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Delhi District Court

Cbi vs . Ravi Dutt Pathak on 8 April, 2019

                  IN THE COURT OF SH. AMIT ARORA
           ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
                   KARKARDOOMA COURTS, DELHI.

                           CBI Vs. RAVI DUTT PATHAK

                                                          RC No.5(S)/2000/SCB-I
                                                                        PS: CBI
JUDGMENT:

   A New Case No.                    4437/16
       Name of the Complainant       Ms. Meera Shankar (Joint Secretary
   B
                                     M.E.A.)

Name of the accused & Ravi Dutt Pathak s/o Sh. Ram Dass C their parentage and address Pathak R/o 95, AGCR, Enclave, Delhi D Offence complained of : 469/465/471 IPC Date of commission of from 1996 to year 2000 E offence F Date of Institution 06.05.2002 G Offence charged 469/465/471 IPC H Plea of the accused Pleaded not guilty I Order Reserved on 15.02.2019 J Date of pronouncement 08.04.2019 Final Order Acquitted of offence u/s K 469/465/471 IPC BRIEF STATEMENT OF THE REASONS FOR THE DECISION ALLEGATIONS

1. Case RC 5-S-2000-SCB/1 Delhi was registered on 27.12.2000 on a complaint referred by Ms. Meera Shankar (PW11) then Joint Secretary, Ministry of External Affairs vide its letters dated 16.11.2000 Ex. PW11/B and 12.12.2000 to the CBI in the wake of several forged anonymous / pseudonymous complaints/letters which were being addressed/received CBI VS. RAVI DUTT PHATAK Page No. 1/33 by the Ministry and other political personalities regarding irregularities in the functioning of B.P. Koirala, Institute of Health Services (BPKISH) Dharan, Nepal. PW11 Ms. Meera Shankar, J.S. MEA, informed to the CBI that there have been several instances of false complaints against B.P. Koirala Institute of Health Services, Dharan, Nepal and its personnel. Such pseudonymous complaints/anonymous letters were examined at different levels, but the allegation mentioned were found to be baseless. She further reported that the forged complaints have purportedly being either written or engineered by one Ravi Dutt Pathak, who was on deputation to BPKISH as Private Secretary to Chief Engineer with CPWD. She also reported about the possible involvement of Jagdish Chandra who was earlier (Accounts officer). The complaint also mentioned that such forged letters had a nuisance value and unless these are checked, they have potential of creating a situation which may adversely effect India's bilateral relationship with Nepal.

2. It is pertinent to note that the Government of India in terms of bilateral agreement had funded and implemented the construction of B.P. Koirala Institute of Health Services at Dharan, Nepal which was one of the most prestigious project in the health sector in Nepal. It was found that several forged letters were being received in the Ministry, various political personality (Ministers of GOI) as well as to the press thereby leveling serious allegations against the projects and the officials associated with it. A brief look a the complaints shows that they were primarily against Sh. D.V.S. Sarma, Sh. V.K. Kapoor, Sh. P.N. Singh etc. Acting on the complaints of PW11, CBI registered present FIR. During investigation, it was revealed that BPKISH project was one of the projects in Health Sector in Nepal which was being aided by Govt. of India. For this purpose a team of engineers and other officers were CBI VS. RAVI DUTT PHATAK Page No. 2/33 appointed on deputation by CPWD headed by Sh. D.V.S. Sarma (PW7), Chief Engineer. The other engineers were Sh. V.K. Kapoor (PW6), Sh. TPH Menon (PW12), Sh. P.K. Singh, Sh. K.G. Ramamurthi and Dr. K.N. Sharma (PW4) was the project consultant. Similarly, Sh. Ravi Dutt Pathak, Private Secretary and Sh. Jagdish Chand Sharma (PW13), Senior Accounts Officer from CPWD were also appointed on deputation beside other staff. While the project was being carried out, anonymous letters/complaints were received against the project and its personnel. MEA deputed a team for spot verification who visited Dharan, Nepal in July, 1996 and found the allegation as baseless.

3. As per the charge-sheet, the contents of the complaints and the enclosure indicated the possibility of involvement of officials within the project particularly Ravi Dutt Pathak, the then PS to the Chief Engineer. Moreover, prior to writing to the CBI, those complaints were sent to FSL for comparison of signatures of Ravi Dutt Pathak and the FSL opined strong possibility of Sh. Ravi Dutt Pathak being the author of the complaints. It is further stated that out of the 16 complaints, 3 complaints were found to be forged by the accused with the intention to defame the project and the opinion of handwriting expert corroborated the same. The said three complaints are addressed to Sh. Jagmohan, Minister for Urban Development (complaint dated 01.05.1999 purportedly issued by Dr. Shekhar Koirala, MD Nepal), complaint addressed to Controller General of Accounts, MEA (purportedly issued by Sh. L. Subrahmanium) and the complaint addressed to Sh.N.Partha Sarthy, Addl. Secretary, Ministry of Urban Development (purportedly issued by Dr. Bajrang Lal). The purported Signatories have denied to have signed the complaints.

4. As per the charge-sheet, the residential premises of Ravi Dutt Pathak and Jagidish Chand Sharma were searched and incriminating CBI VS. RAVI DUTT PHATAK Page No. 3/33 documents were seized from the possession of accused Ravi Dutt Pathak (vide seizure memo Ex PW16/4) which included blank letter pads, official correspondence of BPKISH, many computer printouts of incomplete complaints which have been tallied with the original pseudonymous complaint addressed to the Ministers and Bureaucrats. It is further stated that some seized documents from the possession of accused Ravi Dutt were sent to GEQD for examination and GEQD has opined that the printed matter in the red enclosed portion tally verbatim and super impose on each other. It was further alleged that number of blank letter pads of BPKISH projects were seized from the possession of Ravi Dutt Pathak.

5. Charge sheet further states that during investigation it was found that the accused Ravi Dutt was private secretary to the chief engineer and he was having possession to all the documents. It was also stated that the witnesses have stated that accused Ravi Dutt also had grudge against Sh. D.V.S. Sharma and Sh. V.K. Kapoor.

