Delhi District Court
Cbi vs . Santosh Kumar Mishra & Anr on 2 May, 2018
IN THE COURT OF SH. MANISH KHURANA,
CHIEF METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT,
SAKET COURTS, NEW DELHI
RC No: 40A/1996
U/s : 120B/420/467/471 IPC & 420 r/w s. 511 IPC
CBI Vs. Santosh Kumar Mishra & Anr
Date of institution of case : 08.12.1998
Date of reserving of judgment : 10.04.2018
Date of pronouncement of judgment : 02.05.2018
Unique ID No. : 36/2016
J U D G M E N T
1. S. No. of the Case : 101/06/2011
2. Date of Commission of Offence : During the year 1996
3. Name of the complainant : Sh. Awdesh Saxena,
Managing Director of Ms. A S
Travels Pvt Ltd, at L.G.22,
Palika Palace, New Delhi.
4. Name,parentage & address of accused: (i) Santosh Kumar Mishra S/o Sh. N K Mishra R/o F294, New Rajender Nagar, New Delhi.
(ii) Hardeep Singh S/o Sh. Chanchal Singh, R/o VPO Amb, DistrictUna, Himachal Pradesh.
5. Offence complained of : u/s 120B/420/467/471 IPC & 420 r/w s. 511 IPC
6. Plea of Accused : Pleaded not guilty
7. Final Order : Acquitted RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 1 /25 Case of the prosecution
1. The present case came to be registered at CBI/New Delhi on 07.05.1996 upon the complaint of one Sh. Awdesh Saxena, Managing Director of Ms. A S Travels Pvt Ltd, at L.G.22, Palika Palace, New Delhi who stated in his complaint that a person introduced himself as S K Mishra, SI working at Immigration Counter at IGI Airport, New Delhi and that person came to him and instructed him to issue one air ticket from Delhi to Toronto for 12.05.1996 and that person handed over the copy of the passport no. R428281 in the name of Bhupender Prabhudas Parmar. It is further alleged in the complaint that the said person asked the complainant that he would return in the evening to collect the ticket. As per the chargesheet, the complainant was not willing to issue the air ticket in this irregular manner and he requested for necessary action against S K Mishra and Vijay Singh by registering a case against them. After registration of the case the investigation was conducted and the chargesheet was filed against accused Santosh Kumar Mishra, Hardeep Singh, Dharmender Seth and Nilesh Patel for the offence punishable u/s 120B r/w s. 420/467/468/471/474 IPC as well as for substantive offences u/s 420/468/471 IPC.
2. After the compliance of 207 Cr.PC, a primafacie case was found to be made out against accused Santosh Kumar Mishra, Hardeep Singh and Nilesh Patel and charge u/s 120B r/w s. 420/467/471 IPC and for the offence u/s 471 r/w s. 461 ICP & u/s 420 r/w s. 511 IPC was framed against aforesaid accused persons vide order dated 28.01.2004 of Ld Predecessor to which accused Santosh Kumar Mishra and Hardeep Singh pleaded not guilty and claimed trial.
RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 2 /25 However, accused Nilesh Patel pleaded guilty and he was convicted and sentenced by Ld Predecessor on the same day. It is pertinent to mention that accused Dharmender Seth was discharged vide order dated 05.12.2003 passed by Ld Predecessor of this Court.
3. In order to substantiate and prove its case against the accused persons, prosecution examined as many as 13 witnesses.
4. PW1 Sh. Bhupender Prabhudas Parmar deposed that he was doing the business of seat covers and one Mukesh who was known to him introduced him to one Ajay Bhai who came to him and got some forms filled up for obtaining the passport in his name. He stated that he handed over his photographs to him. This witness was shown the passport application form and the annexures Ex.PW1/A bearing his signatures at point Q8 and Q8A and he stated that the photograph appearing on this document was his genuine photograph and that it bears his signatures at point D2. He was also shown the passport verification letter Ex.PW1/B bearing his genuine photograph MarkA1 and he stated that he had not submitted any letter MarkF1 for urgent delivery of passport by hand. This witness was also shown the personal particular form Ex.PW1/C bearing his signatures at point Q11. He stated that at the time of signing the passport application he handed over the copy of his ration card and school leaving certificate to Ajay Bhai. He further stated that he had not filled up the particulars in the passport application form or in the personal particular form and he stated that the address mentioned in the passport application form was not his genuine address and he never resided at the said address. He further stated that he never visited passport office and he never received the passport either by hand or by post. This RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 3 /25 witness was shown the passport MarkH1 and he stated that the photograph affixed on the passport was not his photograph but he stated that the signatures on the page 1 of the passport were his genuine signatures. He stated that he had never seen this passport and he never went abroad. He stated that he was called by CBI in connection of investigation of the present case and he stated that he gave his specimen handwriting and signatures on Ex.PW1/D1 to Ex.PW1/16. He stated that he did not know as to who changed the photograph on the passport MarkH1. This witness was not cross examined by Ld defence counsel for both the accused persons.
