Delhi District Court
Central Bureau Of Investigation vs . on 16 December, 2014
IN THE COURT OF SH. R.P.PANDEY: SPL. JUDGE 01
(PC ACT) CBI (N/W): ROHINI COURTS: DELHI
CBI Case No. : 11/12
CENTRAL BUREAU OF INVESTIGATION
Vs.
1. Bibianus Toppo (A.1)
s/o late Joseph Toppo
r/o 14G, Sector4, DIZ Area, Raja Bazaar,
Gole Market , New Delhi.
2. Harbhajan Yadav (A.2)
s/o late Sultan Singh Yadav
r/o H.No.949/1, Gali No.4, Ashok Vihar,
Gurgaon, Haryana.
3. Ram Chander (A.3)
s/o Sh.Maman Ram
R/oJ624, Sardar Colony, Sector16
Rohini, Delhi85
4. Anil Dhawan s/o Sh.Madan Lal Dhawan (A4)
R/oH.No.254, DDA Flats, Ist Floor
New Ranjit Nagar, New Delhi8
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12
Page No.1 of 128
5. Kuldeep Kaur (A.5) (PO)
d/o Late Pyara Singh
r/o Village Bhagowal, PO Adamwal
District Hoshiarpur, Punjab
Date of Registration of FIR : 27.08.2004
FIR No. : RC.05(A)/2004/SCUV/CBI/SCRII/CBI/New Delhi
Under Section : 120 B r/w Sec.420/468/471 IPC
Section 13 (2) r/w 13 (1) (d) of P.C. Act 1988 and Section 12 (1)(b)
of Passport Act, 1967
Date of Filing Charge : 27.09.07
Sheet
Arguments Concluded on : 05.12.14
Date of Judgment : 09.12.14
CASE ID No. : 02404R0651282007
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12
Page No.2 of 128
CC No.16/2012 (Clubbed with CC No.11/12 vide order dt.25.04.14)
State (NCT of Delhi)
Vs.
Kuldeep Kaur & Ors.
Date of Registration of FIR : 23.04.04
FIR No. : 165/04
PS: : IGI Airport, New Delhi
U/s : 419/420/468/471 IPC and Sec.12 of
Passport Act, 1967
Date of Filing Charge : 29.01.11
Sheet
Arguments Concluded on : 05.12.14
Date of Judgment : 09.12.14
CASE ID No. : 02404R0372172011
Appearances: Ms.Shashi Vishwakarma and Mr.N P Srivastava,
Public Prosecutors for CBI.
Mr.Anil Kumar Gupta, Public Prosecutor for State.
Mr. R.Ramachandran, Advocate for A1.
Dr.Anil Gupta, Advocate for A2.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12
Page No.3 of 128
Mr.Sukhwinder Singh, Adv. for A3.
Mr.Ashwani Verma and Mr.Lalit Yadav,
Advocates for A 4.
J U D G M E N T
1.0 By this common judgment I proceed to dispose of two cases one filed by CBI bearing CC No.11/12 and another filed by State bearing CC No.16/12, which was clubbed with CBI Case No.11/12, vide order dated 25.04.14 passed in CC No.16/12. 1.1 The case against accused persons as per the charge sheet filed by CBI, is that in pursuance of a criminal conspiracy amongst Bibianus Toppo (A.1), Harbhajan Yadav (A.
2), Ram Chander (A.3) all officials of Regional Passport Office (RPO), New Delhi and accused Anil Dhawan (A.4) a private CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.4 of 128 person, one additional passport booklet was issued in the name of Geeta Devi Kapoor from Regional Passport Office, New Delhi with an object to cheat the Regional Passport Office, New Delhi fraudulently and dishonestly 1.2 The investigation disclosed that a passport application form for issue of passport in the form of additional passport booklet was submitted in the fictitious name of Smt.Geeta Devi Kapoor on 05.02.04 alongwith a handwritten request letter under the signature of said Geeta Devi Kapoor for issue of an additional passport booklet on Tatkal basis mentioning therein that the pages meant for affixing Visas are full and a photocopy of original passport No.B5081385 dated 20.12.2000 was also enclosed.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.5 of 128 1.3 Investigation further disclosed that the passport application was filled in by accused Anil Dhawan (A.4) and he has also signed as Geeta Devi. The request letter is in the handwriting of Smt.Shweta Dhawanwife of accused Anil Dhawan (A.4) but signed by accused Anil Dhawan(A.4) as 'Geeta Devi' himself. He has also signed on the request letter in the presence of accused Harbhajan Yadav (A.2) and Bibianus Toppo (A.1) as 'Geeta Devi' wherein he has undertaken to complete all formalities/documentation before issue of passport. He has also signed on the photocopy of passport No.B5081385 dated 20.12.2000 on page nos. 6 to 8 attached with the passport application form as 'Geeta Devi'.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.6 of 128 1.4 As per the charge sheet accused Harbhajan Yadav (A.2)Clerk, RPO, New Delhi had put the relevant stamps on the passport application form and also on the request letter but he did not sign at relevant column for having cancelled and returned previous passport. The passport file No.T001794 was scanned by Sh.Puran Chand and detail entry were made by Sh.Tara Dutt. Thereafter, the file was dealt by accused Ram Chander (A.3) in HIT Section who cleared the HIT on 06.02.04, despite the fact that he could see on his computer that the signature and photograph did not tally with the photograph and signature as available in the passport file relating to original passport No.B5081385 dated 20.12.2000 issued in the name of Geeta Devi Kapoor.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.7 of 128 1.5 Although the HIT was cleared on 06.02.04 but accused Harbhajan Yadav (A.2) had already recommended grant of passport on 05.02.04 by noting on page no.4 of the passport file "May issue additional booklet, valid upto 19.12.2010, ECR, observation of old passport cancelled and returned." Accused Bibianus Toppo (A.1) Suptd. RPO, New Delhi had granted the passport on 06.02.04 with ECNR instead of ECR. 1.6 In this way an additional passport booklet No.E7710164 was issued on 06.02.04 in the name of Smt.Geeta Devi Kapoor. Accused Harbhajan Yadav (A.2) had received the passport in question from the Pasting and Lamination Section of RPO, New Delhi for delivery at the delivery counter and he had delivered the passport booklet No.E7710164 dated 06.02.04 to CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.8 of 128 accused Anil Dhawan (A.4) who has signed as 'Geeta Devi' in the passport delivery register for the period 15.09.03 to 31.03.04 and also on page no.3 of the passport file No.T001794 dated 05.02.04 in token of having received the passport. 1.7 On the basis of this additional passport booklet No.E7710164 dated 06.02.04, a lady named Ms.Kuldeep Kaur r/o Hoshiarpur, Punjab attempted to go abroad from IGI Airport, New Delhi on 23.04.04 as Smt.Geeta Devi Kapoor. She was carrying an air ticket No.4402084093 for the route DelhiTashkentParis TashkentDelhi for 23.04.04 by Flight No.HY422 (Uzbekistan). On being caught by the Immigration, the Delhi Police arrested her on 23.04.04 itself and FIR No.165/2004 was registered. She was already having a valid passport No.E6356799 dated 19.09.03 CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.9 of 128 issued from Passport Office, Jalandhar.
1.8 On the basis of these facts and circumstances it is alleged that accused persons have entered into criminal conspiracy, the object of which was to get the additional passport booklet issued fraudulently from RPO, New Delhi and accused officials of RPO New Delhi had abused their official position as public servant and conspired with accused Anil Dhawan (A.4). 2.1 Charge sheet was filed by CBI u/s 120B r/w Section 420/468/471 IPC and Section 13(2) r/w Section 13 (1) (d) of PC Act, 1988 and Section 12 (1)(b) of Passport Act, 1967, besides for substantive offences thereunder.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.10 of 128 2.2 Sanction u/s 19 of P.C. Act, 1988 in respect of all public servants named above and sanction u/s 15 of Passport Act, 1967 for prosecution of all accused persons were obtained and filed alongwith the charge sheet. The court took cognizance, accused were summoned and compliance of provisions of Section 207 Cr.PC was made.
2.3 After hearing the accused persons/their ld. counsels, the court framed charge against A1 to A.4 u/s 120B r/w Section 419/420/467/468/471 IPC, Section 13(2) r/w Section 13 (1)
(d) PC Act, 1988 and 12 (1)(b) Of Passport Act, 1967 besides framing charge for substantive offences against all of them u/s 12(1)(b) of P. C. Act. Additionally the charge for substantive offence u/s 13(2) r/w 13(1)(d) PC Act against A1 to A3 ; u/s 419, CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.11 of 128 420, 468 and 471 IPC against A4 and u/s 467 IPC against A1 were also framed.
3.0 To prove the case, the prosecution has examined 19 witnesses. As the evidence recorded in this case is extensive hence I proceed to first recapitulate the relevant evidence very briefly.
