Delhi District Court
Cbi vs Ram Kishan S/O Late Sh. Mohan Lal, on 26 November, 2009
1
IN THE COURT OF SH. V K MAHESHWARI :SPECIAL
JUDGE; TIS HAZARI DELHI
Corruption Case No.16/02
1 C C No. 16/02
CBI Vs Ram Kishan s/o Late Sh. Mohan Lal,
R/O 13/185, G-Point, Kalibari Marg,
New Delhi. (since expired)
R. C No. 24 (A)/99/CBI/ACB/ New Delhi.
Under Section U/s 8 & U/s 14 of PC Act
2
C C No. 23/02
CBI Vs Bhoop Singh s/o Ramji Lal, R/o F-1/25,
Sultanpuri, Delhi.
R. C No. 24 (A)/99/CBI/ACB/ New Delhi.
Under Section U/s 8 & U/s 14 of PC Act
3
C C No. 23/08 (20/02)
CBI Vs Sh. Sabhapati s/o Sh. Ram Kumar, r/o
B-584, Seemapuri, Delhi.
R. C No. 24 (A)/99/CBI/ACB/ New Delhi.
Under Section U/s 8 & U/s 14 of PC Act
4
C C No. 24/02
CBI Vs Sh. Nadeem s/o Mohd. Shafi, r/o -II No.
18, Gali Kababean, Jama Masjid, Delhi
R. C No. 24 (A)/99/CBI/ACB/ New Delhi.
Under Section U/s 8 & U/s 14 of PC Act
5
C C No. 18/02
CBI Vs Sh. Sunil s/o Sh. R C Sharma, r/o
1
2
Karavel Nagar, Delhi-94.
R. C No. 24 (A)/99/CBI/ACB/ New Delhi.
Under Section U/s 8 & U/s 14 of PC Act
6
C C No. 22/08 (21/02)
CBI Vs Sh. Prem Pal Singh s/o Sh. Sumer Singh,
R/o P-4/685, Sultanpuri, Delhi.
R. C No. 24 (A)/99/CBI/ACB/ New Delhi.
Under Section U/s 8 & U/s 14 of PC Act
7
C C No. 24/08 (17/02)
CBI Vs Sh. Mustaq Ahmed s/o Sh. Akbar
Hussain, R/o D-668, Khyala , JJ Colony,
New Delhi
R. C No. 24 (A)/99/CBI/ACB/ New Delhi.
Under Section U/s 8 & U/s 14 of PCAct
8
C C No. 19/02
CBI Vs Sh. Amar Chand Kalshan @ Amar Rahi
s/o Late Sh. Thakur Dass, r/o C7/70,
DDA Flats, Hauz Khas, New Delhi
R. C No. 24 (A)/99/CBI/ACB/ New Delhi.
Under Section U/s 8 & U/s 14 of PC Act
9
C C No. 25/08 (22/02)
CBI Vs Sh. Attar Pal, s/o Rumal Singh, r/o R-
1100, Mangolpuri, Delhi-83.
2
3
R. C No. 24 (A)/99/CBI/ACB/ New Delhi.
Under Section U/s 8 & U/s 14 of PC Act
Date of Institution of
case 1.6.2002
Arguments concluded 16.11.09
on
Date of Order 26.11.09
Judgment
Vide this common judgment I will dispose of above
mentioned 8 cases as common questions of law and facts are
involved in all these cases. My Ld Predecessor has consolidated all
these cases vide his order dated 18.7.2003 and directed to treat case
titled Ram Kishan Vs CBI as main case and to record all
proceedings / evidence in the same which will be read in all cases.
2 Brief facts of the case of Ram Kishan S/O Late Mohan
Lal CC No.16/02 are that this case was registered on the basis of
written complaint of Sh. P K Sharma,Inspector, CBI, ACB, New
Delhi against accused Ram Kishan alleging therein that a large
number of touts were actively functioning in and around the
Regional Passport Office, Bhikaji Kama Place, New Delhi, in
connivance with the staff working at various counters in the office
of RPO. General Public approaching the office for submitting the
3
4
application for new passport or renewal etc. were made to pay illegal
gratification to the touts for depositing Passport application forms
and other related work and the illegal gratification is shared among
the touts and the officials of RPO.
3 To verify these allegations a surprise check in
presence of the independent witnesses S/Sh. Harender Kumar
Sharma, LDC, Land Sales Branch, DDA and Vinod Kumar, LDC,
Confidential Report Cell, DDA, Vikas Sadan, New Delhi had been
conducted in and around RPO office Bhikaji Kama Place, New
Delhi, at around 11 AM to 12.45 PM. At the time of search a close
watch kept over the activities of the touts for about 45 minutes and
during this period it was observed that some persons were
collecting application forms and passports from the individuals
alongwith money after negotiating the amount with applicants.
Those persons were also heard telling the applicants that unless they
apply through them, the officials working at the counter would not
accept their applications and would harass the applicants by raising
one or the other objection. Those arrested touts were over heard
telling the applicants that they were required to pay Rs.50/- to 100/-
per application to the Passport Office. These persons were standing
in front of the office and were also visiting the Hall. These touts
received the passport application forms alongwith money from the
applicants and deposited the same in the Passport Office at the
counter. After depositing the applications and obtaining the
4
5
receipts they were coming out from the passport office. At the time
of surprise check members of the raiding party including the
independent witnesses were also directed to identify the touts and
also keep watch over the applicants who were fleeced by these touts,
so that they could be also requested to join the proceeding of the
surprise check after apprehension of the touts. During surprise
check 14 touts S/Sh. Ram Kishan, Shmabhu Singh, Sushil Kumar @
Sunil Kumar Bhushan, Amar Chand Kalshan @ Amar Rahi,
Mustaq Ahmed, Sunil Sabhapati, Prem Pal Singh, Nadeem, Santokh
Singh, Atter Pal Singh, Mukesh Kumar Aggarwal, Bhoop Singh
and Suresh Kashyap were apprehended on the spot.
4 On the same ground, C C no.23/2, CC no.23/08 (01/02),
C C no.24/02 C C no.18/02, C C no.22/08 (21/02), C C no.24/08
(17/02), C C no.19/02 and C C no.25/08(22/02) has been filed
against accused Bhoop Singh, Sabhapati, Nadeem, Sunil, Prem Pal
Singh, Mustaq Ahmed, Amar Chand Kalshan @ Amar Rahi and
Attar Pal respectively.
5 My Ld Predecessor on 24.3.03 supp
lied all the copies required U/S 207 Cr P C to accused . After
hearing both the parties a charge for the offence punishable U/s
8/14 of the PC Act framed against the accused vide order dt.
30.6.03in their respective cases. Accused pleaded not guilty claimed trial, hence this trial.
5 66 On 18.7.03 Accused Ram Kishan (since expired) Attar Pal, Nadeem, Mustaq Ahmed, Bhoop Singh, Sunil, Sabhapati, Santokh Singh and Prem Pal moved joint application U/s 223 Cr PC for clubbing of the trial of the case against each of them before my Ld. Predecessor, who after hearing both the parties, ordered that all these cases be consolidated for joint trial. It was further ordered that case against Ram Kishan, C C No.16/02 will be treated as the main case in which all proceedings shall be recorded, which shall be deemed to be the part of the record of the cases connected hereby.
7 In order to prove its case CBI has produced following witnesses:
PW1 Prem Kant Sharma, PW2 Sh. Vinod Kumar Sharma, PW3 S. Harinder Kumar Sharma, PW4 Sh. Pawan Bhatia, PW5 Smt. Jyoti Bhatia, PW6 Mrs. Nazma Begum, PW7 Praod Kumar Dawat, PW8Sh. Jagbir Singh, PW9 Mohd. Mueed Ahmed, PW10 Hemant Kumar, PW11 Sh. Masroor Muzaffar, PW12 Sh. Vinay Chand Mathur, PW13 Keshwa Nand Kohli, PW14 Harinder Chawla, PW15 Sh. Kapoor Chand Grover, PW16 Rajan Asthana, PW17 Mahesh Kumar, PW18 Shatrughan Prasad PW19 Surender Kumar Sachdeva, PW20 Shyam Lal, PW21 Sunder Lal, PW22 Jarnail Singh, PW23 Pankaj Bhalla, PW24 Kuldeep Mathur, PW25Jitender Kumar Mehta, PW 26 Kanwar Bir Singh, PW27 Om Parkash, PW28 Sanjay Sakhuja, PW29 Mohd. Asraf Wngnoo, PW30 Sh. Pancham Mishra, PW31 Sh. D P Ghosh, PW32 Smt. S Avasthi, PW33 Anjali 6 7 Mathur, PW34 Anand Chandel, PW35 Ram Sabad, PW36 Johnson, PW37Smt Raj Kaur, PW39 P L Meena, PW40 Vivek Dewan, PW41 Krishan Lal and PW42 Sh. M M Ansari.
8 Statement of all the accused recorded U/S 313 Cr P C. All the accused have denied the case put forward by the prosecution against them and refuted evidence produced by the prosecution against them.
