Delhi District Court
State vs . H.L. Yadav on 22 February, 2012
IN THE COURT OF SHRI B.R. KEDIA, SPECIAL JUDGE07
(CENTRAL), (PC ACT CASES OF ACB, GNCTD), DELHI
C.C. No. : 44/2011
Unique Case ID : 02401R0000121999
STATE VS. H.L. YADAV
S/o Sh. A.S. Yadav,
R/o A229, Prasant Vihar,
Rohini, Delhi.
FIR NO. : 12/1995
U/S : 13 (1) (d) of Prevention of Corruption
Act, 1988 & 420/468/471/120B IPC
P.S. : ANTI CORRUPTION BRANCH,
DELHI
Date of Institution 04.08.1999
Judgment reserved on 18.02.2012
Judgment delivered on 22.02.2012
JUDGMENT
1. The precise case of the prosecution is that an information has been received in the Anti Corruption Branch, Delhi that the post of Ahlmad was notified to the Employment Exchange, Dariya Ganj by C.C. No. 44/11 Page No. 1 of 28 the Labour Department, Govt. of Delhi, in response to which a List containing four names of candidates on Submission Sheet No. A095306566 was received from Employment Exchange, Shahdara vide despatch no.19/95/ESH. Dated 24.01.1995 addressed to Sub Regional Employment Officer (SREO), Dariya Ganj. Sh.K.K.Mahajan, SREO, Dariya Ganj forwarded the said List to the Labour Department vide Letter NO.O.CDG/366/94/537 dated 03.02.95. Labour Department found that said List was fake containing names of fictitious candidates.
2. The further case of the prosecution is that enquiry done by Inspector T.P.Singh of Anti Corruption Branch has revealed that Sh.Bijender Singh, Head Clerk of Sub Regional Employment Exchange (SREE), Dariya Ganj, stated to have brought the said List at the instance of Sh.K.K.Mahajan, SREO, Dariya Ganj from the accused Sh.H.L.Yadav, Assistant Employment Officer, Shahdara and handed over the same to Sh.K.K.Mahajan. As per official record of SREE, Shahdara, this List was not sent by SREO, Shahdara to SREO, Dariya Ganj. Sh.K.K.Mahajan directed the Assistant Employment Officer (AEO)I, Dariya Ganj to get the said List sent by Sh.R.P.Dhiren, SREO, Dariya Ganj to the Labour Department, Delhi. C.C. No. 44/11 Page No. 2 of 28 Said Sh.R.P.Dhiren brought to the notice of Sh.K.K.Mahajan that said List was a forged document containing the names of the fictitious persons but despite that Sh.K.K.Mahajan has sent the said List under his signatures vide Letter dated 3.2.95 to the Labour Department, Delhi and when the Labour Department learnt that said List was not genuine, no action was taken on it by them. On the basis of the Enquiry Report dated 31.5.95 as submitted by the then Inspector T.P.Singh, FIR bearing No.12/95, U/S 468/471/420/511 IPC and 13(1) (d) & 13(2) of Prevention of Corruption Act, 1988 r/w Section 120B IPC was registered at PS AC Branch, Delhi on dated 31.5.95.
3. During the course of the Investigation, the IO recorded the statement of the witnesses. He collected the Original List of candidates which is Ex.PW2/N. IO also obtained the specimen handwriting of Dalip Kumar, Assistant Employment Officer which are Ex.PW7/A1 to A4 and specimen handwriting of Bijender Singh, Head Clerk which are Ex.PW7/A5 to A8 and sent the same alongwith said Original List Ex.PW2/N to FSL for comparison. IO also obtained the Sanction from the Chief Secretary, Delhi Govt. for launching prosecution as against the accused. After completion of the Investigation, IO prepared the chargesheet and filed in the court. C.C. No. 44/11 Page No. 3 of 28
4. After compliance with the provision U/S 207 of Cr.P.C and after hearing both sides on the point of charge, charge for offence punishable U/S 13 (1) (d) of the Prevention of Corruption Act, 1988 and U/S 420/468/471 IPC was framed against accused on 12.10.2009 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 13 prosecution witnesses namely Sh. Thakur Prasad Dubey, the then Peon posted at Dariya Ganj Employment Exchange, Delhi as PW1, Sh.R.P.Dhiren, the then Sub Regional Employment Officer, Employment Exchange, Dariya Ganj, Delhi, as PW2, Sh.Bijender Singh, the then Head Clerk, Employment Exchange, Dariya Ganj as PW3, Sh.H.D.Birdhi, the then Director, Employment, Govt. of NCT of Delhi as PW4, Smt.Ranjit Kaur, the then LDC, Employment Exchange, Dariya Ganj, a formal witness as PW5, Sh. Jagmal Singh, an employee of Employment Exchange, Dariya Ganj, a formal witness as PW6, Sh.Ramesh Singh, the then Inspector in Anti Corruption Branch, the initial IO as PW7, Sh.K.K.Mahajan, the then Sub Regional Employment Officer at Employment Exchange, Dariya Ganj as PW8, Sh.Omesh Saigal, the then Chief Secretary, Govt. of Delhi, Sanctioning Authority as against C.C. No. 44/11 Page No. 4 of 28 the accused as PW9, Retd. SI Amarjeet Singh, the then Duty Officer in PS Anti Corruption Branch, a formal witness as PW10, Sh.Dalip Kumar, the then Assistant Employment Officer, Employment Exchange, Dariya Ganj, a formal witness as PW11, the then Inspector P.S.Patwal, last IO as PW12 and the then Inspector Tejpal Singh, Anti Corruption Branch as PW13.