5. PW2 Shriprasad, Inspector CBI deposed that he was posted as SubInspector in the CBI in the year 1996. This witness was shown the searchcumseizure memo dated 17.05.1996 Ex.PW2/A, Ex.PW2/B and Ex.PW2/C and recovery memos dated 07.05.1996 Ex.PW2/D to Ex.PW2/I. He stated that he joined the search as per order of SP, CBI, ACB, New Delhi and he stated that he reached at the spot at about 3.30 pm. He stated that the raiding party consisted of raiding party Incharge Ved Prakash and two independent witnesses Sh. R K Aggarwal and Sh. H C Mishra who were called from FCI Department. He further stated that the raiding party visited Palika Palace, Panchkuinya Road, New Delhi alongwith Awdesh Saxena and all the legal formalities of search were completed. This witness was not cross examined by Ld defence counsel for both the accused persons. PW2 was recalled for his further examination and he was examined on 07.01.2018 but his cross examination was not conducted and this witness did not appear thereafter and therefore his testimony cannot be read in evidence.
RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 4 /25
6. PW3 Mam Chand deposed that at the time of registration of the present case he was working at Sea Bird Guest House at 4229, Tail Mandi, Paharganj, New Delhi as a waiter. He stated that he was working in the said guest house for last 67 months in the year 1996 and he stated that he used to reside in the said guest house but he used to go home at night some times. He identified accused S K Mishra who used to come to the said guest house for the purpose of making phone call from the PCO in the said guest house. He stated that he did not have any idea regarding the type of talks accused S K Mishra used to do while making the call. Ld APP for the CBI sought permission to cross examine this witness as he was resiling from his earlier statement u/s 161 Cr.PC recorded by the IO during investigation. During his cross examination by Ld APP for the CBI he stated that he could not tell as to what type of talks accused S K Mishra used to do while talking on phone. He was shown his statement u/s 161 Cr.PC given to CBI but he could not recognize the same. He denied that he had been won over by the accused persons and that was why he was not telling the true facts. This witness was not cross examined by Ld defence counsel for both the accused persons.
7. PW4 Subhash Chand Mishra deposed that at the time of registration of the present case he was working as AGII, FCI (HQ), Delhi and on the order of HQ FCI (Vig) he and one Mr. Aggarwal visited CBI office and upon reaching there he met with IO Inspector Ved Prakash who introduced him to the complainant Awdesh Saxena where some papers were shown to him regarding forgery of the passport but he could not tell the details thereof. He stated that he was taken to Palika Palace alongwith the complainant where RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 5 /25 there was an agency namely A S Traveler of the complainant. He stated that a raid was conducted and a memo was prepared at the spot which is Ex.PW4/A. He stated that he alongwith the IO Inspector Ved Prakash went inside the office of the complainant and one person namely Mishra Ji came inside the said office who was holding the said passport and when he saw the CBI team, the said accused Mishra Ji threw the passport from his hand. He also stated that one Hardip Singh also entered into office of the complainant alongwith Mishra Ji. He stated that upon interrogation by the CBI officials, the accused persons disclosed that the photograph on the passport was of Nilesh Patel and the passport belonged to one Bhupender Prabhudas Parmal. He further stated that accused persons disclosed that Nilesh Patel was residing in Delux Lahorimal Hotel, Paharganj Delhi and a raiding team went to the said hotel at Paharganj. This witness was shown documents D3 Ex.PW2/D, D4 Ex.PW2/F, D6 Ex.PW4/B, disclosure memo which is part of document D6 Ex.PW4/C, D7 Ex.PW4/D, D8 Ex.PW4/E, D9 Ex.PW4/F, D12 Ex.PW4/G, D15 Ex.PW4/A, D16 Ex.PW4/I, D17 and its part which are Ex.PW2/A and Ex.PW4/J respectively and D39 Ex.PW4/K and he identified his signatures over the aforesaid documents. During his cross examination by Ld defence counsel he stated that his statement was recorded by CBI official in CBI office on 08.05.1996. He did not remember as to how many documents were signed by him in the present case. He further stated that the passport in question was recovered from Hardip Singh and Santosh Kumar Mishra. He stated that the passports pertained to Nilesh Patel, Bhupender Prabhudass, Dharmender Seth and others. He stated that he signed two cheques which were recovered from RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 6 /25 Santosh Kumar Mishra and Hardip Singh. He stated that he signed all the papers on 07/08.05.1996 alongwith other independent