6. Upon conclusion of investigation, charge-sheet was filed against accused Ravi Dutt Pathak u/s 465/469 r/w 471 IPC. As no sufficient evidence was found against Jagdish Chand Sharma, he was not charge-sheeted.

7. Accused was summoned to face trial and was supplied the copy of charge sheet.

8. Thereafter, vide order dated 30.03.2007, charges u/s 465/469 r/w 471 IPC were ordered to be framed against the accused. Charges were framed on 11.08.2008. Thus, the accused has been charged as under :

Firstly, during the period 24.08.95 to 26.08.96 while working as PS to Chief Engineer, BP Koirala Institute of Health Services, Nepal he forged certain documents/complaints as mentioned in Annexure-A, intending CBI VS. RAVI DUTT PHATAK Page No. 4/33 that same shall be used for harming the reputation of any person/party named in the complaint and thus committed an offence u/s 469/465 IPC. Secondly, during the aforesaid period he used as genuine the aforesaid documents/complaints as mentioned in Annexure-A as genuine knowing and having reasons to believe that the same were forged and thus committed offence u/s 471 IPC.

DEPOSITION OF PROSECUTION WITNESSES:

9. In order to prove the above said allegations, the prosecution has examined 18 witnesses.

10. PW 11 is Ms. Meera Shankar, the then Joint Secretary (North) MEA. She has forwarded the complaint to the then Director, CBI which led to the registration of present FIR. She deposed that the Government of India had funded a project in Nepal for setting of Super Specialty Hospital. Several complaints were being received and the same were examined and were found to be baseless. One of such complaint was in the name Mr. Shekar Koirala, VC of BPKISH (Mark-A dated 01.05.1999) and when she cross checked the same, Mr. Shekhar Koirala denied having written such letter. She deposed that they examined and suspected that such complaints were false and then examined to see the persons who had motive and access to stationery of the project. She deposed that one Ravi Dutt Pathak (accused) who was PS to Chief Engineer was repatriated prematurely and could be involved and his hand writing in the suspected letter appeared similar to his actual handwriting, which was confirmed by FSL vide its report Mark- X (Ex. PW 11/A). She deposed that she addressed the complainant dated 16.11.2000 exhibited as Ex. PW 11/B and was sent alongwith documents Ex. PW 11/A. Witness was extensively cross-examined by the defence. During cross-examination, she admitted that she was not CBI VS. RAVI DUTT PHATAK Page No. 5/33 aware that the FSL Report Ex PW11/A was prepared on the basis of material supplied to FSL by a private individual namely V.K. Kapoor. She further stated that she was not aware as to whether the accused was repatriated to India on his request; that besides the accused there were several other persons having access to stationary. She could not tell the name of the persons who had examined the complaints and had opined the involvement of accused. She stated that she remembered only Sanjay Panda (PW18). She further deposed that suspicion was also on Jagdish Chander but the department had no evidence against him.

11. PW 18 is Sanjay Panda, Joint Secretary, MEA. At the relevant period, he was Under Secretary. He also deposed that during the course of implementation of the project (BPKISH), several complaints regarding irregularities in the project were being received. One such letter purported to be written by Dr. Shekhar Koirala on the basis of which he decided to conduct an internal investigation. He deposed that he brought the said letter to the attention of Dr. Koirala vide letter Ex. PW 18/1, however, Dr. Koirala vide letter 30.11.1999 Ex. PW 18/2 denied having sent any such letter. He further deposed that similarly rebuttal of other letters were also provided by Professor K.N. Sharma and Sh. L. Subramaniam. Then, it was decided to approach the FSL who opined that the signatures of Dr. Koirala on letter Ex. PW 15/1 were forged. He deposed that after receiving conclusive inquiry regarding false complaints, it was found that the forgery could have been done by the project officials with access to stationary and letter head and suspicions was zeroed on Ravi Dutt Pathak in view of his his position. Witness was extensively cross-examined by the defence. During cross- examination, he was confronted with various complaints sent by one Dr. CBI VS. RAVI DUTT PHATAK Page No. 6/33 Shirish Kumar containing allegations against Dr. K.N. Sharma. He admitted that complaints were sent to CVC and one such complaint was marked to the Minisitry vide Ex PW18/1D. Subsequent correspondence between the Ministry arising out of the aforesaid complaint was Ex PW18/2D, Ex PW18/3D, Ex PW18/5D, Ex PW18/6D. He was further unable to tell as to whether the FSL report was privately obtained by V.K. Kapoor. That he enquired regarding the possible motive for issuing these letters and was informed that accused was prematurely repatriated. He further deposed that one Jagidish Chander who had access could have been involved, however, on further inquiry, there was no ground to implicate him. He admitted that he had drafted the complaint Ex PW11/B.

12. PW 1 is Satish Kumar. He deposed that in year 2000, he was working as LDC and his duties were to receive Daks. On 03.08.2000, a complaint dated 06.07.2000 addressed to Mr. N. Partha Sarthi, Addl. Secretary, Ministry of Urban Development was sent by one Dr. B. Lal.

13. PW 2 K. Rajgopalan. He deposed that during June 1994 to June 1999, he was on deputation to Nepal regarding the project i.e. (BPKIHS). He deposed that accused was also on deputation on the said project. Sh. V.K. Kapoor, Superintendent Engineer and Sh. D.V. S. Sarma, Head of the Project, were also associated with the project. He deposed that accused had access to the files relating to the project. During the construction of the project, many complaints some of them anonymous and some by name were received. A team of MEA, CPWD and Officials of Indian Embassy had visited the project to verify the complainant. After that R.D. Pathak was repatriated and after his repatriation, complaints continued through post. Witness was extensively cross-examined by the defence.

14. PW 6 is V.K. Kapoor who was also deputed at BPKIHS as Superintendent Engineer. He deposed that after 2-3 years of the initiation of project, anonymous complaints started coming with allegations against the officials associated with the project. Complaints were found to be baseless. He deposed that after detailed examination, it was felt that someone within the project was indulging in such complaints. Chief Engineer D.V.S. Sarma called every official in his chamber; contact was made with the persons on whose behalf the complaints were made and who denied giving any such complaints. He further deposed that Ravi Dutt Pathak was private secretary of Chief Engineer and doubt went upon him as all the papers were routed to Chief Engineer through him. He was shown a letter dated 28.07.1998 (Ex. PW 6/1) which he has sent to Director, FSL requesting to examine the complaints with the handwriting of suspected official. He deposed that after the completion of deputation, accused was repatriated to his parent department. Witness was extensively cross-examined by the defence.

