Delhi District Court
State vs . Kailash Chander Nirmal on 20 March, 2012
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C.NO. : 21/11
Unique Case ID : 02401R5031072004
STATE VS. KAILASH CHANDER NIRMAL
S/o Late Sh. Puran Singh
R/o B3B/38A, Janak Puri,
New Delhi
FIR NO. : 37/02
U/S : 7/13 Prevention of Corruption Act,
1988 r/w Section 420/468/471 IPC
P.S. : ANTI CORRUPTION BRANCH,
DELHI
Date of Institution 16.03.2004
Judgment reserved on 03.03.2012
Judgment delivered on 20.03.2012
JUDGMENT
1. The precise case of the pros ecution is that on dated 25.07.2002 the complainant Smt. Sunaina w/o Sh. Rakesh Tyagi went to Anti Corruption Branch, Delhi and got lodged her Complaint Ex.PW8/A regarding demand and acceptance of bribe of Rs.100/ per C.C. No. 21/11 Page No. 1 of 33 Forms by the accused Kailash Chander Nirmal who was posted as the Principal of Sarvodaya Bal Vidyalaya, Vikas Puri, District Centre, New Delhi, for attesting the CBSE Examination Forms of 10th / 12th Class, even without verification of the same.
2. The gist of the said complaint is that the complainant is the Secretary of Samdrishti People Care Foundation Society which is duly registered and is engaged in rendering social activities. In May 2001, they came to know that the accused K.C. Nirmal who was posted as Principal of Sarvodaya Bal Vidyalaya, Vikas Puri, District Center, New Delhi had been attesting the CBSE Examination Form of private candidates going to appear in 10th / 12th Class, without proper verification by taking bribe of Rs.100/ to Rs.500/ for each Form from the candidates. So in order to ascertain about the same, on dated 06.09.2001 one CBSE Form by affixing the photograph of one deceased girl namely Sonam by showing her as Anju Devi D/o Vinod Kumar R/o D145, Hastsal Road, Uttam Nagar, Delhi was sent for attestation to the accused through one Pankaj Kumar and accused after taking bribe of Rs.100/ from him attested the said Form. Thereafter, the complainant had got sent several CBSE Forms by affixing the photographs of various deceased girls and showing their C.C. No. 21/11 Page No. 2 of 33 fictitious names and addresses, to the accused through Pankaj Kumar and Kulbhushan for attestation and the accused after taking bribe of Rs.100/ on each Forms attested the same, without any verification. Since the complaints against the accused as sent to Higher Authority were not acted upon, the complainant through her Society filed Criminal Writ Petition before the Hon'ble High Court and original CBSE Examination Forms were also filed in the Hon'ble High Court. As the accused K.C. Nirmal by taking bribe had been attesting the CBSE Examination Forms without proper verification, legal action be taken against him.
3. The further case of the prosecution is that on the basis of the aforesaid complaint Ex.PW8/A, FIR bearing no. 37/02, U/S 420/468/471 IPC and Section 7 & 13 of Prevention and Corruption Act, 1988 was registered at PS Anti Corruption Branch on dated 25.07.2002 and the copy of the said FIR is Ex. PW15/D. After registration of the case, Investigation of the case was taken up by the IO. During the course of Investigation, IO prepared the Site Plan Ex.PW15/A, seized copy of Slip Mark PW1/PY having residential phone number of the accused, cutting of newspaper having Photograph of one Sonam Sarin. IO also arrested the accused K.C. C.C. No. 21/11 Page No. 3 of 33 Nirmal and conducted his personal search vide Memo Ex.PW15/G. IO also received Inquiry File No. C24/2002 alongwith Application Forms of CBSE Ex.PW1/A and documents Ex.PW15/H to H51, Ex.PW10/A to 10/D and Ex.PW13/A having signatures of the accused. IO also received Statement of accused K.C. Nirmal as Ex.PW15/J, J1, J2 and handwritten letter addressed to S.S. Rathore, Ex.PW15/J3 and admitted handwriting of accused Ex.PW9/A1 to A8 besides the Report of S.S. Rathore. IO sent the questioned documents and specimen handwriting of accused to FSL Malvia Nagar and obtained FSL Report Ex.PW15/K. IO also obtained the specimen handwriting of the accused Ex.PW5/A to C and sent the same alongwith Slip Mark PW1/PY to FSL and later on obtained the FSL Report Ex.PW15/L. IO on recording the statement of the witnesses and after completion of the Investigation, prepared the chargesheet and filed in the court.
4. Vide order dated 18.01.2005 the complainant Smt. Sunaina was ordered to be summoned as an accused but subsequently on compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, vide order dated 25.03.2006 complainant Sunaina was discharged and this accused K.C. Nirmal C.C. No. 21/11 Page No. 4 of 33 was ordered to be charged for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and formal charge was framed against him on dated 29.03.2006 to which accused pleaded not guilty and claimed trial.