witnesses. He did not remember the colour of cloth worn by complainant Awdesh Saxena on the said date. He could not tell the number of employees present in the travel agency of the complainant on the said date and he also could not tell whether the neighbourers of the said travel agency were called by CBI or not to become a witness. He could not tell as to whether any police official was called from the nearby police station. He stated that he never went to the house of accused Santosh Kumar Mishra nor he signed any paper at his residence. He also stated that he never went to the residence of accused Hardip Singh. He stated that he reached at CBI office at 1.00 pm and he again said that he reached there at 3.00 pm. He stated that he went to CBI office alongwith Sh. R K Aggarwal and the total proceedings continued till 9.0010.00 pm. He could not tell the name of owner of A S Travels and he did not remember the number of passports seized by CBI from the office of A S Travels. He did not remember the place where he signed the abovesaid two cheques or the place from where those cheques were recovered. He admitted that he had no knowledge regarding the conversation which took place between the complainant and the accused prior to entering the office of the complainant. He stated that he entered the office of the complainant at about 3.30 pm but he again said that he entered at 5.30 pm. He stated that accused Mishra came in white Maruti car who met the complainant but he could not tell its registration number. He could not tell the number of the office of the complainant or its exact location. He stated that one or two passports were recovered during the raid and the entire RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 7 /25 proceedings took about half an hour. He could not tell the number of passports recovered by the CBI at the time of incident. He denied that he was not present at the time of raid alongwith CBI and he also denied that he was deposing falsely under pressure of CBI to implicate the accused persons.
8. PW5 R P Kakkar deposed that in the year 1995 he was posted as Public Relation Officer in Regional Passport Office, R K Puram, New Delhi and during investigation of this case he was called by CBI officials for some inquiry. This witness was shown the document D22 Ex.PW5/A i.e the letter of regional passport office reference no. A5221/93POL.GR.II dated 10.05.1996 on which he identified his signatures at point A. He stated that on the said letter he gave the verification report of passport numbers 629230, 747677 and Q482033. During his cross examination by Ld defence counsel he admitted that he could not tell anything about this case. He could not tell the name of the persons regarding whom the verification report was submitted vide document Ex.PW5/A. He admitted that he was not able to tell the number of passports at this stage.
9. PW6 Raj Singh deposed that he was working as Assistant Passport Officer, Regional Passport Officer, Bhikaji Cama Place, New Delhi and in the year 1998 he was posted as Assistant in Policy Section, RPO, Bhikaji Cama Place, New Delhi. He identified his signatures over the seizure memo dated 29.05.1998 Ex.PW6/A. He stated that vide said seizure memo he gave certain documents to Inspector Ved Prakash of CBI. During his cross examination by Ld defence counsel he stated that he had not given any document to CBI. He stated that vide a seizure memo Ex.PW6/A certain RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 8 /25 documents were provided by him to Inspector Ved Prakash but he could not tell the details of the said documents.
10. PW7 Surender Kumar deposed that in the year 199394 he was working as UDC in Writing Section in Passport Office and the In charge, Passport used to send blank passports with file to the dealing section from where the blank passports were distributed to the dealing Incharge for writing the particulars of the applicant on the passports as per the file/application. He stated that thereafter the entry was made in the concerned register and the passports were stamped by the concerned Superintendent. He stated that the passports alongwith concerned passport files were sent to pasting sections and no receipt register was maintained in the pasting section and the files alongwith passports were given to any official in the said section. He stated that thereafter the passport alongwith the files were sent back to the concerned Superintendent for signatures and then the passports were sent to dispatch section for sending them through registered post or on the special order of RPO, the passports were also handed over to concerned person at the counter after getting his signatures. He stated that thereafter the files were sent to the record room after dispatch. This witness was not cross examined by Ld defence counsel for the accused persons.
