX. It is contended that though PW8 deposed that he along with other experts on the panel had examined the questioned signatures and compared it with the admitted ones on VSC 5000 instrument on 26.09.2005. But there is no entry in the register Ex.PW.8/DX. He contended that this register at point X shows an entry dated 26.09.2005 from 3 pm to 4.30 pm, in the name of Director CFSL. He contended that none of the experts had used this instruments and they had given a wrong report Ex.PW.12/D at behest and instance of Director CFSL.
253. I do not find any merits in this contention of Ld.Defence Counsel, in view of the fact that this witness, during the course of his cross examination had clarified that there is no authenticity of the register Ex.PW.8/DX as it was not mandatory to make an entry in the same for using the instrument. Even the witness examined by accused S.C.Mittal in his defence, ie. DW2 Sh.D.R.Handa who had produced this C.C.No: 04 / 2011 Page No.147 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th register during the course of his deposition had stated that the practice of making entry in this register, for use of the instrument was not being followed properly.
254. In view thereof, the deposition of PW8 of their having used VSC 5000 instrument by the panel of experts for examining the documents, cannot be discarded on the basis of a register, the authenticity of which has not been vouched, even by the defence witness appearing on behalf of the accused.
255. Ld.Defence Counsel contended that Dr.M.A.Ali as well as the panel of three experts had not enlarged the questioned signatures to that extent to which the same were enlarged by panel of S.C.Mittal and V.K.Khanna. This ipso facto does not make the report given by S.C.Mittal and V.K.Khanna authentic. The accused persons during the course of their defence evidence had examined DW3 Dr. Deepa Verma, an expert in the arena of handwriting. DW3 also C.C.No: 04 / 2011 Page No.148 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th during the course of her deposition had stated that on perusal of the questioned signatures and the admitted signatures, she cannot point out any line quality defect. She referred to certain books of the authors in this field, during her deposition.
256. One such author in this field is Albert S. Osborn on whose book the accused S.C.Mittal had relied during the course of his defence evidence through deposition of DW3 Deepa Verma. The said author in his book titled as "Questioned Documents ; Second Edition" at Page No.55, had stated that "degree of photographic enlargement depends upon the seeing ability of the observer and the character of the thing illustrated". He went on to observe that :
"Skilled microscope specialists are well aware of this fact and are always careful with the degree of enlargement is appropriate to the most effective understanding of the thing to be seen. In enlargements that are too great an unessential element, which may be due to accident or obvious causes, may be so greatly enlarged as to be misunderstood and obscures the vital evidence. It is impossible to say definitely what is the most desirable degree of enlargement for different observers. Where C.C.No: 04 / 2011 Page No.149 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th only the design of letters is under consideration, as in a signature forgery investigation, an enlargement of not more than two to four diameters is usually sufficient expecting the illustrate same special point. Where form alone is being considered, enormous enlargement of ten to forty diameters sometimes obscures rather than illustrates the most significant features."
257. In view of this observation of Albert S. Osborn, an authority on the subject of handwriting examination, the contention urged by Ld. Defence Counsel that S.C.Mittal and V.K.Khanna had enlarged the questioned signatures more than 10 times to my mind does not make their report authentic. As instead of clarifying the vital aspects, undue enlargement may have obscured the same.
258. Accused V.K.Khanna examined himself under section 21 of Prevention of Corruption Act and stated that he had found difference in the length of questioned signatures and the admitted ones which were not dealt with by either Dr.M.A.Ali or by panel of three experts. C.C.No: 04 / 2011 Page No.150 of 177
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259. This contention of the accused persons is belied by their own witness i.e. DW3 Dr.Deepa Verma. She during the course of her cross examination conducted by Ld. P.P. for CBI had admitted that length of signatures of same person may differ. She also stated that the length of the signatures depends on the available space with its author and the same differs at different point of time and at different places.
260. In the present case, the deposition of PW14 Vijay Sharma and PW17 B.P.Sharma is also on record. No doubt Ld. Defence Counsel for accused Ramesh Sharma had cross examined both these witnesses but nothing material has emanated from there cross examination so as to discredit the version given by them on record that the agreement to sell Ex. PW14/A which bears the questioned signatures was infact signed by Ramesh Sharma himself.
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261. This deposition of PW14 & PW17 also lends credence to the report given by Dr.M.A.Ali Ex. PW5/J and the report given by the panel of three experts constituted subsequently by Dr.S.R.Singh, Ex.PW12/D.
262. PW18 during the course of his cross examination had also stated that he after examining the documents had submitted his report alongwith documents to Dr.S.C.Mittal being Head Of Department for approval. He contended that S.C.Mittal had examined the documents himself before approving his report.