5. Thereafter, in order to bring home the guilt of the accused, the prosecution got examined 17 prosecution witnesses namely Pankaj Tyagi as PW1, the then Inspector Tilak Ram/Part IO as PW2, the then Inspector Jagat Singh/Part IO as PW3, Shiv Shankar Rathore as PW4, Riddhi Chand Meena, a formal witness as PW5, Pratap Singh, Panch witness as PW6, Dinesh Gandhi, the then Superintendent, Vigilance, Directorate of Education, West District, a formal witness as PW7, Smt. Sunaina, complainant as PW8, Smt. Sushma Minocha, the then Deputy Director Education, a formal witness as PW9, Kulbhushan as PW10, Pawan Kumar, a formal witness as PW11, Rajnish Mahindra from MTNL, a formal witness as PW12, Ms. Sabrina Lal, a formal witness as PW13, R. Neelamegam, Joint Secretary CBSE, a formal witness as PW14, the then Inspector Shyam Lal Aggarwal/Main IO as PW15, Inspector R.S. Khatri/Part IO as PW16 and Ms. Deepa Verma, Assistant Director (Documents), FSL, Delhi as PW17.
C.C. No. 21/11 Page No. 5 of 33
6. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which the accused denied about any demand and acceptance of the bribe from anyone for attestation of any CBSE Examination Form. He also added that he has been falsely implicated in this case by the complainant at the instance of her husband Rakesh Tyagi who was working as TGT Science in Subordination to the accused and as accused has refused to issue the Experience Certificate without following the due process. Thus, the accused claimed to be innocent and falsely implicated in this case. Thereafter, the accused in his defence got examined 3 DWs namely Sushil Kumar Kala, UDC from Delhi High Court as DW1, Sh. Budh Prakash as DW2, the accused himself has been examined as DW3.
7. I have heard Final Arguments as addressed by Sh.H.P. Aditya, Adv. Ld. Counsel for the accused and Sh. Vinod Kumar Sharma, Ld. Addl. PP for the State and perused the relevant record.
8. It is submitted by Ld. Counsel for the accused that this accused is innocent and has been falsely implicated in this case by the complainant PW8 Smt. Sunaina at the instance of her husband Rakesh Tyagi who was working as TGT (Science) in the same School where C.C. No. 21/11 Page No. 6 of 33 the accused had been working as Principal as the accused has refused to issue the Experience Certificate in Computer Science to said Rakesh Tyagi without following the due process and training. It is further added by Ld. Counsel for the accused that this accused has neither attested any such CBSE Examination Form of any private candidates nor had demanded and accepted any bribe from anyone in this respect. It is also added by Ld. Defence Counsel that the signature of this accused has been forged on the said CBSE Examination Forms by the complainant and her family members at the instance of her husband Rakesh Tyagi. It is also added by Ld. Defence Counsel that said Smt.Sunaina was also summoned as an additional accused on finding incriminating material as against her but subsequently she was discharged. It is also added by Ld. Defence Counsel that though this accused was chargesheeted for offence punishable U/S 420/468/471 IPC and U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 but after hearing on the point of charge, this accused was discharged concerning the offence punishable U/S 420/468/471 IPC and was charged only for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988. It is further added by him that no bribe amount has been paid by PW1 Pankaj Tyagi and PW10 Kulbhushan for C.C. No. 21/11 Page No. 7 of 33 attesting any CBSE Examination Form of anyone nor PW8/complainant has paid any bribe to the accused and therefore, no case U/S 7 of Prevention of Corruption Act 1988 is made out as against this accused. It is further added by him that as this accused has neither misused his official position nor committed any misconduct and therefore, no case U/S 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 is made out against this accused. It is further added by him that though Sanction U/S 19 of the Prevention of Corruption Act was not required for launching prosecution as against this accused as he had already retired but Sanction U/S 197 Cr.P.C. was separately required against this accused for initiating the prosecution against him but as no such Sanction has been obtained by the IO, the accused deserves to be acquitted on this count itself. It is further added by him that this accused has not attested any CBSE Examination Form of any private candidates and even there was no reason on the part of the accused for doing so as the said CBSE Examination Forms were not forwarded by Examination Incharge of the School. It is further added by him that this accused was not caught red handed while demanding and accepting any bribe from anyone for attesting the said CBSE Examination Form and same also established the innocence of this accused. It is further added by C.C. No. 21/11 Page No. 8 of 33 him that since the stamp of the Principal as affixed below the signature Q1 to Q71 were not examined by PW7 and as the permission of the court was not obtained in taking the specimen signature of the accused, the FSL Report cannot be looked into as against this accused. It is further added by him that as the FSL Report cannot be treated as conclusive in nature and therefore, the same can be of no help for the prosecution. It is further added by him that the accused through the examination of DWs have