Delhi District Court
Cbi vs . Om Parkash & Ors. on 29 September, 2012
IN THE COURT OF SH. R.P.PANDEY: SPL. JUDGE 01
(PC ACT) CBI : ROHINI COURT: DELHI
CBI No. : 47/08
CENTRAL BUREAU OF INVESTIGATION
Vs.
1. Om Parkash s/o late Chet Ram
H.No.431, Sector7, Urban Estate
Gurgaon, Haryana
2. Purshottam Lal s/o late Ghamandi Lal
H.No.581, PocketV, Mayur ViharI
Delhi.
3. Ram Chander s/o Sh.Maman Ram
R/oJ624, Sardar Colony, Sector16
Rohini, Delhi
4. Sanjay Bhatia s/o Sh.Moti Lal Bhatia (since
discharged)
R/oH.No.100C, BW Block
Shalimar Bagh, New Delhi
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5. Anil Dhawan s/o Sh.Madan Lal Dhawan
R/oH.No.254, DDA Flats, Ist Floor
New Ranjit Nagar, New Delhi
Date of Registration of FIR : 27.08.2004
FIR No. : RC.05(A)/2004/SCU.V/CBI/SCRII/New Delhi
Under Section : 120 B IPC r/w Section 420/468/471 IPC
13 (2) r/w 13 (1) (d) of P.C. Act 1988
and Section 12(1)(b) of Passport Act,
1967
Arguments
concluded on : 28.09.12
Date of Judgment : 29.09.12
CASE ID No. : 02404R0650902007
JUDGMENT
1. The prosecution case against accused persons it that a passport application form in the fictitious name of Geeta Devi Kapoor was submitted in the office of Regional Passport Office (in short RPO), New Delhi on 07.10.02 along with a photocopy of CBI No.47/08 Page No.2 of 80 CBI Vs. Om Parkash & Ors.
the original passport NO.B5081385 dated 20.12.2000 without any request letter mentioning the reason for which an additional passport booklet is required and although the personal particulars in this passport application form was similar to the personal particulars mentioned in the passport application form of the original passport no.B5081385 dated 20.12.2000, but the photograph and signatures are different. Accused/Purshottam Lal (A2), clerk in the office of RPO, Delhi has neither mentioned the old passport number nor signed in the space provided in the rubber stamp "Cancelled and Returned" in token of having cancelled the old passport. He had sent the passport file no.T007726 dated 07.10.02 to accused/Om Parkash (A1), then PRO on 07.10.02 for obtaining the delivery date of the passport by writing and signing "ADDLBOOKLET/500" on page no.2 of CBI No.47/08 Page No.3 of 80 CBI Vs. Om Parkash & Ors.
the passport file and recommended for issue of passport on the same date by noting "promise case May issue Addl.Booklet, valid upto 19.12.10(F) with ECR, Observation of Old passport F/O Pl" on page no.6 of the passport file as if the passport file was processed through various other stages like scanning, detail entry, HIT etc. It is also alleged that accused/Om Parkash (A1) gave the passport date as 18.10.02 by writing and signing on page no.3 of the passport file and he also granted the passport on 07.10.02 itself on page no.6 of the passport file by noting "Grant ECR and Cancel and Return passport observation."
2. It is alleged that accused/Ram Chander (A3) working as LDC in HIT Section of RPO, New Delhi, with his computer log in ID No.P495, had cleared HIT on 18.10.02 CBI No.47/08 Page No.4 of 80 CBI Vs. Om Parkash & Ors.
despite seeing on his computer that the photograph and signatures of the lady are different from the photograph and signatures of the lady reflected in the original passport no.B041059 dated 02.11.2000 issued in the name of Geeta Devi Kapoor. Accordingly, additional passport booklet no.E3064184 was issued on 18.10.02 in the name of Geeta Devi Kapoor which was received by accused/Anil Dhawan (A5) from the office of RPO, New Delhi, by signing as "Geeta Devi" in the concerned passport delivery register in token of having received the passport.
3. Investigation further disclosed that although Sh.Sanjay Bhatia (accused since discharged) was not a travel agent, he had booked the air ticket in the fictitious name of CBI No.47/08 Page No.5 of 80 CBI Vs. Om Parkash & Ors.
Geeta Devi Kapoor with M/s Mag Travels, New Delhi and the lady who got this first additional passport booklet bearing no.E3064184 dated 18.10.02 in the name of Smt.Geeta Devi Kapoor went abroad on 22.11.02 from IGI Airport, New Delhi by flight no.EK513 (Emirates) for the route DelhiDubaiFrankfurt DubaiDelhi.
4. Thus, it is alleged that the facts disclose commission of offence u/s 120B r/w Section 420/460/471 IPC and Section 13(2) R/w Section 13(1)(d) of PC Act, 1988 and Section 12(1(b) of Passport Act, 1967 against the accused persons.
5. Sanction for prosecution of accused/Om Parkash (A1); Purshottam Lal (A2) and Ram Chander (A3) u/s 19 of the CBI No.47/08 Page No.6 of 80 CBI Vs. Om Parkash & Ors.
PC Act and sanction u/s 15 of the Passport Act against all accused persons was obtained and the charge sheet was filed in the court.
6. The court, vide order dated 16.01.10 framed charge against accused public servants Om Parkash (A1); Purshottam Lal (A2) and Ram Chander (A3) and private person/Anil Dhawan (A5) u/s 120B r/w Section 420/468/471 IPC, Section 13(2) r/w Section 13(1)(d) of PC Act, 1988 and Section 12(1(b) of Passport Act, 1967. Substantive charge was framed against accused/Anil Dhawan (A5) u/s 420/468/471 IPC and substantive charge as against accused public servants was also framed u/s 13(2) r/w Section 13(1)(d) of PC Act, 1988. CBI No.47/08 Page No.7 of 80
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7. Accused persons pleaded not guilty and claimed trial and hence the prosecution examined 15 witnesses to prove the offence and closed PE.
8. Entire incriminating material was put to accused persons u/s 313 Cr.PC, wherein all of them claimed their innocense.
9. Accused/Om Parkash (A1) examined only one witness i.e. ahlmad of the court who exhibited the document as Ex.DW1/A from another judicial file bearing CC No.24/09. No other witness was examined in defense by other accused persons.
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10. I have heard Dr.Padmini Singh, Ld.Public Prosecutor for CBI, accused persons and their ld.counsels and perused the record.
11. The substratum of the prosecution case is based on the following facts and circumstances.
1. The photographs and signatures of Geeta Devi Kapoor in application for issuance of additional passport booklet no.E3064184 dated 18.10.02 are different from those available on the passport application form of the original passport no.5081385 dated 20.12.2000.
2. Applications for additional passport booklet was submitted without any request letter mentioning the reason for which additional passport booklet was required.
3. The concerned clerk Purshottam Lal (A2) neither mentioned the old passport number nor signed below the stamp impression "Cancelled & Returned" in token of CBI No.47/08 Page No.9 of 80 CBI Vs. Om Parkash & Ors.
having cancelled the original passport.
4. Accused Purshottam Lal (A2) sent the file for issuance of additional passport booklet on 07.10.02 to accused/Om Parkash, PRO (A1) for obtaining the delivery date of the additional passport booklet and also recommended for issuance of additional passport booklet on 08.10.02 as if the file has already been processed through various other stages like scanning detail entries, HIT etc.