263. In view thereof, S.C.Mittal was aware of the fact that he himself had approved the report given earlier Ex. PW5/J. The fact that the documents were earlier under consideration with Dr.M.A.Ali was also in the knowledge of accused V.K.Khanna as he had given a reply to a letter received from the Court of Sh.S.N.Dhingra, the then Ld. Additional C.C.No: 04 / 2011 Page No.152 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Sessions Judge, vide his reply Ex. PW5/F. V.K.Khanna was also aware of the final report given by Dr.M.A.Ali and also that the same was approved by Dr.S.C.Mittal, despite which he alongwith S.C.Mittal had given a contrary report Ex. PW1/A, (copy of which is Ex. PW15/B), which to my mind is a "false report" given by both these accused knowing or having reasons to believe the same to be false, with the knowledge that the same may result in causing an injury to the person against whom their coaccused Ramesh Sharma had lodged a complaint in the Court of Ld. Metropolitan Magistrate on the basis of which FIR No. 461/04 PS Defence Colony was registered.
264. Ld.Defence Counsels made another attempt to dent the case of prosecution in a round about manner stating that once the report Ex.PW.1/A was given by the panel of expert to SHO PS Defence Colony, then the same should have been filed by him in court. Ld.Defence Counsels C.C.No: 04 / 2011 Page No.153 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th relying upon the cross examination of PW12 Inspector Harcharan Verma,the then SHO of PS Defence Colony, submitted that he, in connivance with Dr.S.R.Singh, had kept the report in abeyance.
265. No doubt, as per the evidence which has come up on record in view of the deposition of PW9 Lavang Lata Sharma, PW11 Head Constable Surender Singh and PW12 Inspector Harcharan Verma, it is apparent that the report Ex.PW.1/A (copy of which is Ex.PW.15/B) was received in an envelope Ex.PW.9/G at PS Defence Colony on 05.08.2005, but the same was not filed in court.
266. The reason for not filing this report has been stated by PW12 Harcharan Verma during the course of his deposition. He categorically deposed that Dr.S.R.Singh had telephonically informed him not to file this report in court and thereafter he had received a letter Ex.PW.12/A from Director C.C.No: 04 / 2011 Page No.154 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th CFSL to resubmit the documents as well as the earlier opinion, therefore, the same was not filed by him in court. In view of these facts, there was a reason with SHO PS Defence Colony, not to file the report in court. However, he should have disclosed these circumstances to the concerned court. His failure to disclose the circumstance to the concerned court, which had sought the report, does not mitigate the manner in which accused persons conducted themselves while dealing with the questioned documents.
267. It is contended by Ld.Defence Counsel that Dr.S.R.Singh, by recalling the earlier report and forming a panel for fresh examination of the documents, exceeded his jurisdiction which he has done without seeking any permission from the Court.
268. This contention of Ld.Defence Counsel to my mind, is also devoid of any merits as Director CFSL in view of C.C.No: 04 / 2011 Page No.155 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th his deposition in Court, as well as through his note Ex.PW.24/A and the letter Ex.PW.12/A gave his opinion that the report Ex.PW.1/A was not as per the regular practice and procedure. Thus he was well within his powers to have the documents examined in consonance to the directions of the Court. Therefore, he had called back the earlier report and the documents for reexamination vide his letter Ex.PW.12/A (copy of which is Ex.PW.26/DX). In the said letter itself, Dr.S.R.Singh had directed SHO PS Defence Colony to request the court accordingly.
269. Another contention raised by Ld.Defence Counsels was that the accused persons have been falsely implicated by Dr.S.R.Singh as he was having a seniority dispute with S.C.Mittal. No doubt, the factum of dispute between Dr.S.R.Singh and S.C.Mittal, with respect to their interse seniority has been established on record through the cross examination of PW24 conducted by Ld.Defence Counsels. C.C.No: 04 / 2011 Page No.156 of 177
Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th However, that in itself is not sufficient to scale down the actions and omissions on the part of accused S.C.Mittal, in dealing with the present set of documents, more particularly, in the wake of his being in constant touch with coaccused Ramesh Sharma on telephone.
270. Consequently, I do not find any merits in these contentions raised by Ld.Defence Counsel, which to my mind have been raised as an afterthought, in an attempt to escape from the criminal liability.
271. It is further submitted by Ld.Defence Counsels that the report Ex.PW.1/A never saw the daylight as it was never produced before the Court, therefore the necessary ingredients of offence under section 167 IPC are not established.