3.1 PW1/Himmat Singh was Halqa Patwari of Hoshiarpur (Punjab), who provided Jamabandi to the CBI which is Ex.PW1/A to the fact that Smt.Bhajan Kaur had sold 23 canal and 4 marlas of land vide mutation no.1563. He was not cross examined by any of the accused persons.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.12 of 128 3.2 PW2/Syed Abrar Hussain is Airport Manager of Uzbekistan Airlines, who has proved the letter of Sh.Nurmatov Bokhadir, Station Manager of Uzbekistan Airlines as Ex.PW2/A (D10) vide which flight manifest of flight no.HY422/23 dated 23.04.04 was handed over to CBI showing that the ticket no. 2504402084093 issued to passenger Geeta Devi Kapoor by agent M/s Aakash Travels, New Delhi. The fax copy of flight manifest which was enclosed to letter Ex.PW2/A has been marked as Mark PW2/X. He has deposed that passenger did not travel on the said flight and she was offloaded from the said flight as per the entry available at sl.no.27 on Mark PW2/X. The original of the same letter which was the fax copy of Ex.PW2/A has been proved as Ex.PW2/B. He also proved the flight manifest dated 21.05.04 as Ex.PW2/C showing that one Rajesh CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.13 of 128 Kumar and Geeta Devi had travelled abroad on 21.05.05 for sector DelhiTashkandParisTashkandDelhi. Their copies of tickets were proved as Ex.PW2/D & E respectively (which are originally available in CC No.05/12 pending in this court). He was not crossexamined by any of the accused persons. 3.3 PW3/Parminder Singh of M/s Bandhu Travels Pvt. Ltd has deposed that he got issued ticket bearing no. 2504402084093 in the name of Geeta Devi Kapoor for sector DelhiTashkandParisTashkandDelhi as Ex.PW3/A and deposed that the said ticket was purchased from Sh.Sudesh Khurana of M/s Kashyap Travels, New Delhi and while getting the ticket he had also forwarded copies of passport bearing no.E7988478 in the name of Geeta Devi Kapoor along with copy of VISA marked CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.14 of 128 as Mark PW3/B and it was he who had obtained copy of passport and VISA and compared the same from original and returned back the original to the customer. He was also not crossexamined by any of the accused persons. 3.4 PW4/Sudesh Khurana of M/s Kashyap Travels, New Delhi has deposed that on 23.04.04, a ticket in the name of Geeta Devi Kapoor was purchased through M/s Aakash Travels, New Delhi for sector DelhiTashkandParisTashkandDelhi which is Ex.PW3/A. He deposed that he had purchased the ticket at the request of one Sh.Parminder Singh Sohta, who was working in M/s Bandhu Travels, Connaught Place, New Delhi and the tickets were purchased through M/s Aakash Travels, New Delhi after making payment of Rs.26,000/ (approx.). He said that CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.15 of 128 photocopies of passport and VISA, Ex.PW3/B were given to him by Sh.Parminder Singh. He was also not crossexamined. 3.5.1 PW5/S P Kothari has proved the procedure followed at Regional Passport Office (RPO), New Delhi for issuance of passport and additional passport booklets. He deposed that when the file is sent to Passport Issuing Authority (PIA) after having been scrutinized by the counter clerk, then he writes "Grant ECR/ECNR" and on the basis of grant order the passport is issued. He also deposed that for issuance of additional passport booklet the applicant is required to furnish a self attested copy of first two pages and last two pages of existing passport; that the additional passport booklet should be issued either on the same day or maximum within 35 days; applicant is CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.16 of 128 required to pay a sum of Rs.500/ for each additional passport booklet; he is also required to submit photocopy of old passport duly self attested by him at the time of filing of the application for additional passport booklet; for issue of first additional passport booklet the applicant is required to furnish photocopy of original nd existing passport and for issuance of 2 additional passport booklet, self attested photocopy of first additional passport booklet is required to be submitted with the application form and likewise rd while applying for 3 additional passport booklet he is required to nd furnish self attested photocopy of 2 additional passport booklet. 3.5.2 He further deposed that PIA is required to go through the entire file in order to ensure that details of the previous passport are available in the file. He proved the file for CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.17 of 128 issuance of additional passport booklet bearing file no.T1794/04 as Ex.PW5/A; the receipt of Rs.500/ deposited at the time of filing of the application dated 05.02.04 is Ex.PW5/B; the passport application is Ex.PW5/C; the application for miscellaneous service is Ex.PW5/D, the space for official use in the said application is Ex.PW5/E; the photocopy of self attested of previous passport booklet is Ex.PW5/G and the handwritten application with request to issue new passport booklet on the ground that pages of previous booklet are filled as Ex.PW5/H. 3.5.3 The copy of previous passport booklet no.B5081385 as available in passport file no.T3439/04 in CC No. 28/09 pending in this court regarding issuance of passport booklet in the name of Geeta Devi Kapoor was also taken on record in CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.18 of 128 this case as Ex.PW5/F. On comparison of both the copies of same passport number, Sh.Kothari testified that the impression of photograph on both Ex.PW5/F and Ex.PW5/G are different but inspite of this, the additional passport booklet no.E7710164 was issued in the name of Geeta Devi Kapoor.
3.5.4 After seeing the handwritten application, Ex.PW5/H, he deposed that Ms.Asia was the PIA, who had given promise date as 06.02.04 indicating that the passport will be ready for dispatch on 06.02.04. He also deposed that photographs on the copies of passport Ex.PW5/F are different from the photograph pasted on passport application on Ex.PW5/C & D inside the file Ex.PW5/A (D7); that at page no.6 of the passport file Ex.PW5/A which is separately marked CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.19 of 128 Ex.PW5/J, the copy of previous passport shows the fact that ECR was required to be issued, yet accused/Bibianus Toppo on Ex.PW5/E i.e. space for official use, wrongly passed the grant order mentioning 'ECNR' which means immigration check not required.
3.5.5 He was also shown the computerized record of RPO Delhi, Ex.PW5/K (D4) visavis file Ex.PW5/A (D7). On seeing the same he testified that it was accused/Ram Chander, who had cleared the HIT in the file and that accused/Ram Chander should have recorded the fact regarding issue of first additional passport booklet on page no.4 of the file Ex.PW5/A which is space for official use (separately marked as Ex.PW5/E), but the said fact has not been mentioned in that space.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.20 of 128 3.5.6 Sh.Kothari has also proved photocopies of specimen handwritings/signature from S1 to S34 as Ex.PW16/B1 to B17 (D17) which are specimen handwritings/signatures of accused/Anil Dhawan (A4) (originally available in CC No.47/08).
3.5.7 During his crossexamination by ld.counsel for A1/Bibianus Toppo, he clarified that it is enough if the counter clerk takes the signature of the applicant on the stamp of "cancelled and returned old passport" affixed on the application for miscellaneous services as the same was in order to ensure that old cancelled passport has been returned to the applicant so that he may not dispute later on that his/her cancelled passport CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.21 of 128 was not returned to him/her; that filling the number of cancelled passport and putting the initial by the counter clerk in the space provided in the stamp was not in practice in the relevant period; that the details of existing passport, the copy of which was enclosed with the application, was already mentioned in the column no.4 of the form for miscellaneous services; that as per the instructions of Ministry of External Affairs, PIAs were required to provide additional passport services to the applicant on the same day or maximum by 35 days.
3.5.8 He also clarified that the concerned PIAMs.Asia had given the promise date/delivery date as 06.02.04 which is mentioned on Ex.PW5/H; the previous passport file of the applicant was not sent for perusal of PIA while dealing with CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.22 of 128 additional passport booklet; in the relevant period PIAs did not have the facility to see photographs/signature and old passport references of the applicant in their computer; that if HIT Section found any discrepancy or irregularity they were required to mention the same in the application which is Ex.PW5/E but there is no adverse remark in this space made by HIT Section; that if there is no adverse remark then it is presumed that HIT is clear; and that the HIT clearance is not indicated in the file as only entries are made.
3.5.9 He admitted that on daily basis application pertaining to miscellaneous services used to be between 100150 and similarly applications pertaining to issuance of additional passport booklets also used to be between 100150 per day in CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.23 of 128 which miscellaneous services were required to be rendered within same day or maximum 35 days.
3.5.10 He also clarified that without HIT clearance a passport can not be made because even the passport number will not be generated by the computer if HIT is not clear. He also said that by end of year 2002, Index Section was closed as the computerization had taken place and thereafter HIT Section had started doing the work of Index Section.
3.5.11 During crossexamination by ld.counsel for A2/Harbhajan Yadav, he deposed that once the applicant has collected back the file from the counter clerk, the counter clerk had no control over the applicant and his/her file and that there CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.24 of 128 was no instrument with the counter clerk to verify whether the copy of the passport enclosed with the application was genuine or forged one. He also deposed that it is not mandatory that applicant also deposits the application form for additional passport booklet in person and that he could authorize any person to deposit his /her application form on his behalf. 3.6 PW6/Tara Dutt Joshi has done detail entry in the file Ex.PW5/A as per work done report which is Ex.PW5/K (D4). Testimony of PW7/I M Sabharwal was dropped by the order of the court dated 17.01.14 on the request of prosecution. 3.7 PW8/Kishore Kumar, Inspector of Delhi Police has proved the attested photocopies of seizure memo as CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.25 of 128 Ex.PW8/A vide which the documents were seized by IGI Airport Police Station in FIR No.165/04 (case is being disposed of bearing CC No.16/12). The seized documents which are attested copies of passport no.E7710164 dated 06.02.04 including VISA, air ticket no.2504402084093 from Delhi to Paris, boarding pass of flight no.HY422 dated 23.04.04 and embarkation card, all in the name of Smt.Geeta Devi Kapoor have been proved as Ex.PW8/B to E which are originally available in file bearing FIR No.165/04 registered as CC No.16/12, being disposed of by this common judgment. He has not been crossexamined by any of the accused persons.
3.8 PW9/Sh.Mangboi Gangte and PW15/Sh.H K Bajaj are witnesses to obtaining of specimen writings/signatures CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.26 of 128 on sheets from S82 to S118 proved as Ex.PW9/A. 3.9.1 PW10/Sh.G S Walia has deposed that he is running a travel agency in the name and style of M/s Jas Air at 7/60, South Patel Nagar, First Floor, New Delhi which is a partnership firm running since 2002. He deposed that prior to this, he was running a company under the name and style of M/s Kanu Travels Care Pvt. Ltd since 1991 in which he was one of the directors; that accused/Anil Dhawan was his employee when he was running the company M/s Kanu Travels and after closure of that company when he opened M/s Jas Air, he took him (Anil Dhawan) in employment of M/s Jas Air which is into the business of issuing domestic as well as International Air Tickets and provide assistance in getting visa and issuance of passports.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.27 of 128 3.9.2 He deposed that Anil Dhawan used to deliver the tickets to the clients, collect the payments and used to go to the embassies and passport office for getting visa and passports for the clients which was part of his employment; that Anil Dhawan used to make entries in the day book with regard to the payment received and then deposit in the bank; and that he also used to fill up passport forms as well as visa forms.
3.9.3 He has proved the handwritings of accused/Anil Dhawan. After seeing the passport file no.T1794/04 Ex.PW5/A (D7) he identified handwriting of accused/Anil Dhawan on passport application registration form and other enclosed documents at points Q2, Q5, Q6, Q8 and on passport delivery CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.28 of 128 register at point Q29 (D9) but about Q30 on passport delivery register, he could only say that it appears to be that of accused/Anil Dhawan. The relevant page of passport delivery register was marked as Ex.PW10/A (D9) (original seen from CC No.25/09 pending in the court). He also proved the handwritings of accused/Anil Dhawan on the day book Ex.PW16/C1, passport application of Ms.Kanu Priya Gombar Ex.PW16/C2 and Immigration Application of Ms.Padmini Malpani Ex.PW16/C3 (originally available in CC No.08/12 pending in this court). 3.10.1 PW11/Sh.Ajay Gautam is scientist, Gr.'C', who remained posted in RPO, Delhi and was responsible for operational support and maintenance of passport server. He deposed that scanning of the photographs and signatures of the CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.29 of 128 passport applicants was started in RPO Delhi in May 2000; HIT checking on computer system of RPO, Delhi for seeing the signatures and photographs along with details of applicants, on old passports already issued, was started in August, 2002; that in August, 2002 one computer (PC) was provided to HIT Section for HIT checking of TATKAL cases and in April, 2004, all PCs in HIT Section were provided with the facility of seeing the photographs, signatures and other details of the old passport holders and applicants.
3.10.2 He deposed that NIC provides the informations to Superintendent, RPO New Delhi regarding the file dealt in various sections by different officials along with their log in IDs and name in respect of various passports issued in the name of CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.30 of 128 different persons and in RPO New Delhi he was authority competent to generate this information on behalf of NIC. 3.10.3 He proved the computerized processing reports Ex.PW11/A which is in respect of passport file no.DLHB041059/2000, ExPW11/B which is in respect of additional passport file no.DLHT007726/02, Ex.PW5/K which is in respect of file no.DLHT001794/04 and Ex.PW11/C which is in respect of passport file no.DLHT003439/04 as Ex.PW11/C. A certificate u/s 65B of Indian Evidence Act (D5) has been proved by him in respect of three computer prints, as Ex.PW11/D (originally available in CC No.47/08). The relevant photocopy of log in register has been proved by him as Ex.PW11/E (D6) and said that as per entries in the register, Passport Index Retrieval CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.31 of 128 System (PIRS) was introduced in RPO Delhi on 12.08.02 on one PC. Production memo was proved by him as Ex.PW11/F (D20). 3.10.4 During crossexamination by counsel for A1/Bibianus Toppo, he admitted that only HIT Section had the facility to check the photograph, signature of the applicant and previous passport details and the PIA had to depend upon HIT Section for such a report.