15. PW 7 D.V.S. Sarma who was the Chief Engineer of the project. He deposed that as the project progressed, his office started receiving complaints (anonymous and pseudonymous) addressed to higher authorities. Complainants were verified and when they continued unabated, MEA deputed a team of officers to the project office at Nepal, which was headed by Director (North) MEA. He deposed that during the examination suspicions arose on somebody in his office having intimate knowledge of project work and access to record. The complaints were mainly with the allegations against the officers executing the project. He further deposed that the team express its suspicioun on accused who was working as PS and it was decided that the accused be repatriated CBI VS. RAVI DUTT PHATAK Page No. 8/33 to his parent department as soon as possible even before the terms of deputation. He further deposed that even after repatriation, such complaints continued to be received. He further deposed that the complaints alongwith the admitted signatures of the accused were referred for Forensic Department which express a strong possibility of matching of signatures of the accused on the complaints. Witness was extensively cross-examined by the defence.

16.PW 12 is TPH Menon. He was also posted at BPKIHS as Superintendent Engineer. He also deposed regarding the receipt of anonymous complaints regarding the working of projects which were referred to MEA. He deposed that the complaint was examined and was found as false. He deposed that it was found that accused was sending the complaints. He further deposed that he does not know on what basis it was found that accused was behind all these complaints. He stated that accused has access all the documents, project works and stationery, so it was learnt that accused could be the person sending the complaints. Witness was cross-examined by the defence.

17.PW 13 is Jagdish Chander Sharma. He was also one of the suspects and was named in the FIR, however, he was not charge sheeted, rather he was cited as witness. He was posted on deputation at BPKISH. He did not depose much and stated that due to receipt of various anonymous complaints suspicion was raised upon him as well as the accused and no proof was available against him. He deposed that CBI conducted search of his house, however, nothing was found.

18. PW 3 is Jose Kurian and PW 9 is Ms. Saroj Punhani. These witnesses were the part of the team which had gone to Nepal to investigate into the anonymous complainant. PW 3 deposed that in 1996, MEA directed CPWD to investigate into various anonymous/ CBI VS. RAVI DUTT PHATAK Page No. 9/33 pseudonymous complaints regarding the project and the team comprising of, Sh. Vishnu Prakash, Ms. Punhani and himself visited Nepal and made detailed inquiry. After the inquiry, anonymous/ pseudonymous complaints were found baseless and a report to this effect was submitted to MEA duly signed by all the members. Witness was extensively cross-examined by the defence. Similarly, PW 9 Ms. Saroj Punhani who was then posted at Embassy of Nepal and was part of the team deposed in consonance with the testimony of PW 3. She was also cross-examined.

19. PW 4 is Dr. K.N. Sharma. He during the period 1994 to 1999 was project consultant on behalf of Govt of India to establish BPKISH at Nepal. He deposed that he was informed by Sanjay Panda (PW 18) regarding some letters received in his name which were addressed to various persons. The witness denied all such letters which were written in his name. He denied the letter Ex. PW 4/1 which was addressed to the then Foreign Secretary, MEA, letter Ex. PW 4/2 which was addressed to Sanjay Panda, the then Under Secretary, MEA. The letter Ex. PW 4/3 dated 08.02.2000 addressed to the then Ministry of Health and Family Welfare, letter dated 08.02.2000 Ex. PW 4/ 4 addressed to the then Minister of State of Department of Personnel and Training, letter dated 08.02.2000 Ex. PW 4/ 5 addressed to the then Minister of Urban Development, letter dated 08.02.2000 Ex. PW 4/ 6 addressed to the then Minister of Finance,letter dated 08.02.2000 Ex. PW 4/ 7 addressed to the then Secretary Ministry of Finance, letter dated 08.02.2000 Ex. PW 4/8 addressed to the then Foreign Secretary, MEA. Witness denied sending such letters and denied his signatures. He was extensively cross-examined.

20. PW 10 is L. Subramanyam. He also deposed that he never made any CBI VS. RAVI DUTT PHATAK Page No. 10/33 complaint against anybody concerning the project and was shown the letter Ex. PW 10/A which is denied to be written by him. He deposed that even he gave reply vide letter Ex. PW 10/B.

21.PW 14 is Ms. Deepa Verma, Dy. Director, FSL Rohini. She is the witness who had given her opinion i.e. Ex. PW 11/A regarding the questioned documents and the admitted specimen of the accused. She has given her opinion to MEA prior to the registration of the FIR and it was her opinion on the basis of which PW 11 Ms. Meera Shankar has filed the complaint. She was extensively cross-examined.

22. PW 15 is Mohinder Singh, GEQD from CFSL, Hyderabad. He was also examined and cross-examined.

23. PW 16 is Sh. M.A. Ganpati, Joint Secretary, Ministry of Home Affairs. He deposed that he was posted as SP-SCB, CBI, Delhi during 2000 to 2002. He deposed that the complaint was referred by MEA to CBI and CBI registered FIR Ex. PW 16/A. R. Chandran was IO of this case and he worked under his supervision. He deposed that during investigation, IO conducted search and seized documents and he can identify the signatures of the IO on document Ex. PW 16/2. He deposed that he also received a letter from Controller of Accounts marked as Mark PW 16/A. He further identified the signatures of Inspector R. Chandran on document Ex. PW 16/ 4. He deposed that he received a letter from GEQD Ex. PW 15/22 alongwith opinion of GEQD Ex. PW 15/20 and the reason of opinion as Ex. PW 15/21. He was extensively cross-examined.