5. Accused/Om Parkash (A1) gave the passport date as 18.10.02 but granted the passport on 07.10.02 itself.
6. Accused Ram Chander (A3), LDC in HIT Section cleared HIT Checking with his computer ID on 18.10.02.
7. The additional passport booklet no.E3064184 issued on 18.10.02 in the name of Geeta Devi Kapoor was received by accused/Anil Dhawan from RPO, Delhi by signing as 'Geeta Devi' in concerned passport delivery register.
12. The prosecution case is based on the hypothesis that the photographs and signatures of Smt.Geeta Devi Kapoor in the application for issuance of additional passport booklet CBI No.47/08 Page No.10 of 80 CBI Vs. Om Parkash & Ors.
NO.E3064184 dated 18.10.02 are different from those available on the passport application form of the original passport no.B5081385 dated 20.12.2000. To reach any such conclusion the court is required to first see whether the CBI has proved both these application forms.
13. Neither the original nor the photocopy/scanned copy of the application of Geeta Devi Kapoor for issuance of her original passport no.B5081385 dated 20.12.2000 has been proved by prosecution. No such application or even a copy thereof has been brought on record or even mentioned in the list of relied upon documents annexed to charge sheet. There is no evidence to the effect that any such file existed in RPO, New Delhi, and if existed, why it could not be produced in evidence. CBI No.47/08 Page No.11 of 80
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Under such circumstances, one can not even fathom the reason for investigating officer drawing a conclusion in the charge sheet that 'although the personal particulars in this (i.e dated 07.10.02) passport application form is similar to the personal particulars mentioned in the passport application form of the original passport no.B5081385 dated 20.12.2000 but the photograph and signatures are different.'
14. A copy of the application for issuance of additional passport booklet no.E3064184 dated 18.10.02 has been brought on record as Mark PW1/A=Ex.PW11/A (9 pages) (D7). PW11/Sh.I M Sabharwal, who has proved this scanned copy of the application for issuance of additional passport booklet has deposed that the same has been attested by him at point 'A' CBI No.47/08 Page No.12 of 80 CBI Vs. Om Parkash & Ors.
along with his office seal. He has not even stated that he or any official on his instructions took out the said print out through the computers storing the information in the ordinary course of business.
15. Section 65A of Evidence Act, 1872 provides that the contents of electronic records may be proved in accordance with the provisions of Section 65B . Word "electronic record" has been defined by Section 2(t) of Information Technology Act, 2000 as "data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche." The records of the case show that there is only one certificate u/s 65B of Evidence Act which has been provided by Sh.Ajay Gautam as Ex.PW8/A5 which is only in CBI No.47/08 Page No.13 of 80 CBI Vs. Om Parkash & Ors.
respect of the print outs of the data 'who done it' stored in the computer and proved by him as Ex.PW8/A1 to A4. This certificate is not about scanned copy of application Ex.PW11/A, which is certainly an electronic record u/s 2(t) of I T Act, it being image of original application stored in electronic form.
16. In this respect, I am being guided by the judgment of Hon'ble High Court of Delhi in "Devesh Kumar Vs. State (Crl.Appeal No.794/2004 dated 10.02.10) circulated to all judicial officers by the High Court vide their letter no.5715/Crl. Dated 15.02.10, wherein it has been observed: At this stage, we would like to comment upon the lack of the knowledge of the investigating officer, the learned APP and even the learned CBI No.47/08 Page No.14 of 80 CBI Vs. Om Parkash & Ors.
Trial Judge as to how electronic record has to be proved. The decision reported as 2003 IV AD (Cr.) 205 State Vs. Md.Afzal & Ors., which was delivered in the month of October, 2003 clarified the law by explaining Section 65B of the Evidence Act as to how electronic record has to be proved.
Inspite thereof, certain sheets of paper, styled as computer generated call detail printouts were permitted to be exhibited on the statement of Insp.Neeraj Kumar that he went to the company and obtained the same. Neither a certification from a responsible officer of the company having control over the computer or authorized to generate a print out from the computer was proved nor was anybody from the company examined to state that the computer generated sheets were generated through the computers storing the information and the information generated was stored in the ordinary course of business of the service provider.
We can not look to the computer generated sheets Ex.PW12/B for the reason the same have not been proved to be electronic record CBI No.47/08 Page No.15 of 80 CBI Vs. Om Parkash & Ors.
generated on sheets.
17. Thus, since no witness or document has evinced that the copy of application, Ex.PW11/A is the copy of electronic record preserved, generated and certified in accordance with provisions of Section 65B of Evidence Act, the court has no other option but to discard it having been not proved in accordance with law.
18. The FIR, Ex.PW14/A in this case was registered on 27.08.04 itself i.e within two years of making of application, Ex.PW11/A, which is dated 07.10.02. Then why the CBI could not collect and produce the original application bearing original photographs and signatures of the applicant thereon, which CBI No.47/08 Page No.16 of 80 CBI Vs. Om Parkash & Ors.
could have made their comparison possible to some extent with the impression of photo and signatures appearing on the copy of original passport enclosed with it. There is no explanation for not bringing on record the original application dated 07.10.02 and there is nothing on record that the original was either weeded out by the RPO, New Delhi or for some other plausible reason its production was not possible. Not only this, the prosecution was required to prove the application of Geeta Devi Kapoor, vide which she was issued the original passport on 20.12.2000, so that the photographs and signatures thereon could be compared with those affixed on application for issuance of first additional passport booklet dated 18.10.02. There is nothing on record to explain the reason for such non production of application for issuance of passport dated 20.12.2000 in the name of Geeta CBI No.47/08 Page No.17 of 80 CBI Vs. Om Parkash & Ors.
Devi Kapoor. Looking to the fact that the investigating agency had sought to rely on difference in photographs and signatures of the applicant Geeta Devi Kapoor on both the applications, they were required to be seized and produced in original before the court.
19. Even if I proceed further into the matter presuming the admissibility of Ex.PW11/A, the impressions of the photographs of the applicant which appear at the top right hand corner of page nos.2 & 3, are totally dark and, therefore, no one can figure out any image therein. Under such circumstances, I fail to fathom as to on what basis the IO had conducted investigation presuming that the photographs of the applicant on this application did not match with her photograph on application CBI No.47/08 Page No.18 of 80 CBI Vs. Om Parkash & Ors.
for issuance of original passport, of which even the copy is not brought on record. Then under such circumstances how could IO compare the photographs, is not clear at all.
20. The ld.Public Prosecutor has submitted that even if the passport application pertaining to original passport of Smt.Geeta Devi Kapoor is not available, the impressions of her photograph and signature are available at point A2 on page no. 7 of Ex.PW11/A, which is the copy of her original passport dated 20.12.2000 which can be compared with the photograph and signature available on photocopy of the additional passport in the same name bearing no.E3064184 dated 18.10.02, which was seized by CBI from M/s MAG Travels Pvt Ltd and already marked Ex.PW14/G. Ex.PW14/G is part of the Ex.PW14/F CBI No.47/08 Page No.19 of 80 CBI Vs. Om Parkash & Ors.
marked as such by IO of the case Insp.Rajiv Wahi, who deposed that during investigation he had collected that file from Sh.R K Aggarwal, DSP, CBI, who was conducting investigation of RC3A/2004/SICII, who had recovered it during the search from the premises of M/s MAG Travels Pvt Ltd, vide search list, Ex.PW14/H. No witness has been examined who could say that he had seen the original of Ex.PW14/G. Thus, Ex.PW14/G does not have any probative value. Even if we presume the admissibility of photocopy, Ex.PW14/G, the comparison of impressions of photograph and signatures available on page no. 7 of Ex.PW11/A and Ex.PW14/G does not lead the court to the conclusion as desired by the prosecution.