established his defence to the effect that he was falsely implicated by the complainant at the instance of her husband Rakesh Tyagi who was having animosity as against this accused and was working under subordination to the accused in the same School. It is further added by him that the complainant has also lodged complaint against this accused in his Department but in the Departmental Enquiry Proceedings, no charge could be established as against this accused. It is further added by him that the complainant has again filed a Writ as against the accused before the Hon'ble High Court and said Criminal Writ was finally disposed of by the Hon'ble High Court vide order dated 28.05.2002 for taking appropriate action and ultimately FIR relating to the present case was registered on 25.07.2002. It is further added by him that despite grant of one day police custody remand, no incriminating C.C. No. 21/11 Page No. 9 of 33 material was recovered from the custody of this accused. It is further added by him that since PW6 Pratap Singh, Panch witness is a stock witness of police and therefore, his deposition cannot be treated as trustworthy and reliable. Ld. Defence Counsel thus urged for acquittal of this accused and referred and relied upon following judgments: 151 (2008) DLT 37, 2004 (2) JCC 969, 2004 (1) JCC 110, 1991 Crl. L.J. 2903, 2004 (2) JCC 832, 2006 (1) SCC 401, 1993 (2) Crimes Vol.V 261 and 2009 (3) LRC 7.
9. To the contrary, it is submitted by Ld. APP for the State that the prosecution by examining 17 PWs have clearly established its case as against the accused and therefore, the accused deserves to be convicted for the charged offence U/S 7 and 13 (2) of Prevention of Corruption Act, 1988. It is further added by Ld. Addl. PP for the State that the fact regarding the demand and acceptance of the bribe by the accused for attestation of the CBSE Examination Forms of various private candidates without verification has been successfully proved by the prosecution through the deposition of PW1/Pankaj Tyagi, PW8/Smt.Sunaina, complainant and PW10/Kulbhushan and there is no reason to disbelieve the same. It is further added by Ld. Addl. PP for the State that the act on the part of this accused for attesting the C.C. No. 21/11 Page No. 10 of 33 CBSE Examination Forms of private candidates without verification on taking bribe cannot be treated as act in discharge of the official duties on the part of this accused and therefore, he cannot seek protection U/S 197 Cr.P.C. It is further added by Ld. Addl. PP that FSL Report has duly corroborated the stand of the prosecution regarding attestation of the CBSE Examination Form of private candidates by this accused after taking bribe and there is no reason to disbelieve the same. It is also added by him that from the material available on the record, it is clearly established that this accused has attested the CBSE Examination Forms carrying the photographs of various persons including Jesica Lal who has already expired. Ld. APP for the State has added that the prosecution has been successful in establishing its case as against the accused for the charged offence and hence, the accused deserves to be convicted.
10. During course of argument, it is submitted by Ld. Counsel for the accused that though Sanction U/S 19 of the Corruption Act was not required for launching prosecution as against this accused as he had already retired but Sanction U/S 197 Cr.P.C. was separately required against this accused for initiating prosecution against him but as no such Sanction has been obtained by the IO, the accused deserves C.C. No. 21/11 Page No. 11 of 33 to be acquitted on this count itself. However, it is submitted by Ld. Addl.PP for the State that the act on the part of this accused for attesting the CBSE Examination Forms of private candidates without verification on taking bribe cannot be treated an act in discharge of official duty on the part of this accused and therefore, he cannot seek protection U/S 197 of Cr.P.C. From the perusal of the record, it is reflected that this accused who was a public servant being working as Principal of Sarvodaya Balvidalya, Vikas Puri, District Center, New Delhi during the relevant period had retired from service on 30.06.2002. It is further revealed from the record that after completion of the Investigation the accused has been chargesheeted U/S 7 and 13 of Prevention of Corruption Act, 1988 r/w Section 420/468/471 IPC on the basic allegation that he used to attest CBSE Examination Forms of private students of 10th / 12th class without verification on taking bribe of Rs.100/ per Form and said chargesheet has been filed against this accused in the court on dated 16.03.2004. It is further revealed from the record that the cognizance on the basis of said chargesheet was taken by the court concerning this accused on dated 23.03.2004 and therefore, no Sanction U/S 19 of Prevention of Corruption Act, 1988 was required for launching prosecution as against this accused as he had ceased to be a public servant on the C.C. No. 21/11 Page No. 12 of 33 date of taking cognizance by the court and my said view is found supported from the Judgment as rendered by Hon'ble Supreme Court of India in the case reported as "Kalicharan Mahapatra Vs. State of Orissa 1998 (6) SCC 411". Now, the next question arises as to whether the accused is entitled for protection U/S 197 Cr.P.C. as contended by the Defence Counsel on behalf of the accused?