6. After closure of the PE, statement of accused under Section 313 Cr.P.C. was recorded in which the accused claimed to be innocent and has been falsely implicated in this case.
7. I have heard Final Arguments as addressed by Sh. J.S.Bakshi, 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 the accused is innocent and has been falsely implicated in this case having no concern with the alleged offence. It is further added by Ld. Counsel for the accused that there is no evidence on record brought by the prosecution to establish that the said bogus List of four persons as per Ex.PW2/N was prepared and forged by this accused. It is C.C. No. 44/11 Page No. 5 of 28 further added by Ld. Counsel for the accused that the prosecution has failed to establish alleged bogus List Ex.PW2/N bear the handwriting or signature of the accused as neither any specimen handwriting/signature of the accused was taken for the purpose of the comparison with the disputed handwriting and signature as found mentioned in said bogus List Ex.PW2/N. It is further added by Ld. Counsel for the accused that even the prosecution has failed to establish any motive on the part of this accused for preparation and use of said bogus List Ex.PW2/N by this accused and even the identity of said four persons as named in said List could not be established by the prosecution. It is further added by Ld. Counsel for the accused that since there is no endorsement on the Dak, it is not clear from where the said bogus List was originated. It is further added by Ld. Counsel for the accused that even otherwise PW2 R.P.Dhiren has also deposed that he cannot state as to how said bogus List was received in Employment Exchange, Dariya Ganj. It is further added by Ld. Counsel for the accused that said PW2/R.P.Dhiren has also deposed that the signature at point A on Ex.PW2/N is not identical with the signature of the accused at point B on Ex.PW2/DA. It is further added by Ld. Counsel for the accused that even PW3/Bijender Singh in his statement Ex.PW3/DA has stated that he C.C. No. 44/11 Page No. 6 of 28 has not collected any such List from the accused. It is further added by Ld. Counsel for the accused that it is Sh. K.K. Mahajan who is the main accused in this case but has been given clean chit by the IO and this accused has been falsely dragged in this case though he is having no concern with the alleged offence. It is further added by Ld. Counsel for the accused that even Reply to the Anticipatory Bail Application of this accused which is Ex.PW12/DA, the IO has stated that there is no direct evidence as against this accused. It is further added by Ld. Counsel for the accused that there is nothing on record to establish that Bijender was deputed to collect said List from Shahdara Employment Exchange nor there is any evidence to establish that it is the accused who has delivered the said bogus List to Bijender. It is further added by Ld. Counsel for the accused that Sanction Order in this case has been passed by PW9/Sanctioning Authority mechanically without proper application of mind and therefore, said Sanction is not valid and entire proceedings stand vitiated. It is further added by Ld. Counsel for the accused that neither any wrongful loss has been caused to anyone nor any wrongful gain has been caused to anyone due to any act on the part of the accused and no case is made out against this accused for the charged offence and hence, he deserves to be acquitted.