Accused Nadeem, Amar Chand Kalshan, Attar Pal, Bhoop Singh, Prem Pal and Sunil have stated that they are innocent. They have been falsely implicated by the CBI in this case.
Accused Sabhapati has stated that he is innocent . He has been falsely implicated by the CBI in this case; all CBI witnesses are stock witnesses; nothing incriminating material was recovered from him nor any recovery was made through him.
Accused Mustaq Ahmad has stated that he is innocent. He has been falsely implicated by CBI in this case. On the day of raid he had gone to PNB, Bhikaji Kama Place where he was holding saving account, as there was hue and cry, he was apprehended by some plain cloth people and taken him to CGO complex, there he found 20-25 people already apprehended out of whom some people were left by CBI.
9 None of the accused has produced any evidence in his defence .
7 810 Arguments of Ld. Sr. PP Sh. Brajesh Shukla and Ld.defence counsels heard, file perused 11 Ld. Defence Counsel argued that in this case FIR was registered at 4.30 PM on 28.5.99 after the raid and arrest of accused. If there was some complaint of commission of a cognizable offence with CBI then first of all FIR should be registered, thereafter, other proceedings should be conducted. In these circumstances delay in lodging FIR cast doubt upon the story of prosecution.
12 Complainant Inspector Prem Kant Sharma has deposed that on 28.5.99 he had received source information that some touts were operating in the Regional Passport Office, Bhikaji Cama Place. He informed the SP CBI who directed him to carry out surprise check. A team was constituted to carry out surprise check. They reached Bhikaji Cama Place at about 11 A M to conduct the surprise check. After verifying the authenticity of information during the surprise check 14 persons including accused were brought to CBI office.
13 Ld. Sr. PP argued that CBI had not acted in haste but only after verifying the correctness of information had registered the FIR in order to avoid harassment to innocent person, that is why FIR was registered at 4.30 PM on 28.5.99. after verification of 8 9 correctness of source information.
14 Ld. Defence Counsels have not pointed out as to what prejudice has been caused to the accused because of lodging of FIR at 4.30 PM after verification of source information by the CBI. Hon'ble Supreme Court in Karnel Singh Vs. State of MP (1995) 5 Supreme Court Cases 518 has held as follows:
"Mere delay in lodging not raise the inference that the complaint was false - Indian women are slow and hesitant to complain of such assault - Rape having been committed on a pile of sand, absence of injury on her person inconsequential."
15 Hon'ble Supreme Court in this regard, in Zahoor and others Vs. State of UP, AIR 1991 Supreme Court 40 has held as follows:
"Criminal P.C (1974), S.154 -FIR delay in filing - not by itself sufficient to reject prosecution case unless there are clear indications of fabrication."
16 It is further observed as follows:
"The material particulars mentioned in the FIR, as to how offence was committed were substantiated by the testimony of eye- witnesses. Their testimony was corroborated by medical evidence and was found reliable. Thus, the delay in filing FIR was of no consequence and the offence was proved beyond reasonable doubt 9 10 against some of the accused."
17 Ld Defence counsels could not pointed out any fabrication or manipulation in FIR, therefore in view of above discussion there is no merit in this argument of Ld. Defence Counsels.
18 It is argued by Ld. Defence Counsels that statement of P K Sharma U/s 161 Cr PC was recorded after about 7 to 8 months of the alleged raid by the IO. Similarly, statements of PW Vinod Kumar and Harinder Kumar U/s 161 Cr.PC were recorded on 31.5.01, i.e. about 2 years after the alleged raid. It is argued that in these circumstances no reliance should be placed on these statements.
19 Hon'ble Supreme Court has held that statement of eye witnesses cannot be discarded merely recording of the same at a late stage by the IO. In this regard it is observed as follows by the Hon'ble Supreme Court in Dr. Krishna Pal and another Vs. State of UP, (1996) 7 Supreme Court Cases 194 :
"A Criminal Procedure Code, 1973 -S. 161 - Inordinate delay in examination of witness by police - Delay not explained - Simply on that ground the convincing and reliable evidence given eye witnesses cannot be discarded."10 11
20 It is argued by Ld. Defence Counsels that PW1 has admitted that he had prepared documents in the CBI office which makes the investigation of this case doubtful. I have carefully gone through the statement of PW1. He has stated that personal search memo of accused were prepared in the CBI office. He has not stated that all the documents pertaining to this case were prepared in CBI office. This witness has also given his explanation in this regard stating that a large crowd had gathered there, hence they decided to bring all the 14 persons to the CBI office. The relevant portion of statement of PW1 in this regard, is as under:
" As a large crowd had gathered I decided to bring all the 14 persons arrested to the CBI office. Search memo was prepared in the CBI office."
21 IO has given a reasonable explanation that accused were taken to CBI office as a large crowd had gathered at the spot. Even no suggestion has been given to IO or the relevant witnesses qua the personal search memo's that any tampering with the documents was done.
22 It is argued that there are allegations in the FIR with regard to alleged involvement of the staff of passport office but none of the staff of passport office was arrested nor any investigation was conducted regarding the alleged role of staff of passport office. According to surprise check memo excess cash was found in some 11 12 cash counters of passport office but not even a single person from the staff of passport office has been made accused in this case in whose possession excess cash was found.
23 It is argued by Ld. Defence Counsels that investigation has not been properly carried out hence the same is bad. Defence cannot take advantage of bad investigation where there is evidence available on the record against the accused. In this regard our Hon'ble Supreme Court in a latest judgment titled Zindar Ali Vs. State of West Bengal & Anr., 2009 III AD (S C ) 7 held as follows:
"Indian Penal Code, 1860 -Secs. 376 and 417 - Immediate disclosure of rape by the prosecutrix - Version of prosecutrix unchallenged - Admission by the accused in village panchayat -
Medical evidence also another proof - Accused behind bar for five years - SC held - Defence cannot take advantage of bad investigation where there is clinching evidence available to the Prosecution."
24 Our Hon'ble Supreme Court in Rohtash Vs. State of Rajasthan (2007) 2 SCC (Crl.) 382 has held that that defective investigation would not lead to total rejection of prosecution case.
12 1325 Our Hon'ble Supreme Court in State of MP Vs Man Singh ( 2007) 2 SCC 390 in this regard has held as follows:
" Criminal Trial- Investigation- Deficiencies in investigation- Effect- Held, cannot be a ground to discard the prosecution version which is authentic, credible and cogent-
Criminal Procedure Code, 1973- S.157."
26 In Karnail Singh Vs. State of MP 1995 SCC 977it has been held by Hon'ble Supreme Court that in case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer.
27 It is argued by Ld. Defence Counsel that in this case, there is no recovery of money from any of the accused, which was allegedly received by them from the various person for getting their work done, it makes the case of prosecution doubtful.
28 In order to prove the offence U/S 8 of P.C Act 1988 it must be proved
i) That the accused accepted or obtained, or agreed to accept, or attempted to obtain, from someone;
13 14ii) for himself or for some other person;
iii) any gratification whatever;
iv) as a motive or reward for inducing by corrupt or illegal means any public servant to do or forbear to do any official act or to show favour or render any service to any of the persons specified in the section;
29 The gravamen of the offence is acceptance of or the obtaining or even the attempt to obtain illegal gratification as a motive or reward for inducing a public servant by corrupt or illegal means. It is not necessary that the recipient of the gratification should in fact, have attempted to induce the public servant The receipt of gratification as a motive or reward for the purpose of inducing the public servant by corrupt or illegal means will complete the offence.
30 Accused should have had the animus or intent, at the time when he receives gratification that it is received as a motive or reward for inducing a public servant by corrupt or illegal means. Such intention can be gathered or inferred from evidence in each case.
31 Mere acceptance of money by any person from a person of a public for rendering the services like filling up of the form, standing in queue and depositing the same will not enough to 14 15 bring the case within the provision of Section 8 of the PC Act. It may not even amount to criminal offence unless and until it has been statutory prohibited or some penal consequences are attached to the same. In order to prove its case U/S 8 of P.C Act prosecution is under an obligation to prove that money was accepted or obtained or is attempted to be accepted or obtained as a motive or reward for inducing by corrupt or illegal means a public servant to do or omit to do something in the discharge of his official duties.
32 It is correct that IO has not recovered money from any of the accused. Persons from whom money was charged by the accused for getting their work done from the staff of passport office have specifically deposed that they had paid money to the accused for paying the same to the staff of passport office. From the surprised check memo Ex.PW1/A, it is clear that various incriminating documents were recovered from all the accused which are connecting them with the persons to whom they had received money for getting their work done from Passport Office. Accused have not explained as to how they had come in possession of personal documents of various persons. Even otherwise, in these cases no phenolphthalein coated GC notes were given to accused by the public persons which could be distinguished after recovery of the same, thus identification of the recovered money was not possible in 15 16 these cases like that in a trap case. In these circumstances there is no merit in this argument of Ld. Defence Counsels that no money was recovered from any of the accused.