11. From the perusal of the provision U/S 197 (1) Cr.P.C., it is clearly reflected that even a retired public servant can be entitled for protection U/S 197 Cr.P.C. provided that the act alleged to have been committed by him fall within the scope and range of the official duties of the concerned public servant. In the present case, the basic allegation as against this accused is that he has attested several CBSE Examination Forms of fictitious students without verification by accepting bribe of Rs.100/ per Form which certainly cannot be treated as part of his official duty in the capacity of Principal of Sarvodaya Balvidalya, Vikas Puri, District Center, New Delhi and therefore, cannot be entitled for protection U/S 197 Cr.P.C. for launching prosecution as against him. My said view is found nourished from the Judgment as rendered by Hon'ble Supreme Court of India in the case reported as "2004 (2) SCC 349 State of H.P. Vs. C.C. No. 21/11 Page No. 13 of 33 M.P.Gupta" wherein Para 21 and 22 it was held:
21. That apart, the contention of the respondent that for offences under Sections 406 and 409 read with Section 120B IPC sanction under Section 197 of the Code is a condition precedent for launching the prosecution is equally fallacious. This Court has stated the legal position in Shreekantiah Ramayya Munipalli case and also Amrik Singh case that it is not every offence committed by a public servant which requires sanction for prosecution under Section 197 of the Code, nor even every act done by him while he is actually engaged in the performance of his official duties. Following the above legal position it was held in Harihar Prasad v. State of Bihar as follows: (SCCp. 115, para 66) "As far as the offence of criminal conspiracy punishable under Section 120B, read with Section 409 of the Indian Penal Code is concerned and also Section 5(2) of the Prevention of Corruption Act are concerned, they cannot be said to be of the nature mentioned in Section 197 of the Code of Criminal Procedure. To put C.C. No. 21/11 Page No. 14 of 33 it shortly, it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct. Want of sanction under Section 197 of the Code of Criminal Procedure is, therefore, no bar."
22. Above views are reiterated in State of Kerala v. V. Padmanabhan Nair. Both Amrik Singh and Shreekantiah were noted in that case. Sections 467, 468 and 471 IPC relate to forgery of valuable security, Will etc; forgery for the purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar.
12. Furthermore, from the perusal of the Order on Charge dated 25.3.2006, it is clearly reflected that this accused was ordered to be charged only for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988 and was discharged C.C. No. 21/11 Page No. 15 of 33 concerning the offence punishable U/S 420/468/471 IPC and therefore, no separate Sanction U/S 197 Cr.P.C. was required for launching prosecution as against this accused. No Sanction U/S 19 of the Prevention of Corruption Act, 1988 was required as against this accused as he had already ceased to be a public servant being retired on 30.06.2002.
13. In view of the above, I have no hesitation to safely conclude that the IO cannot be faulted for not obtaining Sanction U/S 197 Cr.P.C. for launching prosecution as against this accused and thus, I do not find any force in the submission of Ld. Counsel for the accused in this respect.
14. During the course of the argument, it is submitted by Ld. Defence Counsel that this accused is innocent and has been falsely implicated in this case by the complainant PW8 Smt. Sunaina at the instance of her husband Rakesh Tyagi who was working as TGT (Science) in the same School where the accused had been working as Principal as the accused has refused to issue the Experience Certificate in Computer Science to said Rakesh Tyagi without following the due process and training. It is further added by Ld. C.C. No. 21/11 Page No. 16 of 33 Counsel for the accused that this accused has neither attested any such CBSE Examination Form of any private candidates nor had demanded and accepted any bribe from anyone in this respect. It is also added by Ld. Defence Counsel that the signature of this accused has been forged on the said CBSE Examination Forms by the complainant and her family members at the instance of her husband Rakesh Tyagi. However, it is submitted by Ld. Addl. PP that the prosecution by examining 17 PWs have clearly established its case as against the accused and therefore, the accused deserves to be convicted for the charged offence U/S 7 and 13 (2) of Prevention of Corruption Act, 1988. It is further added by Ld. Addl. PP for the State that the fact regarding the demand and acceptance of the bribe by the accused for attestation of the CBSE Examination Forms of various private candidates without verification has been successfully proved by the prosecution through the deposition of PW1/Pankaj Tyagi, PW8/Smt.Sunaina, complainant and PW10/Kulbhushan and there is no reason to disbelieve the same. It is further added by Ld. Addl. PP that FSL Report has duly corroborated the stand of the prosecution regarding attestation of the CBSE Examination Form of private candidates by this accused after taking bribe and there is no reason to disbelieve the same. It is also added by him that from the material C.C. No. 21/11 Page No. 17 of 33 available on the record, it is clearly established that this accused has attested the CBSE Examination Forms carrying the photographs of various persons including Jesica Lal who has already expired.