C.C. No. 44/11 Page No. 7 of 28
9. To the contrary, it is submitted by Ld. Addl. PP for the State that the prosecution by examining 13 PWs have clearly established its case as against the accused for the charged offence and therefore, the accused deserves to be convicted accordingly. It is further added by Ld. Addl. PP for the State that there are adequate incriminating material as brought on record as against this accused by the prosecution for the charged offence and hence, this accused deserves to be convicted. It is further added by Ld. Addl. PP for the State that PW3/Bijender Singh has clearly deposed that he has obtained the said List from the accused which is found corroborated from the deposition of PW8/K.K.Mahajan and there is no reason to disbelieve the same specifically when they had no prior enmity as against the accused. It is further added by Ld. Addl. PP that from the deposition of PW2/R.P.Dhiren, it is clearly established that said List Ex.PW2/N was forged one and the attending circumstances establish the guilt on the part of this accused for the preparation of the same and therefore, the accused cannot escape from his liability in this respect. It is further added by Ld. Addl. PP that the PW9/ Sanctioning Authority has passed the Sanction Order on proper appreciation of the material on record and Sanction Order is duly valid and proper. It is also added by Ld. Addl.PP that it is this accused who was having the knowledge C.C. No. 44/11 Page No. 8 of 28 regarding the contents of the serial number etc. as found mentioned in said List and it is this accused who was responsible for the preparation of the same. Ld. Addl.PP for the State thus urged for conviction of this accused.
10. The first and foremost question having significant bearing on the fate of this case is whether prosecution has proved that valid Sanction has been accorded by the Competent Authority as per Section 19 (1) (c) of Prevention of Corruption Act, 1988? In order to prove the Sanction, the prosecution has examined PW9 Sh.Omesh Saigal, the then Chief Secretary, Govt. of Delhi who has categorically deposed that on 12.2.1999 while he was posted as Chief Secretary, Govt. of Delhi, a request alongwith Copies of FIR, Raid Report, Seizure Memo, Statement recorded U/S 161 Cr.P.C., FSL Report etc. were put up before him for according the Sanction for prosecution as against H.L.Yadav who was posted as Assistant Employment Officer, Employment Exchange, Vivek Vihar, Shahdara and as he was competent to remove the said accused from service and after perusal of the material as placed before him and after considering the fact and circumstances of the case, he accorded the Sanction U/S 19 of Prevention of Corruption Act to prosecute the accused H.L.Yadav C.C. No. 44/11 Page No. 9 of 28 vide Sanction Order Ex.PW9/A bearing his signature at point A. He had specifically denied the suggestion of Ld. Defence Counsel that he had accorded the Sanction in a routine manner without application of his mind against accused H.L.Yadav.
11. In the case reported as State of Maharashtra and ors V/s Ishvar Piraji Kelpatri & ors 1996 Cri.L.J.1127, where Hon'ble Supreme Court had laid down that if the Authority according Sanction makes statement that while signing the order of Sanction, it had personally scrutinized the file and had arrived at required satisfaction, it is not necessary to look for, that there was application of mind or not or that material on record was examined by the concerned officer or not before according sanction, especially when order prima facie shows that, he had done so.
12. Furthermore, in the case reported as 2004 (13) SCC 487, Shankar Bhai Lalji Bhai Vs. State of Gujrat, it was observed by Hon'ble Supreme Court of India as under: "So far as the question of Sanction is concerned, in the absence of anything to show that any defect or irregularity therein caused failure of C.C. No. 44/11 Page No. 10 of 28 justice, that plea is without substance."
13. In the case reported in 2011 I AD (CRI.) (S.C.) 1, Kootha Perumal Vs. State (through) Inspector of Police, Vigilance & Anti Corruption, it was held in Para 14 by Hon'ble Supreme Court of India as under: "Keeping in view the aforesaid statement of law, it would not be possible to conclude that the sanction order in the present case was not valid. Ex.P2 with the present appeal is the copy of the sanction order. A perusal of the same would show that the sanctioning authority has adverted to all the necessary facts which have been actually proved by the prosecution in the trial. Upon examination of the material facts, the sanctioning authority has certified that it is the authority competent to remove the appellant from the office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also states that the other materials such as copy of the FIR as well as other official documents such as the different mahazars were carefully C.C. No. 44/11 Page No. 11 of 28 examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority has duly recorded its satisfaction that the appellant should be prosecuted for the offences, as noticed above. We, therefore, find no merit in the submission of the learned counsel that the sanctioning order to prosecute the appellant was not legal".