21. It would also be pertinent here to note that husband's CBI No.47/08 Page No.20 of 80 CBI Vs. Om Parkash & Ors.
name of Geeta Devi Kapoor, as per Ex.PW11/A and Ex.PW14/G, is Rajender Kumar Kapoor with address as H.No. 87C, Gali No.4, Krishna Nagar, Sarojini Nagar, New Delhi. A passport was also issued in the name of Rajender Kumar Kapoor simultaneously with Geeta Devi Kapoor as both these names are mentioned in the passport delivery register at sl.nos. 28 & 29, the copy of which is Ex.PW1/C(D9). A copy of passport no.E3064185 of Rajender Kumar Kapoor dated 18.10.12 is placed at page no.9 and a copy of passport no.E3064453 dated 22.10.02 of Rahul Kapoor (Baby) with his date of birth as 24.03.02 and parentage as Rajender Kumar Kapoor and Geeta Devi Kapoor, is placed at page no.5 of Ex.PW14/G just below the copy of passport of Geeta Devi Kapoor. As per statement of IO the same were seized by Sh.R CBI No.47/08 Page No.21 of 80 CBI Vs. Om Parkash & Ors.
K Aggarwal, DSP of CBI during search from the office premises of M/s MAG Travels Pvt Ltd during investigation of case RC No. 3A/2004/SICII. The file containing all these recovered documents is Ex.PW14/F (D11).
22. PW10/Col.M N Madan, who had worked as Administrative Officer in the Headquarter of M/s Delhi Express Travels Pvt Ltd and M/s Desk Travel Pvt Ltd., has proved bill no. 70377 dated 29.11.02 (Ex.PW10/B) issued by M/s Desk Travel Pvt Ltd vide which three air tickets were issued in the names of Mrs.Geeta Devi Kapoor, Mr.R K Kappoor and Rahul Kapoor and deposed that these air tickets were issued for sector DELHI DXBFRADXBDL, on request of M/s MAG Travels Pvt Ltd. He also proved invoice of M/s Dex Travels Pvt Ltd. as Ex.PW10/B in CBI No.47/08 Page No.22 of 80 CBI Vs. Om Parkash & Ors.
respect of the same tickets as Ex.PW10/C. The air tickets of aforesaid three persons have been proved by PW5/Sanjay Suri as Ex.PW5/C10 to C12.
23. The residential address on the copies of all the above three passports is mentioned as 87C, Gali No.4, Krishna Nagar, Sarojini Nagar, New Delhi. The same address is mentioned in the copy of original passport of Geeta Devi Kapoor, which was annexed with application for issuance of additional passport booklet. But the CBI has not examined any witness to the effect that either the address was wrong or no such persons ever resided at the given address. During his crossexamination, IO of the case said "I do not know if any of these persons had been arrested." He also said, "since I did not investigate about the CBI No.47/08 Page No.23 of 80 CBI Vs. Om Parkash & Ors.
passport issued in the names of Rajender Kumar Kapoor and Rahul Kapoor, therefore, I can not say whether their passports were genuinely issued or not." The investigation is silent on this crucial aspect which was essential to find out as to whether any lady in the name of Geeta Devi Kapoor wife of Rajender Kumar Kapoor resembling to the photographs affixed on the passports in question, ever existed at the given address. Thus, for want of sufficient evidence on record, the court is unable to record any finding as to whether lady Geeta Devi Kapoor, in whose name the passport no.B5081385 dated 20.12.2000 and additional passport no.E3064184 dated 18.10.02 were issued are the same or different persons.
24. If we look at the role of individual accused persons, CBI No.47/08 Page No.24 of 80 CBI Vs. Om Parkash & Ors.
as against accused/Om Parkash (A1), it is alleged that he was working as PRO in the office of RPO, New Delhi and as such authorized to issue passports and when the passport file no.T007726 dated 07.10.02 (Ex.PW11/A=Mark PW1/A) was put up before him by accused/Purshottam Lal (A2) for obtaining the delivery date of the passport by writing and signing 'ADDLBOOKLET/500/" at point 'C' on page no.2 of the file, he gave the passport delivery date as 18.10.02 by writing and signing at point 'B' on page no.3 of the passport file and also granted the passport on 07.10.02 itself as is apparent from point 'Y' at page no.6 of the said file, whereas by that date the file was not processed through various stages.
25. The file Ex.PW11/A=Mark PW1/A shows the remark CBI No.47/08 Page No.25 of 80 CBI Vs. Om Parkash & Ors.
of giving the date of 18.10.02 at page no.3 of the file wherein accused/Om Parkash (A1) signed with date as 07.10.02. At point Z on page no.6 signature of accused/Om Parkash (A1) with date as 18.10.02 are appearing above which there are recommendations of dealing assistant at point Z1 at page no.6 with signatures at point Z2 with date as 07.10.02. Accused/Om Parkash (A1) had passed grant order by signing at point Y with date as 07.10.02 on page no.6. Another signature of accused/Om Parkash (A1) is available at point Z on page no.6 of the same file below the seal, the impression of which is not clearly visible and the number of passport is mentioned as E3064184 at point Z4. The signature at point Z denotes the date of signing the passport by accused/Om Parkash (A1). PW11/I M Sabharwal, during his crossexamination by ld.Public CBI No.47/08 Page No.26 of 80 CBI Vs. Om Parkash & Ors.
Prosecutor, has identified the signatures of Om Parkash (A1) at points 'Y' and 'Z' on page no.6 in token of having issued grant orders and signing the passport. As per Ex.PW8/A2, which is the printout of the work done in the RPO, New Delhi in connection with file no.T7726, HIT was cleared by using log in ID of accused/Ram Chander (A3) on 18.10.02 whereas grant order was already passed by accused/Om Parkash (A1), on 07.10.02.
26. Thus, it has been submitted by ld.Public Prosecutor that since the grant order had preceded the HIT checking, therefore, it means that accused/Om Parkash was in connivance with his coaccused persons for getting issued the additional passport booklet in the name of Geeta Devi Kapoor. CBI No.47/08 Page No.27 of 80
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27. PW2/Brij Mohan has deposed that he was working as Assistant in the office of RPO, New Delhi and his duty was to issue cash receipts and collect cash from other counters and accused/Om Parkash (A1) was working as PIA (Passport Issuing Authority) who used to order for grant/issue of the passport and thereafter he (witness) used to receive the passport fee deposited by the applicant or any other person on his/her behalf.
28. The passport file, Ex.PW11/A=Mark PW1/A bears a noting at page no.2 at point C "ADDLBOOKLET/500/" with initials and date as 07.10.02 which has been identified by PW12/S P Kothari as that of accused/Purshottam Lal (A2). CBI No.47/08 Page No.28 of 80
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PW12 has deposed that it reflects that accused/Purshottam Lal (A2) had received the application and after receiving the passport application form, it was sent to accused/Om Parkash, PIA, who vide his endorsement at point B at page no.3 of Ex.PW11/A gave the promise date as 18.10.02. He also identified the writing and signature of accused/Om Parkash at point B.