33 It is argued by the Ld. Defence Counsels that there are various contradictions in the statements of witnesses, hence, their statements cannot be relied upon. It is correct that there are some contradictions in the statement of witnesses which are of minor nature. This case was registered on 28.05.1999 wherein statement of witnesses have been recorded in the year 2003 and thereafter upto 2009. Such contradictions are bound to come due to passage of time.
34 The law regarding contradiction was considered by the Hon'ble Supreme Court in case of Bharuda Broginbhai Harjibhai V/S State of Gujrat AIR 1983 SC 753 where in it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Their Lordships have enumerated following reasons for arriving of this conclusion:
i) " By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.\ 16 17
ii) Ordinarily, it is so happen that a witness is over taken by events the witness could not have anticipated the occurrence which so often has an element of surprise.
Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details.
iii) The powers of observance differ from person to person, but one may noticed another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.
iv)By and large people cannot accurately recall a conversation and reproduced the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
v) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimate by guess work as spare of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimate in such matter. Again it depends upon the time sense of individuals which varies from person to person.
vi) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession of in a short time span. A witness is 17 18 liable to get confuse or mixed up when interrogated later on.
vii) A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel and out of nervousness mixed up facts, get confused regarding sequence of events., or fill up details of imagination at the spur of moment. The sub conscious mind of the witness sometime so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and an honest account of the occurrence witnessed by him perhaps it is a sort of physiological movement".
35 In view of the law discussed above it cannot be said that the contradiction pointed out by Ld. Counsels for accused are very vital contradiction. These are contradiction which are likely to occur with the passage of time. The Hon'ble Supreme Court in case State of UP V/S M.K. Anthony, AIR 1985 SC 48 has laid down the principle for appreciating the evidence of a witness as under:
" While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence 18 19 more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole."
" Their Lordships further observed:
" Unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations of infirmities in the manner of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross examination is an unequal dual between the rustic and refined lawyer."
36 It is argued by Ld. Defence Counsels that most of the witnesses have turned hostile, hence, their statement cannot be relied 19 20 upon. It is correct that many witnesses in this case have been turned hostile. Now, it is well settled preposition that evidence of a witness cannot be rejected merely alone on the ground that he has been declared hostile.
37 In this regard, Hon'ble Supreme Court in Keshoram Bora Vs. The State of Assam cited in AIR 1978 SUPREME COURT 1096 has held as follows:
"It is now well settled that the principle falsus in uno falsus in omnibus does not apply to criminal trials and it is the duty of the court to disengage the truth from falsehood, to sift the grain from the chaff instead of taking an easy course of rejecting the prosecution case in its entirety merely on the basis of a few infirmities."
38 Hon'ble Supreme Court in Krishna Mochi Vs. State of Bihar (2002) 6 Supreme Court Cases 81 in this regard has held as follows:-
"Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict 20 21 an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to the end. The maxim falsus in uno, falsus in ownibus has no application in India and the witnesses cannot be branded as liars. This maxim has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence".
39 Hon'ble Supreme Court in Mohan Singh Vs. State of M.P. 1999 SCC 261 in this regard has held as follows:
It was held that the courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused.21 22
40 Hon'ble Supreme Court in Krishna Mochi & Ors vs State of Bihar (2002) 6 Supreme Court Cases 81 has held as follows:
"Thus, in a criminal trial a Prosecutor is faced with so many odds.
The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent time the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim " Let hundred guilty persons be acquitted, but not a single innocent be convicted " is, in practice, changing the world over and Courts have been compelled to accept that " society suffers by wrong convictions and is equally suffers by wrong acquittals".22 23
I find that this Court in recent times has conscientiously taken notice of these facts from time to time."
41 PW-1 Prem Kant Sharma, PW-2 Vinod Kumar Sharma, PW-3 Harinder Kumar Sharma, PW-30 Panchanand Mishra, PW-31 D.P. Ghosh, PW-32 Smt. S. Avasthi, PW-39 P.L. Meena, PW-42 Inspector M.M. Ansari are the common witnesses pertaining to all the cases referred above.
42 PW-1 Prem Kant Sharma has proved surprised check memo Ex.PW1/A, complaint made to SP Ex.PW1/B and copy of FIR Ex.PW1/C. PW-2 Vinod Kumar Sharma has proved personal search memo of all the above-mentioned accused, which is Ex.PW2/A in each case. PW-3 Shri Harinder Kumar Sharma is a witness to the surprise check memo Ex.PW1/A. He has proved personal search-cum-arrest memo of all the accused by identifying his signatures on Ex.PW2/A in all the cases. PW-30 Panchanand Mishra has identified specimen seal impression of Chief Administrative Officer, Government of Bihar, Bihar Bhawan, New Delhi vide Ex.PW30/A-1 to Ex.PW30/A-3. He has proved birth certificate Ex.PW30/B. PW-31, Shri D.P. Ghosh has proved the Passport file of Shri Pawan Kumar Bhatia and Smt. Jyoti Bhatia Ex.PW31/1 and Ex.PW31/2. He has also proved file in the name of Kumari Rukhsar, Mohini Madan, Keshvanand Kohli, Pankaj Bhatia, 23 24 Pramod Sachdeva, Jarnail Singh, Shatrughan, Rakesh and Mohd. Mufid Ex.PW31/3 to Ex.PW31/15. PW-32, Smt. S. Avasthi has not identified her signatures on affidavit of Mohd. Mufid Ahmad Ex.PW9/C. PW-39, P.L. Meena, has stated that during investigation he has recorded the statement of Sh P K Sharma, Pawan Kumar, Jyoti Bhatia, Ashok Sharma and Sunil Kumar etc. PW-42, Inspector M.M. Ansari, has filed the charge sheet against Sunil, Nadeen, Attarpal, Sabha Pati , Amar Chand Kansal, Mustaq Ahmad Prem Pal and Bhoop Singh Ex PW42/A to PW42/H. 43 PW1 has stated that these accused were obtaining Rs.400/- to 500/- for filling of applications form and threatening if the applications were not got filled from them the same would come under objections. Relevant portion of his statement in this regard is as under:
" We reached Bhikaji Cama Palace at about 11.00 am . We took suitable position. We saw a group of persons inducing the persons coming for getting the passport or for renewal of the passport to get their applications filled from them. These persons were obtaining Rs.400/- to 500/- for filling up the application forms . They were also threatening that the applications which were not got filled from them would come under objections. They were also representing that they have to pay from Rs.50/- to 100/- per application to the staff in the passport office."24 25
44 PW1 has proved surprise check memo Ex PW1/A prepared by him at the passport office in this regard. Relevant portion of the same is as under:
" In order to verify a source information that a large number of touts are active in and around Regional Passport Office, Bhikaji Cama Place, New Delhi and they induce various applicants to submit their applications for fresh passports/ renewal of passports etc through them and that they can get their work done for a price by corrupt and illegal means as a nexus exists between official of Passport Office and those touts, a surprise check has been conducted in presence of the signatories to this memo including independent witnesses at the RPO office, Bhikaji Cama Place between 11.00 am to 12.45 pm during which period it was observed that a group of persons were collecting application forms/ passports from some individual alongwith money ranging between Rs.400/- to Rs.500/- per application. There was generally negotiations with the applicant about the amount to be paid by the applicants that they have to further pass Rs.50/- to Rs.100/- per application to the official of passport office. They were further heard informing the applicant that unless they apply through them, the officials of passport office will not accept their applications and would certainly raise one or the other objection."
45 PW2 has also identified his signatures on the surprise check memo Ex PW1/A. Ld Defence counsels argued that no 25 26 reliance can be placed on his statement because he has stated that they left CBI office at 1.30 while according to PW1 surprise check was conducted at about 11.00 am. In the surprise check memo which is signed by PW2, it is specifically mentioned that surprise check was conducted between 11.00 am to 12.45 pm. PW3 has also stated that he along with PW 2 Vinod Kumar Sharma went to the office of CBI and met Inspector P K Sharma at about 10.30 am who had asked them to join the raid. In these circumstances, statement of PW2 cannot be rejected merely on the ground that he has stated the time of this departure at 1.30 .
46 PW3 has specifically stated that they had seen touts taking money for depositing applications . Relevant portion of his statement in this regard is as under:
" The raiding party reached at Passport Office, R K Puram. PK Sharma, Inspector and some other persons went inside the office and we including Vinod Kumar took positions where touts were depositing the applications in the office. Some persons from the line for depositing the applications were also apprehended by the Inspector. I do not know for whom the money was taken by the touts. All the persons were taken to the CBI office. The documents including passports and forms were seized vide Surprise Check Memo Ex PW1/A . I signed the Surprise check memo at point C on each page on the memo."26 27
47 This witness has stated that documents including passports, application forms etc. were seized from the accused in these cases vide surprise check memo Ex PW1/A. He has also identified his signatures on the surprise check memo. He has proved personal search memo of all these accused which is Ex PW2/A in their respective cases.