11. PW8 Budh Prakash deposed that once he was called by CBI officials at CBI office for the purpose of signing some documents. He identified his signatures over the Ex.PW8/A (D18). He stated that one lineman Kanwar Bhan from his department also accompanied him during the search and he stated that initially he was not told about the place of raid but later on he came to know that they were RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 9 /25 taken to 7K, Police Colony, Model Town, Delhi. He stated that the officials started conducting search of the premises and two ladies from the family of the occupiers of the flat were also present at that time. He stated that during the search some photocopies of documents and cash amount of approximate Rs.40,000/ Rs. 50,000/ was recovered from the bedroom and Rs. 20,000/ Rs. 25,000/ was recovered from the kitchen of the said premises. He also stated that after completion of the search, a searchcumseizure was prepared on the spot by CBI officials and he was present at that time. He identified his signatures as well as signatures of Kanwar Bhan on the document Ex.PW8/A. During his cross examination by Ld defence counsel he admitted that the document was not executed in his presence and it was already typed when he signed the same. He admitted that he was not aware of its contents. He stated that he started from his office at 10.30 pm and he admitted that all the proceedings were conducted at night. He stated that the proceedings started at 11.00 pm and lasted till 4.00 am. He admitted that he had not personally searched the said premises but he was only present there. He also admitted that only photocopies of the documents were recovered during the raid and no original documents were recovered. He did not know about the contents of the said photocopies of the documents. He denied that he never joined any raid or that nothing was recovered in his presence.
12. PW9 S K Peshin deposed that in the year 1996 he was working as DSP/ACB/CBI, New Delhi and he was directed by the then SP Sh. Kumudi to conduct part investigation in case RC No. 40/96/ACB, Delhi which was under investigation with Sh. Ved Prakash, the then Inspector CBI. He stated that during the course of RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 10 /25 investigation he recorded statement of complainant Awdesh Kumar and one Mam Chand, employee of Sea Birds Guest House, Paharganj, Delhi. He identified the signatures and writing of the then SP Sh. Kumudi on the complaint made by Awdesh Saxena to SP, CBI. He also identified his signatures on the statement of Mam Chand and complainant Awdesh Saxena which was recorded on 23.05.1996. He stated that apart from this he interrogated accused S K Mishra and Hardeep Singh. During his cross examination by Ld defence counsel he stated that he interrogated both the accused persons in CBI ACB office, CGO Complex, New Delhi. He could not tell the exact age of complainant Awdesh Saxena and he stated that the complainant might be of 3035 age. He stated that he did not get any paper signed from Awdesh Singh or Mam Chand. He could not tell the day on which he examined the complainant Awdesh and Mam Chand. He could not tell anything about the cloths of the complainant or that of the Mam Chand or the accused. He could not tell the age of PW Mam Chand when the statement of Mam Chand was recorded u/s 161 Cr.PC by him. He denied that he had not conducted any investigation in the present case.
13. PW10 Leena Murza deposed that in the year 2001 CBI officials made some inquiries from her at Gandhi Nagar, Gujarat but she could not remember as to whether it was in respect of the present case or not. During her further examination she deposed that CBI officials recorded her statement and that during the year 1993 she was working as Writer in the Regional Passport Office, Ahmedabad and her job profile was to write/fill the particulars of the passport as per the application submitted by the applicant for obtaining the passport. She deposed that during the relevant period Ms. R P RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 11 /25 Jathar, Superintendent was the official who looked after the work of stamping and writing of the passport. This witness was shown the document already Ex.PW1/A (D27) and she identified her signatures thereon. She was shown the passport no. R428281 Ex.PW10/A and she identified her writing on the pages thereof and she also identified the signatures and official stamp of Ms. R P Jathar. She stated that after seeing the aforesaid passport and the application form, it is revealed that the photograph pasted on the passport and on the application form were of different persons. During her cross examination by Ld defence counsel she admitted that she also appeared before the Court for her deposition on 04.04.2016. She could not tell the exact date as to when her statement was recorded by the CBI. She did not remember the name of the CBI official who recorded her statement. She admitted that apart from the writing and stamping of the passport, she had no other duty to perform. She stated that the passport pasting work used to be carried out later in the pasting section. She stated that when the passports were provided to her for writing work it used to be blank booklet without any photograph and photograph used to be affixed subsequently by the pasting section.