29. There is nothing unusual to give a delivery date by the PIA, as when the file was put up to him for orders for deposit of fee of Rs.500/ at point C at page no.2 of Ex.PW11/A, the next stage was to pass order for the same and also give a promise date for delivery of the passport which has been given at point B on page no.3 of Ex.PW11/A by accused/Om Parkash CBI No.47/08 Page No.29 of 80 CBI Vs. Om Parkash & Ors.
(A1) being PIA.
30. The ld.Public Prosecutor has strenuously argued that at page no.6 of file, Ex.PW11/A, the passport number of the additional passport booklet i.e E3064184 has been mentioned at point Z4 on 07.10.02 itself whereas the booklet was issued only on 18.10.02, which show that the accused public servants had generated the passport number of additional passport booklet on 07.10.02 itself i.e before HIT was cleared by HIT Section. In fact, the initial appearing at point Z2 with date as 07.10.02 is just below the noting of accused/Purshottam Lal (A2) appearing at point Z1, so point Z2 is part of point Z1 and not of Z4 where the passport number has been mentioned. The passport number is generated by the computer system only CBI No.47/08 Page No.30 of 80 CBI Vs. Om Parkash & Ors.
when the HIT is cleared. So no passport number could be available to anyone prior to 18.10.02, when the HIT was cleared as per Ex.PW8/A2. As per Ex.PW8/A2, passport number was allotted by Sh.S K Sehgal (P380) written by Standard Trading Company and signed by P201 (i.e Om Parkash) on 18.10.02. This has been got confirmed by ld.Public Prosecutor during crossexamination of PW11/I M Sabharwal.
31. Thus, there is nothing unusual if the promise date has been given by the PIA before HIT was clear because giving a promise date does not mean that everything is clear in the file. The requirement of giving promise date i.e the date for delivery of a prepared passport, arises as soon as the application comes at the counter. When the counter clerk puts up the same to the CBI No.47/08 Page No.31 of 80 CBI Vs. Om Parkash & Ors.
PIA, the order is made by him for deposit of requisite fee and a date is given, on which day, the applicant is required to collect his passport.
32. The next allegation against accused/Om Parkash (A1) is that he did not ensure that the application for additional passport booklet was submitted with the letter mentioning the reasons for which the additional passport booklet was required by the applicant.
33. Ld.Public Prosecutor has drawn attention of the court towards the testimony of PW12/S P Kothari. During his examinationinchief, he stated that the file Ex.PW11/A does not have any request letter for issuance of additional passport CBI No.47/08 Page No.32 of 80 CBI Vs. Om Parkash & Ors.
booklet from the applicant. Although, nothing was said by PW12 in his examinationinchief about the fact that whether such a request letter was essential while applying for an additional passport booklet but during his crossexamination by ld.counsel for accused/Purshottam Lal (A2) on 16.01.02 he said, "it is correct that in case of issuing of tatkal passport, there is a need of application for request and as per my knowledge this is not a case of issuing a tatkal additional booklet, therefore, no separate application is required." But during his cross examination by ld.counsel for accused/Om Parkash (A1) on 20.04.12, when it was specifically asked from him, he stated that it was mandatory for the person applying for additional passport booklet to give a request letter along with the form for issuance of additional passport booklet. He further stated that he has no CBI No.47/08 Page No.33 of 80 CBI Vs. Om Parkash & Ors.
knowledge about the written instructions or circulars making it mandatory to give such a written request. A specific suggestion was put to him by ld.defence counsel that he had no such knowledge about the guidelines or circulars regarding obtaining a written request, despite his long career in RPO Office of 33 years, because there was no circular/instructions/rules in the RPO office providing that such a written request will also be taken along with the application form. To this, he has replied that "I can not comment upon this because as a matter of practice we have been doing this since long."
34. Thus, from the testimony of PW12/S P Kothari, it has come on record that as a matter of practice, he found it mandatory that the request letter should also accompany the CBI No.47/08 Page No.34 of 80 CBI Vs. Om Parkash & Ors.
application form for issuance of additional passport booklet. Since how long this practice was prevalent is not available on the record. It is not the case that there was some written guideline/instructions to PIAs for obtaining written requests along with application for miscellaneous services. PW12/S P Kothari, on his promotion, as Superintendent had joined the RPO Office, New Delhi in December, 2003 and, therefore, as per his testimony, this practice of obtaining the request letter along with application form for additional passport book, can relate back maximum upto December, 2003, whereas in this case additional passport booklet was issued in October, 2002. Moreover, the testimony of PWS P Kothari is in conflict with the testimony of PW2/Brij Mohan, who has throughout worked in the office of RPO, New Delhi. He has deposed that in the year 2002, he was CBI No.47/08 Page No.35 of 80 CBI Vs. Om Parkash & Ors.
working as Assistant in RPO, New Delhi and said that the 'request letter is also not there moving of which was not mandatory at that time and it is also not mandatory at present.' He was got declared hostile by the prosecution and was cross examined. During his crossexamination by ld.Public Prosecutor, he deposed "it is incorrect to suggest that filing of request letter along with application form for additional passport booklet was compulsory."
35. The prosecution has not proved any circular/instructions of passport office, whereby it is made mandatory that the application for issuance of additional passport booklet should also be accompanied by a request letter from the applicant narrating the reasons due to which the CBI No.47/08 Page No.36 of 80 CBI Vs. Om Parkash & Ors.
application for additional passport booklet had been made.
36. Accused/Om Parkash (A1) had got examined one witness, who is ahlmad of the court as DW1, who produced the record of CC No.24/09 pending in this court. A copy of document already Ex.PW6/DB in that case, has been exhibited as Ex.DW1/A which is having a heading "Procedure for Valid Visa Booklet Cases." This document is the document of CBI which has been filed by CBI in another case but not in this case. In the body of the document, the procedure for grant of additional passport booklet is given but nowhere it prescribes that a request letter is also to be given by the applicant along with the application for additional passport booklet. In this respect, I am in agreement with the submissions of ld.defence CBI No.47/08 Page No.37 of 80 CBI Vs. Om Parkash & Ors.
counsel that the business of the Government, more particularly such an important business of issuing passports, is not run without some written instructions/rules/guidelines. Therefore, in absence of any written guidelines, the court can not convict any one merely on the basis of opinion of an official of passport office, which is not unanimous. The testimony of PW2/Brij Mohan and PW12/S P Kothari is conflicting on this issue as already seen (supra). The ld.defense counsel for accused has also drawn attention of the court to the fact that as passport issuing authority the load of work on accused was very high as PW12/S P Kothari has stated that on an average the passport office deals about 1000 applications for ordinary passport and 100150 files for issuance of additional passport booklets and IO has also admitted about heavy work load in RPO, Delhi. He has CBI No.47/08 Page No.38 of 80 CBI Vs. Om Parkash & Ors.
thus submitted that the lack of time with PIA could lead to some mistake which should not be taken as intentional act.
37. In view of the evidence on record, as discussed, the court finds that prosecution has failed to prove, beyond a reasonable doubt, that obtaining a request letter from the applicant with the application for additional passport booklet, was mandatory. Admittedly, there was no adverse remark from any section on the passport file, Ex.PW11/A=Mark PW1/A, which could supply any reason for accused/Om Parkash to withhold issuance of additional passport booklet to the applicant. Therefore, the court finds no adequate reason for holding accused/Om Parkash (A1) guilty of any of the offences charged against him.
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38. As against accused/Purshottam Lal (A2), it is alleged that while working as counter clerk/dealing assistant, he neither mentioned the old passport number nor signed below the stamp impression "cancelled & returned" in token of having cancelled the original passport and had recommended for issuance of additional passport booklet on 08.10.02 as if the file had already been processed through various other stages like scanning, detail entry, HIT etc.
