Delhi District Court
By The Hon'Ble Supreme Court Of India In ... vs State Of on 22 April, 2013
IN THE COURT OF SH. SUDESH KUMAR
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE01, NEW DELHI
DISTRICT:
PATIALA HOUSE COURTS: DELHI
FIR NO.: 118 OF 2007
POLICE STATION: IGI AIRPORT
U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT
IN THE MATTER OF
STATE
VS
DINESH KUMAR & OTHERS
(i) Dinesh Kumar
S/o Mr. Bihari Lal
R/o Village Khota Tola, Singhadiya, PS Khorawar,
District Gorakhpur, UP
(ii) Prem Kumar
S/o Mr. Gopi Krishan
R/o Mohalla Lal Diggi,
PS Rajghat, District Gorakhpur, UP
FIR NO.: 118 OF 2007
POLICE STATION: IGI AIRPORT
U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 1 of 14
(iii) Mohd. Rashid Khan
S/o Mr. Mohd. Shahid Khan
R/o House No. 258/31, Nadan Mahal, Lucknow, UP
(iv) Javed Naqbi
S/o Late Sh. Athar Ali
R/o 164/16, Karnal Kilat, Raja Miya Marg,
Govind Road Chauraha, Aminabad, PS Wazirganj, Lucknow, UP
Date of institution:24.05.2007
Date of reserving Judgement/Order:12.04.2013
Date of Pronouncement of Judgement/Order:22.04.2013
Brief statement of reasons for such decision:
1.As per prosecution story, the accused Dinesh Kumar being passenger entered into a conspiracy with co accused Prem Kumar to facilitate journey of Dinesh Kumar by arranging forged ECNR (Emigration Clearance Not Required) stamp on his passport bearing no. F4445665 for unlawful consideration and in pursuance to that conspiracy, the accused Dinesh Kumar produced the aforesaid passport before the clearing officer on 26.03.2007 at departure left wing of immigration for clearance. On scrutiny of the passport, it was found that the ECNR stamp and the signature of ECNR authority of RPO Lucknow affixed at page no. 5 of the aforesaid passport was forged.
On these allegations, the present case was registered against accused FIR NO.: 118 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 2 of 14 Dinesh Kumar, he was arrested and his travel documents were taken into possession. On questioning, he revealed that the ECNR stamp and his journey was arranged by his brotherinlaw Saral Ram. During investigation, Saral Ram was examined and he stated that ECNR stamp and air ticket for Muscat for accused Dinesh Kumar and one Shambu Nath Ram were arranged by Prem Kumar owner of M/s Utsav Travels Pvt. Ltd. Gorakhpur for Rs. 14,000/ each. At the instance of Bihari Lal and Saral Ram a raid was conducted at M/s Utsav Travels Pvt. Ltd. Gorakhpur and its owner Prem Kumar was arrested from the office. Accused Prem Kumar further disclosed name of one Mohd. Rashid whom he had paid Rs. 5,000/ for arranging the ECNR stamp and on his disclosure, Mohd. Rashid was arrested who further disclosed name of one agent Javed Naqbi who was also arrested. Mr. Saral Ram has been arrayed as a witness in the list of witnesses.
2. After investigations, charge sheet in the matter was filed against all accused for the offences u/s 420/468/471/120 B IPC and 12 Passport Act.
3. Accused persons Mohd. Rashid and Javed were discharged by Ld. Predecessor vide order dated 02.07.2007.
4. It is also found that there are three other FIRs bearing FIR No. 218/07, FIR No. 125/07 and FIR No. 119/07, all pertaining to PS IGI Airport registered against accused Prem Kumar (being agent) for arranging forged ECNR stamps for different passengers pending trial in the Court alongwith the present case.
5. Charge for the offences U/s 120 B IPC, 420 r/w 120 B IPC and 471 r/w 120 B IPC was settled against accused Dinesh Kumar and Prem Kumar on 02.072007 by my Ld. Predecessor to which they pleaded not guilty and claimed trial.
6. Thereafter, prosecution has examined total 10 witnesses out of 12 FIR NO.: 118 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 3 of 14 witnesses cited in the list of witnesses.
(i) PW 1 ASI Vikram Singh was clearing officer on the intervening night of 25/26.03.2007 before whom the accused Dinesh produced the passport for clearance which was found having the alleged forged ECNR stamp on page no. 5. He lodged his complaint Ex. PW 1/A and took into possession the travel documents including the passport Ex. P 1 to Ex. P 4. The said complaint and the travel document with passenger were sent to the police station through PW 2 SAG J.S. Bhandari for the registration of FIR.