3.10.5 During crossexamination by accused/Ram Chander, he denied the suggestion that no computer system was available with HIT Section to check the photograph and signature of the original passport holder at the relevant period.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.32 of 128 3.11 PW12/Ms.Mamta Kotia has proved grant of passport to Smt.Kuldeep Kaur (since PO in this case) D/O late Sh.Pyara Singh bearing passport no.E6356799 dated 19.09.03 which was dispatched to her by post on 30.09.03 as issued from passport office Jalandhar, where she remained posted as Superintendent from 2002 to 2007. Passport application and annexures thereof have been proved as Ex.PW12/A. PW13/Sohan Lal Kahelat is Superintendent of Passport Office Jalandhar (Punjab) who had handed over said file Ex.PW12/A to CBI vide memo Ex.PW13/A. These two witnesses were not crossexamined by any of the accused persons. 3.12 PW14/Sh.R Swaminathan is Ambassador of India to Austria (Vienna), who was earlier working as Jt.Secretary, CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.33 of 128 Consular Passport Visas (CPV) and Chief Passport Officer, Ministry of External Affairs, New Delhi and he proved the sanction order dated 31.05.07 for prosecution of accused public servants as Ex.PW14/A which is u/s 19(1)(c) of PC Act, 1988. He deposed that he was competent to remove the public servants except accused/Bibianus Toppo (A1), who was Superintendent and for whom Additional Secretary (Administration) and CPV was competent to accord sanction for prosecution and accordingly his approval was obtained and thereafter sanction order Ex.PW14/A was signed by him.
3.13 PW19/Sh.Sh.R R Dash, Ambassador of India in Jordan, has proved the sanction order dated 19.03.07 u/s 15 of Passport Act, 1967 as Ex.PW19/A whereby sanction for CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.34 of 128 prosecution of accused/Bibianus Toppo, Harbhajan Yadav, Ram Chander, Anil Dhawan and Kuldeep Kaur (PO) has been accorded for committing offence u/s 12(1)(b) of Passport Act. 3.14 PW16/Sh.B A Vaid is Government Examiner of Questioned Documents (GEQD), who has given opinion on handwritings. He deposed that the documents of this case were received in his laboratory vide letter dated 24.01.05 written by SP, CBI (D16), copy of which has been proved as Ex.PW16/A (OSR). He also proved the documents which he had examined for giving opinion and deposed that after careful and thorough examination he had prepared his opinion Ex.PW16/D (D19) and reasons for opinion Ex.PW16/E. He deposed that documents, opinion and reasons for opinion were sent to SP, CBI vide letter CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.35 of 128 dated 21.04.05 which is Ex.PW16/F. 3.15 PW17/Surender Nath Sharma, Director of M/s Aakash Travels Pvt. Ltd has proved the production memo dated 14.01.05 (D2) for handing over certain documents by his employee to CBI as Ex.PW17/A; agent coupon of ticket no. 2504402084093 for sector DelhiTashkandParisTashkandDelhi has been proved as Ex.PW3/A (D13); Original bill book of his company as Ex.PW17/B (D14) and the two carbon copies of cash memo/invoice no.6883 dated 20.04.04 addressed to Mr.Sudesh c/o M/s Kashyap Travels for Rs.26,000/ against ticket no.2504402084093 as Ex.PW17/C & D respectively. 3.16 PW18/Rajiv Wahi is IO of the case who has CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.36 of 128 proved the entire investigation of the case as done by him. 4.0 Entire evidence was put to accused persons u/s 313 Cr.PC which has been denied by them. Accused/Bibianus Toppo (A1) has stated that he has not committed any offence and allegations of conspiracy made against him are false and incorrect. Accused/Harbhajan Yadav (A2) besides denying incriminating material said that during relevant period, counter clerk was not having the facility in the computer to see the photograph, signature and old references of the applicant; he was not having any instrument or machine to detect the correct enclosures of previous passport; that during relevant period, he used to work as counter clerk in morning session and had to work as dealing assistant in post lunch session; and that the work load CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.37 of 128 was too much and services were required to be rendered within a short time period. Accused/Ram Chander (A3) besides denying entire incriminating material against him, has stated that he has been falsely implicated by CBI and witnesses were interested and planted by CBI for strengthening their false case. Accused/Anil Dhawan (A4) has denied incriminating evidence put to him and stated that he has been falsely implicated by CBI to save witness/Gurinder Singh Walia from whose possession incriminating documents i.e. foreign currency, blank letter head and passport of his partner's daughter were recovered by CBI, who was promised by CBI officials that he would be let off if he deposed as per wishes of CBI; that he was called by CBI and made accused by leaving Gurinder Singh Walia as per promise made by CBI; and that he was just a poor employee of Gurinder CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.38 of 128 Singh Walia and has been made a scapegoat by him. None of the accused persons led any defence evidence despite opportunity granted.
4.1 I have heard ld.Public Prosecutor for CBI and ld.counsels for the accused persons and perused the records carefully.
5.0 SANCTION FOR PROSECUTION OF ACCUSED PERSONS 5.1 The sanction for prosecution of accused public servants u/s 19 of P.C. Act and sanction for prosecution of all accused persons u/s 15 of Passports Act, 1967 were placed on record with charge sheet filed by the CBI. The sanction for prosecution of public servants u/s 19 of P.C.Act has been proved CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.39 of 128 as Ex.PW.14/A by examining Sh.R. Swaminathan (PW14) and sanction for prosecution of all accused persons u/s 15 of Passports Act has been proved as Ex.PW.19/A by examining Sh.R R Dash (PW19).
5.2 It has been submitted by ld.Counsel for accused Bibianus Toppo (A.1) that sanction for prosecution of accused Bibianus Toppo (A.1) who worked with RPO, New Delhi as Passport Issuing Authority (PIA) is not proper and hence his prosecution in this case is void abinitio; that sanctioning authority did not apply its mind and hence sanction for prosecution is unlawful due to non application of mind by the sanctioning authority; that only an officer of the rank of Additional Secretary of Ministry of External Affairs, was empowered to pass a sanction CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.40 of 128 order u/s 19 of PC Act in respect of accused Bibianus Toppo (A.1) who was of the rank of Supdt., in Passport Office hence PW.14 Sh.R.Swaminathan, Joint Secretary was not authorized to grant sanction for prosecution of accused Bibianus Toppo (A.1). 5.3 When Sh.R.Swaminathan was examined as PW. 13, he clarified that authority for sanction of prosecution u/s 19 of P.C.Act in respect of Bibianus Toppo, the then Suptd., was vested with Additional Secretary (Administration & CPV) to whom the entire file including the statements of witnesses, investigation report and copies of documents were forwarded for his perusal and necessary action and on receipt of his approval on the file, he (PW14) had signed the sanction order Ex.PW.14/A. CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.41 of 128 5.4 Accused Bibianus Toppo (A1) was given full opportunity to cross examine PW14. If at all he had any doubt regarding nonexistence of any such sanction on the file by Addl.Secretary, who was competent to grant sanction for his prosecution, he could call for the records from the Ministry of External Affairs to show to the contrary, which record he preferred not to be summoned. Sanction order Ex.PW.14/A is an exhaustive order which itself speaks as to what documents were seen by sanctioning authority and under what circumstances the sanction for prosecution of accused public servants was accorded. The same is well reasoned order which reflects that the sanction has been granted by the authority competent to pass such an order after due application of his mind.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.42 of 128 5.5 The sanction order u/s 15 of Passport Act, 1967 has been proved by Sh.R.R.Dash as Ex.PW.19/A and in respect of this sanction order he was competent authority. The sanction for prosecution u/s 15 of Passport Act speaks of the reason for grant of sanction that passport booklets, in the name of Ms.Geeta Devi Kapoor having photographs of different persons with similar personal particulars in order to facilitate other persons to travel abroad or for making attempts to travel abroad on forged travel documents, were obtained by accused persons knowingly in conspiracy with officials of RPO, Delhi. There is no infirmity or illegality in this order also which is a reasoned order based on the documents produced before competent authority. I accordingly hold that the sanction for prosecution of accused persons u/s 19 of PC Act and u/s 15 of Passport Act has been duly accorded by CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.43 of 128 competent authority.
6.0 Now I proceed to discuss and examine the role of accused persons in the light of evidence available against each of them.
ROLE OF ACCUSED NO.1 BIBIANUS TOPPO 6.1 The Ld. Public Prosecutor has submitted that in total four passports had been issued by RPO, New Delhi in name of Smt.Geeta Devi Kapoor, the original of which was issued on 20.12.2000 in file No.DLHB 041059/00 in respect of which the computer generated processing sheet has been proved as Ex.PW.11/A. The chargesheet in respect of that passport was filed, which case bearing CC No.26/10 had been decided by the CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.44 of 128 Court of Sh.Amar Nath, the then ld. Spl.Judge, CBI on 17.08.10 convicting two accused persons. In that case it was found that one accused Sharda Devi (PO in that case) had got issued that passport No.B5081385 with her photograph affixed thereon in assumed identity in the name of Geeta Devi Kapoor, a non existent person and went abroad.
6.2 Again, enclosing a purported copy of passport No.B5081385 an additional passport booklet was got issued in passport file No.DLHT007726/02 with photograph of another lady in name of Geeta Devi Kapoor. The charge sheet in respect of that incident was filed and case bearing CC No.47/08 has also been decided on 29.09.12 thereby acquitting all accused persons. The computer generated worksheet in respect of that booklet is CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.45 of 128 Ex.PW.11/B. 6.3 In the same series, the instant case is with respect to passport file No.DLHT 001794/04 Ex.PW.5/A (D.7) with its computer print out of work sheet Ex.PW.5/K (D.4). In this case also the purported photocopy of same original passport No.B5081385 has been used for getting issued passport booklet No.E7710164 in the name of Geeta Devi Kapoor with photograph of yet another lady, namely, Ms.Kuldeep Kaur (PO). In this way this is the case of issuance of additional passport booklet for the second time. There is yet another case bearing CC No.05/12 pending in this court in respect of which the computer record of worksheet is Ex.PW.11/C in which additional passport booklet in the name of Geeta Devi Kapoor for the third time was issued with CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.46 of 128 photograph of yet another woman.
6.4 As per the procedure followed in RPO, Delhi while applying for additional passport booklet for the first time, the self attested copy of original passport is enclosed with the application, but the same cannot be used for issuance of a second additional passport booklet for which the self attested copy of the first additional passport booklet is required. It has come in unchallenged testimony of PW.5 Sh.S.P.Kothari. Besides, while issuing additional passport booklet, this fact is mentioned on it that it is first, second or third additional booklet. These are not disputed facts.