39. In this respect, the prosecution has examined PW2/Brij Mohan, who had identified the handwriting and signatures of accused/Purshottam Lal (A2) on Ex.PW11/A, having worked with him. He deposed that "the counter clerk, CBI No.47/08 Page No.40 of 80 CBI Vs. Om Parkash & Ors.
after receiving the application form and checking the original passport, would return the passport to the applicant after putting the stamp 'cancelled' on the passport as well as on the application form. The counter clerk is not supposed to sign under the stamp 'cancelled and original returned' and only the signatures of applicant are taken."
40. In this case stamp appears on page no.3 of the application (Ex.PW11/A=Mark PW1/A) showing 'cancelled and returned old PPT No......' with space for signatures of counter clerk and then 'received' with space for signatures of the applicant at point Y. The signatures of 'Geeta Devi' are appearing at the space which is meant for signatures of applicant but the space meant for 'old passport number' and the CBI No.47/08 Page No.41 of 80 CBI Vs. Om Parkash & Ors.
'signatures of the counter clerk' is unfilled/unsigned. PW2/Brij Mohan was got declared hostile by the ld.Public Prosecutor and was crossexamined with the permission of the court.
41. During his crossexamination by ld.Public Prosecutor, PW2/Brij Mohan stated that the counter clerk should sign at the place meant for signatures of counter clerk below the old passport number as mentioned in the stamp at point 'Y' and that no signatures are there at point Y. He stated, "However, the signatures of the applicant are there at point Y in token of receiving the old passport. The counter clerk has not mentioned the old passport number and has also not signed. I had stated in my statement to CBI, Ex.PW2/X that the counter clerk had not signed in token of having cancelled and returned the old CBI No.47/08 Page No.42 of 80 CBI Vs. Om Parkash & Ors.
passport. I stated under confusion in my examination in chief that the counter clerk is not supposed to sign under the stamp cancelled and original returned." When PW12/S P Kothari was crossexamined by ld.counsel for accused/Purshottam Lal (A2), he deposed that 'it is correct that after getting the file processed by the counter clerk, the applicant who had applied for additional passport booklet takes back the file from him as per the rules. It is also correct that once the applicant has collected back the file from the counter clerk, counter clerk has no control over the applicant and his file.' He further deposed "it is correct that counter clerk had no instrument to verify whether the copy of the passport which was enclosed at the time of filing application for issuance of additional passport booklet was the genuine or forged one. Vol., however, the particulars of the previous CBI No.47/08 Page No.43 of 80 CBI Vs. Om Parkash & Ors.
passport were available on the computer system which could be seen by the counter clerk. It is correct that in the computer system which was available to the counter clerk, did not contain the photograph and signatures of the applicant." He deposed after seeing the file, Ex.PW11/A at page no.3 that at point Y encircled in RED there is a stamp denoting cancelled and returned old passport number and there under signatures of the counter clerk .... which is blank. There is also another stamp received old passport and thereunder signatures of applicant. Entire material at point Y used to be in single stamp. In this signature of applicant Geeta Devi Kapoor are shown. It is correct that basic purpose of this stamp at point Y was only to procure signatures of the applicant so that in future the applicant shall not dispute that the passport office has not returned the CBI No.47/08 Page No.44 of 80 CBI Vs. Om Parkash & Ors.
passport to the said applicant. It was not mandatory to fill the passport number and below the same it was not mandatory that the counter clerk should sign at point Y. It is also correct that since old passport number is mentioned in column no.4 of the application for miscellaneous services, Ex.PW11/A (Page 4) and the copy of the initial three pages of old passport is also annexed with the application form, therefore, there was no need of repeating the old passport at point Y."
42. PW12/S P Kothari was not declared hostile by the prosecution and, therefore, the court has no other option but to believe his testimony to the extent that writing of passport number at point Y and making signatures by the counter clerk thereunder at page no.3 of Ex.PW11/A was not mandatory, CBI No.47/08 Page No.45 of 80 CBI Vs. Om Parkash & Ors.
more particularly in view of the position explained by him that the old passport number with its date is mentioned at page no.4 of the application form, Ex.PW11/A.
43. Thus, the prosecution has failed to bring on record any material to prove the allegation that accused/Purshottam Lal (A2) had deliberately not filled the old passport number with his signatures at page no.3 of Ex.PW11/A to favour the applicant as he had not done any unusual act to create a circumstance against him that he had committed any lapse to favour the applicant, who had applied for the issuance of additional passport booklet. As regards the allegations that he had recommended for issuance of additional passport booklet before the file got clearance from other sections like scanning, detail CBI No.47/08 Page No.46 of 80 CBI Vs. Om Parkash & Ors.
entry and HIT, no evidence has come on record that the recommendation by dealing clerk should come after the file has passed through and got clearance from all the sections. PW8/Ajay Gautam, while explaining the HIT checking has deposed that all the applications registered on a particular day go for HIT check on the basis of applicant's name, father's name and date of birth. He said, "The soundex program itself checks all the records available in the computer server at RPO, Delhi regarding issuance/apply of earlier passport/additional passport. If any matching entry is found in the computer then the computer would mark it as suspected with host entry (details already in the computer if any) otherwise the computer would mark it as clear. The suspected application can not be processed further without marking as cleared by HIT Section." Since the passport number CBI No.47/08 Page No.47 of 80 CBI Vs. Om Parkash & Ors.
is generated only when the file has been cleared by all the sections including HIT, recommendation by accused/Purshottam Lal (A2) before clearance of file by various sections had no value. Even PW12/S P Kothari could only say "most probably F/O is written when passport application form has undergone all necessary checks i.e scanning, detail entry, HIT require." But he also could not say with certainty that such a recommendation could be made by dealing assistant/counter clerk only after all the necessary checks were carried out.
44. As regards accused/Ram Chander (A3), the allegation is that he had cleared the HIT despite the fact that the photograph and signatures of the applicant of Ex.PW11/A were different from those available on her previous passport CBI No.47/08 Page No.48 of 80 CBI Vs. Om Parkash & Ors.
no.B5081385 dated 20.12.2000 in the name of Geeta Devi Kapoor.
45. As per Ex.PW8/A2 which is 'who done it report', it was accused/Ram Chander (A3), who had HIT checked the file no.T7726 for additional passport booklet on 18.10.02 and as per the statement of PW8/Ajay Gautam, the facility of viewing the photograph and signatures with other details of the applicant of previous application/passport, if issued to the applicant, was available with the HIT Section. He deposed that HIT checking without photograph had started in the year 2000 and HIT checking with facility to see photographs had started in July, 2002 in one PC. The processing report, Ex.PW8/A2 in respect of the present case also carries a certificate u/s 65B of CBI No.47/08 Page No.49 of 80 CBI Vs. Om Parkash & Ors.
Evidence Act, on the basis of which PW8/Ajay Gautam had deposed that HIT checking was done by accused/Ram Chander (A3) with his log in ID P495.