24. PW 17 is R.K. Sharma. He deposed that in the year 2001, he was posted as Dy. Director in AEPC at Bhikaji Kama Place. He was informed a day prior to the raid to accompany the CBI officials and on 04.04.2001, he alongwith his colleague Dinesh Pradhan visited CBI Office. Then CBI VS. RAVI DUTT PHATAK Page No. 11/33 from there alongwith R. Chandran (Inspector) and two other officials, they went to AGCR Enclave. He deposed that the public persons were requested to join the investigation but all refused and after completion of pre-search formalities, a search of the accused premises was conducted. During search, the team recovered some blank letter head of Ministry of Urban Affairs, some MPs and some documents with respect to the project going on in Nepal. He deposed that search memo was prepared and the same was signed by him which was Ex. PW 16/

4. He further deposed that the documents which were seized by the IO (running into 149 pages) are also having the signature at point 'A' and were exhibited as Ex. PW 17/A.

25.PW8 Harish Kumar who was posted in vigilance unit of Engineer Office, CPWD deposed that his work involved examination of complaints. He deposed that complaint Ex. PW1/1 was received in the vigilance unit. Another complaint Ex. PW8/1 against P.K. Singh was received. He was also cross examined at length.

STATEMENT OF ACCUSED U/Sec. 313 Cr.P.C.

26.After completion of PE, statement of accused was recorded wherein all the incriminating evidence was put to the accused. Accused denied having made any of the anonymous/ pseudonyms complaints. He stated that he was repatriated at his own request as he was promoted to the rank of Principal Pvt. Secretary and had he not joined, he would have lost his promotion. He further denied that a team constituted by MEA consisting of PW3 and PW9 Ms. Punhani had visited Dharan Nepal to investigate anonymous complaints. He stated that the team has visited only to enquire in the matter of audit objection and not for investigating the anonymous/pseudonyms complaints. He further denied that he was custodian of the files. He stated that he was only posted for a short span CBI VS. RAVI DUTT PHATAK Page No. 12/33 of one year from 24.08.1995 to 26.08.1996 and the important files used to be brought by the officers directly to Chief Engineer. He further stated that the account file, service book and personal files of CMT and Indian Medical Faculty were under the custody of accounts officer who used to sit in a different barrack. He further stated that the file pertaining to civil work and electric work were under the custody of the respective EE (Civil Electrical) and the contract documents were kept under the lock of E.E. In-charge. He further stated that besides him there were other persons who were having access to the records such as Mr. K. Rajagopalan, Amrit Lal and one attendant Mr. Shankar. Vis-a-vis the FSL report Ex. PW11/A, accused claimed that PW6 had obtained the report in a private capacity which was not even conclusive. He further stated that no search and seizure was conducted and his signatures were taken forcibly. He further claimed that he was only being made a scapegoat and his entire career was ruined.

27. Accused did not lead the evidence in his defence.

28. Thereafter, final arguments were heard at length.

29. Ld. PP for CBI Sh. Darshan Singh who argued at length contended that all the witnesses of CBI have fully supported the case of the prosecution and the entire evidence led by the prosecution if taken into totality leads to an irrebutable conclusion that the letters i.e. complaints which were anonymous/pseudonymous (as mentioned in annexure -I of complaint Ex. PW11/B given by PW-11 to CBI) were written by the accused. Ld. PP has further contended that through the testimonies of PW2, PW6, PW7, PW12, the prosecution has proved that the accused has access to the project documents, stationary and all other documents. He further argued that accused was prematurely repatriated to his parent department and therefore he got agitated and started writing CBI VS. RAVI DUTT PHATAK Page No. 13/33 anonymous/pseudonymous complaints in the purported name of some senior persons. All such complaints were addressed to the persons in the authority i.e. Ministers and Bureaucrats. Accused intended to defame the project as well as to malign the officers who were attached with the project. Ld. PP contends that making the false complaints was done with the sole intention to cause damage or injury to the officials who were trying to make BPKISH a success. Ld. PP had argued that section 44 of IPC defines the word injury as any harm whatever illegally caused to any person, in body, in mind, reputation or property.

30. Ld. PP had further argued that the testimony of PW3 and PW9 further goes to prove that a team from MEA had visited the site to investigate the anonymous / pseudonymous complaints but had found the same as baseless. He further contended that when such complaints starting coming unabated, MEA conducted a preliminary investigate during which four such complaints were sent to FSL Delhi alongwith the admitted signature of accused. Ld. PP contends that report of the FSL Ex. PW11/A also nails the accused as the expert has opined similarities between Q3 and the admitted writings. It was further contended that PW17 had proved regarding a raid conducted at the residence of the accused from where various incriminating documents were recovered vide seizure memo Ex. PW16/4. Ld. PP contended that a bunch of letter head pertainaining to Ministry of Urban Affairs, B.P. Koirala Institute, Ministry of Environment were recovered. Besides a bunch of documents relating to a project and officials correspondence i.e. page no. 57 to 280 were recovered and the accused had failed to explain as to why he was keeping these documents with him.

31.Per contra ld. defence counsel Sh. N.B. Joshi had also argued at length. Detailed written arguments were also filed. Ld. defence counsel at the CBI VS. RAVI DUTT PHATAK Page No. 14/33 outset had argued that the whole case of CBI is only based on suspicion and strong possibility which is no proof in the eyes of law. He argued that the entire evidence led by the prosecution even if taken into totality, still no case is made out against the accused as all the planks on which the prosecution story rest were not proved at all. Ld. Defence counsel had argued that through the cross-examination of the witnesses he has been able to demonstrate that the grounds on which suspicion was raised at the accused, do not stand at all. He had argued at length on the following issues i.e. motive imputed to the accused for sending such complaints; the opportunity and the access of the documents with the accused, the inspection conducted by the MEA at BPKISH in July 1996, the FSL report of Smt. Deepa Verma, PW14; the search and seizure conducted by the IO as deposed by the search witness PW17 and the GEQD report. I shall take up all the arguments put forth by ld. defence counsel one by one.

32. It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts.

33.The allegations against the accused as set up by the prosecution is that being a PS to Chief Engineer of B.P. Koirala Institute, Nepal, the accused was a disgruntled employee as he was repatriated earlier and he started sending anonymous/pseudonymous complaints as detailed in Annexure -I to various Ministers, bureaucrats and other higher officials, some of such complainant were anonymous whereas some were written in the purported name of various other higher officials such a Dr. B. Lal, Dr. K.N. Sharma, L. Subramanyam, Dr. Shekhar Koirala etc. In the said complaints the accused has CBI VS. RAVI DUTT PHATAK Page No. 15/33 mentioned about the irregularities and misuse of funds by the officials who were involved in execution of the prestigious project i.e. construction of B.P. Koirala Institute, Nepal with the purpose to malign the officials.