6.5 It is also clear from testimony of Sh.S.P.Kothari CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.47 of 128 (PW.5) that while accepting the application for additional passport booklet alongwith a self attested photocopy of previous passport booklet, the counter clerk used to cancel the previous passport booklet and return the same to the applicant after comparing the same with the copy annexed to the application. Hence if at all the additional passport booklet was issued on the basis of original passport booklet in CC No.47/08, its original must have been returned after cancelling the same and hence it was not possible for any one to utilize the same for the purpose of issuance of passport booklet in this case and then again for issuance of additional passport booklet for third time unless the officials of passport office dealing with it were colluding with applicant or her agent.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.48 of 128 6.6 It has been submitted by ld.Public Prosecutor for CBI that accused Bibianus Toppo was posted as Suptd. in the office of RPO, New Delhi and was Passport Issuing Authority (PIA) and it was he who had forged the passports by signing as PIA whereby a passport booklet vide passport application in the file Ex.PW.5/A was issued in the name of Ms.Geeta Devi Kapoor with photograph of accused Kuldeep Kaur (PO) with same personal particulars on the basis of which the original passport No.B5081385, on which photograph of another lady was affixed ,was issued.
6.7 She has submitted that the duty of accused Bibianus Toppo as PIA was to cross check the entire facts mentioned in the application in file Ex.PW.5/A (D.7) and then CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.49 of 128 grant passport but he signed the passport booklet without taking such care. She has also drawn attention of the court to the fact that PW.5 S.P.Kothari has identified accused Bibianus Toppo and other public servants who had dealt with the matter of issuance of passport booklet in file Ex.PW.5/A. She has submitted that the act of accused Bibianus Toppo was intentional act in issuing additional passport booklet in file Ex.PW.5/A with different photograph of the lady who was not Geeta Devi Kapoor but was accused Kuldeep Kaur (PO).
6.8 The facts proved on record and relevant for the purpose of ascertaining the involvement of accused Bibianus Toppo (A.1) are that he being Superintendent posted in RPO Delhi was Passport Issuing Authority (PIA). The application for CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.50 of 128 issuance of additional passport booklet was made on 05.02.04 which was checked at the counter by counter clerk Harbhajan Yadav (A.2) and the previous passport was purportedly seen, cancelled and returned by him to applicant, who then reached the PIA for taking promise date.
6.9 The duty of PIA at the stage of promise order is to see the application, enclosures and ensuring that the cancelled passport has been returned back to the applicant. The PIA in this case had passed promise order on 05.02.04 for dispatch of passport on 06.02.04 which is clear from point X4 on application Ex.PW.5/H (page no.9 of D.7). It has, however, come in evidence that this promise order was passed by Ms.Asia, who was then Superintendent in RPO, New Delhi. Thus to this extent there was CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.51 of 128 no involvement of Bibianus Toppo (A.1).
6.10 The space for official use in file Ex.PW.5/A (D.7) at page 4 (separately marked Ex.PW.5/E) indicates at point X3 that the counter clerk (A.2) had on 05.02.04 itself recommended 'may issue additional booklet valid upto 19.12.2010 ECR observed PPT C & R'. The grant order has been passed by Bibianus Toppo (A.1) on 06.02.04 and passport booklet was signed on same day which is shown at point X4 and X.5 respectively on Ex.PW5/E. 6.11 Ex.PW.5/K (D.4), which is print out of the computer worksheet, shows that the HIT in file Ex.PW5/A was cleared by Ram Chander (A.3) on 06.02.04 and B.Toppo (A.1) has granted passport and signed it on 06.02.04. Thus, it is clear CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.52 of 128 that B.Toppo (A.1) had no role in checking the enclosures of passport application, particularly verifying the enclosed copy of passport from its original or seeing the applicant personally because he was not in picture on the date of registration of application i.e. 05.02.04. Hence his role is confined only in granting and signing the passport.
6.12 It has come in evidence of Sh.S.P.Kothari (PW.5) that previous passport file did not use to accompany the application and during those days the facility to see the photographs and signatures of previous passport holders/applicants was not available on the computer provided to PIA and that there was huge work pressure on PIAs which might have deterred PIAs to call for previous passport file of the CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.53 of 128 applicant unless anything adverse was reported by dealing Assistant (A.2) or HIT checking official (A.3), which is admittedly not there on the file. Hence most probably PIA (A.1) was led to believe that everything was in order.
6.13 Ld. Public Prosecutor has strenuously argued that whereas the recommendation by counter clerk/dealing assistant (A.2) was to issue ECR (Emigration Check Required), accused B.Toppo (A.1) passed grant order for issue of ECNR (Emigration Check Not Required). She has accordingly submitted that it is indicative of the fact that B.Toppo (A.1) was involved in conspiracy whereby ECNR passport was granted and signed by him.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.54 of 128 6.14 Here, I find that argument of ld.defence counsel are more convincing, who has relied upon judgment cited as M/s Gordhan Dass Vs. Governor General in Council AIR 1957 Punjab 196 to submit that it is in fact an inadvertent mistake on the part of accused B.Toppo (A.1) in writing ECNR in place of ECR because had he been colluding with counter clerk/dealing assistant (A.2) he would have got his recommendation for ECNR instead of ECR. Secondly that the issuance of ECR or ECNR is of not much importance, as in any case the same would have hardly caused any hindrance to an impostor travelling abroad on such a passport. He has drawn attention of the court to the facts clarified by PW5/S P Kothari who said in his crossexamination that as per procedure the passport holder could travel to any European Country with ECR entry and he/she does not require CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.55 of 128 ECNR for this purpose. In this respect testimony of PW2, PW3 and PW4 is also relevant which proves that on the basis of passport issued in file Ex.PW5/A (D7), accused/Kuldeep Kaur (P.O.) had obtained VISA and air tickets for Paris (France) which is an European destination for which ECR passport was enough. This fact has also been explained by accused when the incriminating material was put to him during his examination u/s 313 Cr.PC vide his answer to Q.No.42.
6.15 Thus, the evidence on record as discussed above, does not lead to an inference that Bibianus Toppo (A.1) had intentionally passed grant order/signed passport booklet in file Ex.PW.5/A (D.7) in which the photograph of Ms.Kuldeep Kaur (PO) was affixed in name of Ms.Geeta Devi Kapoor. He CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.56 of 128 accordingly deserves benefit of doubt and consequent acquittal. ROLE OF ACCUSED No.2 - HARBHAJAN YADAV 7.1 The ld.Public Prosecutor has argued that Harbhajan Yadav (A2) has played a vital role in issuance of the passport booklet in the name of Ms.Geeta Devi Kapoor, on which photograph and signatures are of a different person. She has submitted that with active role played by Harbhajan Yadav (A2), it was not possible for accused/Anil Dhawan to get issued a passport booklet on which the photograph of Kuldeep Kaur (PO) was affixed. On the other hand, ld.counsel for accused/Harbhajan Yadav (A2) has submitted that accused is innocent and that he was misled by the applicant because he had CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.57 of 128 no facility on his computer to see the photograph and signature of the original passport holders and that there was no instrument provided to counter clerk to check the genuineness of the passport produced before him for cancellation and return. We will see these arguments in the light of evidence surfaced on record. 7.2 Accused/Harbhajan Yadav (A2) working as LDC in RPO, New Delhi had processed the file for issuance of additional passport booklet Ex.PW5/A (D.7). He was working as counter clerk and dealing assistant and as such had dealt with the file in RPO and had recommended for issuance of additional passport booklet.
7.3 As emerged from evidence of Sh.S.P.Kothari CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.58 of 128 (PW.5), the process followed by Passport office for applying additional passport booklet was that while applying for first additional passport booklet, the applicant was required to submit the original passport issued to him/her at the counter which was required to be cancelled and returned to him/her by retaining an attested photocopy thereof with the application. When he/she applied for second additional passport booklet, he/she was required to annex attested photocopy of the first additional passport booklet with his/her application and the original thereof was required to be cancelled and returned to him/her by the counter clerk at the counter after verifying the photocopy thereof as enclosed with the application.
7.4 As already discussed, while deliberating the role CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.59 of 128 of Bibianus Toppo (A.1), the original passport and three additional passport booklets were got issued from RPO, New Delhi in name of Geeta Devi Kapoor whereas none of them were Geeta Devi Kapoor. All the three additional passport booklets have been got issued by annexing purportedly self attested photocopy of the same original passport booklet no. B5081385 issued on 20.12.2000 by replacing the photograph with the photograph of different ladies each time, for whom the additional booklet was applied. The lady Sharda Kapoor who had got issued the original passport in name of Geeta Devi Kapoor, with her photograph affixed thereon, had travelled abroad and did not return back (she having been declared PO in CC No.26/10, already decided). It transpired that the accused were aware of this fact and therefore, they used the photocopy of the same passport by replacing the CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.60 of 128 photograph for getting issued additional passport booklets again and again which was accepted by Harbhajan Yadav (A.2) without production of original thereof for cancellation and return at the counter.
7.5 PW5/S P Kothari has been examined by CBI, who worked with RPO, New Delhi for considerable long time with accused/Harbhajan Yadav (A2) and accordingly was able to prove the handwriting and signatures of accused/Harbhajan Yadav and other officials of RPO, New Delhi.