14. By taking cue from the aforesaid judgments and applying the same to the facts of the present case, I do not find any force in the submission of Ld. Counsel for the accused to the effect that Sanction Order was passed mechanically as I am of considered view that the Sanction has been validly granted by PW9 Sh.Omesh Saigal, the then Chief Secretary, Govt. of Delhi who was competent to do so.
15. The next question which arises having significant bearing on the fate of this case is whether said List in the form of Submission Sheet bearing No.A095306566 Ex.PW2/N containing the names of four persons purported to have been issued by Assistant Employment Officer, Sub Regional Employment Office, Vivek Vihar, Shahdara, Delhi to the Sub Regional Employment Officer, Dariya Ganj, C.C. No. 44/11 Page No. 12 of 28 Employment Exchange vide Forwarding Letter 19/95/ESH dated 24.1.95 Ex.PW2/K was a forged document?
PW2/R.P.Dhiren who was posted as Sub Regional Employment Officer (SREO), Employment Exchange, Dariya Ganj, Delhi during the year 1995 and had conducted enquiry on the genuineness of said List Ex.PW2/N, has deposed in this respect as under: "I conducted the enquiry of entire incident and bogus names of four persons are mentioned and at serial no. SC/1585/91 dt. 25.03.1991 name of Rakesh Kumar S/o Chatar Singh is mentioned, whereas as per register X63, on the said serial number real name of Anil Kumar S/o Hari Singh is mentioned. Similarly, second name at serial no. SC/1588/91 on forged list of submission sheet 6953065 - 66 is mentioned as Sher Singh S/o Mahavir Prasad and on serial no. SC/945/91 Punit Soni S/o Hari Kishan Soni and on SC/948/91 Vinod Kumar S/o Tapraj Singh is mentioned which was incorrectly mentioned. On serial no. SC/1588/91 name of Brij Pal S/o Tejpal Singh and SC/945/91 is C.C. No. 44/11 Page No. 13 of 28 empty and on SC/948/91 real and correct name Girish Kumar Tiwari S/o Adhiye Prasad Tiwari is mentioned. As such all the four names on submission sheet bearing no. 0953065 - 66 are incorrect and their addresses are also incorrect."
Furthermore, from the perusal of the deposition of PW2/R.P.Dhiren, it is reflected that after conducting the enquiry, he has prepared the Enquiry Report dated 28.3.95 Ex.PW2/B which bears his signature at point A and said Report also clearly reflects that "Submission Sheets bearing No.A095306566 are not genuine one" and "The Despatch No.19/95/EST dated 24.01.95 under which this List was forwarded to SREE, Dariya Ganj does not exist in their Despatch Register."
16. Furthermore, PW4/H.D.Birdhi who was posted as Director, Employment, Govt. of Delhi during the relevant period, has deposed in this respect as under: "During my enquiry and scrutiny of records and report of Sh. R.P. Dhiren, it revealed to me that the submission sheets bearing no. A095306566 Ex.PW2/N was not C.C. No. 44/11 Page No. 14 of 28 genuine. Hence this submission sheet was not the Govt. document. The names of four candidates whose list was received from SREE, Vivek Vihar, Shahdara were not registered at the registration no. given in the live register of Shahdara Exchange."
17. In view of the aforesaid material as available on the record, I have no hesitation to safely conclude that the aforesaid List in the form of Submission Sheet bearing No.A095306566 Ex.PW2/N containing the names of four persons purported to have been issued by Assistant Employment Officer, Sub Regional Employment Office, Vivek Vihar, Shahdara, Delhi to the Sub Regional Employment Officer, Dariya Ganj, Employment Exchange vide Forwarding Letter 19/95/ESH dated 24.1.95 Ex.PW2/K was a forged document.
18. Now, the next question arises having significant bearing on the fate of this case as to whether this accused has prepared the said forged document Ex.PW2/N?
From the perusal of the record, it is clearly reflected that the accused has taken the stand that he has got no concern with the said Forged List Ex.PW2/N. However, it is the stand of the prosecution C.C. No. 44/11 Page No. 15 of 28 that said Forged List has been got prepared by this accused and was collected from this accused by PW3/Bijender Singh. From the perusal of the record, it is clearly reflected that the prosecution has failed to establish that said Forged List Ex.PW2/N is in the handwriting of this accused or bears his signature at point A on said List Ex.PW2/N. From the perusal of the record, it is surprising to note it here that the concerned IO has not even bothered to take the specimen handwriting and signature of this accused or to send the admitted handwriting and signatures of the accused as available on record of the case file for the purpose of the comparison of the same with the disputed handwriting and signature as found in said forged List Ex.PW2/N. PW12 the then Inspector P.S.Patwal, the last IO, has deposed in this respect as under: "It is correct that the entire case file was received by me when the investigation of the present case was entrusted to me. It is correct that Ex.PW2/N is a questioned document. I have investigated this case upto 22.2.1999. Q. Is it correct that before you concluded your investigation, there were many 'admitted signatures and writing' of the accused on record of the case file?