46. However, the prosecution has not produced any print out of the data which was made available to the HIT Section in respect of the original passport already issued in the name of Geeta Devi Kapoor in December, 2000 and the file of the original passport of December, 2000 in the name of Geeta Devi Kapoor has also not been produced. As already observed, the photographs of Geeta Devi Kapoor are not clear on the scanned copy of the file/application for additional passport booklet (Ex.PW11/A) which was issued on 18.10.02 and, therefore, the prosecution has failed to establish as to whether the photograph CBI No.47/08 Page No.50 of 80 CBI Vs. Om Parkash & Ors.
and signatures appearing in the file for issuance of original passport dated 20.12.2000 were different from those available on the file for issuance of the first additional passport booklet, dated 18.10.02 (Ex.PW11/A=Mark PW1/A).
47. Under such circumstances, it can not be concluded that accused/Ram Chander (A3) had cleared the HIT of file Ex.PW11/A despite the fact that the photographs and the signatures of the applicant on application form for issuance of additional passport booklet dated 18.10.02 were different from those available on the file containing application for issuance of original passport, which was issued on 20.12.2000 in the name of Geeta Devi Kapoor.
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48. The next important question is whether it was accused/Anil Dhawan (A5) who had received the delivery of passport booklet no.E3064184 issued on 18.10.02 in the name of Geeta Devi Kapoor by signing as such and if so to what consequence?
49. To prove this averment the prosecution has brought evidence of expert as well as of the person acquainted with the handwriting of accused/Anil Dhawan (A5).
50. The handwriting expert/Dr.B A Vaid, who is Government Examiner of Questioned Documents (GEQD), has been examined as PW9. He had examined the questioned document i.e Q27 & Q28 on Ex.PW1/C (D9), the original of CBI No.47/08 Page No.52 of 80 CBI Vs. Om Parkash & Ors.
which was on page no.53 of the passport delivery register from 04.09.02 to 02.01.03 in another judicial file bearing CC No.25/09 titled as CBI Vs. Om Parkash & others, pending in this court. To compare the handwriting on questioned document at Q27 & Q28, he has taken the standard documents which are stated to be admitted genuine writing purported to be that of accused/Anil Dhawan (A5) marked as Ex.PW9/A1 to A14, the originals of which are available in CC No.23/09 (as D14 to D16) titled as CBI Vs. Bibianus Toppo & Ors. pending in this court. The mode of proof of these documents was objected to by the accused when they were exhibited by GEQD. I find that the writings at the documents, the copies of which are marked as Ex.PW9/A1 to A14, have neither been admitted by accused/Anil Dhawan nor any competent witness has proved that the same have been CBI No.47/08 Page No.53 of 80 CBI Vs. Om Parkash & Ors.
written by him. They have been exhibited by GEQD only who was not competent to certify that these handwritings are of accused/Anil Dhawan (A5).
51. PW1/G S Walia, employer of accused/Anil Dhawan (A5), from whom the documents Ex.PW9/A1 to A14 appear to have been seized, was not asked to identify the same, who appeared to be the only witness having competence to identity his own records and the writings thereon. Accordingly I find that the documents Ex.PW9/A1 to A14 which are stated to be the genuine writings of accused/Anil Dhawan (A5) are not proved in accordance with law and hence can not form the basis for opinion of the expert about the writings on questioned document i.e. Ex.PW1/C at Q27 & Q28.
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52. The other basis for giving opinion on the questioned documents was the specimen handwritings of accused/Anil Dhawan (A5) from S1 to S34, which have been marked as Ex.PW1/B1 to B17 and Ex.PW9/B1 to B17.
53. In this respect, PW1/G S Walia has been examined, who has proved that the specimen handwriting of accused/Anil Dhawan, Ex.PW1/B1 to B17 bear his signatures and the same specimen handwriting was taken in his presence. The other specimen handwritings of accused/Anil Dhawan which are Ex.PW9/B1 to B17 have been proved by PW12/S P Kothari, who has deposed that the same bear his signatures at point A on each page which were taken in his presence on S18 to S34 CBI No.47/08 Page No.55 of 80 CBI Vs. Om Parkash & Ors.
already Ex.PW9/B1 to B17.
54. The question has arisen as to whether the specimen handwritings of accused/Anil Dhawan (A5) obtained by CBI during the investigation on different dates in year 2004 & 2005 are admissible in evidence or not. Ld.counsel for accused/Anil Dhawan (A5) has submitted that the same are not admissible piece of evidence in view of the judgment of Sapan Haldar Vs. State, 191 (2012) DLT 225 (FB) (decided on 25.05.12). Ld.Public Prosecutor for CBI has submitted that the judgment of Full Bench of Hon'ble Delhi High Court in Sapan Haldar's case does not hold good in view of the judgment of Hon'ble Supreme Court in Rabindra Kumar Pal @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436 (decided on 21.01.10). Ld.Public CBI No.47/08 Page No.56 of 80 CBI Vs. Om Parkash & Ors.
Prosecutor has submitted that the specimen handwritings of accused/Anil Dhawan (A5), obtained during the investigation in the year 2004 and 2005 can not be discarded and they are the legal basis for forming an opinion by the handwriting expert (GEQD) in respect of the questioned writings at points Q27 & Q28 (Ex.PW1/C).
55. Ld.Public Prosecutor for CBI has relied upon the observations of Hon'ble Supreme Court in Dara Singh's case (supra), wherein the Hon'ble Supreme Court by referring and quoting the judgment of 11 Judges Bench of Hon'ble Supreme Court in State of Bombay Vs. Kathi Kalu Oghad and Others, (1962) 3 SCR 10, Delhi, held as under: CBI No.47/08 Page No.57 of 80 CBI Vs. Om Parkash & Ors.
In view of the above principles, the procedure adopted by the investigating agency, analyzed and approved by the trial court and confirmed by the High Court, can not be faulted with. In view of oral report of Rolia Soren, PW4 which was reduced into writing, the evidence of PW23, two letters dated 01.02.02 and 02.02.02 addressed by Mahendra Hembram (A3) to the trial Judge facing his guilt coupled with the other material, we are unable to accept the argument of Mr.Ratnakar Dash, learned senior counsel for Mahendra Hembram (A3) and we confirm the conclusion arrived by the High Court. (Para 35).
56. Ld.counsel for accused/Anil Dhawan (A5) has relied upon a recent rulling of Full Bench of Hon'ble High Court of Delhi cited as Sapan Haldar Vs. State 191 (2012) DLT 225 (FB) (decided on 25.05.2012) wherein taking note of judgment of another Full Bench in Bhupinder Singh Vs. State, 2011 LE(Del) 973 decided on 30.09.11, the Hon'ble High Court had CBI No.47/08 Page No.58 of 80 CBI Vs. Om Parkash & Ors.
answered the reference. The observations of Hon'ble High Court in para 9 of the Judgment in Sapan Haldar's case (supra) show that the Full Bench was well aware of the implications of the Judgment of Kathi Kalu Oghad's case (supra), so far as, it relates to handwriting and signatures obtained from an accused. Para 2 of Judgment in Sapan Haldar's case reads as under: "Deciding a reference made to it, vide opinion dated September, 30, 2011 in Crl.Appeal No. 1005/2008, 'Bhupinder Singh Vs. State', on the question : "Whether the sample finger prints given by the accused during investigation under Section 4 of the Identification of Prisoners Act, 1920 without prior permission of the Magistrate, under Section 5 of the Act will be admissible or not?"
a Full Bench of this Court overruled the view taken by Division Benches holding against the admissibility of such evidence but proceeded CBI No.47/08 Page No.59 of 80 CBI Vs. Om Parkash & Ors.
to decide the reference, as would be evident from a reading of paragraph 18 of the opinion dated September,30, 2011, as if the question referred to the Full bench embraced even a handwriting or a signature obtained from a person accused of an offence whilst in police custody".