7.6 Sh.S P Kothari (PW5), while describing the procedure for issue of additional passport booklet, has deposed that additional passport booklet can be issued on the basis of old CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.61 of 128 existing passport with the same particulars for various reasons such as exhausting of pages of existing passport booklet; for issuance of additional passport booklet the applicant is required to furnish a self attested copy of first two pages and last two pages of existing passport where the particulars of the applicant are entered; he has to fill up the passport application along with application for miscellaneous services and has to paste two photographs on each of them and the applicant is required to pay a nominal fee of Rs.500/ for each additional passport booklet; for issue of first additional passport booklet, he is required to submit nd photocopy of original existing passport and for issuance of 2 additional passport booklet, self attested photocopy of first additional passport booklet is required to be submitted with the rd application form and likewise while applying for 3 additional CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.62 of 128 passport booklet, the applicant is required to furnish self attested nd photocopies of 2 additional passport booklet. 7.7 He was shown the passport file no.T1794/04 containing passport application registration form of Smt.Geeta Devi Kapoor which is Ex.PW5/A. He has deposed that rubber stamp impression at point X2 on Ex.PW5/D (internal page no.4 of the file Ex.PW5/A) indicates that old passport was cancelled and returned and the counter clerk was required to sign at the portion of stamp but his signatures are not there; that the signature of applicant was obtained at point Q4 for receiving the old cancelled passport; at point Q3 the acknowledgment has been received from applicant for receipt of additional passport booklet no.E7710164 on 06.02.04; that the counter clerk who has CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.63 of 128 signed the requisite portion at point X2 on Ex.PW5/D is Harbhajan Yadav (A2) who had also processed the file by writing a note at point X3 on page no.4 of Ex.PW5/A (internal page is separately marked as Ex.PW5/E). He identified the writings and signature of accused/Harbhajan Yadav (A2) at point X3 which is on the space for official use. He deposed that at back side of Ex.PW5/D, old passport no.B5081385 dated 20.12.2000 is mentioned at point Q6, which is the basis of issuance of additional passport booklet in file Ex.PW5/A. 7.8 He was shown file no.T3439/04 available in CC No.28/09, Ex.PW1/E in that case which is regarding issue of additional passport booklet in the name of Smt.Geeta Devi Kapoor where also previous passport number is mentioned as CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.64 of 128 B5081385 which is basis for issuance of additional passport booklet in that file. A copy of the passport which was used for getting issued the additional passport booklet in the passport file no.T3439/04 in CC No.28/09 (new CC No.05/12) has been taken on record of this case as Ex.PW5/F with the objection of the defence (the same is tagged in file Ex.PW5/A as the last sheet), he stated that impression of the photograph of the lady on the copy of the passport annexed in file Ex.PW5/A bearing same passport no.B5081385 and same number is mentioned in file Ex.PW5/F but the impression of photograph of lady on this copy is different {used for issuance of additional passport booklet in passport file no.T3439/04 in CC No.28/09 (new CC No.05/12)}. He also stated that signature of Smt.Geeta Devi Kapoor on copy of passport Ex.PW5/F is different from her signature on CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.65 of 128 Ex.PW5/C, D & E (internal page no.2, 3 & 4 of file Ex.PW5/A). 7.9 The ld.counsel for accused/Harbhajan Yadav (A2) has contended that writing of old passport number and signature of counter clerk at point X2 on Ex.PW5/D (in file Ex.PW5/A) was not necessary. For this purpose he has relied upon statement of Sh.Kohatri made during his crossexamination by ld.counsel for A1/Bibianus Toppo, where he has clarified that it is enough if the counter clerk takes the signature of the applicant after cancelling and returning the old passport and that filling up the number of the cancelled passport and putting up the initial by the counter clerk in the space provided in the stamp was not in practice at the relevant time.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.66 of 128 7.10 This statement of PW5/S P Kothari gives the benefit to accused persons to the extent that a practice was adopted in the RPO New Delhi that the counter clerk did not use to write the passport number of the cancelled and old passport in the space provided on application for miscellaneous services as at Ex.PW5/D, point X2 and the number of the old cancelled and returned passport used to be mentioned at the back side (Q.6) of this form where space is provided for the same. However, Sh.Kothari admitted that if there is positive report of counter clerk/dealing assistant and no adverse remark of HIT Section then the PIA in routine manner would pass the order regarding grant of passport.
7.11 During crossexamination by ld.counsel for CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.67 of 128 A2/Harbhajan Yadav, Sh.Kothari said that once the applicant has collected back the file from the counter clerk, the counter clerk has no control over the applicant and his/her file. It appears that by giving such a suggestion, the ld.counsel for accused/Harbhajan Yadav (A2) has tried to create a defence for him that the photograph affixed on the file could have been replaced subsequently once the file is collected by the applicant from the counter clerk for the purpose of taking promise date and for deposit of fee but this defence is against the available material on record. Firstly, that the photograph of the applicant at point X1 at Ex.PW5/D is bearing the stamp of the passport office showing that half stamp is on her photograph and half portion is on the form itself meaning thereby that the photograph has not been replaced subsequently. Secondly, as per the opinion of CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.68 of 128 handwriting expert (PW16) the signatures on stamp at point Q4 on application Ex.PW5/D whereby the applicant has acknowledged receipt of cancelled old passport and at Q.13 on handwritten request letter Ex.PW5/H below the stamp of undertaking have been made by accused/Anil Dhawan (A4) which stamps were affixed by counter clerk and the signatures of applicant obtained by him at the counter itself. There could be no confusion that accused/Anil Dhawan is not at all resembling the photograph of the lady (Kuldeep KaurPO) affixed on form Ex.PW5/C & D. It is clear that he had intentionally entertained accused/Anil Dhawan and allowed him to sign as Gita Devi Kapoor at point Q4 on Ex.PW5/D, point Q.13 on Ex.PW5/H and at various other places in the file.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.69 of 128 7.12 It is worthwhile to mention that copy of the previous passport no.B5081385, Ex.PW5/G annexed with the passport application shows that there is an impression of stamp on the same which reads "extended by the issue of a fresh booklet" which means the passport bearing no.5081385 was already utilized for issuance for an additional passport booklet and hence if Harbhajan Yadav was not colluding with accused/Anil Dhawan, he would have certainly understood that the copy of passport booklet which is being used is the copy of a original cancelled passport on which fresh passport booklet was already issued.
7.13 As per GEQD opinion on file Ex.PW1/D, it was accused/Anil Dhawan (A4), who had signed on the file, CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.70 of 128 Ex.PW5/A in the name of Geeta Devi Kapoor. Had accused/Harbhajan Yadav (A2) not been colluding with accused/Anil Dhawan, he would not have obtained signatures of a male person (Anil Dhawan) in place of a lady applicant named as Geeta Devi Kapoor.
7.14 It has been deposed by PW5/S P Kothari during his crossexamination that it was not mandatory that the applicant always deposits the application form for additional passport booklet in person and the person could authorize any person to deposit his/her application form on his/her behalf. However, there is no authorization letter in file Ex.PW5/A to show that accused/Anil Dhawan (A4) was authorized to represent Geeta Devi Kapoor.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.71 of 128 7.15 Ld.counsel for accused/Harbhajan Yadav (A2) has submitted that it was not always necessary that the authorization must be by way of written representation or letter and it could be oral as well, whereas during crossexamination PW5/S P Kothari, it has not been put to him that the authorization could be oral also. Moreover the signature of accused/Anil Dhawan at all the places in file Ex.PW5/A and passport delivery register, Ex.PW10/A (D9) are not in his name as authorized representative (AR) but he signed as Geeta Devi Kapoor. 7.16 It is clear from processing sheet Ex.PW5/K (D4) that whereas HIT was checked by Ram Chander (A3) in file, Ex.PW5/A on 06.02.04, the recommendation for issuance of CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.72 of 128 passport booklet was made by accused/Harbhajan Yadav (A2) a day before i.e. on 05.02.04 as is clear from his noting at point X3 on Ex.PW5/E (in file Ex.PW5/A) vide which he has recommended for issuance of additional passport booklet valid upto 19.12.2010. This leads to the inference that he was sure of getting HIT clearance of the file by Ram Chander (A3) who was working in HIT Section and had thereafter cleared the file by using his log in ID and password. Thus, on the one hand Harbhajan Yadav (A2) was colluding with Anil Dhawan (A4), on the other he was in league with his colleague Ram Chander (A3) for getting issued the additional passport booklet in the name of Geeta Devi Kapoor with photograph of Kuldeep Kaur (PO). 7.17 It is significant to note that Passport Issuing CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.73 of 128 Authority (PIA) in file no.DLHT7726/02 was Om Prakash and in files no.1794/04 (Ex.PW5/A) and no.3439/04, PIA was Bibianus Toppo (A1) as is clear from Ex.PW5/K and Ex.PW11/C. Thus, whereas PIAs were different, the counter clerk/dealing assistant for all these files was accused/Harbhajan Yadav (A2) and HIT checking official was Ram Chander (A3), in which additional passport booklets have been issued in the name of Geeta Devi Kapoor with same personal particulars but different photographs and signatures. This fact also becomes relevant for determining complicity of accused/Harbhajan Yadav (A2) and Ram Chander (A3) under Section 15 of Evidence Act.
7.18 Thus, I find that accused/Harbhajan Yadav (A2) was a common and most crucial link for issuance of additional CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.74 of 128 passport booklet. Whereas any participation on the part of accused/Bibianus Toppo (A1) is doubtful, there is no doubt regarding the role of accused/Harbhajan Yadav (A2), who had played vital role in issuance of additional passport booklet in the name of Ms.Geeta Devi Kapoor with photograph of Kuldeep Kaur (PO).
7.19 In view of my above findings, I hold that prosecution has successfully proved its case against accused/Harbhajan Yadav (A2) beyond any reasonable doubt. 8.0 ROLE OF ACCUSED RAM CHANDER (A.3) 8.1 It is alleged against accused Ram Chander that CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.75 of 128 while working as LDC in HIT Section of RPO, New Delhi during the relevant period, he had cleared passport file No.T1794/04 on 06.02.04 {Ex.PW.5/A (D7)} in the name of Ms.Geeta Devi Kapoor in HIT Section without pointing out about the issue of earlier additional passport in the same name but with different photograph and signature. In the HIT Section there is facility in the computer system that the signatures and photographs of the earlier passport holder could be seen clearly and in case of any dissimilarity it was required to be pointed out by the official working in HIT Section. Accused Ram Chander, who was working in HIT Section during the relevant period, had not carried out this exercise which was intentional and thereby additional passport booklet was issued in favour of fictitious person with different photograph and signature than of the original allottee of CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.76 of 128 the passport, who herself was an imposter, namely, Ms.Sharda Kapoor (PO in CC No.26/10 already decided).
8.2 It has been submitted by ld.Public Prosecutor that the role of accused/Ram Chander (A3) was very crucial as he had cleared the HIT in all the three passport files in which the additional passport booklets have been fraudulently got issued in the name of Ms.Geeta Devi Kapoor, a non existing person with different photographs and signatures of the persons every time. She has submitted that had Ram Chander (A3) not cleared HIT, the passport booklet could not have been issued in file Ex.PW5/A (D7). She has submitted that the clearance of HIT in each of the three files for issuance of additional passport booklets in the name of Geeta Devi Kapoor, by accused Ram Chander shows CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.77 of 128 that he cleared HIT being in conspiracy with accused/Harbhajan Yadav (A2) and Anil Dhawan (A4) who are involved with him in all these three passport files. She has thus submitted that the act of clearance of HIT by accused/Ram Chander (A3) was intentional and not accidental by virtue of provisions of Section 15 of Evidence Act.
8.3 On the other hand, ld.defence counsel has submitted that guilt of accused/Ram Chander has been sought to be proved on electronic evidence only without due compliance of provisions of Section 65B of Evidence Act; that the onus to discharge his burden placed on accused is much diluted than it is on prosecution; that possibly some other official working in RPO, Delhi might have used the log in ID and password of Ram CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.78 of 128 Chander (A3) to clear the HIT in the file; that there is no whisper of his meeting of mind with other accused persons to fasten guilt of a criminal conspiracy on him; and that there is not even an iota of evidence that A3 gained anything in the alleged act of clearing HIT in file Ex.PW5/A. Let us appreciate his contentions in view of evidence on record. So far as his contention that some other employee of RPO, Delhi would have used HIT, he has not taken this defence or suggested anything of the sort to the prosecution witnesses who were officials of RPO, Delhi. He himself did not examine any defence witness in this respect or proved any document to base his contention. Hence such an afterthought can not give rise to a valid defence. His contention that the duty of discharging onus of proof when shifted on accused, is not as rigorous as on the prosecution, has no meaning because accused CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.79 of 128 has not brought any evidence in his defence either by way of putting anything to the prosecution witnesses or examining his own witness in his defence to discharge onus shifted on him. Once the prosecution had proved that HIT was cleared with his log in ID and password, the burden had shifted on him to show that somebody else would have cleared HIT of the file using his log in ID and password, which he failed to demonstrate. 8.4 Relying upon judgments of Apex Court in Subhash Parbat Sonvane Vs. State of Gujarat, 2002 Cri LJ 2787, the ld.defence counsel for accused/Ram Chander (A3) has submitted that for proving an offence u/s 13(1) of PC Act, some pecuniary advantage to accused, due to his misconduct, must be shown. In fact the issuance of fraudulent passport in the name of CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.80 of 128 a fictitious person causes loss of reputation to the Government and wrongful gain to the person who obtains such passport on which he/she is capable to travel abroad. Therefore, such a conduct of accused public servant, due to which a passport has been issued to a person, who is otherwise not entitled to it, falls within the definition of 'criminal misconduct' u/s 13(1)(d) of PC Act, 1988.