In his cross examination by Ld. Defence Counsel for accused Dinesh, he deposed that the accused Dinesh has not made any forgery in ECNR stamp in his presence. He was approached for clearance by the accused with his passport containing forged ECNR stamp. He did not make any inquiry regarding genuineness of ECNR stamp. He denied that a false complaint was made against the accused.
In his cross examination by Ld. Defence Counsel for accused Prem Kumar, he deposed that he had not recorded any separate disclosure statement of the accused and he did not join any public servant at the time when he made the complaint against the accused. He denied that the accused had not named his brother in law Saral Ram.
(ii) PW 2 SAG J.S. Bhandari deposed that on the intervening night of 25/26.03.2007, he was handed over travel documents, complaint and passenger Dinesh Kumar by the clearing officer for the registration of FIR at the police station which he took to the police station and handed over the accused and complaint to the DO. The DO seized the travel documents vide seizure memo Ex. PW 2/A. In his cross examination by Ld. Defence Counsel for accused Prem FIR NO.: 118 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 4 of 14 Kumar and Dinesh Kumar, he deposed that he did not inform the SHO before signing seizure memo. He denied that the accused has been falsely implicated in connivance with the police officials and they were innocent.
(iii) PW 3 Mr. Sushil Bhalla, Superintendent, RPO Lucknow has proved the report of RPO, Lucknow vide Ex. PW 3/A and identified the signatures of Mr. N.K. Kaushik on this report. He deposed that the page no. 5 of the passport of the accused Dinesh Kumar Ex. P 1 having the ECNR stamp with his signatures was totally forged and did not belong to him and the seal/ECNR stamp was also fake.
In his cross examination by Ld. Defence Counsel for accused Dinesh Kumar, he deposed that passport was genuine and he did not sign the ECNR stamp and his signatures were forged on it. He could not remember if his specimen signatures were taken by IO of this case or not. He denied that it bears his signatures.
In his cross examination by Ld. Defence Counsel for accused Prem Kumar, he deposed that he was working as Policy Section Incharge before March 2007 and the ECNR stamping was done in passport officer, Lucknow and he never remained incharge of ECNR stamp clearing section. He deposed that he does not know who was Incharge of ECNR clearance in March, 2007 or before that and no opinion was sought from them in respect of ECNR stamp in question at page no. 5. He had seen the passport in the Court Ex. PW 3/A. He deposed that he was not expert in verification of signatures and never worked in CFSL. He further deposed that since the stamp in question belong to him therefore, he can say that it had been forged. He admitted that he and Mr. Kaushik have never worked in the same section or passport office at Lucknow. He denied the suggestion that due to this reason, he is not sure whether the report is signed by Mr. N.K. Kaushik. He also denied that his signatures were genuine in respect of the said stamp and he was deposing falsely.
FIR NO.: 118 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 5 of 14 (iv) PW 4 Ct. Sunil Kumar has proved the arrest of the accused Dinesh
Kumar vide arrest memo Ex. PW 4/A, his personal search vide Ex. PW 4/B and his disclosure statement vide memo Ex. PW 4/C.
(v) PW 5 Ct. Surender Singh proved the arrest of accused Prem Kumar at the instance of Saral Ram (bother in law of accused Shamboo Nath, accused in connected case FIR No. 119/07 PS IGI Airport). The accused Prem Kumar was also interrogated in his presence and his disclosure statement was recorded vide memo Ex. PW 5/A. He also deposed about the arrest of accused Rashid Khan and Javed Naqbi (since discharged) whose names were disclosed by accused Prem Kumar in his disclosure statement.