34. The case of the CBI rest on the following incriminating circumstances which it has tried to prove to draw the conclusion that the accused was the author of these false and frivolous complaints. I shall now take them one by one.

MOTIVE : -

35. The case set up by the prosecution is that the accused was agitated due to his premature repatriation to his parent department. I shall now refer to the complaint Ex. PW11/B which is the basis of the FIR. PW11/B is the letter dt. 16.11.2000 written by Ms. Meera Shankar (PW11) Joint Secretary MEA to Director CBI. In the said complaint she had stated that there was some doubt that this could be handiwork of a few disgruntled GOI officials who were either not considered for deputation to BPKISH project or whose period of deputation was cut short for one reason or the other. She had stated in the complaint that one such person who seems to have links with these letters has been identified as Sh. R.D. Phatak (accused). She further wrote that the accused deputation period to the project as P.S. to Chief Engineer was curtailed and he was relieved prematurely on 26.08.1996.

36. I shall now refer to the testimony of the witnesses whose testimony throws light on the issue of motive. PW6 V.K. Kapoor, Suprintendent Engineer of the said project who later on became the Head of the project after Mr. D.V.S. Sarma deposed in his cross-examination, that CBI VS. RAVI DUTT PHATAK Page No. 16/33 after completion of period of deputation accused was repatriated to his parent department in consultation with MEA. He admitted that it was correct that accused had moved an application dt. 12.10.1995 for being repatriated to his parent organization as he was to be promoted from Pvt. Secretary to Principal Pvt. Secretary. Similarly PW7 D.V.S. Sarma during cross-examination admitted that the repatriation of the accused from Nepal to India was at his request. Similarly PW2 K. Rajagopalan who was also on deputation at the project deposed that "I do not know the reason as to why the accused was repatriated to Delhi from Nepal but I remember there were some correspondence regarding his promotion". Interestingly PW11 who is the complainant was also cross examined on this aspect as in her complaint Ex. PW11/B she has imputed possible motive on the accused due to his early repatriation however in cross-examination, she claimed her ignorance by saying "she was not aware as to whether the accused was repatriated to India on his request".

37. Now coming to the testimony of Sh. S.P. Ganpathy who was the then S.P. CBI was also cross-examined on this aspect. During cross- examination he stated that he was unable to recall as to whether during the enquiry at pre-registration of FIR, he had examined the veracity of attributed motive. He further stated that while supervising the case he was not aware that the early repatriation of the accused was at his request. Now again turning to the testimony of PW7 Sh. D.V.S. Sarma, during his cross-examination. The defence has summoned file no. A-11019/3-92/Admn.-I/Ministry of Urban Development appointment in PPS grade of CCS. The witness was confronted with a letter dt. 05.10.1995 addressed to him by Sh. Rajiv CBI VS. RAVI DUTT PHATAK Page No. 17/33 Rai Under Secretary, GOI. The said letter was Ex. PW17/19D. As per the said letter it was informed to the PW7 by the Under Secretary that the accused on deputation is likely to be considered for the promotion to the post of PPS and therefore his unconditional option form be obtained. Ex. PW7/20D is a letter dt. 12.10.1995 addressed by the accused to the U.S. through proper channel expressing his willingness/option form. Ex. PW7/23D is an office order of Sh. Rajiv Rai, U.S to the GOI notifying that the accused working as PS is promoted as PPS from the date he take over the charge. Ex. PW7/24D is again a letter dt. 20.06.1996 by Sh. Rajiv Rai, US to GOI addressed to Jagdish Chandra, Account Officer, BPKISH informing that the accused has not been relieved by your office and he be relieved immediately and in case he do not report to the Ministry by 15.07.1996 his promotion stands cancelled. Ex. PW7/26D is a letter dt. 25.08.1996 of PW7 addressed to Sh. Rajiv Rai, U.S. informing that the accused is being relieved from 26.08.1996. Similarly Ex. PW7/27D is an office order issued by Sh. V.K. Kapoor (PW6) relieving the accused.

38.These all documents referred to above were produced by the accused in his defence by summoning the concerned file from the Ministry. I am in agreement with the contention put forth by the ld. defence counsel that the early repatriation of the accused to his parent department was on his own request as he got promoted from the post of PS to PPS and therefore he was supposed to join his parent department failing which he would have lost his promotion (which is evident from the letter Ex. PW7/24D of Sh. Rajiv Rai). Thus, the alleged motive putforth by the CBI is fallacious as from the CBI VS. RAVI DUTT PHATAK Page No. 18/33 documentary evidence produced in evidence, the motive imputed by the prosecution stands falsified and rather to the contrary, it has been proved that the early repatriation was at the request of the accused. FSL RESULT :

39. The case of the CBI is that MEA prior to getting a case registered against the accused had got hand-writing analysis of the accused done from FSL Rohini and as per the report Ex. PW11/A, FSL Delhi has opined that the questioned document Q3 (which is actually a letter signed by R. Deokota on behalf of Dr. S. Koirala) is written by the person who wrote A1 to A7 (admitted handwriting of the accused). On this basis it is contended that the accused is the author of the one of such pseudonymous complaint purported to the written by D. S. Koirala. As per the case of CBI Dr. S. Koirala, V.C. of BPKISH has repudiated giving of such complaint vide his communication dt. 30.11.1999 Ex.PW18/2. PW18 Sh. Sanjay Panda had deposed about the same i.e. he has brought the said letter to the attention of Dr. S. Koirala and the later denied having given such communication. It is contended by the ld. PP for the CBI that the FSL result nails the accused and therefore an inference can be drawn that the accused is the author of the said complaint as well as the other complaint.