8.5 He has also relied upon judgment of Hon'ble Delhi High Court in S.Ram Yadav Vs. CBI, 2014(1) JCC 343, wherein it was held that negligence can not amount to criminal misconduct. In this respect, I am in agreement with the submissions of ld.Public Prosecutor that once it is proved that it was Ram Chander (A3) who had cleared HIT in all the three files CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.81 of 128 for issuance of additional passport booklets as is shown in Ex.PW11/B, Ex.PW5/K and Ex.PW11/C (D4), the inference u/s 15 of Evidence Act can be drawn that his act of clearing HIT in the file was intentional and not accidental. Thus, I find that the clearance of HIT by accused/Ram Chander is not mere negligence but a deliberate act and hence ratio of S.Ram Yadav's case (supra) do not protect his action.
8.6 Ld.counsel for accused Ram Chander has submitted that there is no circular of the Ministry of External Affairs/Passport department to the effect as to which work was to be done first while issuing additional passport booklet and therefore, it cannot be said that issuance of additional passport booklet was based on a prerequisite of clearance of passport file CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.82 of 128 by the HIT Section. We will see these arguments in the light of evidence available on record.
8.7 PW5/Sh.S P Kothari who worked as Superintendent and also as PIA in RPO, New Delhi has deposed that as per the entry in Ex.PW5/K which is copy of computerized record of RPO, New Delhi, Ram Chander (A3) had cleared HIT of the file Ex.PW5/A (D7). He has clearly stated that Ram Chander (A3) should have recorded the fact regarding issue of first additional passport booklet at page no.4 of file no.T1794/04 Ex.PW5/A at the portion "for official use", but this fact has not been mentioned there. During his crossexamination nothing was suggested by his ld.counsel that either no such duty was caste on Ram Chander to make a noting on "space for official use" or that CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.83 of 128 he had not cleared HIT of the file Ex.PW5/A despite the fact that an additional passport booklet was already issued in the name of applicant. He was afforded an opportunity to explain his conduct by putting this incriminating material to him in question no.43 in his statement u/s 313 Cr.PC but he simply replied it as incorrect without explaining his conduct.
8.8 When the NIC official Sh.Ajay Gautam has been examined as PW.11, he has deposed that while posted in RPO, New Delhi, he was responsible for operational support and maintenance of passport server and that the scanning of the photographs and signatures of the passport applications started in RPO, Delhi in May, 2000. He deposed that HIT Checking system for seeing the signatures and photographs alongwith CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.84 of 128 details of previous applicant and old details of the passports already issued, was started on the computer system of RPO, Delhi in August, 2002. He also clarified that in August, 2002 only one computer (PC) was provided to HIT Section for HIT checking of Tatkal cases and in April, 2004 all PCs in HIT Section were provided with the facility of seeing the photographs and signatures and other details of the old passport holders and the applicants.
8.9 Sh.Ajay Gautam (PW11) has clarified that HIT check means that all the applications registered in a particular day go to check on the basis of applicant's name, father's name and date of birth. The soundex programme itself checks all the records available in the computer server at RPO, Delhi regarding CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.85 of 128 issuance/apply of earlier passport/additional passport. If any matching entry is not found in the computer then the computer would mark it as clear. He made it clear that the suspected application can not be processed further without marking as cleared by HIT Section. We have seen from testimony of Sh.Kothari (PW5) that despite issuance of a previous passport booklet, Ram Chander (A3) had cleared the HIT. He did not mention that a previous booklet with photograph and signature of some other person, being first additional passport, was issued in file no.DLHT7726/02 as is shown in Ex.PW11/B, the HIT of which was also cleared by accused/Ram Chander (A3) by using his login ID and password. He clarified that the official performing the HIT check is able to view the photograph, signatures and all details of the applicant of previous CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.86 of 128 application/passport if issued to the applicant. 8.10 Sh.Gautam has also proved the computerized processing reports of the files, vide which the original passport and three additional passport booklets were issued, as Ex.PW11/A, Ex.PW11/B, ExPW5/K and Ex.PW11/C (D4). A certificate u/s 65B of Evidence Act has been proved by him as Ex.PW11/D (D5). He proved a photocopy of one page of the Log Register of RPO, Delhi as Mark PW11/E (D6) containing the information regarding implementation of new modules and checks in RPO Delhi (original register available as Ex.PW3/C in CC No. 74/08 of this court) and deposed that as per entries in the register, PIRS (Passport Index Retrieval System) was introduced in RPO, Delhi on 12.08.02 on one PC.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.87 of 128 8.11 He denied a suggestion that during relevant period no computer was available with HIT Section to check the photograph and signatures of original passport holder in respect of application for additional passport booklets. Except the bald suggestion nothing was elicited by accused to the effect that no such facility was provided to HIT Section during relevant time. When the incriminating material was put to him vide Q.No.55, he did not explain the reasons for clearing HIT despite the fact that an additional passport booklet was already issued to the same applicant.
8.12 It has also been contended by ld.defence counsel that Sh.Ajay Gautam (PW11) from NIC, who has issued CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.88 of 128 certificate u/s 65B of Evidence Act was not authorized to issue such a certificate. He has also submitted that the certificate Ex.PW11/D (D5) was not issued in confirmity with provisions of Section 65B. When Sh.Ajay Gautam was examined in the court, he deposed that he was posted as Scientist Grade 'C' in RPO, Delhi during July, 1999 till July, 2010 and was responsible for operational support and maintenance of passport server. He deposed that NIC will provide the information to Superintendent (Admn.), RPO Delhi regarding the file dealt in various sections by different officials along with their P.Number and name in respect of various passports issued in the name of different persons. He specifically deposed that in RPO Delhi, he was authority competent to generate this information on behalf of NIC. He deposed that the processing report was generated by him on the CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.89 of 128 instructions of Superintendent (Admn.) RPO, Delhi and the same was handed over to him which was forwarded to CBI. The certificate Ex.PW11/D speaks that the data is computer generated and the print outs thereof have been provided, which have been certified as true and actual reproduction of the data maintained in RPO Delhi as electronic record in ordinary course of business, which was not tampered with and the computer system was properly working during relevant period. No question was put to the witness during his crossexamination about his competency to issue such a certificate and nothing has come out to suggest that the reproduction of data was incorrect in any manner whatsoever.
8.13 From testimony of PW5 and PW11 it is clear CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.90 of 128 that it was accused/Ram Chander who had cleared HIT of the file in question despite the fact that the photograph and signature of the applicant was changed and he did not point out that an additional passport booklet was already issued and in this way he helped accused/Kuldeep Kaur (since PO) in obtaining a passport booklet in the name of Smt.Geeta Devi Kapoor with her photograph affixed thereon to enable her to make an attempt to travel abroad when she was apprehended at IGI Airport in respect of which an FIR No.165/04, PS:IGI Airport was registered (which case no.16/12 is also being disposed of with this case). 8.14 It is worthwhile to mention that during statement u/s 313 Cr.PC accused Ram Chander, when he was put the evidence about checking of Hit by him as per Ex.PW.5/K (D4) he CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.91 of 128 simply denied it as incorrect without pleading any defence. He has not pleaded his defence at any stage that HIT had been cleared by some other employee by using his Login ID and Password. Hence the submission of Ld. Defence counsel, at this stage, that some other official would have cleared the HIT by using Login ID and password of accused Ram Chander (A3) in the file Ex.PW.5/A, is not tenable.
8.15 It has been proved beyond reasonable doubt that clearing of HIT by accused Ram Chander in respect of files Ex.PW.5/A (D7) for issuance of additional passport booklets in the name of Ms.Geeta Devi Kapoor with same personal particulars for the second time, was done by him due to which additional passport booklet for second time with different CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.92 of 128 photograph and signature was got issued in that name. This shows that accused Ram Chander abused his official position with ulterior motive due to which additional passport booklet, being a valuable thing, was fraudulently got issued in the name of Geeta Devi Kapoor with photograph of Kuldeep Kaur (PO). It was obviously done by him in pursuance of conspiracy and furtherance of goal set by Harbhajan Yadav,who was clearly in league with accused Anil Dhawan(A4) (also see discussion in para 7 and 9). His malafide and ulterior motive is apparent from his misdeeds discussed above. He is accordingly found guilty of the offcences charged against him.
9.0 ROLE OF ACCUSED/ANIL DHAWAN (A.4) 9.1 It is alleged against accused Anil Dhawan that CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.93 of 128 the passport application for obtaining second additional passport booklet in the name of Ms.Geeta Devi Kapoor was prepared and signed by him, who had also received delivery of that additional passport booklet by signing in the file and passport delivery register in the name of Smt.Geeta Devi Kapoor. 9.2 The ld.defence counsel for Anil Dhawan (A4) has raised a legal issue that all the cases of issuance of passports in which accused/Anil Dhawan has been implicated by CBI form a single offence, for which he can not be punished again and again. He has submitted that Article 20(2) of the Constitution of India and Section 300 Cr.PC mandate that a person once convicted or acquittal, not to be tried for same offence. The moot question, therefore, is whether fraudulent issuance of different CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.94 of 128 passports with photographs of different persons in order to enable them to travel abroad, which were got issued at different times, can be called 'same offence.' In my opinion by no stretch of imagination all such incidents can be terms as same offence even if some of the accused may be common in some of these cases. 9.3 The passport file for issuance of additional passport booklet for second time is Ex.PW.5/A (D.7). As per opinion of handwriting expert (GEQD), Ex.PW.16/D (D19) supported by reasons for opinion Ex.PW.16/E, the application form, Ex.PW5/C in file Ex.PW5/A (D7) at portion Q.2 has been filled in the handwriting of accused Anil Dhawan and at the space provided for signature of applicant (Q.1), he signed as Geeta Devi. PW.10 Sh.G.S.Walia has also confirmed that the CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.95 of 128 handwriting at point Q.2 on Ex.PW.5/C is that of accused Anil Dhawan.
9.4 As regards Q.3 on Ex.PW5/D (in file Ex.PW5/A) which is signature in the name of Geeta Devi for receiving old passport after its cancellation, the handwriting expert has opined that the same signature has been made by accused Anil Dhawan. As to the handwriting on the same application form for miscellaneous services at portion Q.5, Q.6 and A.8, the GEQD has opined that it is filled in the handwriting of accused Anil Dhawan which has also been confirmed by PW.10 Sh.G.S.Walia.