15. In order to prove that this accused had attested the CBSE Examination Forms for Class 10th and 12th of various private candidates having fake particulars on taking bribe amount of Rs.100/ to Rs.200/ for each Form without any verification, the prosecution is found to have examined PW8 Sunaina, complainant, PW1 Pankaj Tyagi and PW10 Kulbhushan besides PW15 the then Inspector Shyam Lal Aggarwal, IO, PW3 the then Inspector Jagat Singh, Part IO, PW17 Ms. Deepa Verma, Assistant Director (Documents), FSL, Delhi. PW8/complainant has deposed that she was the General Secretary of Samdrishti People Care Foundation and in the year 2001 she came to know that the accused K.C.Nirmal who was the Principal of Govt. School at District Centre, Vikas Puri used to take bribe from Rs.100/ to Rs.200/ for attesting CBSE Examination Forms for Class 10th and 12th . She further deposed that she got prepared some CBSE Examination Forms by pasting photographs and particulars of dead persons obtained from Newspapers and sent one Pankaj for getting attestation of the same from the accused K.C.Nirmal and the accused C.C. No. 21/11 Page No. 18 of 33 after obtaining bribe of Rs.100/ on each Form attested the same at his residence. She further deposed that after few days she also sent one Kulbhushan alongwith CBSE Examination Forms having fake particulars and photographs of dead persons as obtained from Newspapers and accused attested said Forms by obtaining bribe of Rs.100/ for certain Forms and Rs.200/ for certain Forms. She further deposed that thereafter, she made complaint against the accused to his senior officers but as no action was taken, she filed Criminal Writ Petition in the Hon'ble High Court and as per the direction given by the Hon'ble High Court, she approached Anti Corruption Branch and got recorded her Complaint Ex.PW8/A which bears her signature at point A. She further deposed that she had delivered said CBSE Forms as got attested through the accused in the Anti Corruption Branch and said Forms were taken into possession vide Seizure Memo Ex.PW8/B bearing her signatures at point A and out of said Forms, Form No.71172 in the name of Anju Devi is Ex.PW1/A and remaining Forms are Ex.PW1/PX (colly.). Said PW8 in her cross examination has admitted that her husband Rakesh Tyagi was working as TGT under the accused in the same School. She has also added that Kulbhushan Tyagi is the younger brother of her husband but Pankaj Tyagi is not related to her husband but belongs to C.C. No. 21/11 Page No. 19 of 33 same village. Said PW8 has specifically denied the suggestion of Ld. Defence Counsel that her husband Rakesh Tyagi, Pankaj Tyagi and Kulbhushan Tyagi had prepared and forged all CBSE Examination Forms Ex.PW1/A and Ex.PW1/PX (colly.) in order to falsely implicate the accused to settle their personal score. She also denied the specific suggestion of Ld. Defence Counsel that said CBSE Examination Forms Ex.PW1/A and Ex.PW1/PX (colly.) were not attested by the accused.
16. PW1/Pankaj Tyagi has deposed during his deposition in the court that in August, 2001 he alongwith sister of his friend Sunil went to the office of the accused for attestation of a CBSE Examination Form on which the accused asked the sister of the Sunil to go out from his room and thereafter, demanded Rs.100/ to attest said Form and given him his residential telephone number on a Slip which is Mark PW1/PY and asked him to come at his residence after giving him a ring and on feeling annoyed, said PW1 afterwards contacted an NGO namely Samdrishti being run by Smt.Sunaina and narrated the incident to her. Said PW1 further deposed that Smt.Sunaina gave him about 13 Forms on various occasions by pasting photographs and taking particulars from Newspapers and accused after taking Rs.100/ C.C. No. 21/11 Page No. 20 of 33 for each Forms used to attest the same. Said PW1 has identified CBSE Form No.71172 in the name of Anju Devi as Ex.PW1/A and other Forms as Mark PW1/PX (colly.). Said PW1 also deposed that in case of one Form of one Rahul Sareen, the accused had demanded and accepted Rs.200/ from him and attested the said Form. Said PW1 in his cross examination by Ld. Defence Counsel denied the specific suggestion that he has neither paid any bribe to the accused nor got attested any such Examination Form from the accused. He also denied the specific suggestion that Rakesh Tyagi, complainant, Kulbhushan Tyagi and himself have forged all these Examination Forms of fake persons to settle the personal score with the accused.