14.PW11 B K Pradhan, DSP, CBI deposed that on 07.05.1996 he was authorised by the senior officials to conduct the search of room no. 4, Hotel Lahorimal Delux, Paharganj and he proceeded towards the spot alongwith CBI officials and independent witnesses and started the search at 9.15 pm and concluded it at 10.00 pm and accused Nilesh Patel was present during the search during which certain documents were seized by the CBI team alongwith two cheques amounting to Rs. 4 Lacs and Rs. 60,000/ respectively and the said RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 12 /25 cheques were signed by one D. Seth. He further deposed that he recorded the disclosure statement of accused Hardip Singh and Nilesh Patel and the statement of one witness Sanjay Rana who was the owner of the aforesaid hotel. This witness was shown document D1 Ex.PW11/A, D2, D3 Ex.PW2/D, D4 Ex.PW2/F, D5 Ex.PW11/B, D6 Ex.PW4/B, D7 Ex.PW4/D, D8 Ex.PW4/E, D9 Ex.PW4/F, D10, D11 Ex.PW11/C, D13 Ex.PW11/D, D14 Ex.PW11/E, D15 Ex.PW4/A, D16 Ex.PW4/I, D18 Ex.PW8/A, D19 Ex.PW11/F, D20 Ex.PW11/G, D25 Ex.PW6/A, D29 Ex.PW11/I, D30 Ex.PW11/H, D31 Ex.PW11/J, D32 Ex.PW11/K, D33 Ex.PW1/D1 to Ex.PW1/D16. He also identified the signatures of Inspector Ved Prakash in respect of witnesses recorded u/s 161 Cr.PC. During his cross examination by Ld defence counsel he stated that he had signed only 810 papers in the present case and he could not tell the age of Sandeep Rana at that point of time. He admitted that he was not the IO of the present case. He could not tell the name of other CBI officials who were present at the time of raid but he stated that S C Mishra was the independent witness. He stated that as far as he remembered, accused Nilesh Patel was present during his search conducted at Lahorimal Delux Hotel, Paharganj. He stated that apart from the search in the Hotel, a search was also conducted at PCO of Hotel Seabird, Paharganj. He could not tell as to who was inquired at the PCO. He stated that the signatures of independent witnesses were obtained on the seizure memos but he could not tell their names. He stated that the disclosure statements of accused persons were recorded in CBI office. He admitted that at the time of abovesaid searches Inspector Ved Prakash was not present. He admitted that the document D10, D11, D12, D13, D14, D15, D19, RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 13 /25 D20, D25, D29, D30, D31 and D32 were not prepared in his presence nor he signed the same. He admitted that he was not associated with the main IO in respect of the investigation of the present case and he stated that his role was limited to the recording the further disclosure statements of the accused persons and conducting search in the abovesaid hotel and PCO at Paharganj. He admitted that SP VSK Kamaudi did not sign the documents in his presence. He admitted that he was not associated in the search conducted at the premises of accused S K Mishra and Hardip Singh. He denied that he was deposing falsely to implicate the accused persons or that he was not associated with the investigation of the present case. He denied that all the papers exhibited by him were prepared in the CBI office or that the signatures of the independent witnesses were obtained later on.
15.PW12 Sh. P S Kharadi deposed that in the year 1997 he was working in Passport Office, Ahmadabad as PRO and his statement was recorded by CBI officials in the present case. He identified his signatures over the document D26 Ex.PW12/A which is the letter addressed to Inspector of Police, CBI vide which certain information was provided to CBI regarding some passport. This witness also identified his signature over document D27 Ex.PW12/B i.e the letter dated 04.11.1996 which was sent to CBI office, Delhi vide file no. 24/536/A1/94. After seeing the passport bearing no. R428281 as well as application form pertaining to the said passport, he stated that the photograph on the said passport and on the passport application form is of different person. He also identified the signatures and the officials stamp of Ms. R P Jathar, the then Superintendent who signed the said passport at point D. He stated that during the RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 14 /25 investigation of the present case he addressed the abovementioned two letters to CBI and provided certain documents as required by CBI. He also stated that the factum regarding the change of photograph of Bhupender Prabhudas Parmar on passport no. 428281 was already intimated to CBI vide document PW12/A. During his cross examination by Ld defence counsel he admitted that Ms. R P Jathar did not sign the passport of Bhupender Prabhudas Parmar in his presence nor the said passport was prepared in his presence. He stated that he had not signed any document when his statement was recorded by CBI in the present case. He stated that when his statement was recorded in the present case he was officiating RPO in Passport Office, Ahmadabad.