48 PW31 has stated that during the year 1999 passport application forms costs Rs.10/-. For issue of passport for 10 years, Rs. 300/- was passport fees and for 20 years, it was Rs.600/- and in case of minor children passport fees was Rs. 200/-. He has specifically stated that touts were not authorised to work in the passport office during the year 1999.
49 PW39 has stated that investigation of this case was transferred to him. He has recorded statement of Sh. P K Sharma, Pawan Kumar, Jyoti Bhatia, Ashok Sharma, Sunil Kumar, Anand 50 PW42 has stated that in the month of November, 2000 he was entrusted with the investigation of this case. After completing the investigation he has filled charge sheet Ex PW42/A in the court, in all these cases. In cross examination he has admitted that he was not the member of surprise check memo because he had joined the investigation of all these cases in the end of year 2000.
27 2851 This is the common evidence which is to be considered in all these cases. Now I am dealing with the specific evidence in each case.
CC No.16/02 CBI Vs. Ram Kishan 52 Accused Ram Kishan has expired on 30.9.07 during the pendency of this case, fact of his death verified and confirmed by CBI, therefore, this court vide order dt. 18.2.08 directed that proceedings against him stands abatted, but his file has not been consigned to record room because all the proceedings/evidence has been recorded in this file as per directions of my Ld. Predecessor dt. 18.7.03.
C C No.23/02, CBI Vs Bhoop Singh 53 PW8 Sh. Jagbir Singh, PW11 Mashroor Muzaffar, PW19 Surinder Kumar, PW20 Shyam Lal, PW21 Sunder Lal, PW 27 Om Prakash are the witnesses who have specifically deposed in this case.
54 PW19 Surinder Kumar has stated that he had applied for getting passport of his two sons namely Anmol Sachdeva and Lakshay Sachdeva and daughter Mehak Sachdeva. One of his acquaintance had told him that Bhoop Singh will be available 28 29 around the passport office who can get the passport application deposited, Accordingly he met Bhoop Singh at the Passport office. This witness has also correctly identified accused Bhoop Singh present in the court to whom he met in the passport office. He has identified passport application of his son Anmol filled by him which is Ex PW19/A and the photocopy of his ration card Ex PW19/B attached with the passport application. He has also identified photocopy of his own passport Ex PW19/C and copy of birth registration certificate of his son Anmol Ex PW19/D attached with the application of his son. This witness has been declared hostile on the request of Ld. Sr. PP. In his cross examination by Ld. SPP he has stated that signature of his wife and thumb impression of his son was taken by accused Bhoop Singh on passport application Ex PW19/A from his residence. With regard to amount received by him he has stated as follows:
"It is correct that he had charged Rs.400- out of which Rs. 200/- as passport fee, Rs. 100/- charged as his service charges and Rs.100/- charged for the payment to the official of passport office. Subsequently passport was issued in the name of my son from passport office which I received through Dak. I can produce the same"
55 This witness has been cross examined at length on behalf of accused. He has denied the suggestion that he had been read over his statement prior to his appearance in the witness box.
29 30He has specifically denied the suggestion of Ld. Defence Counsel that accused Bhoop Singh had not told him any break up of money which is as follows:
"It is wrong to suggest that accused Bhoop Singh had not told me any break up with regard to payment of money."
56 No explanation has been given on behalf of accused as to why this witness has deposed against him. In these circumstances there is no reason to disbelieve the statement of this witness in this regard.
57 PW27 Om Prakash has stated that in January, 1999 he was doing the work of welding at Nangloi. His sister was residing in Sultanpuri where one passport agent used to live. He had got acquainted with him but he did not remember his name. He informed him (accused) that he wanted to get his passport prepared. Accused had come with a passport application and filled that application form and got his signatures and photographs etc. affixed on the application form. Accused had charged Rs. 300/- towards the passport fees initially. After 1 ½. months he has demanded Rs. 300/- for "Kharcha Pani" Relevant portion of statement of this witness in this regard is as under:
" He had come with a passport application form and he had filled my particulars in the form and got the form signed by me. I had also affixed my photographs on the passport application form 30 31 and he had charged Rs. 300/- towards the passport fee initially. After about 1 ½ months when I had asked him about my passport he said that some more money is required as Kharcha Pani" for getting my passport, hence I paid him Rs.300/- more. I have seen my passport application form which I had given to the said agent and I identified my photographs A1 to A4 affixed on it. I also identify my signatures at points B1 to B6 on my passport application form. The same is Ex PW27/A collectively. I also identify my signatures on the affidavit at points B7 and B8 which is Ex PW27/B. When I had signed the affidavit Ex PW27/B and handed over the same to the said agent it was not bearing the attestation at encircled portion points C and D on Ex PW27/B. I had also handed over to the said agent a photocopy of my election I card mark PW27/Y but the same was not attested at encircled portion A and B when I had given the same to the said agent. The said agent to whom I had handed over my passport application form alongwith other documents is not present in the court today."
58 This witness has been declared hostile and in his cross examination by Ld. Sr. PP for CBI he has stated as follows:
"It is correct that I had got acquainted with one Bhoop Singh who was at that time doing the work of agent at passport office. It is also correct that I had handed over my passport application form to the said Bhoop Singh. Again said I am not sure about his name. It is wrong to suggest that the said Bhoop 31 32 Singh had taken Rs.300/- beyond the fee of Rs. 300/- by saying that this included his own expenses and the expenses to be paid to the officials of passport office."
59 This witness has also been cross examined on behalf of accused by his Ld. Defence Counsel. His entire cross examination is as follows:
"All the signatures at points A1 to A6 bear my signatures on the exhibit. Photocopy of my Voter I card which I had given to the said agent was photocopy of my genuine I Card. I do not know the name of said agent."
60 From the above quoted cross examination of this witness on behalf of accused it is clear that nothing in favour of accused has come out in cross examination.
61 Thus, it is proved that accused Bhoop Singh is the same person to whom this witness had paid money and given his documents for getting his passport prepared. It is also proved that documents of this witness with regard to preparing of his passport were recovered from the possession of accused Bhoop Singh for which he has not given any explanation. As discussed above, now it is well settled that statement of witnesses cannot be discarded only on the ground that the same have been declared hostile. Court has to separate grain from the chaffs. It is for the court to decide as to 32 33 which portion of the statement of witnesses is to be relied upon and which portion should not be relied upon. This court is of opinion that statement of both these witnesses with regard to charging of money for the payment to the staff of passport office can be relied upon 62 PW20 Shyam Lal has stated that his old passport had expired, for getting the same renewed he met Bhoop Singh who had filled his application form for the renewal of his passport. This witness has stated that Bhoop Singh had charged Rs. 300/- for fees and Rs. 200/- for preparation of documents. No other money had been taken from him. This witness has identified his old passport Ex P40 recovered from the possession of Bhoop Singh, during the surprise check. He was declared hostile, however in his cross examination he has not stated anything against the accused.
63 PW21 Sunder Lal has identified his ration card ExP41.
64 PW8 Jagbir Singh had that someone had taken him to the house of Bhoop Singh. He had given Rs.6,000/- to Bhoop Singh for getting his passport prepared. Bhoop Singh got his signatures on some papers. This witness has identified his application form Ex PW8/A having his photographs on the same which was recovered from Bhoop Singh. He has also identified his signatures on the affidavit Ex PW8/B. He has stated that he cannot identify Bhoop 33 34 Singh now. He has also stated that Bhoop Singh had got attested his affidavit and election I Card himself.
65 PW11 Masroor Muzaffar has stated that he had applied for his passport and submitted his application to one person named Bhoop Sing who had charged Rs.650/- from him including Rs.300/- towards the fees of passport and balance Rs.350/- for paying to other person. Bhoop Singh has stated that he is taking addition Rs.350/- to pay to upparwala. Relevant portion of his statement is as under:
"In January, 1999 I had applied for passport. I submitted my passport application to one person named Bhoop Singh. He had charged. Rs.650/- from me which consisted of Rs.300/- towards fees of passport and balance of Rs.350/- he took for paying to other people. He stated me that he is taking this additional sum of Rs.350/- to pay to "upar wala" people."
66 From the evidence of these witnesses it is proved beyond reasonable doubts that this accused had induced or obtained/received money illegally from the concerned persons/witnesses in this case on the pretext of paying the same to the staff working in passport office, as a motive or reward for getting them issued passport from the staff of passport office. From the statement of all the above referred witnesses it is also proved that accused Bhoop Singh is habitually obtaining/receiving money from the public on the pretext of getting their work done from the staff of 34 35 passport office by paying them money as illegal gratification, hence accused Bhoop Singh is convicted U/s 8 & 14 of P C Act.
C C No. 18/02, CBI Vs Sunil 67 PW 13 Keshav Nand Kohli, PW23 Pankaj Bhalla and PW24 Kuldeep Mathur are the witnesses who has specifically deposed in this case.