17. Similarly, PW10/ Kulbhushan deposed that in the year 2002 Madam Sunaina told him that the accused had been attesting the papers on taking bribe and asked for his help for exposing the accused. He further deposed that said Smt. Sunaina gave one Form for getting attestation from the accused on which he went to the house of the accused in Janak Puri and got the Form attested by paying Rs. 100/. He further deposed that subsequently also he got attested other Forms from the accused by paying amount of Rs.100/ for each Form as said PW10 has deposed in this respect as under: C.C. No. 21/11 Page No. 21 of 33 "I went to the house of accused K.C.Nirmal in Janakpuri. Pankaj accompanied me and pointed out towards the house of accused K.C.Nirmal present in the court ( correctly identified ). I went inside the house and met accused K.C.Nirmal. He inquired from me regarding the work I had with him. I told him that I want to get the form attested. He asked me to sit down. Then he demanded the fee for getting the form attested. I asked him how much I have to pay. He demanded Rs.
100/ for attesting the form. I paid him Rs. 100/ and he attested that form. Rs. 100/ note which I gave to accused K.C.Nirmal was given to me by Sunaina.
Thereafter, I again went to him with two forms and similarly got them attested by paying Rs.200/ i.e. Rs. 100/ for each form. Thereafter I again visited his house and again got two forms attested in similar manner by paying Rs. 200/. I was told by Sunaina that all the particulars in the form were fake."
Said PW10 has also deposed that the Forms which were got attested by him are Ex.PW10/A to D. In the cross examination by Ld. C.C. No. 21/11 Page No. 22 of 33 Defence Counsel, said PW10 denied the specific suggestion that neither he has got attested any Form from the accused K.C.Nirmal nor he paid any bribe to the accused nor any bribe was demanded by the accused. He also denied the suggestion of Ld. Defence Counsel that said Examination Forms were prepared by Ms. Sunaina, Rakesh Tyagi and Pankaj Tyagi including himself in collusion with each other to teach a lesson to the accused.
18. Furthermore, PW13 Ms. Sabrina Lal has deposed that in the year 2004, IO of this case had shown him one CBSE Form Ex.PW13/A which is in the name of Asha D/o Ram Kishan and on seeing the same, she has stated to the IO that said Application Form was having photograph of her deceased sister Ms.Jesica Lal who died in the year 1999. She further deposed that she had told the IO that there is no question of her sister applying for CBSE Examination as she had died in 1999. The aforesaid deposition of PW13 has gone unrebutted as nothing was asked by Ld. Defence Counsel in her cross examination.
19. PW15 the then Inspector Shyam Lal Aggarwal, initial IO has deposed that in July 2002 while he was posted as Inspector in C.C. No. 21/11 Page No. 23 of 33 Anti Corruption Branch, he had received the Enquiry Report Ex.PW4/A alongwith FSL Report Ex.PW15/A besides Specimen and Questioned Documents Ex.PW15/B, B1 to B25 and Admitted Handwriting of the accused Ex.PW7/A1 to A4. He further deposed that he recorded statement of complainant Sunaina Tyagi which is Ex.PW8/A and making Endorsement Ex.PW15/C got the case registered vide FIR No.37/02, copy of which is Ex.PW15/D. Said PW15 further deposed that during course of Investigation, he seized one Slip Mark PW1/PY containing the residential telephone number of the accused from Pankaj Tyagi vide Seizure Memo Ex.PW1/B and also seized cutting of Newspapers having photograph of one Sonam Sareen vide Seizure Memo Ex.PW15/F. Said PW15 also deposed that before the registration of the FIR, he had also received the Enquiry File No. C24/2002 alongwith the CBSE Examination Form Ex.PW1/A and documents Ex.PW15/H to H51 i.e. CBSE Forms, CBSE Forms Ex.PW10/A to PW10/D and CBSE Forms Ex.PW13/A having the photograph of Jesica Lal but showing name as Asha D/o Sh. Ram Kishan. Said IO also deposed that alongwith the Report of S.S.Rathor, he had received Ex.PW15/J, J1 and J2 which are statement of accused K.C.Nirmal besides Admitted Handwriting of the accused Ex.PW9/A1 to A8. Said PW15 has deposed that he had C.C. No. 21/11 Page No. 24 of 33 sent the Questioned Documents i.e. CBSE Forms and Specimen and Admitted Handwriting of the accused to FSL, Malviya Nagar and obtained FSL Report Ex.PW15/K. Said PW15 further deposed that he has also obtained the Specimen Handwriting of the accused Ex.PW5/A to C and sent the same alongwith the Slip Mark PW1/PY to FSL, Malviya Nagar for comparison and later on received the FSL Report Ex.PW15/L. Said PW15 in his cross examination by Ld. Defence Counsel had denied the specific suggestion that CBSE Examination Forms Ex.PW1/A and Ex.PW1/PX (colly.) bear forged signature of the accused. He has further denied the suggestion of Ld. Defence Counsel that the accused has neither attested any Examination Forms nor took any bribe for attesting said Forms from any PW.