(vi) PW 6 Bihari Lal is the father of accused Dinesh Kumar and he deposed that his son was inclined to go Muscat for earning a livelihood and for this purpose, he had a talk with his son in law Ram Milan. In the month of March, 2007 as there was a need of ticket for sending his son go abroad, he went to the office of accused Prem Kumar at Gorakhpur. The accused Prem Kumar told him that stamp of immigration is also required to go abroad with air ticket and he demanded Rs. 14,000/ for air ticket and stamp and on 10.03.2007, the payment of Rs. 28,000/ for accused Dinesh Kumar and Shamboo Nath was made to accused Prem Kumar of Utsav Travels by Bihari Lal and brotherinlaw of accused Shamboo Nath namely Mr. Saral Ram. On 24.03.2007, accused Prem Kumar informed him that the papers are available and asked him to collect the same from his office and he handed over the air ticket and photocopy of visa and passport of both accused Dinesh and Shamboo to them. On 26.03.2007, both accused Dinesh and Shamboo arrived at IGI Airport and produced their documents. When their documents were checked by the immigration officers, they were apprehended as the ECNR stamp was found fake. On the information given by the accused on telephone about his arrest, he came to Delhi and his statement was recorded. On 01.04.2007, Delhi police officials reached Gorakhpur alongwith accused Dinesh and Shamboo Nath and the police officials FIR NO.: 118 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 6 of 14 met him and Saral Ram. Then at their instance, police arrested the accused Prem Kumar vide arrest memo Ex. PW 6/A and his personal search was conducted vide memo Ex. PW 6/B and his office was also searched and some documents were taken into possession vide memo Ex. PW 6/C. He also identified the travel documents of the accused Dinesh Kumar as Ex. P 1, Ex. P 4 and Ex. P 5.
This witness was not cross examined by any of the accused despite opportunity given to them for the same and the facts deposed by him before the Court remained unrebutted.
(vii) PW 7 Mr. Saral Ram is also one of the relative's of accused Shamboo Nath. He alongwith father of accused Dinesh namely Bihari Lal visited the office of accused Prem Kumar, Utsav Travels at PS Cantt Gorakhpur for air tickets. The accused Prem Kumar met them and he showed the passport of accused Dinesh and Shamboo and their visas. He demanded Rs. 14,000/ for each person for their ticket and immigration and this incident took place on 10.03.2007. On 24.03.2007 between 67 pm, the accused Prem Kumar called him telephonically and told that tickets and stamps have been arranged and he asked them to collect the same. Then he alongwith Bihari Lal reached Utsav Travels, office of Prem Kumar and Prem Kumar handed over passport, visa and tickets to them and told them that immigration has been done and they can send their children abroad and the flight is scheduled for 26.03.2007 at 6 AM. On 26.03.2007, when accused Dinesh and Shamboo approached for immigration clearance, they were apprehended as their immigration was false. They pointed out the office of Utsav Travels to the police when police officials visited Cantt, Gorakhpur with accused Shamboo and Dinesh. At their instance, accused Prem Kumar was arrested and documents were seized from his office.
This witness was also not cross examined by accused Dinesh Kumar FIR NO.: 118 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 7 of 14 despite opportunity for the same being given.
In his cross examination by Ld. Defence Counsel for accused Prem Kumar, he denied that he had not purchased any air ticket for Shamboo from Utsav Travels and accused Dinesh and Shamboo themselves approached Dania Travels at Lucknow for their immigration clearance/ECNR and got it arranged from there. He further denied that Utsav Travels only sales tickets and not involved in immigration clearance/ECNR and Utsav Travels did not take any money for immigration clearance/ECNR from Dinesh and Shamboo. He further denied that Prem Kumar is an employee of Utsav Travels and he did not accompany the police to the office of Utsav Travels and no proceedings were conducted in his presence.
(viii) PW 8 Inspector Arun Kumar Chaudhary joined the investigation with SI Vinod Kumar on 31.03.2007 and visited Gorakhpur for the search of accused Prem Kumar. On 01.04.2007 with the assistance of local police, a raid was conducted at Utsav Travels at Gorakhpur in the presence of accused Dinesh Kumar, Saral Ram and at their instance the accused Prem Kumar was arrested. He was interrogated and his disclosure statement was recorded vide memo Ex. PW 5/A and documents were recovered from his office which are Mark A1 to A5 and seized vide memo Ex. PW 6/C. The accused Prem Kumar disclosed the name of accused Mohd. Rashid and accused Javed (since discharged). The accused Ram Dhani and Shamboo accompanied them at the time of arrest of accused Prem Kumar.
The witness was not cross examined by accused Dinesh Kumar despite opportunity for same being given.
In his cross examination by Ld. Defence Counsel for accused Prem Kumar, he deposed that the documents relating to tours and travels were taken into FIR NO.: 118 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 8 of 14 possession from the office of accused Prem Kumar, however, he could not tell about the exact details of the said documents. No passport, visa or ticket was recovered from the office of accused Prem Kumar.
(ix) PW 9 SI Ashok Kumar was DO in the present case. He proved the present FIR No. 118//07 as Ex. PW 9/A and travel documents as Ex. PW 2/A.