40. Per contra FSL result has been opposed by the ld. defence counsel on twin grounds. Firstly, it was argued that the said report has no legal sanctity as the same was not obtained by the investigating agency during the investigation of this case and rather the same was procured by PW6 V.K. Kapoor by exerting his personal influence. It is contended that Sh. V.K. Kapoor obtained the report without having any authority. It is stated that V.K. Kapoor had worked as S.E CBI VS. RAVI DUTT PHATAK Page No. 19/33 Electrical and had looked after the electrical maintenance of FSL building at Malviya Nagar, though the suggestion was denied by PW6. Secondly, it is contended that even if FSL result is considered same has no evidentiary value as Q3 was a photocopy and PW14 Deepa Verma had admitted that when a photocopy is examined it is not possible to give a confirm opinion.

41. First I shall take up the testimony of PW14 Smt. Deepa Verma. Her report Ex. PW11/A was admitted u/s 293 Cr.P.C. During cross- examination she deposed "it is correct that when a questioned document is examined it is important to have the original questioned document. It is correct that when the questioned handwriting or signature is available in original, we examined in respect of whether there is hesitation, the confidence of flow, the pressure of the pen of the paper, the spreading of ink on the paper, whether the pen was a ball point or ink pen, gel pen, pencil etc. Then we can examine whether the questioned handwriting is tracing or not. It is correct when a photocopy is placed before me as a questioned document these aspect cannot be examined completely".

42. PW14 had only given an opinion regarding Q3 and no opinion was given regarding the other questioned documents i.e. Q1, Q2 and Q4. During cross-examination she stated that she was not unable to give any opinion as these questioned documents were of poor quality, however the photocopy of Q3 was of relatively better photocopy quality. She further admitted that "It is correct that when we examined a photocopy it is not possible to give a confirm opinion ". She further admitted that in the present case no sample handwriting was provided. She further admitted that "It is correct that in Q3 the bottom CBI VS. RAVI DUTT PHATAK Page No. 20/33 loop of letter F appears to be broken in places. vol. however this could be due to the fact that Q3 is a photocopy and there may be some loss of fidelity in the process of photocopy. It is for this reason that opinion based on photocopies are not confirmed opinion."

43. Thus a discussion of the testimony of PW14 shows that the witness has herself admitted that her opinion was not a confirmed opinion which implies that it was only suggestive in nature. The opinion of experts are not a conclusive piece of evidence and while appreciating them, the court is not supposed to blindly accept them and has to see that the opinions are supported with reasons. These opinion assist the court in coming to a conclusion. However in the instant case when the witness herself was not sure of her opinion as the questioned document was only a photocopy, it is difficult to rely on the FSL report Ex. PW11/A. The report is inherently weak in nature.

44.To counter the FSL result ld. defence counsel has drawn the attention towards the testimony of PW6 and PW7. Admittedly the anonymous / pseudonymous complaints which were being received by MEA were primarily against PW6 and PW7 as they were working as Chief Engineer and S.E. of the project. From the testimony of PW6 and PW7 it is evident that PW6 has on his own accord chosen to send the questioned document alongwith the admitted handwriting of the accused to FSL. In the letter Ex. PW6/1, PW6 has not written that he was issuing the letter under the authority of any other person. Surprisingly PW11 who was working at a senior position as Joint Secretary MEA and is the complainant and had mentioned regarding the FSL result in his complaint to the CBI, however, during cross- examination the witness expressed her ignorance by stating that she CBI VS. RAVI DUTT PHATAK Page No. 21/33 was not aware that the report was prepared on the material supplied to FSL by a private individual.

45. Thus in view of the foregoing discussion, the FSL result relied upon by the prosecution do not further the case of the prosecution to any extent as the expert produced by the CBI admitted that her opinion was not confirmed as she had given her opinion on a photocopy of the questioned document and such opinions are not confirm opinion.

VISIT OF MEA TEAM TO DHARAN, NEPAL.

46. Through the testimony of PW3 Sh. Jose Kurian and PW9 Ms. Saroj Kunhani, CBI has tried to prove that a team of high ranking officers of MEA, CPWD had visited the site to enquire about these complaints and had found these complaints to be baseless. PW3 and PW9 were members of the team beside Sh. Vishnu Prakash and Mr. Rajesh Sachdeva. PW3 had deposed that in the year 1996 MEA directed CPWD to investigate various anonymous/pseudonyms complaints regarding the project and a team compromising himself, PW9, Sh. Vishnu Prakash visited Nepal to enquire about the complaint and found the same to be baseless. He further deposed that a report was submitted to MEA to this effect. Similarly PW9 had deposed that a committee was set up to enquire into the complaints and regarding some irregularities in the functioning of the project and after visiting the site and after examining the record, they found the allegations made in the complaint as baseless. Ld. defence counsel has vehemently argued that these witnesses were deposing falsely despite the fact that they were occupying senior positions. He argued that from the evidence available on record the team comprising of above officials had visited Dharan, Nepal only once and that too CBI VS. RAVI DUTT PHATAK Page No. 22/33 regarding the audit objections and not to enquire the anonymous / pseudonymous complaints which is the subject matter of present FIR. It has been admitted by PW3 himself, PW6 that this team has visited only once. Ld. defence counsel during the cross-examination of PW3 and PW9 had summoned the original file from CPWD bearing no. CDO/SE(D)I/G-308/1996 on the subject B.P. Koirala institute at Nepal. The said file was put to the witness who admitted a report Ex. PW3/1D and his signature over it. Now Ex. PW3/1D is an inspection report which was prepared by a team comprising of PW3, PW9, Sh. Vishnu Prakash and Sh. Rajesh Sachdeva which records that the team visited Dharan from 18 to 20 July 1996 and speaks of audit objections which may have come during the auditing of the accounts relating to the project.

47. I am in agreement with the contention of the Ld. defence counsel that the inspection Ex. PW3/1D in fact does not speak even a single word about the anonymous/pseudonymous complaints and rather shows that the team had actually visited due to the objections which were raised due to non compliance of certain rules being adhered by the civic agencies while undertaking the construction work. I will not refer to those audit objections in detail here for the reason that the same is not the subject matter of the present case. However suffice is to say that Ex.PW3/1D falsifies the version of PW9, PW3 and other witnesses that a high level team of officers was sent to the spot to enquire about the anonymous/pseudonymous complaints. Had it been so, the report definitely must have noted the said aspect which is missing. Similarly the said file was also confronted to PW9 Ms. Saroj Punhani. She was also confronted with various other CBI VS. RAVI DUTT PHATAK Page No. 23/33 documents which were lying in the file of the CPWD. She admitted about her letter dt. 14.05.1996 written to D.V. S. Sarma regarding the auditing of accounts of B.P.KISH and asking for comments from DVS Sarma, the said letter was Ex. PW9/1D. Ex. PW9/3D was a letter written by PW12 T.P.H. Menon to PW9 which is a reply of PW12 explaining the audit objections raised. These all correspondence took place before the team visited Dharan, Nepal in July, 1996 and it shows that the purpose of the visit was to enquire regarding the audit objections. Thus, the testimony of PW9 and PW3 is disbelievable in as much as the falsity in their version stood expose when they were confronted with the original file.