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272. This contention of Ld.Defence Counsel is also turned down. Bare perusal of section 167 IPC makes it evident that if the public servant, Incharge of preparing the document, prepares the same having knowledge or belief the same to be incorrect and knowing that it may cause injury to any person, the offence stands completed. Nowhere in this section, it is stated that from the report actual injury to any person should have resulted before invocation of this Section. Mere knowledge on the part of accused preparing the report, that the same is false and is likely to cause injury to anyone, is sufficient.
273. Next contention urged on behalf of the accused persons was that their actions and inactions does not constitute the offence under Prevention of Corruption Act as the same at best, can amount to misconduct. It is contended that this misconduct, by no stretch of imagination, can be termed as "criminal".
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274. The word "misconduct" has been defined in Black's Law Dictionary, which reads as under: "The transgression of some established rule of action, dereliction from duty, unlawful behaviour, improper or wrong behaviour".
275. The term "misconduct" implies wrong intention and not a mere error of judgement. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or Statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action.
276. Section 13(1) (d) of the Prevention of Corruption Act, does not make any negligence or a plain and simple misconduct on the part of any public servant, a punishable offence. Hon'ble Apex Court in a catena of C.C.No: 04 / 2011 Page No.159 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th judgement while interpreting the provisions of this Act has laid down that a blatant carelessness or gross negligence on the part of any public servant, does not ipsofacto, comes within the domain of this Section. The alleged misconduct on the part of public servant has to be actuated with criminal intent. The abuse of his position as a public servant in order to come within the mischief of the section must necessarily be dishonest intention on the part of said officer qua the alleged act.
277. The burden to prove affirmatively that accused by abusing his official position had obtained any pecuniary advantage either for himself or for any other person, lies on the prosecution. The prosecution on the basis of evidence led by it on record, has to satisfy the principal that all inculpatory facts, established on record must be inconsistent with the innocence of the accused and incapable of explanation of any other hypothesis than that of his guilt.
C.C.No: 04 / 2011 Page No.160 of 177
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278. In the backdrop of above, the analysis of evidence adduced by the prosecution during the course of trial, and observed by me hereinabove, in my considered opinion has led to an unerring certainty that accused S.C.Mittal and V.K.Khanna, acting inconcert, with each other being public servants, had abused their official position as such, to frame a false report Ex.PW.1/A (copy of which is also exhibited as Ex.PW.15/B), with intent to cause advantage to coaccused Ramesh Sharma in a criminal proceedings initiated by him vide FIR No.461/04 PS Defence Colony and to cause injury the person against whom the complaint was made by accused Ramesh Sharma.
279. These actions and omissions of theirs, is nothing short of "criminal misconduct" as the same is laden with a dishonest intention, with which they had acted while dealing with the questioned documents and the resultant report thereof.
C.C.No: 04 / 2011 Page No.161 of 177
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280. This has brought me down to the last leg of the arguments advanced by Ld.Defence Counsels with respect to the conspiracy. It is contended that the prosecution case is silent with respect to the alleged offence of conspiracy. It is submitted that there is no material on record, from which it can be inferred that there is any meeting of mind, amongst the accused persons to do any illegal act or a legal act by illegal means.
281. Sh.Anil Kumar, Ld.Counsel for accused Ramesh Sharma in order to support his contentions that there are no circumstances on record which leads to the hypothesis of conspiracy amongst accused persons, had relied upon the law laid down by Hon'ble Apex Court in case titled "K.R.Purushottam vs. State of Kerala" reported as (2005) 12 SCC 631 and "State vs. V.C.Shukla" reported as AIR 1980 SC 1382.
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282. I have considered the submissions advanced and have perused the law laid down by Hon'ble Apex Court in the precedents relied upon by Ld.Defence Counsel. There is no denying the fact that Hon'ble Apex Court while holding that the offence of conspiracy is committed in secrecy and can be proved only by circumstantial evidence has held that these circumstances should be proved, beyond reasonable doubt, leading to the guilt of the accused.
283. Section 120A IPC defines "criminal conspiracy". Accordingly to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal, by illegal means such an agreement is designated as "criminal conspiracy".
284. In view of this definition, the gist of the offence is "an agreement to break the law". Parties to such an agreement are guilty of criminal conspiracy, though the illegal C.C.No: 04 / 2011 Page No.163 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th act agreed upon by them to be done, has not or could not be done. It is not necessary that all the parties to such an agreement should agree to do a single illegal act. It may comprise of commission of a number of acts. It is not necessary that all the conspirators must know each and every detail of the conspiracy.
285. Conspiracy is seldom an open affair. Its existence and objects can only be deduced from circumstances of the case and conduct of the accused, who are party to such conspiracy.