68 PW13 Keshav Nand Kohli has stated as follows:
"I had got my passport issued from Passport Authority in the year 1999 for which I had gone to Passport Office in May, 1999. There was lot of rush on the windows at passport office. Then one tout who told his name as Sunil came to me and told me that I will get your passport application form submitted and get your passport issued. He further asked me to pay Rs.550/- which included Rs.300/- as passport fee, Rs.150/- as his service charge and Rs.100/- the amount to be paid to the official of the Regional Passport Office for issuance of my passport. He also said that if Rs.100/- are not given inside the passport office to the passport official he will not deposit my form. Thereafter I had given my duly filled application for passport to Sunil alongwith Rs.550/- and photocopy of my ration card. Sunil also got an affidavit signed by me and said that he will get photocopy of ration card and affidavit attested himself. The said tout is present in the Court today.35 36
(Witness correctly identify the accused). My passport was prepared and issued by passport office and it came to me by post."
69 PW 23 Pankaj Bhalla has stated that in May, 1999 he had gone for applying for his passport to Regional Passport Office, Bhikaji Cama Place. When he was standing in the queue one agent came to him and told him (witness) that he (accused) would get his passport prepared at an early date without any inconvenience being faced as the general public. He had charged Rs. 500/- for the work out of which Rs. 300/- were charged for the passport fees and remaining Rs.200/-were charged towards the expenses. He has stated that he had also handed over photocopy of his high school certificate, ration card and photographs alongwith his passport application duly signed by him. That agent had also got attested his documents. This witness has stated that he had received acknowledgment with regard to submission of his application after 2/3 days from that agent who had delivered the same at his residence. This witness has identified his photograph and signatures on passport application which is Ex PW23/A. This witness has stated that he cannot identify that agent in the court. This witness has been declared hostile on the request of Ld. PP. In his cross examination he has admitted that name of that agent who had come to him was Sunil. Sunil had filled his application form. He has also admitted that Sunil had told him that extra amount of R.200/- was to be paid to the officials of passport office. His cross examination in 36 37 this regard, is as under:
"It is correct that the name of the person who had come to me while I was at Regional Passport Office, Bhikaji Cama Place to apply for my passport in May, 1999 was Sunil. It is correct that application Ex PW23/A was filled up by Sunil by asking the particulars of my family from me and that it was not filled by me and I had merely signed it....."
"... It is correct that Sunil had told me that he is taking Rs.200/- extra towards his own expenses and expenses/money to be paid inside passport officials of the RPO and that if the money is not paid the inside passport officials they would not prepare my passport. I could not tell this fact as due to lapse of time I was unable to recollect this fact earlier. I am not sure whether accused Sunil present in the court is the same person to whom I had handed over my application Ex PW23/A and Rs. 500/- in May, 1999 at RPO, Bhikaji Cama Place."
70 Opportunity to cross examine this witness was given to accused but accused has not cross examined this witness. In these circumstances there is nothing on the record that version given by this witness in the portion of his above quoted cross examination can be disbelieved.
71 PW24 Kuldeep Mathur has stated that in March, 1998 37 38 he had applied for his passport and that of his wife for which he had obtained application forms and filled the same and affixed photographs and attached the relevant documents. When he had gone to Regional Passport Office, Bhikaji Cama Place for submitting the applications, there was a lot of rush, one person came to him and offered to get application forms deposited and to get issued the passports at an early date. That person had also asked for Rs.300/400/- for getting the work done. That agent had given him acknowledgment with regard to deposition of his passport, on the next day. He had received his passport by post but had not received the passport of his wife. This witness has not identified that agent, therefore, he has been declared hostile on the request of Public Prosecutor. In his cross examination he has admitted that name of the agent to whom he handed over the applications was Sunil. However, he has denied the suggestion that he is not identifying accused Sunil present in the court deliberately in order to save him as he has been won over by him. Relevant portion of his cross examination conducted by Public Prosecutor in this regard is as under:
"It is correct that I was called in CBI Office at CGO Complex where my statement Ex PW24/A was recorded by Inspector M M Ansari on 7.6.2001. It is correct that the name of the agent to whom I had handed over application for passport of myself and my wife was Sunil."38 39
72 Opportunity to cross examine this witness was given to all the accused but they have not cross examined him. In these circumstances it is proved from the statement of this witness that he has given application forms to Sunil who had also charged extra money from him for getting issued him passports at an early date.
73 From the evidence of these witnesses it is proved beyond reasonable doubts that this accused had induced or obtained/received money illegally from the concerned persons/witnesses in this case on the pretext of paying the same to the staff working in passport office, as a motive or reward for getting them issued passport from the staff of passport office. From the statement of all the above referred witnesses it is also proved that accused Sunil is habitually obtaining/receiving money from the public on the pretext of getting their work done from the staff of passport office by paying them money as illegal gratification, hence accused Sunil is convicted U/s 8 & 14 of P C Act.
C C No. 24/02, CBI Vs Nadeem 74 PW 9 Mohd. Mufid Ahmed, PW15 Kapoor Chand Grover, and PW26 Kanwar Bir Singh are the witnesses who have specifically deposed in this case.
75 PW26 Kanwar Bir Singh has stated that he had gone to 39 40 Regional Passport Office, Bhikaji Cama Place for getting his passport prepared. There was a crowd, hence he came back. He saw an advertisement in the newspaper of an agent whose telephone no. was also given, hence he(witness) called him on telephone, therefore, he (accused) came to his residence. He (accused) had given him (witness) a form which was filled by him (witness) in his own handwriting and pasted his photographs. He (witness) had also handed over photocopy of his ration card and signed one affidavit. He (accused) charged Rs. 600/- from him (witness) out of which Rs. 300/- was the passport fees and remaining Rs. 300/- includes his service charges and money to be paid inside passport office. This witness has also identified his signatures at point A1 to A-10, and photographs B1 to B4 on his passport application form Ex P42 (collectively). He has also identified his signatures on affidavit Ex PW26/A at point A-11 and A-12. He had stated that he has not get the same attested. This witness has stated that he cannot say if that agent who had come to his residence and to whom he had given his passport application form, is present in the court. He has been declared hostile on the request of Ld. PP on this point. In his cross examination by Ld. PP this witness has stated that Nadeem present in court is not the person who had come to his residence and to whom he had handed over his passport application. He has denied the suggestion that accused Nadeen present in the court is the same agent who had come to his house and to whom he had given Rs. 600/- alongwith his passport application form.
40 4176 In surprise check memo Ex PW1/A , details of various documents recovered from accused Nadeem has been mentioned. Passport application form of this witness Kanwar Bir Singh has also been recovered from the possession of this accused at the time of surprise check. Witness Kanwar Bir Singh has identified his application form for getting passport bearing his photographs and signatures. He has also identified his affidavit bearing his signatures, thus from the documents it is well proved on the file that the agent to whom this witness had given his application form and money, was the accused Nadeem. In these circumstances this court is of opinion that this witness though tried his best to avoid to identify accused Nadeem as the person who had charged money from him for getting his passport prepared from the employees of Regional Passport Office illegally but his identity has been established from the circumstances.
77 PW15 Kapoor Chand Grover has stated that Raj Grover is his wife and Reena Wadhwa and Nitin Grover are his minor daughter and son. He had a passport which was expired. He wanted to get the same renewed. There was an office of travel agent near his office in Mukherjee Nagar, Commercial Complex. He approached the office of that travel agent who had arranged passport application form. After filling passport application form he handed over the same to that travel agency. Passports were not issued to them. Later on, he came to know that there was some raid due to 41 42 which office of travel agency remained locked for a long time. He has identified Passport Application form of his wife Mrs. Raj Grover and her signatures and photographs on the same at Point A1 to A11 which are Ex P44. This witness has also identified signatures and photographs of his son on Passport Application Form Ex P45 at point A1 to A8. This witness has also identified signatures and photographs of his daughter Reena on Passport Application Form Ex P46 at point A1 to A12. This witness has stated that the concerned agent had come to his residence. He has stated that he had paid amount to that person. This witness has been declared hostile on the request of Ld. PP, In his cross examination this witness has stated that he did not remember if the person who was sent by the travel agency was Nadeem. Relevant portion of his cross examination in this regard, is as follows:
"I cannot say if the person present in the court Nadeem is the person who had come to my home for supplying passport application forms and after getting the same filled and signed taken he same back alongwith the money paid by me. It is wrong to suggest that I am intentionally not identifying accused Nadeem present in court today to help him as I have been won over by him."
78 Ld. Defence Counsel has not cross examined this witness inspite of opportunity given. From the above quoted cross examination of this witness it is clear that this witness has not denied that Nadeem is not the person who had come to his house for taking 42 43 passport application but has only avoided to answer this question stating that he cannot say. From the surprise check memo Ex PW1/A it is clear that passport application forms of Raj Grover and Nitin Grover were recovered from the possession of accused which were admittedly given by Kapoor Chand Grover to the Travel Agent for getting their passports prepared. Accused has not given any explanation as to how these documents come in his possession. Thus, from the circumstantial evidence it is proved on the judicial file that accused Nadeem was the person who had received passport application forms from Kapoor Chand Grover alongwith the money for getting their passport prepared.
79 PW9 Mohd. Mufeed Ahmed has also a witness in this case but he has not said anything connecting accused Nadeem with this case.