Seizure of incriminating documents from the house of the accused : -

48. As per CBI a search was conducted at the house of the accused where certain incriminating documents were seized vide search list and seizure memo Ex. PW16/4. The search was conducted by Inspector R. Chandar and the independent witnesses were R.K. Sharma and Dinesh Pradhan, who were working at AEPC Bhikaji Cama Place. Unfortunately IO could not be examined as he expired. The CBI has examined R.K. Sharma as a witness to prove the recovery of the incriminating articles. It is pertinent to mention here that as per Ex. PW16/4 total 280 pages/documents were seized from the house of the accused. As per seizure memo the following documents were seized : -

Sr.No Description of Articles seized Description of place where seized articles was found

1. A bunch of letter heads (blank) Drawing room of pertaining to Ministry of Urban residence of Ravi Dutt Affairs and employment, B.P. Koirala Pathak i.e. as AGCR Institute, Ministry of Environment, Enclave Delhi-92.

Renuka Chandhari (MP) CPWD, Swami Suresh Anand, MP Etc (pages marked S. No. 1 to 56 ).

2. A bunch of documents relating to ........... do ................

BPKISH (Dharan, Nepal) and official correspondences (pages marked 57 to 149).

3. A bunch of documents relating to ........... do ................

BPKISH (Dharan, Nepal) and official correspondences (pages marked 150 to 280).

49.I have perused the testimony of PW17 who deposed that a day before the raid he was instructed by his Director to accompany CBI officer and on 04.04.2001, he visited CBI office alongwith his colleague from where they went to the AGCR Enclave. He deposed that pre-search formalities were completed and during search, the team recovered some blank letter heads of Ministry of Urban Affairs, some M.P.s and some document with respect to project going in Nepal. The search memo was proved as PW16/4 and the documents which were seized were collectively Ex. PW17/A (running into 1 to 149 pages). During cross-examination the witness has deposed that he had gone to CBI office at 5.00 am on 21.01.2001 and they had gone to the house of accused in CBI Gypsy. He further deposed that CBI VS. RAVI DUTT PHATAK Page No. 25/33 house of accused on ground floor however he did not see the entire house. He stated that he did not know how many bed rooms were there. He admitted that the raiding party did not offer itself for search before the raid. He further deposed that the raid lasted for two hours; he and his colleague were sitting in the drawing room when the officers of CBI were raiding the house. He has further stated that he was not given any written order to go with the CBI as a witness; he denied that he was a stock witness and had signed the seizure memo and the documents in the office of CBI.

50. Ld. defence counsel has vehemently argued that there is contradiction in the testimony of PW7 regarding the date of raid as during chief he stated the date of raid as 04.04.2001 but in cross- examination he stated the date as 21.04.2001. Ld. defence counsel further argued that the witness has failed to prove the factum of seizure of aforesaid documents as he admitted that he was sitting in the drawing room when the raid was conducted by CBI, meaning thereby that he did not actually witnessed the documents being found at the place. He had further argued that the raiding party has failed to comply the pre-search formalities as the witness had deposed that prior to search, raiding party did not offer for any search.

51.I am in agreement with the arguments advanced by ld. defence counsel regarding the seizure of documents vide seizure memo Ex.PW16/4. IO was not examined and the only witness examined by CBI is PW17. Testimony of PW17 is inherently weak in nature and it is difficult to rely upon the same as PW17 had admitted that the actual seizure of the documents did not take place in his presence as he stated that he was sitting in the drawing room while the raid was CBI VS. RAVI DUTT PHATAK Page No. 26/33 conducted. There is another contradiction in his testimony with respect to Ex. PW16/4. As per Ex. PW16/4, 280 pages/documents were seized, whereas the witness had deposed regarding the seizure of only 149 documents. Ld. defence counsel has rightly submitted that the remaining documents starting from pages 150 to 280 which are mentioned in the seizure memo have gone unexplained. He contends that the same may have been later on added by the CBI after taking the signature of the witness. This is a serious lacunae which creates doubt in the testimony of the witness when compared with the seizure memo. Since IO was not examined and the testimony of the search witness appears to be doubtful. It is unsafe to rely upon the same. Thus, the CBI has failed to prove the recovery of the documents from the house of accused as per Ex. PW16/4.

52. Now coming to the GEQD report, PW15 Sh. Mahender Singh, hand- writing expert examined in this regard. His report is Ex. PW15/20. I have perused the said report. In para 2 of the report it has been opined that PW4 Dr. K.N. Sharma has not signed question documents i.e. Q5 to Q11. In para 3 he has opined that the person who wrote blue enclosed writing and signature stamped and marked as S2 to S100 and A1 to A7 also wrote the red enclosed writing stamped and mark Q28/1. Ld. defence counsel has rightly argued that 11 pages from second bunch (pages 150 to 280) were sent to GEQD and PW17 has only deposed regarding the seizure of the documents from the house of the accused from (page no. 1 to 149). It is stated that in the first page when it has not been proved that the documents sent to GEQD were recovered from the house of the accused, the report does not help the case of the prosecution. I am CBI VS. RAVI DUTT PHATAK Page No. 27/33 in agreement with the contentions raised by ld. defence counsel as the GEQD report on questioned document has any relevance only once it is proved that the questioned document were recovered from the house of the accused. As already discussed hereinabove, prosecution in the first place has failed to prove the recovery of incriminating documents and PW17 never deposed regarding the recovery of the documents from the house of the accused which were sent to GEQD.