(x) PW 10 SI Vinod Kumar, IO in the present case interrogated the accused Dinesh Kumar and arrested him vide memo Ex. PW 4/A, conducted his personal search vide memo Ex. PW 4/B and recorded his disclosure statement as Ex. PW 4/C. The accused disclosed the name of M/s Utsav Travels, Gorakhpur and also disclosed the name of agent as Prem Kumar. On 01.04.2007, he alongwith Ct. Ratan, Ct. Surender and other SI Arun Kumar Chaudhary reached the office of M/s Utsav Travels. One person in the office was Prem Kumar being an agent to whom they stated that they had given Rs. 14,000/ for each person to arrange the ECNR stamp on their passport. He proved the arrest memo of accused Prem Kumar as Ex. PW 6/A, his personal search memo as Ex. PW 6/B and his disclosure statement as Ex. PW 5/A. The accused Prem Kumar disclosed that ECNR stamp was arranged through Dhaniya Travels Lucknow and he had given Rs. 5,000/ for each passport. He further deposed that they alongwith accused Prem Kumar went to Lucknow and raided the office of Dhaniya Tour and Travels where one boy Rashid Khan was arrested. He disclosed that he has taken Rs. 5,000/ from each passport from him. He was arrested vide memo Ex. PW 5/B and his personal search was conducted vide memo Ex. PW 5/C and his disclosure statement was recorded as Ex. PW 5/D. The accused Rashid disclosed that he arranged the stamp through Javed Naqbi who was also apprehended vide arrest memo Ex. PW 5/E. The passport and ECNR stamp were got verified from the RPO Lucknow.
In his cross examination by Ld. Defence Counsel for accused Prem FIR NO.: 118 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 9 of 14 Kumar, he deposed that he did not prepare the site plan regarding the position of the office of accused Prem Kumar. He admitted that 1020 public persons were gathered there. They prepared the Khana Talashi which was signed by public witnesses, however, he admitted that he could not seize any document which could show that accused Prem Kumar was the owner of the said office. He could not tell as to how many papers were seized from his office.
7. No other witness was examined in PE and PE hence was closed and the matter was fixed for statement of accused Dinesh Kumar and Prem Kumar u/s 313 Cr. PC.
8. The entire aforesaid incriminating evidence produced by the prosecution was put to the accused Dinesh Kumar and his statement u/s 313 Cr. PC was recorded separately. The accused in his statement tendered u/s 313 Cr. PC stated that ECNR stamp was arranged by accused Prem Kumar and he admitted that he produced passport having forged ECNR stamp and signatures of issuing authority at departure left wing of IGI for immigration clearance which was arranged by his co accused Prem Kumar which was used as a genuine one. He also admitted his arrest. He further stated that he is innocent and a false case has been registered against him. He further stated that all the witnesses have falsely deposed against him. He declined to lead DE.
9. The entire aforesaid incriminating evidence produced by the prosecution was put to the accused Prem Kumar and his statement u/s 313 Cr. PC was also recorded separately. This accused also in his statement tendered u/s 313 Cr. PC denied that he in conspiracy facilitated the journey of co accused Dinesh by arranging forged ECNR stamp and signatures of issuing authority, RPO Lucknow on his passport for unlawful consideration. He also denied about the visiting of PW 6 Bihari Lal at his office and about taking of money for the immigration stamp and for air ticket from them. He also denied that he is the owner of Utsav Travels. He said that he was a servant there and Saral FIR NO.: 118 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 10 of 14 Ram used to visit that office for the purpose of booking of air tickets. He admitted about issuance of air tickets from office. He stated that he has been falsely implicated in this case. He denied about the visit of Bihari Lal and Saral Ram to office on 31.03.07 or on 01.04.07. He further stated that all the witnesses have falsely deposed against him. He declined to lead DE.
10. DE hence was closed and the matter was fixed for final arguments.
11. I have heard Ld. APP for State and Ld. Defence counsels for accused. In the present case, the prosecution has examined 10 witnesses to prove its case. I have evaluated their testimony at length.
12. In the matter of appreciation of witnesses, it is not the number of witnesses but the quality of their evidence which is important as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove or disprove a fact, it is a time honoured principle that evidence must be weighed not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise the legal system has laid emphasis on the value provided by each witness as opposed to the multiplicity or plurality of witnesses.