80 From the evidence of aforesaid witnesses it is proved beyond reasonable doubts that this accused had induced or obtained/received money illegally from the concerned persons/witnesses in this case on the pretext of paying the same to the staff working in passport office, as a motive or reward for getting them issued passport from the staff of passport office. From the statement of all the above referred witnesses it is also proved that accused Nadeem is habitually obtaining/receiving money from the public on the pretext of getting their work done from the staff of 43 44 passport office by paying them money as illegal gratification, hence accused Nadeem is convicted U/s 8 & 14 of P C Act.
C C No. 19/02, CBI Vs Amar Chand Kalshan 81 PW 16 Rajan Asthana, PW17 Mahesh Kumar, PW29 Mohd. Asraf Wangnoo, PW34 Anand Chandel and PW37 Smt. Raj Kaur are the witnesses who have specifically deposed in this case.
82 PW16 Rajan Asthana has stated that he was working as accountant with Mohd. Asraf Wangnoo who sent him to Regional Passport Office, Bhikaji Cama Place for submitting passport application form for getting the passport of his daughter Safora Wangnoo in May, 1999. Passport Application Form was filled by this witness. This witness has also identified the same by identifying his handwriting which is Ex PW16/A. He has also identified photographs of Safora affixed on the application form Ex PW16/A. This witness has specifically deposed that accused Amar Chand had demanded Rs.150 or Rs.200/- for documentation and other expenses. He has stated that meaning of other expenses was explained by Amar Chand to him as the money paid to inside officials for getting the passport application submitted. In this regard, relevant portion of his statement is as under:
"I had gone to the passport office at Bhikaji Cama Place. I 44 45 stood in queue for deposit the passport application form but the same could not be deposited. I had visitd passport office repeatedly and stood in queue repeatedly but the passport form could not be deposited. Thereafter I met one Amar Chand Khalshan outside the passport office. He promised me that he will get the passport from deposited. So I handed over the passport application form of Safora Wangnoo to him. I also handed over to him Rs. 300/- towards passport feeand perhaps Rs. 150/- or 200/- besides the fee towards documentation like affidavit and other expenditure. Other expenditure was explained by him as money to be paid to the inside official for the purpose of getting passport application submitted. I was having this much amount in my pocket later on I had charged the same from my employer. As far as I remember the thumb impression at point B1 to B13 were not there in the form Ex PW16/A when I had handed over the same to Amar Chand Khalsan. Subsequently I had handed over the passport application of the son of Mr. Mohd. Asraf Wanghoo namely Mr. Umar to Amar Chand Khalsan. I do not remember as to how many days afterward I had handed over the form of Mr. Umar to Amar Chand Khalson. Daughter Safora and son Amar of Sh. Mohd. Asraf Wanghoo had not gone to passport office. I can identify Amar Chand Khalson to whom I had handed over the passport application form of Safora and Umar in May 1999 ( personal Attendance of accused Amar Chand has been exempted through his counsel on an 45 46 application moved on behalf of accused and identity is not disputed). I had handed over any affidavit alongwith passport application Ex PW16/A to accused Amar Chand Khalson. "
83 This witness has been cross examined on behalf of accused but nothing has come in his cross examination to disbelieve his statement.
84 PW29 Mohd. Asraf Wangnoo has identified passport application of his daughter Safora Wangnoo Ex PW16/A and stated that he had procured that passport application form through his accountant Rajan Asthana. He has also identified her photograph on Ex PW16/A. This witness has also stated that Rajan Asthana has told him that he handed over the application form to some agent and most probably paid a sum of Rs. 600/- to him including legitimate passport fees etc. 85 During the surprise check passport application form of Safora Wangnoo Ex.PW16/A was recovered from the possession of accused Amar Chand. Not even a single suggestion has been given to both these witnesses that passport application form of Safora Wangnoo was not recovered from Amar Chand in the cross examination of these witnesses. No explanation has been given by this witness as to how this document had reached in his possession.
46 4786 PW17 Mahesh Kumar has stated that in the year 1998- 99 he had gone to Regional Passport Office for getting his passport prepared. Since he was illiterate hence he made enquiries about the formalities for applying for a passport. He met a tout who was looking for a client in front of passport office, who (tout) asked him (this witness) to pay money and promised that he (tout) would get his (witness) passport prepared. Accordingly he (witness) had paid money to him (tout) who(tout) had also taken his r/particular/document/photographs etc. This witness has also identified his photographs pasted on the application form alongwith documents and affidavit which are Ex PW17/A to ExPW17/C. However, this witness neither named accused Amar Chand or identified him as the tout who had met him at the Regional Passport Office. This witness was declared hostile on the request of Ld. PP. In his cross examination he has stated as follows:
"Now I do not remember if I had paid total Rs. 800/- including 300/- passport fee, 200/- affidavit charges, 100/- towards expenses of touts and Rs. 100/- for payment inside passport official on being demanded by the tout. (Confronted with portion B to B of statement Ex PW17/X where it is so recorded)."
87 From the above quoted cross examination of this witness, it is clear that he has not denied that he had not paid amount to accused Amar Chand but has simply stated that he does not 47 48 remember it.
88 PW34 Anand Chandel has stated as follows:
"I was running the business of beauty parlor and I require the passport for the purpose of going abroad. Mr. Amar who is present inc ourt came to my parlor and he asked me that he can get prepare the passport. He asked for some documents like photographs, proof of age and residence proof etc. All the documents relating to the passport form including passport form issued by the firm. He took 500/- to 600/- from me for expenses of passport."
89 This witness has been declared hostile on the request Ld. PP. However, in his cross examination he has stated that he has not asked from Amar Singh about the expenses of money given by him. This witness is of no help to the prosecution.
90 PW37 Smt. Raj Kaur has stated that about 10 years back she had gone to Passport Office for getting her passport prepared. When she was purchasing passport application form one Attri had come to her and told that he will fill the form and demanded Rs. 1,000/- for getting her passport issued. Accordingly she had paid Rs. 1,000/- to him. He had filled her passport form and performed all other formalities. This witness has identified her 48 49 signatures at seven places on passport application form, affidavit and her photographs which are Ex PW37/A to Ex PW37/C. This witness has been declared hostile on the request of Ld. PP. In her cross examination she has stated that she cannot identify to whom she had paid the amount of Rs.1,000/-. In these circumstances this witness is of no help to the prosecution.
91 From the evidence of these witnesses it is proved beyond reasonable doubts that this accused had induced or obtained/received money illegally from the concerned persons/witnesses in this case on the pretext of paying the same to the staff working in passport office, as a motive or reward for getting them issued passport from the staff of passport office. From the statement of all the above referred witnesses it is also proved that accused Amar Chand is habitually obtaining/receiving money from the public on the pretext of getting their work done from the staff of passport office by paying them money as illegal gratification, hence accused Amar Chand is convicted U/s 8 & 14 of P C Act.
C C No. 23/08 (20/02) CBI Vs Sabhapati 92 PW 25 Jitender kumar, PW28 Sanjay Shakuja and PW35 Ram Sabad are the witnesses who have specifically deposed in this case.
49 5093 PW28 Sanjay Shakuja has stated that in February, 1999 he wanted to have his passport prepared. One travel agent was known to him who has brought passport application form for him. After filling and signing the passport application form and affixing his photographs on the same he handed over it to said travel agent. That travel agent had charged Rs.800/- from him, Rs,. 300/- for passport fees and remaining Rs. 500/- for expenses including preparation of affidavit and the money to be paid inside the passport office. This witness has identified his passport application form and his signature and photographs on the same at points B1 to B6 and A1 to A6 respectively which is Ex PW28/A (Collectively). He has also identified his signatures at point A1 to A3 on the affidavit attached with his passport application form. He has stated that the travel agent to whom he handed over his passport application form was Mr. Jain whose full name he does not remember. He has also stated that he cannot tell if that travel agent to whom he handed over his passport application alongwith Rs.800/-, is present in court or not. This witness was declared hostile on the request of Ld. PP. In his cross examination he has denied the suggestion that accused Sabhapati was that agent.