57. After discussing the entire gamut of law on the issue the Hon'ble High Court laid down as under: "25 With respect to specimen handwritings obtained from an accused by the investigating officer, in the decisions reported as II (1994) CCR 531 (SC) = (1994) 5 SCC 152, Sukhwinder Singh & Ors. Vs. State of Punjab and VI (2003) SLT 137 = IV (2003) CCR 178 (SC0=AIR 2003 SC 4377, State of Haryana Vs. Jagbir Singh & Anr., the Supreme Court categorically held that said evidence was totally inadmissible in evidence.
26. CBI No.47/08 Page No.60 of 80 CBI Vs. Om Parkash & Ors.
27. Thus, with respect to a handwriting obtained from a person accused of having committed an offence or from any person during investigation, the law is entirely different visavis finger print impressions and a handwriting. With respect to handwriting neither can the investigating officer obtain a sample writing nor can even a Magistrate so direct. The Identification of Prisoners Act, 1920 is applicable only to measurements which include finger print impressions.
58. The Full Bench of Hon'ble High Court concluded:
31.We answer the reference as follows:
(i) Handwriting and signatures are not measurements as defined under Clause
(a) of Section 2 of the Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of the Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigating officer, during investigation, can not obtain a handwriting sample or a CBI No.47/08 Page No.61 of 80 CBI Vs. Om Parkash & Ors.
signature sample from a person accused of having committed an offence.
(ii) Prior to June 23, 2006, when Act No. 25 of 2005 was notified, inter alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures or handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra).
According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and/or signature for purposes of comparison.(emphasis added)
59. From above discussion, I hold that while the judgment of Full Bench of Hon'ble Delhi High Court has laid CBI No.47/08 Page No.62 of 80 CBI Vs. Om Parkash & Ors.
down the law in view of the question referred to their Lordships and hence essentially a ratio decidendi of the judgment, the ruling of Hon'ble Supreme Court in Dara Singh's case (supra) appears to be an observation which does not directly and substantially trench upon the issue as to whether the specimen handwritings and signatures obtained by IO from the accused during investigation of the case, without directions from the court, were relevant and admissible in evidence.
60. Hence under such a position of law, as discussed above, I hold that the specimen handwritings of accused/Anil Dhawan (A5), Ex.PW9/B1 to B17 and Ex.PW1/B1 to B17 which were obtained by CBI during investigation in 2004 and 2005 could not form the basis for giving opinion on the CBI No.47/08 Page No.63 of 80 CBI Vs. Om Parkash & Ors.
questioned handwriting by the GEQD, hence his opinion, so far as it relates to the alleged handwriting of accused/Anil Dhawan (A5) on Q27 and Q28 on Ex.PW1/C, is not admissible in evidence.
61. Now, the question is whether on the basis of testimony of Sh.Gurinder Singh Walia (PW1), who is stated to be acquainted with handwriting of accused/Anil Dhawan (A5), can it be said that the passport delivery register at the page which is dated 18.09.02 (D9) bears the handwriting and signature of accused Anil Dhawan (A5) in the name of Geeta Devi Kapoor. At Sl.No.28 on D9 (Ex.PW1/C), the name is mentioned as 'Geeta Devi Kapoor' (Q27), file no.'T7726' passport no.'E3064184' and signature as 'Geeta Devi' (Q28). CBI No.47/08 Page No.64 of 80
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62. PW1/G S Walia was examined to identify this handwriting, who deposed that accused/Anil Dhawan (A5) was his employee, when he was running a company in the name of M/s Kanu Travels and after closure of that company he opened a new firm, namely, M/s Jas Air in which accused/Anil Dhawan (A5) was taken into employment, who used to deliver their tickets to the clients, collect payments and used to go to the Embassies and passport office for getting VISA and passports for the clients which were part of his employment and he also used to fill passport and VISA forms.
63. He deposed that he could identify the handwriting of accused/Anil Dhawan as he had worked with him for a very long CBI No.47/08 Page No.65 of 80 CBI Vs. Om Parkash & Ors.
time. He identified that the passport application form, page nos. 2 to 6 (Ex.PW11/A=Mark PW1/A=D7) was filled in the handwriting of accused/Anil Dhawan but he could not tell as to who had signed as Geeta Devi at points X on page no.2 & 6 of the application form and he also identified 'self attested writing' on page 7, 8 & 9 of the scanned passport file but he was not sure as to who had signed as Geeta Devi Kapoor below 'self attested.' He identified that the entry at sl.no.28 encircled at Q27 & Q28 are in the handwriting of accused/Anil Dhawan (A5). At Q27 name of Geeta Devi Kapoor is mentioned and at Q28 signatures is made as 'Geeta Devi' which is Ex.PW1/C (D9).
64. He was declared hostile by the prosecution and was CBI No.47/08 Page No.66 of 80 CBI Vs. Om Parkash & Ors.
crossexamined on the same day. During his crossexamination he admitted that he had stated to CBI that application form was in the handwriting of accused/Anil Dhawan and even signatures were written by him and that the signatures of Geeta Devi Kapoor at points X on different pages of the passport file, marked as Mark PW1/A (Ex.PW11/A) had been made by accused/Anil Dhawan.
65. The testimony of PW1/G S Walia, so far as, it relates to the signatures of accused/Anil Dhawan in the name of Geeta Devi Kapoor at points X on Ex.PW11/A=Mark PW1/A is fraught with the contradictions because in the examination in chief he could not identify the signatures as 'Geeta Devi Kapoor' at point X on Ex.PW11/A=Mark PW1/A, whereas soon thereafter in his CBI No.47/08 Page No.67 of 80 CBI Vs. Om Parkash & Ors.
crossexamination by ld.Public Prosecutor he identified the same as having been written by accused/Anil Dhawan and agreed with the ld.Public Prosecutor that he had failed to identify the signatures made by accused/Anil Dhawan (A5) as Geeta Devi on Mark PW1/A due to lapse of time and under some confusion.
66. The court fails to understand as to what was the confusion to witness and how due to lapse of time he could not identify the signatures at various pages of Mark PW1/A in the name of 'Geeta Devi Kapoor', whereas he identified the same signatures in the name of Geeta Devi as having been made by accused Anil Dhawan, when so suggested by the ld.Public Prosecutor.
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67. From his two versions, it appears that PWGurinder Singh Walia himself was not very sure about the signatures made at points X on Mark PW1/A=Ex.PW11/A as having been made by accused/Anil Dhawan (A5) and, therefore, it would be unsafe to believe his testimony to this extent. Moreover, Mark PW1/A=Ex.PW11/A is not the original copy and, therefore, it may be difficult for the witness to correctly identify the signature or writing thereon. It has been observed by Hon'ble Punjab and Haryana High Court in Surjit Rai Vs. Prem Kumar Khera, (1995) 110 PLR 140 (P&H): "In my view, signatures can not be compared from the photocopy of the agreement because in these days of advance technology, signatures of a person can be lifted from one document and put on another document by super imposition."
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68. As regards the identification of handwriting of accused/Anil Dhawan at Q27 and Q28 on Ex.PW1/C (D9), the identification by the witness/G S Walia (PW1) is spontaneous and, therefore, it does not create much doubt in the mind of the court that name 'Geeta Devi Kapoor' (Q27) and signatures as 'Geeta Devi' (Q28) have been written by him.