16.PW13 I D Sharma, Retd. CBI Inspector deposed that on 07.05.1996 concerned SP CBI directed him to meet Inspector Ved Prakash, IO of the present case regarding some search to be conducted by CBI team and about 1.00 pm he met Inspector Ved Prakash who introduced him with the complainant Sh. Awdesh Saxena and thereafter the complaint was read over to him and photocopies of some passports were shown to him. He did not remember as to whom the said photocopies of passports pertained to and he stated that a search memo was executed vide which the complainant and the said copies of passports were seized by Inspector Ved Prakash. He stated that at about 3.00 pm they all left the CBI office for the purpose of search in Palika Kendra where he was directed to remain present outside the office cabin of Awdesh Saxena and one independent witness namely Mr. Aggarwal was directed to remain present inside the cabin to listen the conversation of the complainant and the accused persons. He stated RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 15 /25 that he and the independent witness were directed to enter the office of the complainant at the signal of IO. He further stated that at about 5.50 pm one person entered in the office cabin of the complainant and some conversation took place and thereafter that person told the complainant that he would visit the complainant after 510 minutes and that person again came alongwith one other person in the cabin of the complainant Awdesh Saxena and passport was shown to the complainant and at the signal of the IO the entire CBI team alongwith independent witness entered in the office premises of the complainant and the passport was seized by CBI. He stated that the passport was given to the complainant by S K Mishra but he stated that the same might have been signed either by S K Mishra or by Hardip Singh. He stated that accused Hardip Singh disclosed during the investigation that he had given Rs. 50,000/ to S K Mishra for affixing ticket on the passport of Nilesh Patel and this money was recovered from the house of S K Mishra by another team of CBI which was seized vide seizure memo Ex.PW4/A. He also stated that at the time of raid at the office of the complainant at Palika Kendra, the Maruti car of S K Mishra was seized by the IO vide seizure memo Ex.PW2/I and during the investigation accused Hardip disclosed to the IO that at the relevant point of time Nilesh Patel was staying at Paharganj in Hotel Delux. He stated that during the raid at the office of the complainant one passport having photograph of Nilesh Patel was found which was seized by the IO vide seizure memo Ex.PW4/A. During his cross examination by Ld defence counsel he could not tell as to who signed on the passport and he admitted that the sum of Rs. 50,000/ was not given in his presence and that he had not signed on the RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 16 /25 recovery memo of Rs. 50,000/. He could not tell as to who signed the said recovery memo. He admitted that Hardip was not present at the time when the aforesaid proceedings took place in the office of the complainant and he could not tell the time of arrival of Hardip at the office of the complainant. He admitted that he was outside the cabin of the office of the complainant and that he was not personally known to Nilesh Patel. He admitted that he never met with Nilesh Patel and that he did not know as to who pasted the photo of Nilesh Patel on the passport. He admitted that he had no knowledge of the conversation between complainant Awdesh Saxena and S K Mishra as he was outside the cabin. He stated that he left the office of Awdesh Saxena at 8.30 pm. He could not tell as to how many papers were signed by him at the office of the complainant and he stated that he never participated in the investigation of this case after that day. He admitted that the sum of Rs. 50,000/ was not recovered in his presence and no other statement was recorded in his presence. He stated that when the Maruti car was seized by the IO, he came to know that it was used by accused Hardip Singh and S K Mishra to visit the office of the complainant. He could not tell the registration number of said Maruti car and he could not tell as to who took the said Maruti car from the spot to CBI office. He denied that he was deposing falsely or that he was not present at the office of the complainant Awdesh Saxena.
17. Thereafter, PE was closed and statement of accused persons were recorded u/s 313 Cr.PC during which all the incriminating evidence was put to the accused persons which they denied in its entirety and claimed innocence and stated that they were falsely implicated in RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 17 /25 this case. Accused persons did not lead defence evidence.
18. I have heard Ld. PP for the CBI and Ld. Counsel for accused persons and also gone through the record carefully.
Finding of the Court
19. The present case was registered on 07.05.1996 upon the complaint made by Sh. Awdesh Saxena, Managing Director of Ms. A S Travels Pvt Ltd, at L.G.22, Palika Palace, New Delhi who stated in his complaint that a person came to him and introduced himself as S K Mishra, SI working at Immigration Counter at IGI Airport, New Delhi and instructed him to issue one air ticket from Delhi to Toronto for 12.05.1996 and that person handed over the copy of the passport no. R428281 in the name of Bhupender Prabhudas Parmar. Further, as per the chargesheet the complainant was not willing to issue the air ticket in this irregular manner and he requested CBI for necessary action against S K Mishra and Vijay Singh by registering the case against them. After registration of the case the investigation was conducted and the chargesheet was filed against accused Santosh Kumar Mishra, Hardeep Singh, Dharmender Seth and Nilesh Patel for the offence punishable u/s 120B r/w s. 420/467/468/471/474 IPC as well as for substantive offences u/s 420/468/471 IPC. After hearing arguments on charge, the charges u/s 120B r/w s. 420/467/471 IPC as well as for substantive offences u/s 471 r/w s. 467 & u/s 420 r/w s. 511 IPC were framed against accused Santosh Kumar Mishra, Hardeep Singh and Nilesh Patel vide order dated 28.01.2004.However, accused Nilesh Patel pleaded guilty and he was convicted and sentenced by Ld Predecessor vide order dated 28.01.2004. It is pertinent to mention that accused Dharmender Seth was discharged vide order dated RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 18 /25 05.12.2003 passed by Ld Predecessor of this Court.