20. Furthermore, PW17/Ms. Deepa Verma, Assistant Director (Documents) from FSL, Rohini, Delhi has deposed while she was posted as Sr. Scientific Officer (Documents), FSL, Malviya Nagar, on 19.6.2002 Questioned Documents Ex.PW15/H to H51 alongwith Specimen and Admitted Signatures of K.C.Nirmal were received from Joint Director of Education and said Questioned Signatures were marked as Q1 to Q71 and Specimen Signatures were marked as S1 to C.C. No. 21/11 Page No. 25 of 33 S5 and Admitted Signatures were marked as A1 to A8 which are Ex.PW9/A1 to A8. She further deposed that after thorough examination of said Questioned and Specimen Documents, she has given her Report Ex.PW15/A which bears her signature at point A and said Report concluded as under: "The person who wrote Red enclosed signatures stamped and marked S1 to S5 and A1 to A8 also wrote the red enclosed signatures similarly stamped and marked Q1 to Q71."
21. Said PW17/Ms. Deepa Verma has further deposed that on 01.10.2002 Questioned Documents marked PW1/PY and Specimen Writing Ex.PW5/A to C were received for comparison. Said Questioned Documents Mark PW1/PY was marked as Q1 and Specimen Writing was marked as S1 to S3 and after thorough examination, she has prepared the Report Ex.PW15/L which bears her signature at point A and said Report Ex.PW15/L concluded as under: "The person who wrote the red enclosed writings stamped and marked S1 to S3 also wrote the red enclosed writings similarly stamped and marked Q1." C.C. No. 21/11 Page No. 26 of 33 Said PW17 in her cross examination by Ld. Defence Counsel has stated that she has given opinion in respect of all the Questioned Documents Mark Q1 to Q71 referred in Report Ex.PW15/A. She also added that she has received Questioned Signatures Q1 to Q33 and had given opinion only in respect of 15 Questioned Signatures and has not given any opinion in respect of 18 Questioned Signatures due to lack of scientific data. She also added that the Stamp of Principal below the signatures Q1 to Q71 but she was not asked to examine about the said Stamp.
22. Thus, from the perusal of the deposition of PW1/Pankaj Tyagi, PW8/complainant Sunaina, PW10/Kulbhushan, PW13/Sabrina Lal who is sister of Jesica Lal, PW15/the then Inspector Shyam Lal Aggarwal/IO and PW17/Ms. Deepa Verma Assistant Director (Documents) FSL, Rohini, Delhi coupled with FSL Report Ex.PW15/A and Ex.PW15/L it is clearly reflected that it is this accused K.C.Nirmal who was posted as Principal, Sarvodaya Balvidyalaya, Vikas Puri, District Centre, Delhi has attested CBSE Examination Forms as per Ex.PW1/A and Ex.PW15/H to H51, Ex.PW 13/A containing the photographs of even dead persons including Jesica Lal and having fake name and addresses, without verification C.C. No. 21/11 Page No. 27 of 33 of the same by demanding and accepting bribe of Rs.100/ /200/ for each Forms.
23. During course of arguments, it is submitted by Ld. Defence Counsel that since the Stamp of Principal has affixed below the signatures Q1 to Q71 were not examined by PW17 and as the permission of the court was not obtained in taking the specimen signatures of the accused, the FSL Report cannot be looked into as against this accused. It is further added by him that as the FSL Report cannot be treated as conclusive in nature and therefore, the same can be of no help for the prosecution. To the contrary, it is submitted by Ld. Addl. PP that FSL Report has duly corroborated the stand of the prosecution regarding attestation of the CBSE Examination Form of private candidates by this accused after taking bribe and there is no reason to disbelieve the same. It is also added by him that from the material available on the record, it is clearly established that this accused has attested the CBSE Examination Forms carrying the photographs of various persons including Jesica Lal who has already expired.