69. However, it has been submitted by ld.counsel for accused/Anil Dhawan (A5) that statement of PW1/G S Walia can not be believed as he was the owner of the firm in which accused/Anil Dhawan was an employee and admittedly firm of PW1/G S Walia was providing assistance to the customers in getting the passport and VISA. He has also submitted that when CBI No.47/08 Page No.70 of 80 CBI Vs. Om Parkash & Ors.
initially the raid was conducted by CBI at the residence of PW1/G S Walia, number of incriminating documents were recovered from him, which included the foreign currencies {in pounds, euro and dollars (sl.no.18)}, 28 blank letter heads of different companies (sl.no.7) as mentioned in Ex.PW14/DA dated 29.05.12, which is the copy of search list. He has submitted that the CBI has deliberately screened the actual wrong doer, who was Sh.G S Walia, who has been made witness and his poor employee i.e accused/Anil Dhawan (A5) has been made accused in this case. Ld.defence counsel has submitted that for this reason PW1/G S Walia has deposed against accused/Anil Dhawan as desired by CBI and handwriting of Mr.Walia himself was not got compared with questioned writings.
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70. The ld.defence counsel for accused has pointed out that during crossexamination, Mr.Walia has deposed that his statement was recorded only by Sh.R K Aggarwal, DSP, CBI after a raid was conducted at his office and he did not make any statement to Insp.Rajiv Wahi i.e. IO of this case. He also deposed that his statement was not typed in his presence but stood by his statement which is Ex.PW1/X saying that it is the same statement which he made to IO. During his re examination by ld.Public Prosecutor for CBI on this point, he again said that he had only made statement to Sh.R K Aggarwal, DSP, CBI and not to other officers. When the witness has stood by his statement during his examinationinchief, there was no reason as to why he would depose falsely that he did not make CBI No.47/08 Page No.72 of 80 CBI Vs. Om Parkash & Ors.
any statement to Insp.Rajiv Wahi. It gives rise to a suspicion as to whether IO of this case had simply copied statement of this witness made by him to Sh.R K Aggarwal, DSP, CBI in some other case of passports scam. However, since the witness has stood by the contents of his statement, Ex.PW1/X, there appears no reason to disbelieve his testimony merely because he had not given that statement to Insp.Rajiv Wahi, IO of this case.
71. Although, there may be some force in the submissions of ld.counsel that CBI has not taken any action against Mr.G S Walia (PW1) for objectionable recoveries from his residence, but since a long time of more than 5 years had elapsed between the date of raid at his residence and his CBI No.47/08 Page No.73 of 80 CBI Vs. Om Parkash & Ors.
deposition before the court, therefore, there did not appear any reason as to why PW1/G S Walia will still speak against accused/Anil Dhawan, who had been employee at one point of time, when the apprehension of taking any action by CBI against him for alleged recoveries, must have vanished from his mind due to lapse of considerable time. When the firm of Mr.Walia was engaged in arranging passport and VISA to the customers and incriminating material such a foreign currencies and letter heads of various other companies were recovered by CBI from his residence, it causes a natural doubt that whether he himself was engaged in some illegal business such as human trafficking but the charge sheet lacks investigation on this aspect.
72. However, the available data i.e writing at Q27 & CBI No.47/08 Page No.74 of 80 CBI Vs. Om Parkash & Ors.
Q28 is so less that it creates a doubt whether it would have really been possible for Mr.Walia to identify with all certainly that it was in the handwriting of accused/Anil Dhawan (A5) particularly when he was shown the handwriting of accused after lapse of about five years. Thus, in my opinion, it would be unsafe to base conviction of accused solely on the testimony of PWG S Walia, which is not corroborated by any other evidence. I, therefore, find that the prosecution has failed to satisfactorily establish that it was accused/Anil Dhawan (A5), who had obtained delivery of passport dated 18.10.02 in the name of 'Geeta Devi Kapoor' by signing in her name as 'Geeta Devi' at Q28 on Ex.PW1/C.
73. Even if I assume that writing at points Q27 and Q28 CBI No.47/08 Page No.75 of 80 CBI Vs. Om Parkash & Ors.
on Ex.PW1/C is that of accused/Anil Dhawan (A5), the question would be as to what is the effect of this fact if taken as proved. The investigation is silent on the aspect as to which employee in RPO, New Delhi had delivered the passport no.E3064184 in the name of Geeta Devi Kapoor to accused/Anil Dhawan by obtaining his signatures as 'Geeta Devi.' The ld.Public Prosecutor has vehemently argued that receiving passport of Geeta Devi Kapoor by accused/Anil Dhawan without any authority from her, amounts to an offence of cheating and forgery u/s 420 and 468 of IPC. On the other hand, ld.counsel for accused has relied upon judgment of Hon'ble Supreme Court in Dr.Vimla Vs. The Delhi Administration, AIR 1963 SC 1572, wherein it was held that 'defraud' involves two elements 'deceit' and injury to the person deceived. It was observed: CBI No.47/08 Page No.76 of 80
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"15. Now let us apply the said principles to the facts of the present case. Certainly, Dr.Vimla was guilty of deceit, for though her name was Vimla, she signed in all the relevant papers as Nalini and made the insurance company believe that her name was Nalini, but the said deceit did not either secure to her advantage or cause any noneconomic loss or injury to the insurance company. The charge does not disclosure any such advantage or injury, nor is there any evidence to prove the same.
74. In the instant case the prosecution has failed to establish that the passport no.E3064184 dated 18.10.02 was issued with different photograph and signature than which were available on original passport issued in the name of Geeta Devi Kapoor in passport no.B5081385 dated 20.12.2000. Mrs.Geeta Devi Kapoor never made any complaint to any one that the said additional passport booklet did not reach to her after having CBI No.47/08 Page No.77 of 80 CBI Vs. Om Parkash & Ors.
been received from passport office. Rather, it has already come on record that she used the same passport for her journey to abroad along with her husband/R K Kapoor and son/Rahul Kapoor. The passport office had already received the requisite fee for issuance of additional passport booklet as is shown by a receipt at page no.1 of Ex.PW11/A.
75. Thus, there is no loss or gain to anyone on account of accused/Anil Dhawan having received the said passport from the office of RPO, New Delhi on 18.10.02 by signing as 'Geeta Devi' at point Q28 (Ex.PW1/C). In view of these facts, the court has reached to the conclusion that prosecution has failed to establish any charge against any of the accused persons. CBI No.47/08 Page No.78 of 80
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76. I accordingly hold that all the accused persons are entitled to the acquittal and they are accordingly acquitted of the offences charged against them.
77. As already discussed, the investigation of the case has been done in a sloppy manner. I would like to observe that the way the investigating officer has left out the vital facts from ambit of investigation such as the genuineness of Geeta Devi Kapoor, her husband R K Kapoor and son Rahul Kapoor and their address and did not collect the essential documents such as the files, vide which the original passport was issued in the name of Geeta Devi Kapoor on 20.12.2000 and additional passport booklet issued on 18.10.02, the print out of data which was available in HIT Section for verification by HIT checking CBI No.47/08 Page No.79 of 80 CBI Vs. Om Parkash & Ors.
official, etc., reflects on the image of CBI as a premier investigating agency of the country.
78. Let a copy of the judgment be sent to the Director, CBI for his information.
79. File be consigned to the record room.
Announced in the open (R P PANDEY)
Court on 29.09.12 SPL.JUDGE01 (PC ACT)
ROHINI COURT:DELHI
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