13. The main allegation against the accused persons is that of entering into a conspiracy to cheat the Government of India and the Immigration department. In this regard, it is well settled that "The essence of conspiracy is that there should be agreement in persons to do one or the other of the acts described in Section 120 A IPC. The said agreement may be proved by direct evidence or may be inferred from the acts and conduct of parties. There is no difference between the proof of mode of conspiracy and that of any other offence. It can be established by direct evidence or by circumstantial evidence but Section 10 of the Evidence Act introduces the Doctrine of Agency and if the conditions laid down therein are satisfied the act done by one are admissible against co FIR NO.: 118 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 11 of 14 conspirators. The evidentiary value of the said act is limited by two circumstances namely the acts shall in reference to the common intention and in respect of the period after such intention was entertained by anyone of them. The expression in reference to your common intention is very comprehensive and appears to have been designedly used to give it a wider scope than the words in furtherance of. In English law with the result, anything said, done or written by co conspirators the conspiracy was formed, will be evidence against the other before he entered the field of conspiracy or after he left it. Another important limitation implicit in the language is indication by the expressed scope of its relevancy. Anything so said, done or written is a relevant fact as against each of the persons believed to be so conspiry as well as for the purpose of proving the existence of conspiracy as for the purpose of showing that any such person was a party to it." as held by the Hon'ble Supreme Court of India in Sardar Sardul Singh Caveeshar Vs State of Maharashtra (And Connected Appeals) dated 18.03.1963.
14. In the present case, the testimony of prosecution witnesses is clear, cogent and corroborating. The PW 6 Mr. Bihari Lal and PW 7 Mr. Saral Ram have stated in consonance and are found trustworthy. Both have stated about the presence of accused Dinesh with accused Prem Kumar at his office at Utsav Travels, Delhi Cantt, Gorakhpur. They have proved the conversation which took place among the accused persons. As per their testimony, the accused Dinesh Kumar did not ask at any point of time about the genuineness of the stamp going to be arranged by Prem Kumar for them. They have also proved the arrangement of ECNR stamp by accused Prem Kumar against payment of Rs. 14,000/. The participation of accused in commission of actual act of using the forged stamp is the result of conspiracy already hatched. They used forged stamp as genuine dishonestly to clearance officer and this illegal act was done in pursuance of the said agreement.
FIR NO.: 118 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 12 of 14
15. Another witness PW 3 Mr. Sushil Bhalla has categorically deposed about his forged signatures on the ECNR stamp as well as about the ECNR stamp on the passport of accused Dinesh Kumar. The prosecution succeeded in proving that Mr. Sushil Bhalla is not the author of that stamp. The testimony of this witness show that he never worked in that department. It proves beyond reasonable doubt that the stamp is forged. During his cross examination by defence Counsel, nothing has come on record which could shaken the credibility of this witness.
16. Further, during cross examination of PW 3, PW 6 & PW 7, no material contradictions were brought on record and there is nothing to impeach the testimony of the witnesses which show their credibility. All the witnesses were found corroborating each other on the aspect of arranging the forged ECNR stamp and making of payment in cash as an unlawful consideration for facilitation of the journey. The gist of conspiracy is that two or more persons did continuously confederate and agree together to carry out the object of conspiracy and as per the act of accused Prem Kumar and accused Dinesh Kumar, it is clear that both acted as agreed upon.
17. PW 8 Inspector Arun Kumar Chaudhary and PW 10 SI Vinod Kumar were the IOs in the present case who deposed on the similar lines regarding the arrest of the accused persons and their disclosure statements. Nothing has come up on record in their cross examination by defence to support them and to disprove the prosecution case.
18. PW 5 Ct. Surender Singh is also corroborating the version of PW 8 Inspector Arun Kumar Chaudhary regarding the arrest of accused Prem Kumar and his interrogation and nothing material in order to strengthen the defence of the accused had come on the record and to discredit the credibility of this witness.
19. Taking into consideration the entire facts and circumstances and the abovementioned observations, I am of the considered view that the prosecution has FIR NO.: 118 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 13 of 14 proved its case against accused Dinesh Kumar and Prem Kumar beyond reasonable doubts. Accused Dinesh Kumar and Prem Kumar, hence stand convicted for the offences as alleged against them in the present case.
Let they be heard on sentence on 23.04.2013 at 2 PM.
(ANNOUNCED IN THE OPEN SUDESH KUMAR COURT ON 22th April, 2013) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE01 This Judgment contains 14 pages NEW DELHI DISTRICT and each paper is signed by me. PATIALA HOUSE COURTS,DELHI FIR NO.: 118 OF 2007 POLICE STATION: IGI AIRPORT U/S: 420/468/471/120 B IPC & 12 PASSPORT ACT 14 of 14