20. As per the charges framed and the case put forth by the prosecution, the accused persons entered into the criminal conspiracy to send co accused Nilesh Patel abroad on the basis of a forged passport as well as for deceiving and cheating airlines agent and immigration authority by using the forged documents. Further, the accused persons allegedly converted the passport no. R428281 issued to Bhupendra Prabhudass Parmar into a passport of Nilesh Patel by substituting the photograph of Nilesh Patel in place of B P Parmar on the said passport and they used the said passport as genuine by giving the same to travel agent/complainant Awdesh Saxena on 07.05.1996 for booking the air tickets in favour of Nilesh Patel from New Delhi to Toronto. Further, the accused persons in pursuance of the alleged criminal conspiracy attempted to cheat the complainant Awdesh Saxena in the aforesaid manner by obtaining the air ticket from him and thereby the accused persons committed the alleged offences.
21. Therefore, as per the allegations of the prosecution the accused Santosh Kumar Mishra and Hardeep Singh who are facing the trial hatched the criminal conspiracy to send coaccused Nilesh Patel abroad on the basis of forged passport and they forged the passport issued to B P Parmar by substituting the photograph of Nilesh Patel thereupon and they used the said passport by giving the same to the complainant Awdesh Saxena for issuance of air ticket in the name of Nilesh Patel and the accused persons thereby attempted to cheat the complainant Awdesh Saxena.
22. Section 470 IPC defines forged document as a false document made by forgery. The term "forgery" is defined in Section 463 as whoever RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 19 /25 makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be committed, commits forgery.
23. The condition precedent for the offence u/s 468/471 IPC is forgery and the condition precedent for forgery is making of a false document. The making of false document is explained in Section 464 of IPC.
24. An analysis of section 464 of the Penal Code shows that it divides making of false documents into three categories.
25. The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
26. The second is where a person dishonestly or fraudulently, by cancellation of otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
27. The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practiced upon him, know the contents of the document or the nature of the alteration.
28. In short, a person is said to have made a "false document", if (i) he made or executed a document claiming to be someone else or authorized by someone else; (ii) where a person dishonestly or RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 20 /25 fraudulently, alters a document in any material part, without lawful authority; (iii) he altered or tampered a document or he obtained a document by practicing deception, or from a person not in control of his senses.
29. To prove the allegations, the prosecution/CBI has examined as many as 13 witnesses, however, the complainant Awdesh Saxena could not be examined by the prosecution/CBI. The prosecution has examined Bhupendra Prabhudass Parmar as PW1 whose passport was allegedly forged by the accused persons. The testimony of PW1 B P Parmar reveals that he deposed that one Mukesh who was known to him introduced him to one Ajay Bhai who got some forms filled up from him for obtaining the passport in his name and he handed over his photograph to Ajay Bhai. He identified his signatures over the passport application form Ex.PW1/A and the passport verification letter Ex.PW1/B on which his photograph was affixed. However, he stated that he did not submit any letter Mark F1 for urgent delivery of the passport by hand. He also stated that at the time of signing the passport application form he also handed over the copy of his ration card and school certificate to Ajay Bhai. He categorically stated that he did not know as to who changed the photograph in the passport MarkH1.
30. Therefore, as per the testimony of PW1 there was no involvement of any of the accused persons who are facing the trial in making or forging the alleged passport which was issued in the name of B P Parmar. As per the testimony of PW1 B P Parmar he signed the passport application form and handed over his documents to one Ajay Bhai at the behest of one Mukesh who have not been chargesheeted in the present case. The prosecution/CBI has failed to RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 21 /25 establish or prove any link between abovesaid Mukesh or Ajay Bhai and the accused persons herein so as to prove the element of criminal conspiracy as alleged by the prosecution. Further, PW1 B P Parmar who is the only public and independent witness examined by the prosecution has categorically deposed that he did not know as to who changed the photograph in the passport MarkH1. Hence, there is no evidence on record to prove that the alleged act of forgery was done by any of the accused persons herein or that the photograph over the passport MarkH1 seized by the IO was changed by any of the accused persons herein.