Ans. It may be possible that admitted signatures and writing C.C. No. 44/11 Page No. 16 of 28 of the accused may be on record before I concluded the investigation.
At this stage, Defence Counsel has drawn the attention of the witness on the bail application Ex.PW12/DC and vakalatnama Ex.PW12/DD which contain the signature of the accused at point A. Q. Can you tell the court why the admitted signatures of the accused were not got compared through CFSL with Ex.PW2/N?
Ans. It was an omission on my part.
It is correct that hundreds of admitted signatures and handwritings are available in the official record of the employer of a public servant.
Q. Can you tell the court why the admitted signatures of the accused in the official records of the employer were not got compared through CFSL with Ex.PW2/N?
Ans. It was an omission on my part."
19. From the deposition of PW7 the then Inspector Ramesh Singh, the initial IO, it is clearly reflected that he has merely collected C.C. No. 44/11 Page No. 17 of 28 the said Original Forged List Ex.PW2/N and obtained the specimen handwriting of Dalip Kumar, AEO, SREE, Dariya Ganj, Delhi and Bijender Singh, Head Clerk, SREE, Dariya Ganj, Delhi and sent the same alongwith said Forged List Ex.PW2/N for purpose of comparison to FSL but has not disclosed any reason as to why he has not obtained the specimen handwriting/signature of this accused for the purpose of comparison with that of Forged List Ex.PW2/N. As said PW7 has deposed in this respect as under: "During the course of investigation conducted by me, I recorded the statement of witnesses. I had also collected Original List of the candidate which is Ex.PW2/N. I had also taken specimen handwriting of Dalip Kumar, AEO, SREE, Daryaganj, Delhi which are Ex.PW7/A1 to Ex.PW7/A4 for comparison. I had also taken specimen handwriting of Brijender Singh, Head Clerk, SREE Daryaganj Delhi which are Ex.PW7/A5 to Ex.PW7/A8 for comparison. Original List Ex.PW2/N alongwith specimen handwriting of Dalip Kumar Ex.PW7/A1 to Ex.PW7/A4 and specimen handwriting of Brijender Singh Ex.PW7/A5 to Ex.PW7/A8 were sent to FSL. On my transfer C.C. No. 44/11 Page No. 18 of 28 investigation of this case was entrusted to some other IO."
From the perusal of the FSL Report dated 27.11.97 which is available on the case file and is duly admissible U/S 293 Cr.P.C., it is clearly reflected that the Questioned Writings Mark Q1 on the said Forged List Ex.PW2/N could not be matched with the Specimen Handwritings and Signatures Marked S1 to S4 of Brijender Singh and that of Dalip Kumar as Marked S5 to S8 as said FSL Report concluded in this respect as under: "It has not been possible to fix the authorship of Q1 in comparison with S1 to S4 as well as S5 to S8."
20. Furthermore, PW2/R.P.Dhiren who is claimed to have seen the accused writing and signing during discharge of his official duties, has also stated that the signature at point A on said Forged List Ex.PW2/N is not identical to that of the signature of the accused as he has deposed in this respect as under: "Accused H.L. Yadav and myself had been working in the same department, accordingly, I had seen him writing and signing during the discharge of my official duties. I can recognise his writing and signatures. During the course of enquiry conducted C.C. No. 44/11 Page No. 19 of 28 by me, I had also examined accused H.L.Yadav and had recorded his statement. I have seen photocopy of statement which bears my signatures at point A and that of accused H.L.Yadav at point B on the statement Ex.DW2/DA and statement Ex.DW2/DA is in the handwriting of accused H.L.Yadav (mode of proof is objected to by the Ld. Addl. PP). It is correct that the signatures at point A on document Ex.PW2/N is not identical to that of accused H.L.Yadav at point B on document Ex.PW2/DA."