94 PW25 Jitender Kumar Mehta has stated that he had applied for renewal of his passport in the year 1999. He had given his passport to Mr. Rehman who knew one agent named Sabhapati who belonged to his village in order to avoid difficulty of standing 50 51 in line and saving time. Rehman had given his passport to Sabhapati. Sabhapati had charged Rs. 300/- extra which included his commission and money to be paid to the officials inside passport office. Subsequently Rehman informed him (witness) that Sabhapati has been arrested by CBI. This witness has identified his signatures and photographs on passport application form which are at points B1 to B12 and A1 to A4 on Ex PW25/A (collectively). His statement in this regard is as under:
"I am a passport holder. I had applied for renewal of my passport in the year 1999. I had given my passport to my staff Mr. Rehman. Rehman knew one agent named Sabhapati who belonged to his village and in order to avoid the difficulty of standing in line and saving time, Rehman had given my passport to the agent Sabhapati for renewal. Sabhapati had charged Rs. 300/- extra which included his commission and money to be paid to the officials inside passport office. Subsequently Rehman informed him (witness) that Sabhapati has been arrested by CBI and thereafter, I was called at CGO Complex, CBI office. My statement was recorded and I received my passport from there. I have seen my application for renewal of my passport and I identified my photographs at points A1 to A4. I also identify my signatures on the application form at points B1 to B12. Application form is Ex PW25/A collectively. I had sent this application alongwith my passport through Rehman which was handed over by Rehman to Sabhapati."51 52
95 This witness has been cross examined on behalf of accused. His entire cross examination is as under:
"Other family members of my family also have their passports including my wife. I had got passport of other family members prepared directly approaching Passport office without approaching any agent. The passport which was to be renewed was got prepared by me directly myself. Rehman was my employee. Now I do not remember his permanent address as it is a nine years old matter and he had left my services. I had received notice from CBI when the accused were apprehended day, date, month and year now I do not remember. In response to the notice I had gone to CGO Complex. To my knowledge no notice was received by Rehman till he remained in my employment."
96 From the above statement of PW25 it is proved that he had given his passport for renewal to his employee Rehman to whose village Sabhapati belonged to and was well known to him. Rehman had handed over passport to Sabhapati for renewal. Sabhapati had charged Rs.300/- including the amount to be paid to the officials working in passport office. In cross examination of this witness not even a single question has been put to him that he had not given his passport to Rehman for renewal or Rehman had not handed over passport to accused Sabhapati for renewal of the same. No cross examination on a substantive point amounts to admission of the same. Nothing such has come in the cross examination of this 52 53 witness to disbelieve his statement on this point.
97 PW35 Ram Sabad has stated that in February, 1999 he had gone to Passport Office for getting his passport issued. Outside passport office one Sabhapati had met him who had filled his application form. This witness had paid Rs. 400/- to Sabhapati. This witness has stated that Sabhapati had told him that one certificate will be attached with the application form which will be received from the court for an amount of Rs. 100/-. Sabhapati had also told him that Rs. 300/- will be deposited in office and Rs. 200/- will be paid as expenses. This witness has identified his photographs and thumb impression on his passport application form which is Ex PW35/A. However, this witness in this court has wrongly identified Nadeem as Sabhapati. This witness has been declare hostile on the request of Ld. PP but even in his cross examination he has identified Nadeem as Sabhapati and denied the suggestion that he has intentionally not identified Sabhapati correctly.
98 Passport Application Form of this witness was recovered from the possession of accused Sabhapati during the surprise search conducted by PW1 vide Surprise Search Memo Ex PW1/A. Original receipt of RPO with regard to deposition of the passport application form of PW 28 Sanjay Shakuja and PW35 Ram Sabad was also recovered from the possession of this accused.
53 54Accused has not given any explanation as to how these documents came in his possession. In these circumstances it is proved that accused Sabhapati was the agent who had induced/obtained/received money on the pretext of paying the same to the staff of passport office from these witnesses for getting their passport prepared/renewed from the passport office.
99 From the evidence of these witnesses it is proved beyond reasonable doubts that this accused had induced or obtained/received money illegally from the concerned persons/witnesses in this case on the pretext of paying the same to the staff working in passport office, as a motive or reward for getting them issued passport from the staff of passport office. From the statement of all the above referred witnesses it is also proved that accused Sabhapati is habitually obtaining/receiving money from the public on the pretext of getting their work done from the staff of passport office by paying them money as illegal gratification, hence accused Sabhapati is convicted U/s 8 & 14 of P C Act.
C C No. 25/08 (22/02) CBI Vs Attar Pal 100 PW 14 Harinder Chawla and PW36 Johnson are the witnesses who have specifically deposed in this case.
101 PW14 Harinder Chawla has deposed as follows:
54 55" I have got two children, daughter Diksha Chawla and son Hinanshu Chawla. I had gone to Passport Office near Hayat Agency, R K Puram for the purpose of getting passport of my daughter prepared around 1998-99. I had obtained passport application form. I was facing difficulty in depositing the application form. There I met one Attar Pal Singh who said that he would get prepared passport of my daughter and he asked for Rs.350/- from me for the purpose of getting passport of my daughter prepared which included passport fee of Rs.200/- and Rs. 150/- extra were charged by him for the purpose of getting affidavit prepared. I can identify Attar Pal accused present in the court. (Witness has correctly identified Attar Pal) Passport of my daughter has not been received by us. Passport application of my daughter was properly filled and after pasting the photogr it was signed by me as guardian and the same was handed over by me to Attar Pal alongwith Rs. 350/-. I had not gone to the Notary or other authorities for the purpose of attestation of affidavit to be submitted alongwith the passport application form mentioned above. Accused Attar Pal must have got the same attested. I have seen my affidavit Ex PW14/A. It bears my signatures at points A1 to A2 which I identify. I had handed over this affidavit after signing the same to accused Attar Pal alongwith application for passport of my daughter. XX by Sh. M S Khan Counsel for accused Attar Pal.
It is wrong to suggest that I have deposed falsely. It is wrong 55 56 to suggest that affidavit was got attested by me. I do not know that at the relevant time the passport fee itself was Rs. 350/-. I do not remember on which date I had gone to the passport office but the year must be 1998-99. I do not know who had recorded my statement. I had visited the CBI office after receiving notice but I do not remember the date and month now. I have not made any complaint on my own regarding this case. Attar Pal was not shown to me in CBI office regarding this case. It is wrong to suggest that I am deposing falsely."
102 PW36 Johnson has deposed as follows:
"In the year 1998 I had gone to passport office for obtaining passport for myself. I got filled up my passport form from accused Attarpal, present in court. (witness has correctly identified). I had paid him Rs. 20/- for getting my form filled. Other requirements of passport form were fulfilled by me myself. "
103 In his cross examination by Ld. PP this witness has stated that in his statement U/s 161Cfr PC he has stated that except paying of Rs.20/- to Attar Pal for filling up form he has not stated anything else. This witness has denied the suggestion that he has been won over by the accused. He has also denied the suggestion that he had given Rs.420/- to accused Attar Pal out of which Rs.10/- were for filling of form and Rs.50/- for depositing the 56 57 form and rest of rupees were to be given to passport officials for preparation of passport.
104 Except the above no other incriminating evidence has been produced by the prosecution against accused in this case. PW36 has categorically stated that he had paid only Rs.20/-for getting his application form filled. PW14 Harinder chawla had stated that he had paid Rs.350/- for getting the passport of his daughter prepared including Rs.200/- as passport fee and Rs.150/- were charged for the purpose of getting prepared affidavit etc. None of these two witnesses has deposed that accused Attar Pal had demanded or charged any amount for paying the same as illegal gratification to the staff of passport office for getting their passport prepared.
105 Mere acceptance of money by any person from a person of a public for rendering the services like filling up of the form, standing in queue and depositing the same will not enough to bring the case within the provision of Section 8 of the PC Act. In order to prove its case U/S 8 of P.C Act prosecution is under an obligation to prove that money was accepted or obtained or is attempted to be accepted or obtained as a motive or reward for inducing by corrupt or illegal means a public servant to do or omit to do something in the discharge of his official duties.
57 58106 In this case prosecution has utterly failed to prove its case beyond reasonable doubts against this accused, therefore, accused is acquitted of the charged offence giving benefit of doubt.
CC No.22/08 (21/02) CBI Vs Prem Pal Singh 107 PW 18 Shatrughan Prasad and PW22 Jarnail Singh are the witnesses who have specifically deposed against the accused in this case.
108 PW18 Shatrughan Prasad has stated as follows:
"In the year 1999 I was living at B-564 Mahavir Enclave Gali No.33. About 8/9 and 10 years back I had gone to the passport office for getting prepared my passport. I obtained passport application form from vendor sitting outside the office. Since I was illiterate person I could not fill form myself. I requested a person sitting outside the passport office to fill up my form for passport. Now I do not remember the name of that person. I stood in queue for about two hours and deposited my passport application form at the counter. I was issued a passport by the passport office which I have received in due course through the post. I am educated upto 8th standard. I know writing in Hindi. I have seen my passport application form which bears my signatures at point A1 to A4 at 58 59 different pages which I identify. Passport application form is Ex PW18/A. It also bears my photographs at point B1 to B3 which I can identify. This form was filled on my request by person who was sitting outside passport office before I submitted the same at passport counter. I had also received a receipt of my form Ex PW18/A."
109 This witness was declared hostile on the request of ld. PP. In his cross examination he has stated as follows:
"It is correct that the said person who met me outside the passport office filled my application form and pasted my photograph on it. I had not stated to CBI inspector that Prem Pal took Rs. 300/- towards passport fee and Rs. 200/- extra from me stating that out of it Rs. 150/- are his service charges and Rs. 50/- is towards payment which is to be made in the passport office to the passport official and that Rs. 50/- is not paid inside the passport office they will not accept my passport application and will unnecessary harass me."