286. As Conspiracy has to be and can only be inferred from the physical manifestation of conduct of the conspirators / accused. Thus, to deduce actual meeting of minds amongst the accused person to find out transmission of thoughts, the actual words used by them during communication, are to be considered.
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287. The conduct of the conspirators / accused are to be deciphered not only from the actual words spoken by them but also from their body language, mannerism and behaviour by which they intervene in the conversation taking place between the complainant and coaccused, as their state of mind has to be inferred on the basis of their conduct.
288. Being aware of the fact that for the purposes of appreciating the evidence on record with respect to the allegations of conspiracy, the circumstances in which the accused acted, their actions and mannerism were required to be considered therefore, I am deliberately dealing with this argument at the end, after having held hereinabove the conduct of the accused persons in the present case, their actions and inactions.
289. It has already been held hereinabove in Para 185 (supra), that accused S.C.Mittal and Ramesh Sharma C.C.No: 04 / 2011 Page No.165 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th were in constant touch with each other, when the questioned document purportedly bearing signatures of Ramesh Sharma, was under consideration with S.C.Mittal.
290. Further, it has also been held by me on the basis of evidence on record in para 263(supra), that accused S.C.Mittal and V.K.Khanna acting inconcert with each other had given a false report, knowing the same to be incorrect, with intent to cause injury to the person against whom Ramesh Sharma had filed the complaint with respect to FIR No.461/04 PS Defence Colony.
291. It has also been held by me in Para 278 supra ; that accused S.C.Mittal and V.K.Khanna criminally misconducted themselves by using their official position as public servants and attempted to cause advantage to co accused Ramesh Sharma.
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292. Consequently, from the material placed and proved on record by the prosecution, it is established that there was prior meeting of minds amongst the three accused persons, who acting inconcert had hatched a conspiracy, the object of which was to have a false report on the questioned documents from S.C.Mittal and V.K.Khanna, the public servants, in order to cause advantage to Ramesh Sharma in a criminal proceedings. Prosecution has been able to establish on record that all the three accused had performed their assigned roles of commissions and omissions, in the process of achieving the object of conspiracy. Had there been no prior meeting of minds, then the accused persons would not have conducted themselves, the way they have, as held by me hereinabove.
293. In view thereof, I do not find any merits in the contentions advanced by Ld.Counsels for the accused persons that the material on record is not sufficient to infer that there was no meeting of mind amongst the accused persons to carry out any illegal design.
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294. Prosecution has been able to establish that all the three accused persons hatched a conspiracy, the object of which was to have a favorable report on the questioned document from CFSL, in order to get advantage in a criminal proceedings filed by accused Ramesh Sharma against one B.P.Sharma.
295. Summary culled out from the evidence adduced on record, had deduced following propositions which stands proved :
(a) Keenness on the part of accused S.C.Mittal to assume jurisdiction on the letter Ex.PW.4/A, without it being assigned to him by Director CFSL, thereby deviating from the prevalent practice.
(b)Keenness on the part of accused S.C.Mittal being C.C.No: 04 / 2011 Page No.168 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th Head of Department (Document Division), CFSL, New Delhi to make an endorsement on the reference letter Ex.PW.4/A, directing his subordinates to check and retain the documents even prior to the same being marked or assigned to him by the office of Director, CFSL, as was the regular course.
(c) Keenness on the part of accused S.C.Mittal to constitute a "panel of experts" consisting of himself and accused V.K.Khanna, on 27.05.2005 itself as per the case register Ex.PW.5/M without taking into consideration that directions were given by the Court vide orders Ex.PW.6/C, to Director CFSL to constitute a panel and he did so, without any authority from Director CFSL.
(d) Overt act on the part of accused S.C.Mittal to keep the then Director CFSL, oblivious of his having C.C.No: 04 / 2011 Page No.169 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th constituted the panel of experts on 27.05.2005 itself, making no such endorsement or noting to that effect on Ex.PW.4/A, thereby keeping the Director in dark, when this letter was put up before Director, CFSL on 31.05.2005.
(e) Failure on the part of coaccused V.K.Khanna to point out this irregularity to Director CFSL and tacitly continuing as one of the experts on the panel having knowledge of the fact that Court had directed Director CFSL to constitute the panel and not to the Head of Department (Document Division).
(f) Failure on the part of accused V.K.Khanna to raise any objection and to continue as one of the panel experts and to remain silent on the factum of constitution of panel formed without authority by the Head of Department (Document Division) against the C.C.No: 04 / 2011 Page No.170 of 177 Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th established principles / norms.