21. Though this document Ex.DW2/DA is a photocopy but since this PW2 has clearly deposed that during course of enquiry, he had examined accused H.L.Yadav and recorded his statement and on seeing the copy of the statement of H.L.Yadav which is Ex.DW2/DA, stated that the same bears his signature at point A and that of the accused at point B, I do not find any infirmity in the process of exhibiting this document and therefore, I do not find any force in the objection regarding mode of proof as taken by Ld. Addl. PP in this respect.
C.C. No. 44/11 Page No. 20 of 28
22. Furthermore, from the perusal of the record, it is clearly reflected that none of the PWs has deposed in the court to the effect that said Forged List Ex.PW2/N was prepared or signed by this accused in his presence. Though PW8/Sh.K.K.Mahajan has deposed that said List Ex.PW2/N bears signature of the accused at point A but he has not deposed to the effect that the same was signed by the accused in his presence and specifically as there is no material on record to establish that the handwriting and signature as found in said Forged List Ex.PW2/N was that of the accused, I have no hesitation to safely conclude that the prosecution has failed to establish that this accused has prepared the said forged document Ex.PW2/N.
23. Now, the next question arises for effective disposal of the present case as to whether this accused can be held liable for the offence of cheating and dishonestly inducing delivery of property as contemplated U/S 420 IPC?
The essential ingredients of Section 420 IPC are as under: (1) A person cheats:
(2) He thereby dishonestly induces the person deceived
(i) to deliver any property to any person, or
(ii) to make, alter or destroy the whole or any part C.C. No. 44/11 Page No. 21 of 28 of a valuable security, or anything which is signed or sealed and which is capable of being converted into a valuable security.
From the perusal of the material available on the case record, it is clearly reflected that none of the PWs has deposed anything as against this accused to the effect that he has cheated anyone and thereby dishonestly induced anyone for delivery of any valuable security or property and therefore, no case U/S 420 IPC could be established as against this accused.
24. Now, the next question arises having significant bearing on the fate of this case as to whether this accused can be held liable for offence punishable U/S 468 IPC?
Section 468 IPC has been defined as under: "Forgery for purpose of cheating. Whoever commits forgery, intending that the {document or electronic record forged} shall be used for the purpose of cheating, shall be punished with imprisonment of either description a term which may extend to seven years, and shall also be liable to fine."
C.C. No. 44/11 Page No. 22 of 28
25. Since in the foregoing paras, it has already been concluded that the prosecution has failed to establish that this accused has prepared the said forged document Ex.PW2/N and also to the effect that the prosecution has failed to establish the offence of cheating as against this accused and therefore, I have no hesitation to safely conclude that this accused cannot be held liable for offence punishable U/S 468 IPC.
26. Now, the next question arises as to whether this accused can be held liable for offence punishable U/S 471 IPC for delivering and thereby using as genuine said Forged List Ex.PW2/N?
Ld. Counsel for the accused during the course of argument has submitted that the accused has got no concern with the said Forged List Ex.PW2/N as it was neither prepared by this accused nor it was delivered by this accused to anyone. It is further added by Ld. Defence Counsel that PW3 Bijender Singh in statement Ex.PW3/DA has clearly stated that he has not collected any such List from this accused. It is further added by Ld. Defence Counsel that it is Sh.K.K.Mahajan who is main accused in this case but in order to save his skin has falsely deposed as against this accused. To the contrary, it is submitted by Ld. Addl. PP that PW3 Bijender Singh has clearly C.C. No. 44/11 Page No. 23 of 28 deposed that he has obtained the said Forged List Ex.PW2/N from this accused which is found corroborated from the deposition of PW8 K.K.Mahajan and there is no reason to disbelieve the same.
27. From the perusal of the deposition of PW3, it is reflected that PW3 Bijender Singh was posted as Head Clerk in Sub Regional Employment Exchange, Dariya Ganj and K.K.Mahajan, SREO was posted as Head of the Department of said Employment Exchange during the relevant period and said PW3 at the instance of said K.K.Mahajan went to Sub Regional Employment Exchange, Shahdara and had collected one envelope containing said List Ex.PW2/N from the accused H.L.Yadav, AEO, Vivek Vihar, Shahdara on dated 24.01.95 and thereafter, said PW3 stated to have delivered the said envelope to K.K.Mahajan. However, during course of cross examination by Ld. Defence Counsel, said PW3 has clearly admitted that there is no documentary evidence in support of his visit from SREE, Dariya Ganj to SREE, Shahdara for the purpose of collection of said List from the accused as said PW3 has deposed in this respect as under: "There is no entry regarding my alleged visit from SREE, Dariya Ganj to SREE, Shahdara, at either of two C.C. No. 44/11 Page No. 24 of 28 Exchanges and no conveyance charges to this effect was claimed by me."