110 PW22 Jarnail Singh has stated as follows:
"My passport and my wife's passport had expired and I have to get new passport prepared so in May,1999 I had asked one my worker Umesh to bring two passport application forms for the said purpose. Umesh told me that he knows one person who works in the 59 60 passport office who will get my work done. Subsequently Umesh called that person Mr. Prem Pal to my factory. Prem Pal had come with two passport application forms. He had demanded Rs.150/- each as passport fee and R. 10/- for each form. In all he had charged Rs. 600/- for each passport and I had paid Rs.1200/- for two passports. Today I cannot tell whether that Prem Pal is present in the court or not as it is an old matter."
111 This witness has been declared hostile on the request of Ld. PP. In his cross examination on behalf of Ld. PP he has stated as follows:
"It is incorrect to suggest that Prem Pal had taken Rs. 400/- extra besides the prescribed passport fee for the two passports and had told me that some of the money will have to be paid to inside passport officials otherwise they would either not accept application forms or would not issue passport."
112 In his cross examination by Ld. Defence counsel, this witness has stated as follows:
"Pren Pal had told me that passport is valid for 20 years. Prem Pal had told me that fee for a passport for 20 years is Rs.600/- ".
113 Besides the above evidence prosecution has not produced any incriminating evidence to prove that accused in this 60 61 case had obtained/received/induced to obtain or received money from the public person for getting his passport from passport office by paying illegal gratification to the staff of passport office.
114 Mere acceptance of money by any person from a person of a public for rendering the services like filling up of the form, standing in queue and depositing the same will not enough to bring the case within the provision of Section 8 of the PC Act. In order to prove its case U/S 8 of P.C Act prosecution is under an obligation to prove that money was accepted or obtained or is attempted to be accepted or obtained as a motive or reward for inducing by corrupt or illegal means a public servant to do or omit to do something in the discharge of his official duties.
115 In this case prosecution has utterly failed to prove its case beyond reasonable doubts against this accused, therefore, accused is acquitted of the charged offence giving benefit of doubt.
C C No. 24/08 (17/02) CBI Vs Mustaq Ahmed 116 PW1 Prem Kant in his examination in chief has stated nothing particular about this accused. In his cross examination on behalf of this accused this witness has stated that he had seen 61 62 Mustaq filling up the form. He has stated that he had not seen Mustaq taking money from anyone. He had not seen him depositing the form. He did not hear Mustaq demanding money from anyone. PW3 in his cross examination on behalf of this accused has stated as follows:
"I cannot say whether Mushtaq Ahmed was wandering here and there in the passport office when we reached there. About 10- 15 persons were outside the passport office. Id id not go inside the passport office. It is correct I did not see Mushtaq Ahmed giving any amount to any official of passport office. (Vol. I had seen him demanding money from people saying that he had to give the money to the officials). Inspector P K Sharma seized Ex P18, Ex P19 and Ex P20 from the accused. No such person from whom the accused was demanding or taking money was apprehended. It is wrong to suggest that there was no such person from whom accused was demanding money."
117 PW32 Smt. S Avasthi has stated that affidavit of Mohd. Mustaq Ahmed does not bear her signatures.
118 This is the only evidence produced by prosecution against this accused. Prosecution has not produced any witness from whom this accused had obtained/received money on the pretext of paying the same to the officials of passport office for getting the passport prepared. No other incriminating evidence has been 62 63 produced by prosecution against this accused.
119 PW3 has only proved personal search memo of this accused Ex PW2/A. Besides this, this witness has not stated anything in his examination in chief against this accused. In his cross examination by Ld. Defence Counsel PW3 has voluntarily stated that he had seen him demanding money from people saying that he had to give it to officials. This witness has not stated anything about which purpose money was to be given or to the officials of which office money was to be given. In these circumstances without any other incriminating/corroborative evidence it cannot be held that prosecution has proved its case beyond reasonable doubt against this accused. This accused is entitle for benefit of doubt, therefore, he is acquitted. Conclusion 120 In view of above discussion accused Bhoop Singh, Sabhapati, Nadeem, Sunil and Amar Chand Khalson are convicted U/s 8 & 14 of PC Act, 1988. Accused Prem Pal Singh, Attar Pal Singh and Mustaq Ahmed are acquitted. Reader of this court is directed to keep a copy of this judgment on all the files.
Announced in open court ( V K MAHESHWARI ) Dt. 26.11.2009 SPECIAL JUDGE: DELHI 63 64 IN THE COURT OF SH. V K MAHESHWARI :SPECIAL JUDGE; TIS HAZARI DELHI Corruption Case No.16/02 1 C C No. 16/02 CBI Vs Ram Kishan s/o Late Sh. Mohan Lal, R/O 13/185, G-Point, Kalibari Marg, New Delhi. (since expired) R. C No. 24 (A)/99/CBI/ACB/ New Delhi. Under Section U/s 8 & U/s 14 of PC Act 2 C C No. 23/02 CBI Vs Bhoop Singh s/o Ramji Lal, R/o F-1/25, Sultanpuri, Delhi. R. C No. 24 (A)/99/CBI/ACB/ New Delhi. Under Section U/s 8 & U/s 14 of PC Act 3 C C No. 23/08 (20/02) CBI Vs Sh. Sabhapati s/o Sh. Ram Kumar, r/o B-584, Seemapuri, Delhi. R. C No. 24 (A)/99/CBI/ACB/ New Delhi. Under Section U/s 8 & U/s 14 of PC Act 4 C C No. 24/02 CBI Vs Sh. Nadeem s/o Mohd. Shafi, r/o -II No. 18, Gali Kababean, Jama Masjid, Delhi R. C No. 24 (A)/99/CBI/ACB/ New Delhi. Under Section U/s 8 & U/s 14 of PC Act 5 C C No. 18/02 CBI Vs Sh. Sunil s/o Sh. R C Sharma, r/o 64 65 Karavel Nagar, Delhi-94. R. C No. 24 (A)/99/CBI/ACB/ New Delhi. Under Section U/s 8 & U/s 14 of PC Act 6 C C No. 19/02 CBI Vs Sh. Amar Chand Kalshan @ Amar Rahi s/o Late Sh. Thakur Dass, r/o C7/70, DDA Flats, Hauz Khas, New Delhi R. C No. 24 (A)/99/CBI/ACB/ New Delhi. Under Section U/s 8 & U/s 14 of PC Act ORDER ON SENTENCE:
Vide my separate judgment dated 26.11.2009 accused Accused Bhoop Singh, Sabhapati, Nadeem, Sunil and Amar Chand Khalson were convicted U/s 8 & 14 of PC Act, 1988.
Arguments on sentence heard.
It is argued on behalf of convict Amar Chand Kalshan that he is not a previous convict. He is a Senior citizen of 62 years of age and a patient of high blood pressure. His wife is confined to bed as her both hip joints have been damaged. He has clean antecedents.
One of his son is yet to be married. He is not involved in any other 65 66 criminal or civil case. In these circumstances, lenient view may be taken against him.
It is argued on behalf of convict Sunil that he is the sole bread earner of his family. His wife and three children who are studying in college/school, are wholly dependent upon him. He is not involved in any other criminal or civil case. He has clean antecedents. Minimum sentence may be awarded to him.
It is argued on behalf of convict Bhoop Singh that he is not a previous convict. His wife and three children who are studying in school, are wholly dependent upon him. His wife is suffering from kidney ailment. She requires regular medical check up and medication. Without him his family cannot survive. He is not involved in any other criminal or civil case. He has clean antecedents. In these circumstances, lenient view may be taken against him.
It is argued on behalf of convict Sabhapati that he is not a 66 67 previous convict. His wife and six children are wholly dependent upon him. He is doing weekly bazaar in New Seemapuri, Old Seemapuri, Shalimar Garden etc. and selling shoe and chappals of kids. He is not involved in any other criminal or civil case. In these circumstances, lenient view may be taken against him.
It is argued on behalf of convict Nadeem that he is not a previous convict. His wife and minor daughter are wholly dependent upon him. He is living in a rented accommodation, without him his family will not be in position to pay the rent of house, which is Rs.1800/- per month. He is doing marketing job for paridhi Udyog, a private concern. He is not involved in any other criminal or civil case. He has clean antecedents. In these circumstances, lenient view may be taken against him.
It is argued on behalf of CBI that convicts are involved in serious criminal case punishable Under Section 8 & 14 of P C Act. They should be awarded maximum punishment and heavy fine may be imposed on them keeping in view of provisions of Section 67 68 16 of P C Act.
After considering all the arguments raised before me I consider it proper to award two years RI along with a fine of Rs.5,000/- (Rs. five thousand only ) ID three months S I to each of convict U/S 8 of P C Act and two years RI along with a fine of Rs/-5,000/- (Rs. five thousand only ) ID three months S I to each of convict U/s 14 of P C Act, 1988. Both the sentences will run concurrently. Convicts will be entitled for the benefit of Section 428 Cr PC.
A copy of judgment and this order on sentence be given to each convict free of cost. Reader of this court is directed to place a copy of this order on all the relevant files.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI) TODAY ON 30th Nov. 2009 SPECIAL JUDGE: DELHI 68