31. The remaining witnesses examined by the prosecution deposed regarding the alleged recovery of abovesaid passport from the possession of accused Santosh Kumar Mishra and Hardeep Singh. Even if the testimonies of remaining PWs examined by the prosecution are believed to be true, there is no evidence on record to prove the fact that any of the accused persons forged the alleged passport MarkH1 with an intention to cheat the complainant.
32. Further, as per the allegations the accused persons used the forged passport no. R428281 issued to B P Parmar as genuine by giving the same to the travel agent i.e the complainant Awdesh Saxena for booking the air ticket from Delhi to Toronto for Nilesh Patel. However, the complainant Awedesh Saxena has not been examined in the present case so as to prove the aforesaid allegations.
33. Ld PP for CBI stated that PW4 Subhash Chand Mishra deposed that the accused persons during the interrogation by CBI officials disclosed that the photograph on the passport MarkH1 was of Nilesh Patel whereas the passport actually belonged to B P Parmar and Ld PP for CBI also stated that as the alleged passport was RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 22 /25 recovered from the possession of accused person therefore it may be presumed that the accused persons used the forged passport. So far as the aforesaid arguments raised by Ld PP for CBI are concerned, I am of the opinion that the confessional statement made during police custody by any of the accused persons cannot be relied upon to prove the allegations. Further, there is no witness on record to prove the allegations that any of the accused persons used the forged passport as genuine so as to prove the allegations u/s 471 IPC r/w s. 467 IPC as alleged by the prosecution.
34. Further, the prosecution has also alleged that the accused persons attempted to cheat the complainant Awdesh Saxena by providing him the forged passport for obtaining the air tickets in favour of Nilesh Patel. However, the complainant Awdesh Saxena has not been examined by the prosecution and the PW1 B P Parmar whose passport MarkH1 was allegedly forged has not stated any fact during his testimony to incriminate any of the accused persons herein. Remaining witnesses examined by the prosecution are formal witnesses and they have not deposed regarding alleged attempt to cheat the complainant Awdesh Saxena so as to prove the allegations u/s 420 r/w s. 511 IPC.
35. The prosecution has not examined any witness to prove that the alleged forged passport on record bears the handwriting of any of the accused persons nor has it been proved that the photograph on the aforesaid passport was changed by any of the accused persons nor has it been proved that the said passport was used/given by either of the accused persons to the complainant Awdesh Saxena as alleged. So far as the allegations of criminal conspiracy u/s 120B IPC is concerned, the same could have been proved by of RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 23 /25 circumstantial evidence or by way of the testimony of an approver. However, in the case in hand, neither the circumstances nor any of the witness examined by the prosecution revealed that the accused Santosh Kumar Mishra and Hardeep Singh were even known to each other. Even PW1 B P Parmar whose passport was allegedly forged did not depose anything incriminating against any of the accused persons.
36. In the judgment of State of Tamilnadu Vs. Nalini, 1999 CRLJ 3124, Hon'ble Supreme Court observed that the first condition which is almost the opening lock of the provision u/s 10 of the Evidence Act is the existence of "reasonable ground to believe" that the conspirators have conspired together.
37. Section 10 of Indian Evidence Act provides that where there is a reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by anyone of such person in reference to their common intention, after the time when such intention was first entertained by anyone of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was party to it.
38. In the case in hand there is no reasonable ground to believe that the accused persons have conspired together as no evidence has been brought on record to show that the accused persons were known to each other nor has it been proved that the accused persons forged the passport or used the same pursuant to the alleged criminal conspiracy.
39. In view of the abovesaid discussion, I have no hesitation to hold that RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 24 /25 prosecution has miserably failed to prove its case and accused persons are entitled to be acquitted.
40. Accordingly, both the accused persons namely Santosh Kumar Mishra and Hardeep Singh stand acquitted for the offence punishable u/s 120B r/w s. 420/467/471 IPC, u/s 471 r/w s. 467 IPC & u/s 420 r/w s. 511 IPC.
Announced in the open Court Today on 02.05.2018 (Manish Khurana) CMM/ District Court, Saket New Delhi/02.05.2018 RC No : 40A/1996 CBI Vs. Santosh Kumar Mishra & Anr 25 /25