(g)Deliberate inaction on the part of accused S.C.Mittal and V.K.Khanna to have the file pending with them and sitting on it, till the time the then Director CFSL Dr.S.R.Singh, proceeded on earned leave.
(h)The fact proved on record by the prosecution that when these documents were lying with accused S.C.Mittal and V.K.Khanna for examination, accused S.C.Mittal remained in constant touch over telephone with coaccused Ramesh Sharma as per the evidence of PW7, PW16, PW19, PW20, PW21, PW22 coupled with the Call detail records.
(i) The manner in which the report Ex.PW.1/A was prepared by accused S.C.Mittal and V.K.Khanna; C.C.No: 04 / 2011 Page No.171 of 177
Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th knowing and having the reasons to believe the same to be incorrect being contrary to the earlier report Ex.PW. 5/J approved by S.C.Mittal himself.
(j) The reason for which a false report Ex.PW.1/A was prepared by accused S.C.Mittal and V.K.Khanna in furtherance of the conspiracy, which they had with coaccused Ramesh Sharma, thereby intending to cause undue favor to him in the criminal proceedings initiated by Ramesh Sharma.
(k)The manner in which the report Ex.PW.1/A was prepared by accused S.C.Mittal and V.K.Khanna on 05.08.2005 itself and the way in which S.C.Mittal communicated on telephone with SHO PS Defence Colony immediately thereafter, calling upon him to arrange for collection of the report from CFSL. C.C.No: 04 / 2011 Page No.172 of 177
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(l) The manner in which the report Ex.PW.1/A was tried to be dispatched by accused S.C.Mittal, in the late evening hours of 05.08.2005 through PW1 and PW3.
(m) The manner in which PW3 was reprimanded by accused S.C.Mittal on 08.08.2005 and the way PW3 was pressurized to make an entry mark X in the dispatch register Ex.PW.3/A in back date.
(n)The manner in which accused S.C.Mittal and V.K.Khanna ; acting in concert with each other; abused their official position as public servants and attempted to obtain an advantage to their coaccused Ramesh Sharma.
C.C.No: 04 / 2011 Page No.173 of 177
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296. The cumulative effect of these facts established on record by the prosecution, are inconsistent with the innocence of the accused and are incapable of any explanation on any hypothesis other than the guilt of the accused persons.
297. The accused persons have failed to put forth any plausible explanation on record as to why they were in communication with each other on phone during the time when the questioned documents alleged to have been executed by accused Ramesh Sharma, were with the other two accused persons, for examination. For a public servant, as senior as accused S.C.Mittal was, it is not only unbecoming of a public servant to be in touch with a person whose documents are under examination but the same smells the criminal intent, which he was savouring while examining the questioned documents, for which he was aided by V.K.Khanna, co signatory to the resultant report.
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298. Sanction for prosecution of accused S.C.Mittal and V.K.Khanna, the public servants has also been proved by the prosecution through deposition of PW10, who though was cross examined, but no contentious issues qua grant of sanction were raised by Ld.Defence Counsels, during arguments.
299. Prosecution thus has been able to establish from the evidence led by it on record that accused S.C.Mittal and V.K.Khanna being public servants, in furtherance of the conspiracy which they had with coaccused Ramesh Sharma, had abused their official positions as public servants and prepared a false report knowing or having reasons to believe the same to be incorrect intending thereby that the same may cause injury to any person and thus attempted to cause pecuniary advantage to their coaccused Ramesh Sharma, without any public interest.
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Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th FINAL VERDICT:
300. Having regards to the facts and circumstances and the discussions as delineated hereinabove, I am of the opinion that CBI has been able to establish the necessary ingredients of offences with which all the three accused persons were charged on 10.05.2010.
301. All the three accused persons ie. S.C.Mittal, V.K.Khanna and Ramesh Sharma are accordingly convicted for offences punishable under section 120 B IPC read with section 167 IPC and section 15 read with section 13(1)
(d) of Prevention of Corruption Act, 1988. Accused S.C.Mittal and V.K.Khanna are also convicted for substantive offences under section 167 IPC and section 15 read with section 13(1)
(d) of Prevention of Corruption Act, 1988. C.C.No: 04 / 2011 Page No.176 of 177
Judgement in the matter of: (C.B.I. Vs. Dr.S.C.Mittal & Ors.) Dated : 04 October 2013 th
302. Let all the three convicts be heard on the point of sentence.
Announced in the Open Court
th
On the 04 Day of October, 2013.
(KANWALJEET ARORA)
SPECIAL JUDGE : C.B.I. (P.C.ACT)
DWARKA COURTS, NEW DELHI.
C.C.No: 04 / 2011 Page No.177 of 177