ACCESS TO THE DOCUMENTS :

53. The case set up by the CBI was that the accused held access as well as opportunity to write those frivolous letter. Again referring to complaint Ex. PW11/B given by PW11 to Director CBI, she had mentioned that "It was possible that he could have had access to the stationary of project implementation authority, apart from copies of officials communication by virtue of post held by him at the project office". Prosecution had placed reliance on the testimony of PW2 Sh. K. Rajagopalan who deposed in his chief that accused had access to the file relating to the aforesaid project. Testimony of PW7 that during initial enquiry suspicion was raised upon the accused as he was his PS. He had further deposed that it was also suspected that somebody in the office having knowledge of the project and having access to record could be involved. Then there is testimony of PW12 Sh. T.P.H Menon that accused had access to all the documents stationary etc.

54. Ld. defence counsel has vehemently argued that through the cross- examination he has been able to prove that the accused used to work from a small room where there were two other PS and one attendant.

I shall now take up the cross-examination of the witnesses. PW11 Ms Meena Shankar, during cross-examination had admitted that besides the accused several other persons had access to the stationary. PW2 during cross-examination admitted that at Dharan, Nepal, he alongwith one Amrit Lal and accused used to sit in same office room which was only 10x8 feet. He further stated that there were no Almirahs. He further stated that one Jagdish Chandra used to look after the account related matters and the personal file of the persons posted at Dharan. He further deposed that the file pertaining to civil were maintained with E.E. who used to put up the files to the Supt. Engineer and no file used to be in custody of PS. He further deposed that the file used to be maintained by the officer and important file brought by the officers directly to the Chief Engineer and after discussion they would take away the file with them. He further deposed that the other routine file used to be put up to the Chief Engineer and other officers to PS. He further deposed that three PS did not maintain or keep any file as there were no Almirah. Similarly PW6 V.K.Kapoor had admitted that there were three PS and all of them used to sit in the said PS room. Same is the testimony of PW7 who during cross-examination admitted that Rajagopalan, Amrit Lal and accused used to sit in one room. He further stated that one Jagdish Chandra project account officer was keeping the accounts, however he was unable to tell whether the Jagdish Chandra was the custodian of service book and personal file.

55. Coming to the testimony of PW12, he also admitted that there was a small room next to the room of Chief Engineer where the PS used to sit.

56. After careful scrutiny of the testimony led by the prosecution on this aspect I am the considered opinion that the prosecution has miserably failed to prove that the accused person was the only exclusive person having access to the project file, personal file of the officers. Admittedly there were an account officer i.e. Jagdish Chandra who was initially named in the FIR as a suspect. Beside the accused there were other PS who were posted at the site and as per the evidence brought on record they all used to sit in one room. Testimony of PW2 shows that all the important file were directly brought by the concerned officers before Chief Engineer and only routine files were put up through PS. I have also considered the nature of the complaints which has led to the initiation of the present proceedings. These complaints were made primarily against Sh. D.V. S. Sarma, the Chief Engineer, Sh. V.K. Kapoor, Sh. P.K. Singh regarding misuse of funds for personal gain, false claim of TA, DA and the irregularities at BPKISH. The onus was upon the prosecution to have proved that it was the accused who had access to all the project documents however in the facts and circumstances and on the basis of testimony of the witnesses, prosecution has failed to prove this limb. Even if for the sake of arguments, it is assumed that the accused who was posted at Dharan as PS to Chief Engineer had some limited access to some of the project documents, however, this circumstance is not sufficient in itself to draw an inference that it was the accused who was the author of these anonymous/ pseudonymous complaints. There were several other officers who were at that time posted at Dharan and they all were also having equal access to the project documents. Strangely only the specimen CBI VS. RAVI DUTT PHATAK Page No. 30/33 signature of the accused were sent to FSL by PW6 prior to registration of FIR, though one Jagdish Chandra was also named in the FIR. No reason has been offered by the prosecution in this regard as to why only the specimen signature of accused was sent.

57. Thus, a brief evaluation of the testimony of the witness leads to the conclusion that the whole case of the prosecution was only based on suspicion and nothing more. Ld. defence counsel has relied upon the decision of Apex court in Raj Kumar Singh Vs. State of Rajasthan, (2013) 5 SCC 722 are as under : -

"21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be: proved and "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof.

This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between CBI VS. RAVI DUTT PHATAK Page No. 31/33 "may be" true and "must be" true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."

58. Ld. defence counsel had further argued that the possibility of other disgruntled employee being the author of anonymous / pseudonymous complaints cannot be ruled out. In this regard he has drawn the attention towards the complaints given by Dr. N. Shrish Kumar to C.V.C. against PW4. PW18 Sh. Sanjay Panda had admitted the complaint Ex. PW18/2D. It is strange that despite all this only the signature of accused were sent to FSL by MEA prior to registration of FIR.

59. In view of the evidence led by the prosecution /CBI I am the of the considered opinion that the CBI has miserably failed to prove the charges against the accused at all. Rather whole case of the prosecution was only based on suspicion on the accused and in a criminal trial suspicion is no substitute for proving the charges.

CONCLUSION :

60. In view of the abovesaid forgoing discussion, accused Ravi Dutt Pathak is acquitted for all the offences as charged against him.

61. As per section 437-A of the Cr. P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, accused is directed to file fresh personal bond and surety bond in like amount within a week from today which shall remain intact for a period of six months.

File be consigned to record room.

ANNOUNCED ON 08.04.2019 (AMIT ARORA) ACMM (E)/KKD/Delhi/08.04.2019 Certified that this judgment was directly typed by my personal assistant on computer directly on my dictation.

(AMIT ARORA) ACMM (E)/KKD/Delhi/08.04.2019 AMIT Digitally signed by AMIT ARORA DN: c=IN, o=OFFICE OF THE DISTRICT AND SESSIONS JUDGE....., 2.5.4.20=5d03bd2902bae524e472 081070b034ee609e5ec0ad1936d9 ARORA 3a0429d51816814c, ou=HIGH COURT,CID - 6309251, postalCode=110092, st=Delhi, cn=AMIT ARORA Date: 2019.04.08 16:22:33 +05'30' CBI VS. RAVI DUTT PHATAK Page No. 33/33 CBI VS. RAVI DUTT PHATAK Page No. 34/33