9.5 As regards writing at point Q.3 'received CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.96 of 128 passport' with date and signature as Geeta Devi (acknowledging receipt of prepared passport booklet no.E7710164) the handwriting expert has confirmed that it is in the handwriting of accused Anil Dhawan. As per opinion of handwriting expert the signatures as applicant Geeta Devi at points Q.7, Q.9 and Q.10 on application form Ex.PW5/D, signatures at points Q.10/1, Q.10/2 and Q.10/3 for attesting the copy of previous passport booklet no. 5081383 dated 20.12.2000 by signing as Geeta Devi, have been made by accused/Anil Dhawan.
9.6 As regards signature as 'Geeta Devi' at point Q. 4 on the same application form Ex.PW5/D, below the stamp 'cancelled and returned old passport' and acknowledging receipt of the old cancelled passport in the name of Geeta Devi, the CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.97 of 128 handwriting expert has confirmed that the same has been written by accused Anil Dhawan. This signature is obtained by counter clerk at the time when the old passport is produced before him for verification of copy thereof enclosed with the application form and for ensuring that the old passport has been cancelled so that the same may not be used again and again. Once, it is established that accused/Harbhajan Yadav (A2) working as counter clerk obtained these signatures in the name of Geeta Devi Kapoor from accused/Anil Dhawan, the criminal conspiracy between both of them stands proved as there could be no confusion to Harbhajan Yadav that accused/Anil Dhawan (a male person) is not lady Geeta Devi and if he represented that he was authorized by Geeta Devi, he was required to sign in his own name for applicant and not as Geeta Devi and produce his authority letter, CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.98 of 128 which is not there with application.
9.7 On hand written request letter separately Ex.PW. 5/H (internal page no.9 of file Ex.PW.5/A), handwriting expert has confirmed that the signatures at points Q.12 & Q.13 in the name of Geeta Devi have been made by accused Anil Dhawan on this request letter. Q.13 is the signature in the name of applicant Geeta Devi on an stamp of undertaking which is affixed by the counter clerk (accused Harbhajan Yadav) at the counter which speaks "I undertake to complete all Formalities/Documentation before issue of passport." This proves that Harbhajan Yadav knowingly took signature of Anil Dhawan in the name of Geeta Devi on the stamp as affixed by him in the passport office at the counter, as he had done so while taking his signature at point Q.4, CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.99 of 128 discussed above.
9.8 After seeing the passport delivery register in respect of delivery of passport No.E7710164 in the name of Geeta Devi on 06.02.04, Ex.PW10/A (D9) both PW10/G S Walia and the GEQD confirmed that the same at point Q.29 has been written by accused Anil Dhawan. The handwriting expert (GEQD) has also confirmed that the signature in the name of applicant 'Geeta Devi' at point Q.30 on Ex.PW10/A (D9) acknowledging receipt of passport No.E7710164 has been written in the handwriting of accused Anil Dhawan. 9.9 Ld.counsel for accused Anil Dhawan has argued that accused Anil Dhawan has been falsely implicated by CBI in CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.100 of 128 this case as there is no whisper of any monitory gain to accused Anil Dhawan in this case. We have already seen how the passport booklet has been got issued by accused/Anil Dhawan in the name of Geeta Devi by using photograph of Kuldeep Kaur (PO) so as to enable her to travel abroad. The passport is a valuable thing entitling one to travel abroad and hence there was no requirement of proving any other pecuniary advantage obtained by accused/Anil Dhawan in cheating the Regional Passport Office when it has been clearly proved that he had fraudulently induced RPO, Delhi for issuance and delivery of passport booklets for which he was not legally entitled. 9.10 He has also submitted that CBI could not establish any link of accused Anil Dhawan with other accused CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.101 of 128 persons and none of the witnesses of CBI who were working in the office of RPO, New Delhi, during the relevant time, could say that they had seen accused Anil Dhawan visiting passport office for meeting accused public servants. As is clear from the evidence discussed herein, accused Anil Dhawan had colluded with accused/Harbhajan Yadav (A2) and Ram Chander (A3) whereby Harbhajan Yadav had accepted the documents signed by accused/Anil Dhawan for issuance of additional passport booklet. Accused/Harbhajan Yadav (A2), being counter clerk comes in contact of the applicant as per the procedure. He himself was in league with accused/Anil Dhawan, so it was not possible to find any other employee of the passport office to prove that accused/Anil Dhawan used to visit RPO, Delhi. This was otherwise not required when the prosecution case is safely CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.102 of 128 established through the documentary evidence discussed above. 9.11 He has also contended that PW.10 Sh.G.S.Walia cannot be relied upon as he has stated that his statement u/s 161 of Cr.PC was recorded by Mr.R.K.Aggarwal, DSP of CBI and not by IO of this case. During his crossexamination, PW.10 Sh.G.S.Walia did not say that any part of the statement made by him u/s 161 of Cr.PC was incorrect or was not stated by him to the IO of the case during investigation. It is well settled position of law that lacuna on the part of IO in conducting investigation can not be said to have prejudiced the trial unless otherwise manifest from the record. When accused has not demonstrated that anything in the statement of the witnessSh.Walia u/s 161 Cr.PC was incorrectly recorded by CBI, it does not prejudice trial, even if CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.103 of 128 witness says that his statement was recorded by Sh.R K Aggarwal, DSP, CBI and not by IO of this case.
9.12 Ld. defence counsel has forcefully argued that the specimen handwriting and signatures were obtained from accused without permission of the court, hence the same can not be admitted into evidence and accordingly the opinion of GEQD based on the same in respect of questioned documents, can not be relied upon. In this respect, he has relied upon the judgment of the Full Bench of Hon'ble Delhi High Court delivered in Sapan Haldar Vs. State, 191 (2012) DLT 225 (FB), wherein the Hon'ble Delhi High Court had laid down that an investigating officer, can not obtain handwriting sample or signature sample from a person accused of having committed an offence, which power was not CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.104 of 128 available even to the courts prior to insertion of Section 311 A of Cr.PC and thus, in those cases where the IO has obtained such samples without permission from the Magistrate, the same are held to be inadmissible in evidence.
9.13 On the other hand, ld.Public Prosecutor has relied upon a judgment of Hon'ble Supreme Court in Ravinder Kumar Pal @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436 and a judgment of Hon'ble Supreme Court in Umesh Kumar Vs. State of Andhra Pradesh, 2013 IX AD (SC) 581. Ld.Public Prosecutor has drawn attention of the court towards para no.27 of the judgment of Hon'ble Supreme Court in Umesh Kumar's case (supra), which is as under: CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.105 of 128
27.It is settled legal proposition that even if a document is procured by improper or illegal means, there is no bar to its admissibility if it is relevant and its genuineness is proved. If the evidence is admissible, it does not matter how it has been obtained. However, as a matter of caution, the court in exercise of its discretion may disallow certain evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. More so, the court must conclude that it is genuine and free from tampering or mutilation. This court repelled the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India as acquiring the evidence by such methods was not the procedure established by law (Vide:Yusufalli Esmail Nagree Vs. The State of Maharashtra, AIR 1968 SC 147; Magraj Patodia Vs. R K Birla & Ors., 1970 (2) SCC 888; R M Malkani Vs. State of Maharashtra, AIR 1973 SC 157; Pooran Mal Vs. Director of Inspection, Income Tax, New Delhi & Ors, AIR 1974 SC 348 and State (NCT of Delhi) Vs. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600).
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.106 of 128 9.14 In this case I find that the opinion of GEQD is not only based on comparison with specimen handwritings of accused Anil Dhawan obtained by CBI during investigation of the case without permission of the court, but the same is also based on day book of Jas Air and passport/visa applications which were already written by him during the course of his employment with firm of Sh.G S Walia. Those documents have been proved by PW.10 Sh.G.S.Walia, as accused Anil Dhawan was his employee, who used to write the book and make entries during course of his employment with firm of Sh.G.S.Walia (PW10). Not only this, the writings on the documents relied upon by CBI have also been identified by Sh.G.S.Walia to be in the hand of accused Anil Dhawan which we have already seen and discussed in detail.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.107 of 128 Thus, the GEQD opinion in this case is not based only on specimen writings of accused/Anil Dhawan obtained by IO from him during investigation of the case, which may be inadmissible in evidence in view of judgment of Hon'ble High Court in Sapan Halder's case (supra).
9.15 Ld.counsel, relying upon search list Ex.PW10/DA, has submitted that the testimony of PW.10 Sh.G.S.Walia cannot be relied upon as he is interested witness who has got accused Anil Dhawan falsely implicated in this case in order to save himself as some incriminating documents like blank letter heads and foreign currencies were seized when his premises was raided by CBI during investigation. From testimony of Sh.G.S.Walia, I find that wherever he has been able to clearly CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.108 of 128 identify the handwritings of accused Anil Dhawan, he has deposed so, and wherever he has not been able to identify writings of accused Anil Dhawan, he has so stated before the court. At most of the places where the signatures have been made in the name of 'Geeta Devi' he has failed to clearly identify signatures having been made by accused Anil Dhawan in the name of Ms.Geeta Devi Kapoor. This shows his fairness and impartiality. Thus I do not find any reason for discrediting the testimony of Sh.G.S.Walia in this case, as it is truthful and inspires confidence of the court.
9.16 Thus, it is quite clear from the testimony of PW. 20 Sh.G.S.Walia and PW.25 Sh.B.A.Vaidhandwriting expert (Govt. Examiner of Questioned Documents) that it was accused CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.109 of 128 Anil Dhawan who had forged the copy of original passport in the name of Ms.Geeta Devi Kapoor, with impression of photograph of Kuldeep Kaur (PO) and enclosed the same with application for additional booklet, filled application for additional passport booklet, affixed photographs of Kuldeep Kaur (PO) thereon and took delivery of passport booklet by signing in the name of Geeta Devi in collusion with accused/Harbhajan Yadav (A2), who in turn had roped in accused Ram Chander (A3), who cleared the file in HIT.
10.0 ACCUSED KULDEEP KAUR (PO) 10.1 It has been proved by PW8/Insp.Kishore Kumar that it was Kuldeep Kaur who was trying to travel abroad on the basis of passport no.E7710164 on 23.04.04 and accordingly CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.110 of 128 arrested by IGI Airport police. The travel documents which are passport, air ticket, boarding pass and emigration card, were seized from her at IGI Airport vide Ex.PW8/A (D15). He also proved those documents which are not disputed by accused persons. PW2 to PW4 have proved issuance of air ticket in the name of Geeta Devi Kapoor on the same passport on which accused Kuldeep Kaur had attempted to travel abroad. 10.2 PW12/Ms.Mamta Kotia and PW13/Sh.Sohan Lal Khelot have proved that Kuldeep Kaur was already issued a passport in her own name from Jalandhar passport office on 19.09.03 vide application in file Ex.PW12/A. But instead of traveling abroad on her own passport she attempted to travel abroad on passport no.E7710164 issued on a fake identity in the CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.111 of 128 name of Geeta Devi Kapoor with her photograph affixed thereon. She was declared proclaimed offender (PO) after followign due process by the court and hence no finding can be recorded as to her guilt.