Furthermore, said PW3 during course of his cross examination has owned his earlier statement Ex.PW3/DA to be in his own handwriting and bearing his signature as he has deposed in this respect as under: "It is correct that a photocopy of statement Ex.PW3/DA is in my handwriting and signed by me."
From the perusal of the said statement Ex.PW3/DA which is of dated 3.7.95, it is clearly reflected that said PW3 Bijender Singh has stated therein that he has never gone to SREE, Shahdara, Delhi nor collected any such List from accused H.L.Yadav, AEO, Shahdara. Said PW3 Bijender Singh has further stated in his said statement that only at the instance of K.K.Mahajan, he had given a false statement before Sh.R.P.Dhiren during enquiry that he had collected said List from accused H.L.Yadav, AEO at Employment Exchange, Shahdara, Delhi. In view of the aforesaid statement of PW3 Bijender Singh as found reflected in his written statement dated 3.7.95, copy of which is Ex.PW3/DA which is in the handwriting of said PW3 and also bears signature of said Bijender Singh, the deposition of PW8 K.K.Mahajan to the effect that said List Ex.PW2/N was collected by Head Clerk C.C. No. 44/11 Page No. 25 of 28 Bijender Singh from the accused H.L.Yadav at SREE, Shahdara can be of no help for the prosecution. Furthermore, from the perusal of copy of statement Ex.PW2/DA which is of dated 28.3.95 which is in the handwriting of accused and bearing his signature at point B and signature of PW2 R.P.Dhiren who had recorded said statement of accused during course of his enquiry, it is found reflected that the accused has clearly stated therein as under: "I worked as AEO at Shahdara, Employment Exchange from 16.9.94 to 28.2.95. While working as AEO, Shahdara, I have not sent any List for the post of Ahlmad."
Furthermore, from the perusal of the deposition of PW11 Dalip Kumar who was posted as AEO at Dariya Ganj Employment Exchange Office, it is clearly reflected that the List of the candidates in the Employment Exchange is supposed to be prepared by BMO (Brodma Machine Operator) and not by Assistant Employment Officer (AEO), the post as hold by this accused. Thus, therefore, there is no occasion on the part of this accused to prepare any such List of candidates and to deliver the same to Bijender Singh. Furthermore,the prosecution has failed to adduce any document on record to establish that said Forged List Ex.PW2/N was collected by PW3 Bijender Singh from this accused at his office i.e. SREE, Shahdara on dated 24.1.95. C.C. No. 44/11 Page No. 26 of 28
28. In view of the aforesaid discussion, I have no hesitation to safely conclude that the prosecution has failed to establish that said Forged List Ex.PW2/N was delivered by this accused to PW3 Bijender Singh on dated 24.1.95 and therefore, the accused cannot be held liable for offence punishable U/S 471 IPC.
29. Now, the next question arises as to whether this accused can be held liable for offence U/S 13 (1) (d) of Prevention of Corruption Act, 1988?
In so far as the question of Section 13 (1) (d) of Prevention of Corruption Act, 1988 is concerned, the same clearly contemplates the deriving of some valuable thing or pecuinary advantage by misusing the official position on the part of a public servant either for himself or for someone else. However, in the present case, the prosecution has failed to establish regarding the fact that any valuable thing or pecuinary advantage has been derived by this accused by misusing his official position by sponsoring said Forged List of candidates for the post of Ahlmad as per Ex.PW2/N and therefore, no case U/S 13 (1) (d) of Prevention of Corruption Act, 1988 could be established as against this accused.
C.C. No. 44/11 Page No. 27 of 28
30. The net result of the aforesaid discussion is that the prosecution has failed to establish its case as against the accused H.L.Yadav for the charged offence punishable U/S 13(1) (d) r/w Section 13 (2) of Prevention of Corruption Act, 1988 and U/S 420/468/471 IPC and therefore, this accused H.L.Yadav stands acquitted of the said charged offence.
Announced in the open court on this 22nd day of February, 2012 (B.R. Kedia) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC,Delhi C.C. No. 44/11 Page No. 28 of 28