24. From the perusal of the record, it is reflected that PW5 C.C. No. 21/11 Page No. 28 of 33 Riddhi Chand Meena, Panch witness has deposed that the IO had taken the Specimen Signatures of K.C.Nirmal on three sheets which are Ex.PW5/A to C and bear his signature on the same. PW15/IO has deposed that he obtained the Specimen Writings in respect of Digits on 6.9.2002 and he recorded the statement of R.C.Meena on 6.9.2002 and on 1.10.2002. Said PW15 has further deposed that he has not obtained the permission of the court as during Investigation accused voluntarily offered to give his Specimen Handwriting. From the perusal of said Specimen Handwriting of accused Ex.PW5/A to C, it is reflected that same had been obtained by the IO on dated 06.09.2002 when the accused was not in custody as the accused remained in custody from 20.9.02 to 24.9.02. Furthermore, it is not the stand of the accused that his Specimen Handwriting or Signatures were obtained by the IO under force or under coercion nor any suggestion has been put on behalf of the accused to even Panch witness/PW5 Riddhi Chand Meena nor to the IO in this respect. Furthermore, from the perusal of FSL Report Ex.PW15/A it is reflected that PW17 has given his opinion regarding signature on the said CBSE Examination Forms as per Signatures Marked Q1 to Q71 by comparing the same even with Admitted Signatures of the accused as Marked as A1 to A8 as available on documents Ex.PW9/A1 to A8 C.C. No. 21/11 Page No. 29 of 33 which were signed by the accused on various dates i.e. 13.7.01, 29.10.01, 27.9.01, 20.7.01 and 9.1.02 which are much prior to the registration of this case as this case was registered on 25.7.02. In view of the same, I do not find any force in the submission of Ld. Defence Counsel that the FSL Report cannot be looked into merely because of the fact that the permission of the court was not obtained in taking the Specimen Handwriting/Signature of the accused and the judgments as referred and relied by Ld. Defence Counsel in this respect can be of no help for the accused being not applicable in the present case.
25. Furthermore, nonexamination of the Stamp of Principal as affixed below the signatures Mark Q1 to Q71 by PW17 cannot be treated as fatal for the case of the prosecution, in view of the fact that the examination of the Signatures and Handwriting of the accused with the Questioned Documents was having the significant effect for determining the controversy involved in the present case and the non examination of Stamp of Principal was of no consequence.
26. During the course of the argument, it is submitted by Ld. Defence Counsel that the signatures of the accused has been forged on C.C. No. 21/11 Page No. 30 of 33 the said CBSE Examination Forms by the complainant Smt.Sunaina and her family members at the instance of her husband Rakesh Tyagi who was having animosity as against the accused. Nodoubt, from the perusal of the defence evidence, it is reflected that Rakesh Tyagi who was the husband of the complainant was posted as TGT under the subordination of this accused in the same School and tussle was going on in between said Rakesh Tyagi and the accused and said fact nodoubt establish that the complainant's husband was having enmity as against the accused and that might be the reason on the part of the complainant for lodging complaint as against the accused before the Higher Officials of the accused and thereafter filing of the Criminal Writ Petition before the Hon'ble High Court and ultimate filing of the Complaint Ex.PW8/A before the Anti Corruption Branch forming the basis of the present case but the accused has failed to establish that his signatures as per Q1 to Q71 on said CBSE Forms had been forged by the complainant party at the instance of Rakesh Tyagi, husband of the complainant. To the contrary, from the perusal of the deposition of PW15/IO and PW17/Ms.Deepa Verma coupled with the FSL Report Ex.PW15/A, it is clearly reflected that the signatures as per Q1 to Q71 found in the said CBSE Examination Forms found tallied with the Admitted Signatures of the accused as per Ex.PW9/A1 to A8. C.C. No. 21/11 Page No. 31 of 33
27. I also do not find any force in the submission of Ld. Defence Counsel to the effect that PW6/Pratap Singh, Panch witness is a stock witness of police and therefore, his deposition cannot be treated as trustworthy and reliable. No doubt, said PW6/Pratap Singh in his cross examination has deposed that he has joined duty as Panch witness in AC Branch 56 times but said fact itself cannot be sufficient to brand him as a stock witness in view of the fact that he has joined duty as Panch witness as per the Official Roaster prepared in AC Branch and not as per his sweet will. Furthermore, said PW6/Pratap Singh appears to be a formal witness being attesting witness to the Specimen Signatures of the accused as per Ex.PW6/A1 to A3 and therefore, the submission of Ld. Defence Counsel in this respect can be of no help for the accused.
28. In view of the aforesaid ample incriminating material as available on the record as against the accused, I am of the considered view that the judgments as referred and relied upon can be of no help for the accused being not applicable in the present case.
29. In the light of aforesaid discussion, I am of the considered view that the prosecution has been successful in establishing its case C.C. No. 21/11 Page No. 32 of 33 as against the accused Kailash Chander Nirmal for the charged offence. Hence, accused Kailash Chander Nirmal stands convicted for offence punishable U/S 7 and 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988.
30. Let this accused Kailash Chander Nirmal be heard separately on the point of sentence.
Announced in the open court on this 20th day of March, 2012 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 21/11 Page No. 33 of 33