11.1 As per section 12(1) of the Passport Act, 1967, a person who contravenes the provisions of Sec.3 of the said Act or knowingly furnishes any false information or suppress any material information with a view to obtain a passport or travel document, shall be punishable with imprisonment for a term which may extend to two years or with fine which may extent to Rs.5,000/ or with both. Sec.3 of the said Act commands that no person shall deport from, or attempt to deport from India, unless he holds in this behalf a valid passport or travel documents.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.112 of 128 11.2 Accused/Harbhajan Yadav (A2) and Ram Chander (A3) had suppressed material informations while processing the file Ex.PW5/A (D7) due to which a forged passport booklet was issued in the name of Geeta Devi Kapoor on which Kuldeep Kaur (PO) had attempted to travel abroad, when she was arrested by IGI Airport police on 23.04.04 which is clear from documents which are Ex.PW8/A to E (D15). 11.3 Accused Anil Dhawan (A4) had furnished the false informations including the photographs of Kuldeep Kaur (PO) affixed on the application forms Ex.PW5/A and Ex.PW5/D besides forging and producing the copy of previous passport no.B5081385, Ex.PW5/G while applying for an additional CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.113 of 128 passport booklet in the name of Geeta Devi Kapoor with photograph of Kuldeep Kaur (PO). Thus, accused Harbhajan Yadav (A2), Ram Chander (A3) and Anil Dhawan (A4) are also liable for commission of on offence punishable u/s 12(1)(b) of Passport Act, 1967. The sanction for their prosecution under section 15 of Passport Act has been proved as Ex.PW19/A. 12.1 In view of findings recorded above, I hold as under:
i) Harbhajan Yadav (A2), Ram Chander (A3) and Anil Dhawan (A4) guilty of offence punishable u/s 120B r/w 419, 420, 468, 471 IPC, 13(2) r/w 13(1)(d) of PC Act, 1988 and 12(1)(b) of Passport Act, 1967;
ii) Harbhajan Yadav (A2) and Ram Chander (A3) guilty of substantive offence punishable u/s 13(2) r/w 13(1)(d) of PC CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.114 of 128 Act, 1988 and u/s 12(1)(b) of Passport Act, 1967.
iii) Accused/Anil Dhawan (A7) guilty of substantive offence punishable u/s 420, 468, 471 r/w 468 IPC and section 12(1)
(b) of Passport Act, 1967;
12.2 They are convicted accordingly. The prosecution could not establish the guilt of accused/Bibianus Toppo (A1) and hence he is afforded benefit of doubt and consequently acquitted of the charge framed against him.
Announced in the Open (R P PANDEY)
Court on 09.12.2014 Spl.Judge (PC Act)CBI01
Rohini Court:Delhi
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12
Page No.115 of 128
IN THE COURT OF SH. R.P.PANDEY: SPL. JUDGE 01 (PC ACT) CBI (N/W): ROHINI COURTS: DELHI CBI Case No. : 11/12 CENTRAL BUREAU OF INVESTIGATION Vs.
1. Harbhajan Yadav s/o late Sultan Singh Yadav (A2) H.No.949/1, Gali No.4, Ashok Vihar, Gurgaon, Haryana.
2. Ram Chander s/o Sh.Maman Ram (A.3) R/oJ624, Sardar Colony, Sector16 Rohini, Delhi85
3. Anil Dhawan s/o Sh.Madan Lal Dhawan (A4) R/oH.No.254, DDA Flats, Ist Floor New Ranjit Nagar, New Delhi8 Date of Registration of FIR : 27.08.2004 FIR No. : RC.05(A)/2004/SCUV/CBI/SCRII/CBI/New Delhi Under Section : 120 B r/w Sec.420/468/471 IPC CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.116 of 128 Section 13 (2) r/w 13 (1) (d) of P.C. Act 1988 and Section 12 (1)(b) of Passport Act, 1967 Date of Filing Charge : 27.09.07 Sheet Date of Judgment : 09.12.14 Date of hearing on sentence : 12.12.14 Date of Order on Sentence : 16.12.14 CASE ID No. : 02404R0651282007 ORDER ON SENTENCE:
1. Vide a judgment dated 09.12.14, accused persons have been convicted for offences punishable as under:
i) Accused/Harbhajan Yadav (A2), Ram Chander (A3) and Anil Dhawan (A4) guilty of offence punishable u/s 120B r/w 419, 420, 468, 471 IPC, 13(2) r/w 13(1)(d) of PC Act, 1988 CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.117 of 128 and 12(1)(b) of Passport Act, 1967;
ii) Accused/Harbhajan Yadav (A2) and Ram Chander (A3) guilty of substantive offence punishable u/s 13(2) r/w 13(1)
(d) of PC Act, 1988 and u/s 12(1)(b) of Passport Act, 1967;
iii) Accused/Anil Dhawan (A4) guilty of substantive offence punishable u/s 420, 468, 471 r/w 468 IPC and section 12(1)
(b) of Passport Act, 1967;
2. The offence of cheating by personation u/s 419 IPC is punishable with an imprisonment extendable upto three years and fine; the offence of cheating u/s 420 IPC is punishable with an imprisonment extendable upto 7 years and fine; the offence of forgery for the purpose of cheating u/s 468 IPC is punishable with imprisonment extendable upto 7 years and fine; the offence of CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.118 of 128 using as genuine a forged document u/s 471 IPC r/w 468 IPC is punishable in the same manner as an offence u/s 468 IPC i.e. with an imprisonment extendable upto 7 years and fine; offence u/s 12(1)b) of Passports Act, 1967 is punishable with an imprisonment extendable upto two years and fine up to to Rs. 5,000/ and the offence of criminal misconduct by a public servant u/s 13(2) r/w 13(1)(d) of PC Act, 1988 is punishable with a minimum imprisonment of one year extendable upto 7 years and fine. The punishment for offence u/s 120B IPC for commission of offences u/s 420, 468 and 471 r/w 468 IPC and 13(1)(d) r/w 13(2) of PC Act is extendable upto the maximum punishment provided for those individual offences for which conspiracy was hatched like abetment thereof.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.119 of 128
3. I have heard Sh.N.P.Srivastava, Ld.Public Prosecutor for CBI and convicts personally.
4. It has been urged by ld.Public Prosecutor that the convicts have cheated the RPO, New Delhi in getting issued additional passport booklet in the name of Geeta Devi Kapoor and they deserve maximum punishment prescribed by law keeping in view gravity of the offences committed by them. He has also submitted that convicts Harbhajan Yadav (A.2), Ram Chander (A.3), Anil Dhawan (A.4) were previously convicted by this court in CC No.56/08 on 09.07.14 and in CC No.74/08 on 17.11.14 and thus they deserve a higher punishment.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.120 of 128
5. It has also been submitted by ld.Public Prosecutor that convict/Harbhajan Yadav (A2) and Ram Chander (A3) abused their official position in getting issued the additional passport booklet on the basis of false and forged documents, as furnished by convict/Anil Dhawan (A4) hence they all are required to be punished severely.
6. Convict/Harbhajan Yadav (A2) has submitted that he is having college going children and old age mother who depend on him as he is sole bread winner of the family. He has also submitted that no evidence has come on record to show that he took any illegal gratification in this case. He has also submitted that he has undergone rigors of trial for about ten CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.121 of 128 years, after registration of FIR. He has, therefore, prayed that a lenient view may be taken in awarding sentence.
7. Convict/Ram Chander (A3) has also prayed for leniency on the ground that he is living in hutments and his entire family is dependent on him which include his three children and he is only bread earner of his family. He has also submitted that it is not the situation here that after having been convicted in CC No.56/08 and 74/08, he has committed this offence, hence his previous conviction is not an aggravating factor for awarding more severe punishment in this case.
8. Convict/Anil Dhawan (A4) has submitted that he CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.122 of 128 is having wife, two school going children and old parents with father suffering from both kidneys failure, undergoing dialysis thrice a week and they all are fully dependent upon him because he is the only bread earner of the family and if he is sent to jail his entire family will be ruined and thus he has also prayed for taking a lenient view while awarding sentence.
9. After considering the rival contentions and keeping in mind the mitigating and aggravating circumstances, as discussed above and more particularly the individual role played by each of them, I sentence the convicts as under:
10. Harbhajan Yadav (A2) is sentenced to undergo rigorous CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.123 of 128 imprisonment (RI) for a period of 2 years with fine of Rs.5,000/ for offence committed by him u/s 13(2) r/w 13(1)(d) of PC Act, 1988 and in case of default in payment of fine to further undergo SI for three months ; RI for a period of two months with fine of Rs. 2,000/ for offence committed by him u/s 12(1)(b) of Passport Act, 1967.
Ram Chander (A3) is sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.5,000/ for offence committed by him u/s 13(2) r/w (13(1)(d) of PC Act, 1988 and in case of default in payment of fine to further undergo SI for three months ; RI for a period of two months with fine of Rs. 2,000/ for offence committed by him u/s 12(1)(b) of Passport Act, CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.124 of 128 1967.
Anil Dhawan (A4) is sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.2,000/ for offence committed by him u/s 420 IPC and in case of default in payment of fine to furthter undergo SI of three months ; RI for a period of two years with fine of Rs.2,000/ for offence committed by him u/s 468 IPC and in case of default in payment of fine to further undergo SI of three months; RI for a period of 2 years with fine of Rs.2,000/ for offence committed by him u/s 471 r/w 468 IPC and in case of default in payment of fine to further undergo SI for three months; RI for a period of two months with fine of Rs. 2,000/ for offence committed by him u/s 12(1)(b) of Passports Act, 1967.
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.125 of 128 Convicts Harbhajan Yadav (A2), Ram Chander (A3) and Anil Dhawan (A4) are sentenced to undergo rigorous imprisonment (RI) for a period of 2 years with fine of Rs.5,000/ each for offence punishable u/s 120B r/w 419, 420, 468, 471 IPC, 13(2) r/w 13(1)(d) of PC Act and 12(1)(b) of Passports Act, 1967 and in case of default in payment of fine to further undergo SI for three months.
11. The convicts shall be entitled to the benefit of provisions of Section 428 Cr.PC. All the sentences to run concurrently.
12. At this stage, convict/ Harbhajan Yadav (A2), CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.126 of 128 Ram Chander (A3) and Anil Dhawan (A4) have moved bail application u/s 389 (3)(1) Cr.PC. Heard.
13. Taking into consideration the facts & circumstances of the case the convicts, namely, convict Harbhajan Yadav (A2), Ram Chander (A3), and Anil Dhawan (A4) are admitted to bail on their furnishing personal bond in the sum of Rs.20,000/ with one surety in the like amount for a period of two months for enabling them to file appeal against the Judgment and order of this court.
14. A copy of this order be supplied to the convicts free of cost.
15. File be consigned to the record room. However, CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12Page No.127 of 128 the records of the case be not destroyed/weeded out in routine course as one accused Kuldeep Kaur is Proclaimed Offender.
Announced in the open (R.P.PANDEY)
Court on 16.12.2014 SPECIAL JUDGE (CBI)0I
ROHINI COURTS:DELHI
CBI Vs. Bibianus Toppo & Ors.
CC No.11 of 12
Page No.128 of 128